Kaur v Minister for Immigration [2010] FMCA 85 (12 February 2010)

Last Updated: 4 March 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION

[2010] FMCA 85

MIGRATION – Application to review decision of delegate – Student (Temporary) (Class TU) visa – request for information – no information provided in prescribed time – no power to extend time.

Migration Act 1958 (Cth), ss.54(3), 56, 66, 338(2), 359B(4), 494A(1), 494B, 494C(4), 494C(5)

Cao v Minister for Immigration and Citizenship [2009] FCA 586 M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247; (2006) 155 FCR 333 Minister for Immigration and Citizenship v Manaf [2009] FCA 963 Plaintiff S157 v Commonwealth (2003) 195 ALR 24 Swee Yen Tay v Migration Review Tribunal [2009] FCA 515 Swee Yen Tay v Migration Review Tribunal (No 2) [2009] FCA 591 SZBMF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1427; (2005) 147 FCR 485 Usman v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 966 Vishnumolakala v Minister for Immigration and Multicultural Affairs [2007] FCA 248 Vishnumolakala v Minister for Immigration and Multicultural Affairs (2006) FMCA 1209 Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 Xue v Minister for Immigration [2009] FMCA 421 Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151; (2007) 161 FCR 419

Applicant:

KARUNDEEP KAUR

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

BRG 357 of 2009

Judgment of:

Jarrett FM

Hearing date:

7 October 2009

Date of Last Submission:

30 October 2009

Delivered at:

Brisbane

Delivered on:

12 February 2010

REPRESENTATION

Solicitor for the Applicant:

Mr Sharma

Solicitors for the Applicant:

Sharma Lawyers

Counsel for the Respondent:

Ms Wheatley

Solicitors for the Respondent:

Clayton Utz

ORDERS

(1) The application for review filed on 29 May, 2009 be dismissed.
(2) The applicant pay the respondent’s costs fixed in the sum of six thousand dollars ($6,000.00).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

BRG 357 of 2009

KARUNDEEP KAUR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

1. By her application filed on 23 July, 2009 Ms Kaur seeks the issue of constitutional writs to quash a decision of the delegate of the Minister made on 6 May, 2009 to refuse to grant a Student (Temporary) (Class TU) visa to her. She wishes for her visa application to be re-determined according to law.
2. The Minister opposes the relief sought by Ms Kaur.
3. Ms Kaur relies upon three grounds to support her application, namely:
   1. The delegate of the respondent committed jurisdictional error in that she failed to comply with legal requirement to give required time to the applicant to respond to the issues/queries raised by her in her letter of 20 March 2009.

Particulars: The delegate failed to give 28 days to the applicant to provide her response to the issues raised in the delegate's letter of 20 March 2009 which was received by the applicant's agent on 4 May 2009.

2. The delegate committed jurisdictional error in that she did not comply with the principles of natural justice.

Particulars: The delegate refused to give extension of time to the applicant to respond to the issues raised by her in her letter of 20 March 2009.

100. The delegate committed jurisdictional error as she did not take all of the relevant documents and information provided by the applicant.

Particulars: Relevant documents and information as required under the migration legislation were provided with the application.

4. Ground (c) was added by leave at the hearing.

Background

5. Ms Kaur is a citizen of India, born on 1 July 1989. She applied for a Student (Temporary) (Class TU) Visa on 3 February. 2009 by completing an application for same online in India.
6. By the application, Ms Kaur authorised her education agent “to act and/or receive communication about this application on” her behalf.[1] The education agent so authorised is her lawyer in these proceedings, Mr Narendra Sharma. Specifically, the completed visa application contains the following questions and Ms Kaur’s answers:
   • Communicating with the education agent
   • We can communicate about this application more quickly using e-mail and/or fax.
   • Do you agree to this Department communicating with you via e-mail and/or fax?

Yes

If yes, enter e-mail address [e-mail]

7. Ms Kaur attached relevant documents to the online application and also e-mailed additional documents to the Department on 3 February, 2009.
8. On 20 March, 2009 the Delegate wrote, by way of e-mail, to Ms Kaur’s authorised education agent, Mr Sharma in the following terms:
   • Australian Government
   • Department of Immigration and Citizenship
   • 20 March 2009
   • TRN: EGNS2HGOQR
   • Applicant: KAUR, KARUNDEEP (01/07/1989,F)
   • To whom it may concern
   • To assist in the assessment of this application, please attach the documents listed below to the browser within 29 days of receiving this letter via email.
   • If any document is not in English, please provide translations.
   • If all documents can be submitted early, please notify me via email at [email address supplied] when you have uploaded them to the browser and your case may be actioned earlier.
   • Please do not email me the documents unless you are having difficulty uploading, or the browser limit for the application has been reached.
   • Documents required:
   • - Employment certificates for individual(s) providing financial support for the applicant.
   • - Wedding photos
   • Timeframe for Response
   • A full response should be made within 29 days of receiving this letter via email. If you cannot provide this information within the prescribed time frame you should contact this office immediately and explain why you are unable to do so. You may request an extension of time if necessary and consideration will be given to your request.
   • If all documents can be submitted early, please notify me via email and your case may be actioned earlier. If there has not been any response by that date, or if the response is unsatisfactory or incomplete without a sound reason, then this application may be decided on the basis of the information that is already available.
   • Difficulty in attaching documents to browser
   • If you are having difficulties attaching documents via the browser you should try the following:
   • When scanning documents reduce the dots per inch (DPI);
   • Colour documents can be scanned black/white (or greyscale);
   • If a document is still too large, it can be uploaded in more than one attachment via the browser.
   • Kind Regards
   • [Delegate]
   • Case Officer eVisa Services
   • Adelaide Offshore Student Processing Centre (AOSPC)
   • Department of Immigration and Citizenship (DIAC)
9. The e-mail was sent to the e-mail address for the education agent provided by Ms Kaur in her visa application[2].
10. The 29 day time period stipulated in the e-mail expired on 18 April, 2009.
11. On 28 April 2009, Mr Sharma sent an e-mail to Adelaide office of the Department in the following terms:
    • Dear Sir/Madam
    • We happen to note that the browser shows that further information is required in this matter; however, we have not received any request. Could you kindly forward the request and we also seek that usual time to comply with request (28 days) be given to us.
    • Thank you for your assistance.
12. On 4 May, 2009 a copy of the delegate's email dated 20 March, 2009 was forwarded to Mr Sharma.
13. On 6 May, 2009 the delegate refused the application. The decision record contains the following relevant to Ms Kaur’s application and these proceedings:
    • The applicant is enrolled in, or has been offered a place in, a principal course of study that has been specified by Gazette Notice as a type of course for a subclass 572 visa. Accordingly, the applicant has been primarily assessed against the criteria for the grant of a subclass 572 visa.
    • The applicant did not satisfy Regulation 572.223(2)(a)(i)(B) for the following reasons:
    • In order to meet the Educational requirements of this application, Clause 5A405 of Schedule 5A of the Migration Regulations (1994) states that the applicant must provide evidence that they meet this requirement, details of which are outlined at the end of this decision record.
    • Despite a request from this office on 20/03/2009, sufficient documentation to support Ms KAUR Karundeep's claims against the Financial requirement has not been provided by the required date of 18/04/2009. I am therefore not satisfied that Ms KAUR Karundeep meets the Financial requirements for this visa specified at Regulation 572.223.
    • The criteria in the subclass 572 visa regulations that the applicant(s) did not satisfy are set out at the end of this decision record.

Consideration

14. Both parties proceed on the basis that the effect of s.474(1) of the Migration Act 1958 and cases such as Plaintiff S157 v Commonwealth (2003) 195 ALR 24 is that this Court only has jurisdiction to grant the relief sought by Ms Kaur if she can establish that the delegate’s decision is afflicted by jurisdictional error.
15. The Minister points out in submissions that the delegate was not under an obligation to provide reasons for her decision, but to simply specify the provision of the Act or Regulations which prevented the grant of the visa.
16. Relevantly, s.66 of the Act provides:
    • 66 Notification of decision
    • (1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
    • (2) Notification of a decision to refuse an application for a visa must:
      • (a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and
      • (b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa— specify that provision; and
      • (c) unless subsection (3) applies to the application—give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
      • (d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
        • (i) that the decision can be reviewed; and
        • (ii) the time in which the application for review may be made; and
        • (iii) who can apply for the review; and
        • (iv) where the application for review can be made.
    • (3) This subsection applies to an application for a visa if:
      • (a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and
      • (b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
17. It was submitted that the combined effect of s.338(2) of the Act and reg. 572.411 of the Regulations was that s.66(3) was engaged and therefore, no reasons for the refusal of the visa, beyond specification of the criterion not met, needed to be given.
18. Mr Sharma did not submit that such an interpretation was wrong or that there was an obligation to given reasons for the refusal to grant the visa beyond those already given.

Ground 1

19. Ms Kaur’s complaint is in three parts, namely:
    1. The email of 20 March, 2009 requesting the provision of further information was not received by Mr Sharma until 4 May, 2009;
    2. No extension of time was granted within which she could respond to the request for information; and
    100. The failure to grant the extension was inconsistent with the Minister’s general practice and policy whereby extensions are normally granted.
20. Ms Kaur’s arguments in respect of her first ground must fail for the following reasons.
21. By s.56 of the Act, the Minister could invite the applicant to provide further information in support of her application. The invitation may have been oral or written[3]. In this case, the Minister’s delegate chose to issue the invitation in writing. In such a circumstance, the invitation is clearly a document.
22. By operation of s.494A(1) of the Act, where the Minister is not otherwise required to give a document to a person using one of the ways set out in s.494B, or in some other prescribed way, the Minister may give a document to a person by any method that he or she considers appropriate. That might include a method provided for by s.494B, even though the use of that method is not prescribed.
23. Section 494C of the Act applies where the Minister uses one of the methods prescribed by s.494B to give a document to a person. It applies even if the Minister uses that method in circumstances where its use is not otherwise prescribed by the Act or Regulations[4]. If the Minister gives a document to a person by transmitting the document by e-mail the person is taken to have received the document at the end of the day on which the document is transmitted[5].
24. The effect of s.494C(4) was explained in Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172. At [13] Spender, Keifel and Dowsett JJ said in a joint judgment:
    • Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be “taken to have received the document ... ”. Nothing in the section suggests that this is merely a rebuttable presumption ...
25. Their Honours went on at [14]:
    • Spender J, in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657; (2004) 135 FCR 550 at [69] observed:
      • The person is “taken to have received the document”, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the document had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”.
    • We agree. The sequence of statutory and regulatory provisions to which we have referred prescribes with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application.
26. There are a number of other decisions that have applied that interpretation of s.494C(4): SZBMF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1427; (2005) 147 FCR 485 (S.494C(4); Minister for Immigration and Citizenship v Manaf [2009] FCA 963; Swee Yen Tay v Migration Review Tribunal [2009] FCA 515; Swee Yen Tay v Migration Review Tribunal (No 2) [2009] FCA 591; Cao v Minister for Immigration and Citizenship [2009] FCA 586.
27. There is nothing to suggest that I should approach the interpretation of s.494C(5) differently to the settled approach to s.494C(4). Indeed, Besanko J in Swee Yen Tay v Migration Review Tribunal [2009] FCA 515 approached the interpretation of s.494C(5) in the same way as s.494C(4) was interpreted in Xie. That is to say, s.494C(5) does not create a rebuttable presumption about receipt of the relevant document, but rather deems the recipient to have received it by at a particular time.
28. There is no dispute that Mr Sharma was the applicant’s authorised recipient for the purposes of s.494D of the Act. Accordingly, the Minister was obliged to give Mr Sharma, instead of Ms Kaur, any documents that the Minister would otherwise have given to her[6]. There is no evidence that the relevant authorisation was varied or withdrawn.
29. Thus, Ms Kaur was deemed to have received the Minister’s delegate’s invitation to provide further information at the end of the day on 20 March, 2009. In the absence of any evidence that there was an error by the Minister (or the delegate) in giving the notice in the way chosen by the Minister, it is irrelevant that Ms Kaur’s authorised recipient became aware of the invitation after the time her response had passed[7].
30. No error is demonstrated in the approach of the Minister’s delegate on this issue. Ms Kaur was obliged to respond to the invitation for further information by 18 April, 2009 and did not do so.
31. On 4 May, 2009 the Minister’s delegate sent a copy of the invitation sent earlier to Ms Kaur’s authorised agent. That did not operate as a re-notification of the original invitation and so recommence the relevant time period: Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151; (2007) 161 FCR 419 and Minister for Immigration and Citizenship v Manaf [2009] FCA 963.

Ground 2

32. This ground relates to the Minister’s delegate refusing to give an extension of time to the application to respond to the invitation dealt with above. There are no reasons for the delegate’s refusal to give the extension.
33. Subdivision AB, Division 3, Part 2 of the Act is taken to be an exhaustive statement of the requirements of natural justice in relation to the matters with which it deals[8].
34. The Minister is required to have regard to all of the information in an application when considering whether to grant or refuse a visa. However, s. 54(3) specifically provides that the “decision to grant or refuse the visa may be made without giving the applicant an opportunity to make oral or written submissions”.
35. As noted above, s.56 of the Act permits the Minister to obtain further information that may be regarded relevant. If the information is obtained, the Minister must have regard to it when making the decision to grant or refuse the visa[9].
36. If an applicant for a visa is invited to give additional information and does not do so before the time for giving it has passed the Minister may make a decision to grant or refuse to grant the visa without taking any action to obtain the additional information[10]. In this case, that means that, having not received any information from Ms Kaur as requested, the Delegate was entitled to consider Ms Kaur’s application and determine it.
37. Section 58(4) of the Act gives the Minister the ability to extend the prescribed period to respond to an invitation to provide further information. The Minister submits that the better view is that once the time for providing the requested information has passed, there is no power to extend that time: that is, any request to extend the time for the provision of the requested information must be made during the prescribed period.
38. The terms of s.58(4) are not materially different to the terms of s.359B(4) of the Act. Whereas the former section deals with requests by the Minister’s delegate for a visa applicant to provide information about the application, the latter deals with requests by a migration review tribunal for a review applicant to provide information about the review.
39. Section 359B(4) has been the subject of some judicial scrutiny. That scrutiny commences with Usman v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 966. In that case, CFM Pascoe said:
    • 43. ...Moreover, ss.359 and 359A allow the Tribunal to ask for additional information or to comment on adverse information. Section 359B provides mechanisms as to how that is to be done and allows the invitation to give information to be made either in writing or at interview. There is also a power to extend time in s.359B(4) (which the Tribunal did in its letter of 9 March 2004). It was contented for the applicants that if the matter were remitted back to the Tribunal it would be open to the Tribunal to extend time for compliance and then consider the matter again. Clearly, if the decision were quashed it would be up to the new Tribunal to decide what information it required together with the procedure it would adopt. The question is what was done by the current Tribunal. In that regard I note s.359B(4) which states:
      • If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
    • 44. The term “if a person is to respond” indicates that the period has not yet expired and so the Tribunal has power to extend time whilst the person is within the time period allowed for response to the original request. Once that period has passed the precondition is no longer available. The person is no longer invited to respond “within
      a prescribed period”. The prescribed period had lapsed and with it the power to extend the time had lapsed.
40. Those comments were endorsed by Tracey J in M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247; (2006) 155 FCR 333. In that case, his Honour said:
    • [52] In any event, it may be doubted that there was scope for the Tribunal, even if it had been minded to do so, to extend time to comply with the request made on 28 February 2005, after the period stipulated for compliance in that letter had passed. Section 359B(4) of the Act is cast in the present tense ("If a person is to respond" and "the response is to be made"). This, as the Full Court noted in Sun (146 FCR at 509-510) suggests that any application for an enlargement of time must be made while the time stipulated in the original letter of request is still running. The Full Court did not find it necessary to determine the question (see at 510) but, in Usman v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 966 at [44], Pascoe CFM held that the power granted by s 359B(4) of the Act could only be exercised within the period allowed when the original request was made. Had it been necessary to do so I would have held that the Tribunal could not have enlarged time pursuant to s 359B(4) of the Act after, at the latest, 6 April 2005.
41. Finally, both Usman and M were applied by Nicholls FM in Xue v Minister for Immigration [2009] FMCA 421. In that case his Honour held that a tribunal had no power to consider whether or not an extension within which to respond to an invitation to provide information should be granted once that period had elapsed.
42. It was not suggested that the decisions I have just referred to are wrongly decided. Although they concern another section of the Act, that section is not materially different to s.58(4) and in my view the reasoning in the above cases is persuasive.
43. In my view, the Minister’s delegate had no power to extend the prescribed period within which Ms Kaur could respond to the invitation to provide further information in support of her application once that prescribed period had elapsed.
44. In deference to the submissions made on behalf of Ms Kaur, I should deal with one other point relevant to this ground. She argues:
    • 22, It is also submitted that the implied refusal by the delegate to extend the time and to make a decision within two days was inconsistent with the principles of Code of Procedure set out in subdivision AB of Part 2 of the Act which contains Code of Procedure to deal with visa applications fairly, efficiently and quickly. In this case, the delegate failed to apply the principles set out in the Act.
    • 23. The departmental policy states, and it is only in the interest of justice, that consistent approach should be maintained in the application of policy and procedure, and decision making process. The email by another case officer exhibited to Mr Sharma's office is an example of application of fair and consistent approach. In that matter too, the email request was not received and the delegate stated in that email “In light of the fact that you have not received my emails, I am now giving you the initial 28 days (from the date of this email.” in this case, the delegate knew, or ought to have known that the applicant lived overseas and it was not possible to obtain information within two days. Accordingly, it amounts to denial of natural justice.
45. Having regard to my determination that the Minister’s delegate had no power to extend the relevant time period, this submission cannot succeed.

Ground 3

46. This ground alleges a failure to take into account relevant documents and information. Ms Kaur submits that there was evidence from her in relation to the requirements of clause 5A405 (2) of schedule 5A of the regulations. The Delegate held that Ms Kaur did not satisfy the financial capacity requirement [reg 572.223(2)(a)(i)(B)].
47. The Minister’s delegate was not required to give reasons for decision, but only to state if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa, and if so, to specify that criterion. Reasons for the decision were not required[11].
48. In the absence of reasons I can draw no inference that matters were overlooked or not taken into account: Vishnumolakala v Minister for Immigration and Multicultural Affairs [2007] FCA 248 at [8] - [13]; Vishnumolakala v Minister for Immigration and Multicultural Affairs (2006) FMCA 1209 at [44] - [49].
49. The Delegate has specifically requested further information regarding Ms Kaur’s sponsor’s employment. That was not provided.
50. In those circumstances the Minister’s delegate expressed that she was not satisfied that Ms Kaur met the financial requirements specified for the grant of the visa in reg. 572.223.
51. In my view this ground seeks to challenge the merits of the delegate’s decision. No jurisdictional error is revealed.

Conclusion

52. There being no jurisdictional error established the application for review fails and must be dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Jarrett FM delivered at Brisbane on 12 February 2010

Associate: S. Haysom

Date: 12 February 2010

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[1] Respondent’s Bundle of Relevant Documents filed 28 July, 2009.
[2] Annexure APY1 to the affidavit of Andrew Peter Yuile filed by leave on 7 October, 2009.
[3] s.56(2) of the Act.
[4] s.494C(1) of the Act.
[5] s.494C(5) of the Act.
[6] s.494D(1) of the Act and Le v Minister for Immigration And Citizenship (2007) 157 FCR 321.
[7] cf. s.494C(7) .
[8] s. 51A of the Act and see Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; Saeed v Minister for Immigration and Citizenship (2009) 176 FCR 53
[9] s. 56(1) of the Act.
[10] s. 62(1) of the Act.
[11] ss. 66(2)(c) and 66(3)