FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Kaur [2013] FCAFC 66

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Magistrate on 22 November 2012 be set aside and, in lieu thereof, the first respondent’s application for judicial review be dismissed with costs.

3.    The first respondent pay the appellant’s costs of the appeal.

4.    The first respondent is granted a certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

INTRODUCTION

1    The appellant (the Minister) appeals against orders made by a Federal Magistrate (as he then was) quashing a decision of the second respondent (the Tribunal) made on 27 June 2012. The decision of the Tribunal, quashed by the primary judge’s orders, affirmed a previous decision of a delegate of the Minister refusing the first respondent (Ms Kaur) a Student (Temporary) (Class TU) visa.

2    Ms Kaur is a citizen of India. She previously held a Student (Temporary) (Class TU) visa. This visa expired at midnight on 23 November 2011. Her application to the Tribunal, and her proceeding in the Federal Magistrates Court (now the Federal Circuit Court of Australia), relate to her attempt to obtain a new visa to replace the visa that expired on that date.

3    The primary judge found that the Tribunal committed a number of jurisdictional errors in deciding to affirm the delegate’s decision, refusing Ms Kaur’s application for a new visa. In short, the primary judge found that the Tribunal failed to address the correct question when reviewing the delegate’s decision, took into account an irrelevant consideration and failed to give any consideration to certain evidence concerning the email address to which Ms Kaur is said to have sent a visa application on 23 November 2011.

4    In this appeal, the Minister argued that the Tribunal’s decision was not affected by jurisdictional error. In particular, the Minister submitted that, contrary to the primary judge’s findings, the Tribunal addressed the correct question, did not take any irrelevant consideration into account, and gave consideration to the relevant evidence.

5    Ms Kaur was legally represented before the primary judge. However, she was not legally represented at the hearing of the appeal. Ms Kaur’s first language is Punjabi, though she does speak a reasonable amount of English. An interpreter able to translate between English and Punjabi was available throughout the hearing of the appeal to assist Ms Kaur as required. As it happened, Ms Kaur was content to proceed without assistance from the interpreter.

6    Ms Kaur indicated to the Court that she did not fully understand the legal issues arising in the Minister’s appeal. Nevertheless, she appreciated that the issues arising in the appeal concern the Tribunal’s and the primary judge’s evaluation of evidence relevant to her attempt to submit a visa application by email on 23 November 2011.

THE NOTICE OF APPEAL

7    The Minister’s notice of appeal includes the following five grounds of appeal:

1.    The learned Federal Magistrate erred in holding that the erroneous findings of fact made by the Migration Review Tribunal (“MRT”) lead to it depriving itself of jurisdiction, which resulted in the MRT asking itself the wrong question, whereas the findings of fact were not open to review.

2.    The learned Federal Magistrate erred in holding that the MRT committed jurisdictional error, in circumstances where the applicant accepted that the purported email application of 23 November 2011, had not been received by the Department of Immigration and Citizenship.

3.    The learned Federal Magistrate erred in holding that the MRT took into account an irrelevant consideration in relation to the email address, on the basis that:

(a)    any error by the MRT in stating the email address was a mere finding of fact, and not an essential integer of the applicant’s claims;

(b)    properly understood, the MRT put to the applicant that the purported application submitted by email on 23 November 2011 was not a valid application.

4.    The learned Federal Magistrate erred in holding that the MRT utilised its power under s.359 of the Migration Act 1958 (Cth) to obtain irrelevant information, as the information obtained related to any visa application made by the applicant by email and not only to brisbane.students@immi.gov.au.

5.    The learned Federal Magistrate erred in holding that the Tribunal did not give any consideration to the applicant’s previously claimed visa application on 19 October 2010, purportedly made by email, as:

(a)    this purported claim by the applicant could only be relevant to claim an estoppel, which cannot operate against the statute;

(b)    further or alternatively, the MRT did consider this claim by the applicant;

(c)    further, or in the further alternative, the email of 23 November 2011 was sent to a different email address to that of 19 October 2010 and could not have been relevant, in any event.

8    Before considering the Minister’s grounds of appeal in more detail, it is necessary to refer to the Tribunal’s reasons for decision and the primary judge’s reasons for judgment. At various stages it will also be necessary for us to refer to some of the documentary evidence that is included in the appeal book including, in particular, a letter dated 1 December 2011 written by Ms Kaur, and a written submission prepared by Ms Kaur’s migration agent which was provided to the Tribunal.

THE MIGRATION REGULATIONS

9    The Student (Temporary) (Class TU) visa Ms Kaur held as at 23 November 2011, and the visa she applied for on or shortly after that date, are both sub-class 572 visas. To obtain a new sub-class 572 visa Ms Kaur needed to meet the requirements of cl 572.211 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). It relevantly provided:

(1)    If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).

(2)    An applicant meets the requirements of this subclause if the applicant is:

    (a)    the holder of a visa of one of the following classes:

        …

        (xiii)    Student (Temporary) (Class TU);

        …

(3)    An applicant meets the requirements of this subclause if:

    (a)    the applicant is not the holder of a substantive visa; and

    (b)    the last substantive visa held by the applicant was:

        (i)    a student visa; or

        (ii)    a special purpose visa; or

        (iii)    a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or

        (iv)    a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse, de facto partner or a dependent relative, of a diplomatic or consular representative of a foreign country; or

        (v)    a Subclass 497 (Graduate — Skilled) visa; and

    (c)    the application is made within 28 days (or within such period specified by Gazette Notice) after:

        (i)    the day when that last substantive visa ceased to be in effect; or

        (ii)    if that last substantive visa was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation — the later of:

            (A)    the day when that last substantive visa ceased to be in effect; and

            (B)    the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision; and

    (d)    the applicant satisfies Schedule 3 criterion 3005.

    …

10    The reference to Sch 3 criterion 3005 in cl 572.211(3)(d) is significant. Regulation 2.03(2) provides that if a criterion in Sch 2 refers to a criterion in (inter alia) Sch 3 by number, then that criterion must be satisfied by the applicant “as if it were set out at length in the first-mentioned criterion”. It relevantly provided:

3005    A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

(a)    this Schedule; or

…

When criterion 3005 of Sch 3 is interpolated into cl 572.211(3) as required by reg 2.03(2), the reference to “this Schedule” refers to the criterion set out in Sch 2, not the criterion (or criteria) set out elsewhere in Sch 3.

The Tribunal’s Decision

11    Ms Kaur appeared before the Tribunal on 25 June 2012. She gave evidence and presented arguments with the assistance of an interpreter and a registered migration agent.

12    It is important to note that Ms Kaur had previously taken advantage of cl 572.211(3) so that she could be granted a visa on the basis of an application that she had lodged two days after her earlier substantive visa (another Student (Temporary) (Class TU) visa) expired. Criterion 3005 precluded Ms Kaur from taking advantage of the provisions of Sch 2 (including cl 572.211) a second time.

13    Accordingly, the Tribunal reasoned (in our view correctly) that in order to satisfy cl 572.211 Ms Kaur needed to be the holder of a substantive visa at the time her application was lodged.

14    It was accepted by Ms Kaur before the Tribunal that her last substantive visa expired on 23 November 2011. This date is of critical significance because if Ms Kaur was to be granted the student visa which she sought, it was necessary for her to lodge a valid application for such a visa on or before that date.

15    In its reasons for decision, the Tribunal referred to a letter dated 21 December 2011 from Ms Kaur to an officer of the relevant department. It is clear that this is a reference not to a letter of that date, but to a letter of 1 December 2011. This is apparent when the content of Ms Kaur’s letter of 1 December 2011 is compared to the Tribunal’s description of the content of Ms Kaur’s letter of 21 December 2011.

16    Ms Kaur’s letter of 1 December 2011 accompanied a visa application lodged by her (she would say re-lodged) on 2 December 2011. By the time this application was lodged, Ms Kaur’s visa had already expired. Her letter of 1 December 2011 appears to reflect at least some understanding of the difficulty this created. She stated:

Dear Officer,

I would like to mention in this letter as to why my application is accepted for a student visa. Officer I lodged my application on 23rd November through email @ Brisbane.students@immi.gov.au.

I only did this way because I lost my passport recently & literally had no passport to apply online. Even last time when I applied for my student visa I applied the same way through email & my application was accepted.

I had the same belief this time that my application will be accepted again the same way. But this time they didn’t acknowledged my application because I got a failure notice next day that they have closed this email address.

But I had that email sitting in my account since last year & that is why I used the same email. Attached is the proof.

I couldn’t come to the DIAC office to submit my application in person because I was really sick that day & was on a bed rest. This is my illness which is recurring due to my surgery 6 months back.

Now I would please request you to accept my application if it is in scope of your jurisdiction. If you look at my academic record I have completed all my study in Australia well in time & genuinely (Please see certificates attached).

…

17    On 15 December 2011, the Minister’s delegate decided to refuse Ms Kaur’s visa application. The Application for Review of the delegate’s decision was received by the Tribunal on 20 December 2011. This document identified 2 December 2011 as the date of the relevant visa application.

18    The Tribunal noted in its reasons for decision a submission made on Ms Kaur’s behalf to the effect that she had lodged a valid application for a student visa by email on 23 November 2011. It also referred to evidence she relied upon in support of that submission which included a “screen dump”.

19    In a written submission lodged with the Tribunal after completion of the oral hearing (referred to at [28] of the Tribunal’s reasons for decision), Ms Kaur’s migration agent stated:

In its Decision Record, the department stated that Ms Kaur lodged her student application on 2 December 2011 and as she did not hold a substantive visa at the time Ms Kaur did not meet the legislative requirements as specified in Clause 572.211 of the Regulations.

Ms Kaur disputes this and says that she lodged a valid visa application on 23 November 2011. Ms Kaur told the Tribunal that she had lodged her student application by email and provided a screen dump from the email. It is not in dispute that at 6.36pm [sic] on 23 November 2011 Ms Kaur sent the department an email using the email address brisbane.students@immi.gov.au. Ms Kaur told the Tribunal that the application was attached to the email.

Please refer to ATTACHMENT A for proof of the email and the attachment.

The applicant repeatedly told the Tribunal that when she did not receive a reply from the department, she approached them.

Within a reasonable time (given the weekend in between) she lodged a paper application.

…

20    The migration agent’s written submission (including attachment A) was before the primary judge, and is also reproduced in the appeal book. So too are various other printouts of emails dated 19 and 20 October 2010 which were also attached to the written submission. The email address shown in Ms Kaur’s email of 23 November 2011 sent at 5.36pm that day is “brisbane.students.documents@immi.gov.au”. The address shown in the emails of 19 and 20 October 2010 is “brisbane.student.documents@immi.gov.au”. Thus, while these email addresses are similar to that referred to in Ms Kaur’s letter of 1 December 2011 and in the written submission lodged with the Tribunal by the migration agent, none is precisely the same as the address referred to by her in the letter of 1 December 2011 or in the migration agent’s written submission. In particular, the email address referred to in Ms Kaur’s letter and the migration agent’s written submission did not include the word “documents”. Moreover, the email address used by Ms Kaur on 23 November 2011 included the plural “students” rather than the singular “student” that was included in the email address used by her on 19 and 20 October 2010.

21    The Tribunal stated at [30]-[33] of its reasons for decision:

[30]    Relevant to this matter is the timing of the applicant’s lodgement of the visa application the subject of this review and whether it was lodged while the applicant still held a substantive visa. It is not in dispute, and the Tribunal accepts, that the applicant’s last substantive visa ceased on 23 November 2011.

[31]    While department records and the delegate’s decision indicate that the visa application the subject of this review was lodged on 2 December 2011, the applicant submits that it was lodged by email on 23 November 2011, while she still held a substantive visa. In support of that argument the applicant has provided a screen dump showing that she sent a document to the an [sic] email address identified at folio 1 [of] the department file as brisbane.students@immi.gov.au, as well as submissions and documents including those described at paragraph 28 above.

[32]    The evidence before the Tribunal reveals, and the Tribunal accepts, that: the applicant sent an email to brisbane.students@immi.gov.au at 5:36 on 23 November 2011, attaching a document, and that she still held a substantive subclass 572 visa at that time; the applicant had previously lodged, on 19 October 2010, a student visa application by sending it to the same email address, which was acknowledged as a valid visa application in a reply email from the department dated 20 October 2010; when she did not receive a response to her email date [sic] 23 November 2011 she approached the department and acted promptly to lodge her application in person. On the applicant’s own oral evidence, she does not dispute that the email address she sent her application to on 23 November 2010 [sic] was a discontinued address, but argues that the department should have forwarded correspondence received at that previously valid email address to another active email address. She offered that she did not check where a valid application should be lodged before sending her application by email on 23 November 2011 and just assumed that it was valid to send the application to the same email address she sent her prior application to on 19 October 2010, as the department had not inform [sic] her of any change in email address. She also submitted that she was unable to use the department’s online lodgement facility for reasons given variously as her passport ceasing and her passport being lost, and she could not lodge in person due to her health. While the Tribunal has considered these submissions, the issued [sic] before the Tribunal requires it to make findings of fact as to when the visa application the subject of this review was lodged, and whether that occurred while the applicant was the holder of a substantive visa.

[33]    The evidence before the Tribunal reveals only that an email was sent by her on 23 November 2011 to brisbane.students@immi.gov.au, attaching a document described in the claims and evidence above. The content of the attachment sent has not been provided to the Tribunal, and on the evidence before it the Tribunal is unable to be satisfied that a valid application was lodged by email on 23 November 2011. The Tribunal prefers the evidence contained in the delegate’s decision record to the effect that the visa application was lodged on 2 December 2011 and finds that the visa application the subject of this review was lodged on 2 December 2011.

22    There are a number of observations we would make in relation to the Tribunal’s reasons for decision. First, the misdescription of the email address referred to previously and which appeared in Ms Kaur’s letter of 1 December and in the migration agent’s submission has been carried through into the Tribunal’s account of the evidence concerning Ms Kaur’s attempt to lodge a visa application on 23 November 2011. The first sentence at [33] of the Tribunal’s reasons cannot be correct because it is clear that there was evidence before the Tribunal which revealed that Ms Kaur sent her email to an address different to that referred to in her letter.

23    Secondly, the Tribunal noted that Ms Kaur did not produce a copy of the attachment to her email of 23 November 2011. It is clear from [33] of the Tribunal’s reasons that this was a factor which contributed to the Tribunal’s lack of satisfaction that Ms Kaur had lodged a visa application by email on 23 November 2011.

24    Thirdly, at [32] of its reasons the Tribunal said that “[o]n the applicant’s own oral evidence, she does not dispute that the email address she sent her application to on 23 November 2010 [sic] was a discontinued address …”. There was no transcript of Ms Kaur’s oral evidence before us, but there is no reason to doubt the correctness of the Tribunal’s assessment of her oral evidence on this point given the contents of her letter of 1 December 2011. In that letter, Ms Kaur stated that after emailing her application to “brisbane.students@immi.gov.au” she received a “failure notice” the next day advising that the email address had been closed. Of course, the “failure notice” could only have related to the email she actually sent on 23 November 2011, which the attachment to the migration agent’s submission shows was the email sent to “brisbane.students.documents@immi.gov.au”.

THE PRIMARY JUDGE’S DECISION

25    The primary judge noted that the documentary evidence before the Tribunal in the form of Ms Kaur’s “screen dump” and extracts from the relevant email correspondence attached to the migration agent’s written submission showed that Ms Kaur’s email of 23 November 2011 was sent to “brisbane.students.documents@immi.gov.au”.

26    At [25] of his reasons the primary judge said:

Although the Tribunal might be correct (it is difficult to tell in the absence of any evidence and in particular, the letter from the applicant to the department of 21 December, 2011), the evidence produced by the applicant demonstrated that the address to which she claimed to have sent the email included “brisbane.students.documents” as part of the address. It was clearly a different email address to that specified by the Tribunal in its questions to Ms Kaur and in its reasons for decision. There was no evidence before the Tribunal to allow it to find that an email address which included “brisbane.students.documents” as part of the address had been discontinued.

27    At [35] of his reasons, the primary judge said:

By its erroneous findings of fact, the Tribunal deprived itself of jurisdiction to consider the visa application made by the applicant on 23 November, 2011. Those wrong findings resulted it he [sic] Tribunal asking itself the wrong question.

28    The primary judge does not specify the wrong question that he understood the Tribunal to have addressed. However, it is apparent that his Honour considered the Tribunal had asked the wrong question because it asked, on his interpretation of what the Tribunal had done, whether Ms Kaur sent an email and an attached visa application at 5.36pm on 23 November 2011 to the email address “brisbane.students@immi.gov.au”. It is also apparent that the primary judge considered that this was the wrong question because the documents attached to the migration agent’s submissions showed that Ms Kaur’s email of that date was sent to a different address, namely, “brisbane.students.documents@immi.gov.au”.

29    At [37] of his reasons, the primary judge went on to observe that the Tribunal, in receiving evidence concerning the address “brisbane.students@immi.gov.au”, took into account an irrelevant matter because that was not the email address to which Ms Kaur sent her application on 23 November 2011.

30    The migration agent’s submission to the Tribunal indicated that Ms Kaur used the same email address on 23 November 2011 as she had used in October 2010 when she was said to have lodged an earlier visa application.

31    At [38] of his reasons, the primary judge said:

Further, I accept the submission that the Tribunal did not give any consideration to the evidence of prior use by the department of the email address brisbane.student.documents@immi.gov.au as being an appropriate way to lodge a valid application for a student visa. The department’s own email of 20 October, 2010, its acceptance of Ms Kaur’s application made on 19 October 2010 and the grant of a valid and effective student visa pursuant to that application was not considered by the Tribunal.

32    As we have already mentioned, the email address used by Ms Kaur on 23 November 2011 (which included the word “students”) was different to that used by Ms Kaur on 19 October 2010 (which included the word “student”).

CONSIDERATION

33    The Tribunal’s reasons contain a number of errors. The reference to the letter of 21 December 2011 is an obvious slip. Nothing turns on this slip except that it may have led the primary judge to overlook Ms Kaur’s letter of 1 December 2011 and the reference to the “failure notice” contained in it.

34    The more significant issue is whether the Tribunal’s repeated references to the email address “brisbane.students@immi.gov.au” indicate that it addressed the wrong question. As we read the primary judge’s reasons, he considered that the Tribunal was required to consider whether Ms Kaur sent her visa application to the email address “brisbane.students.documents@immi.gov.au” and, if so, whether that was a discontinued email address.

35    Ms Kaur’s letter of 1 December 2011, and her migration agent’s written submission, both refer to “brisbane.students@immi.gov.au” as the address to which she sent a visa application on 23 November 2011. This particular email address was therefore made relevant by the letter and the written submission. In these circumstances the primary judge was in error in holding that the Tribunal took an irrelevant consideration into account.

36    It is clear, in our view, that the Tribunal asked itself the correct question. In the circumstances of this case the correct question was whether the Tribunal was satisfied that Ms Kaur lodged a valid visa application on 23 November 2011, that being the last day upon which she could do so. It is apparent from the Tribunal’s reasons that it was not satisfied that such application was lodged.

37    There were two important factors that gave rise to the Tribunal’s lack of satisfaction. The first, which features prominently in [33] of the Tribunal’s reasons, is the absence of any copy of the attachment to the email. Of course, the Tribunal might have inferred that the document lodged with the Department on 2 December 2011 (a copy of which was in evidence) was the same document as that which was attached to the email. But the Tribunal was not obliged to draw that inference, and there are indications that appear in the document that was lodged on 2 December 2011 that it might not be in the same form as the document which Ms Kaur claimed was attached to her email.

38    The second matter is even more fundamental. Ms Kaur’s letter of 1 December 2011 and, it seems, her oral evidence, made it clear that the email of 23 November 2011 never reached the Department. What would have happened if Ms Kaur had sent her email to the same address she used in October 2010 may never be known and is, in any event, irrelevant. In light of Ms Kaur’s own letter and evidence, the fact that the Tribunal was not satisfied that she lodged a valid visa application with the Department on 23 November 2011 is not surprising. We are satisfied the Tribunal addressed the correct question and did not commit the jurisdictional errors attributed to it by the primary judge.

39    As to the primary judge’s “no evidence” finding at [25] of his reasons, it is clear given the letter dated 1 December 2011 and the reference in it to a failure notice, that it was not open to the primary judge to conclude that there was no evidence to show that this email address had been discontinued.

40    Finally, as to the primary judge’s finding at [38] of his reasons that the Tribunal did not give any consideration to the evidence of prior use by the Department of the email address used by Ms Kaur on 23 November 2011, it is apparent that the premise underlying this aspect of the primary judge’s reasoning is incorrect because the email address used by Ms Kaur to submit her application on 23 November 2011 was not the same as the email address used by her on 19 October 2010.

41    In the result, we are satisfied that the primary judge erred in finding that the Tribunal’s decision was affected by jurisdictional error. The Minister’s appeal will be allowed and the orders made by the primary judge set aside. In lieu of his Honour’s orders there will be an order dismissing Ms Kaur’s application for judicial review with costs. Ms Kaur must also pay the Minister’s costs of the appeal.

42    The Minister did not oppose the grant of a costs certificate to Ms Kaur pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) (the Federal Costs Act). Since Ms Kaur was not legally represented in the appeal, it is likely that the only costs which she has incurred in relation to the appeal are those payable by her pursuant to our order that she pay the Minister’s costs of the appeal. We think it appropriate to grant her a costs certificate in respect of the appeal pursuant to s 6(1) of the Federal Costs Act. Accordingly, the Court certifies that, in its opinion, it would be appropriate for the Attorney-General to authorise a payment under the Federal Costs Act to Ms Kaur in respect of the appellant’s costs of the appeal that she will be required to pay to the Minister.

Associate:

Dated: