FEDERAL COURT OF AUSTRALIA

Mohammed v Minister for Immigration and Border Protection [2015] FCA 184

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

1.    Introduction

1    The circumstances which have led to the present application are most unfortunate. On Mr Mohammed’s account, he attempted to lodge his application for a Student (Temporary) (Class TU) visa online on 23 May 2012 but was unable to do so because of a system error. That account was corroborated by other evidence before the Migration Review Tribunal and the Tribunal did not express any concerns about that evidence or the evidence of Mr Mohammed. As a result of his failed attempt, the applicant lodged his visa application in person with the Department the following morning. However, “[t]he passage of time”, as the primary judge explained, “was critical because he ceased to hold a substantive visa on 23 May and after that date was unable to satisfy the criteria for the class of visas he sought” (at [19]).

2    Though the result is harsh, nonetheless there is no error apparent in the decision below to dismiss the application for judicial review of the Tribunal’s decision affirming the delegate’s decision not to grant the applicant the visa. I do not consider that any appeal would have reasonable prospects of success and therefore refuse the application for an extension of time within which to appeal the decision of the Federal Circuit Court.

2.    Background

2.1    The application for the visa

3    Mr Mohammed is a citizen of India. He first arrived in Australia on 24 April 2008 as the holder of a Student (Class TU) subclass 572 visa which ceased on 9 May 2008. Since that time, he had been granted a number of student and bridging visas. Relevantly, he was granted a subclass 572 student visa on 7 February 2012 which ceased on 23 May 2012. The grant of that visa was made relevantly on satisfaction of criterion 3005 of Schedule 3 to the Migration Regulations 1994 (Cth) (the Regulations) (set out at [31] below).

4    The Minister’s delegate refused the grant of a further Student (Class TU) subclass 573 visa on 29 May 2012 on the ground that the applicant did not hold a substantive visa at the time he applied for the student visa on 24 May 2012, and did not satisfy clause 573.211 of Schedule 2 to the Regulations (see further below at [9](d) and [30]-[31]).

2.2    The Tribunal’s decision

5    In the reasons for its decision made on 27 May 2013, the Tribunal (at [47]-48]) summarised the applicant’s evidence as to the circumstances in which he was unable to lodge a visa application on 23 May 2012 as follows:

The applicant has given evidence that he attempted to lodge the visa application on 23 May 2012 after receiving his confirmation of enrolment [CoE]. AB Cube Academic Solutions has provided a letter stating that the applicant received his confirmation of enrolment on 23 May 2012 at 4.58 PM by email.…

The applicant’s evidence is that around 5 PM on 23 May 2012 he attempted to lodge his visa application online but because of the Departments system error he was unable to lodge the visa application. The applicant attempted to lodge the visa application from his agent’s office without success. Mr Liutel of AB Cube Academic Solutions has stated that as the applicant was waiting for his CoE at their office and had limited time, he asked to use the computer at the office to apply for his student visa on the same day. Mr Liutel stated that “In our notice and remembrance” the applicant tried to lodge the application 2 times but it did not proceed to the second page and the online system said the visa has already been lodged.

6    The applicant also showed to the Tribunal the CoE which was updated on 23 May 2012 at 4:53pm. The applicant also gave evidence that nearly 7 days earlier he gave his credit card details to the agent engaged by him to obtain admission for the CoE for the college and that he had made a number of unsuccessful attempts in the interim to follow this up with his agent. He said that he tried to lodge the online applications three times before midnight on 23 May 2012 and pointed to a date on the online printout of 23 May 2012.

7    His evidence (as summarised in the Tribunal’s decision) as to lodging his application on the following morning and paying the application fee was that:

On 24 May 2012, in the morning, he took the CoE and filled in the application form. He also provided the IELTS test results and other documents.…

The applicant stated that he paid for the visa application on 24 May 2012. He was unable to pay for the application on 23 May 2013 [sic] because the online application did not go forward.

8    At the hearing before the Tribunal, the applicant’s representative submitted that “The key thing is the lodgement date. … However, there are system errors and the applicant should not be penalised because of the Department’s system error.”

9    The Tribunal apparently accepted the applicant’s account. However, it affirmed the decision of the delegate to refuse to grant the visa for the following reasons (at [49]-[52]).

(a)     An application is made when it is validly made, that is, when it satisfies all the statutory requirements for a valid application.

(b)    The requirements for a valid visa application are set out in s 46 of the Migration Act 1958 (Cth) (the Act), reg 2.07 of the Regulations, and Item 1222, being that part of Schedule 1 to the Regulations which applied at the relevant time to an application for a Student (Temporary) (Class TU) visa. Those requirements included that:

i)    the application must be made using the approved form as specified in subitem 1222(1);

ii)    an applicant must have paid the applicable visa application charge specified in subitem 1222(2); and

iii)    in the case of an applicant who seeks (as here) to satisfy the primary criteria and make the application on form 157A or 157E, the application must be accompanied by satisfactory evidence that the applicant is enrolled or has been offered a place in a registered full-time course of study of a type specified in a Gazette Notice under reg 1.40A(1) and that the education provider is not a suspended education provider.

(c)    It is a question of fact, having regard to all the circumstances of this case, as to when the applicant lodged the visa application. In this case, the visa application was lodged when it was received at the Registry of the Department on 24 May 2012 and the applicant paid the applicable visa application charge. The Tribunal did not accept that the visa application was lodged online on 23 May 2012, even though the applicant attempted to do so. An invalid application cannot become valid prior to the applicant complying with the provisions of the Act and Regulations which would make the application valid.

(d)    A valid application having been filed only on 24 May 2012 where the applicant did not hold a substantive visa, the Tribunal found that he did not meet the requirements of cl 573.211(3)(d) because he had failed to satisfy criterion 3005 in Schedule 3 as he had previously had a visa granted to him on the basis of satisfying that criterion.

10    The Court below, after undertaking a careful analysis of the relevant provisions, could find no jurisdictional error in the Tribunal’s decision (at [31]).

3.    the application for leave for an extension of time

11    The decision of the primary judge was delivered on 31 January 2014. As such, Mr Mohammed had 21 days within which to appeal from the Federal Circuit Court’s decision pursuant to r 36.03(a) of the Federal Court Rules 2011. No appeal was filed before the expiry of that period on 21 February 2014. However, the application seeking an extension of time was filed on 10 March 2014.

12    The application relies on the grounds that are set out in Mr Mohammed’s affidavit of the same date. That affidavit consists of four paragraphs and relevantly states:

[3]    I wish to appeal against the injustice done to me.

[4]    I am late in submitting as I was not aware of 21 days period.

13    By his draft notice of appeal, Mr Mohammed seeks orders from this Court “quash[ing]” the decision of the Court below and asks that he be provided with relief and a fair decision. The applicant’s grounds of appeal as contained in the draft notice are as follows:

1.    I was not given full consideration by Federal Circuit Court

2.    The decision was not fair to me and I believe I had been wronged

14    The applicant did not file written submissions but appeared unrepresented at the hearing of the application for an extension of time and made oral submissions in support of his application. It is clear from those submissions that he challenges the decision of the Court below on the ground that it erred in finding that no valid application for a visa had been filed on 23 May 2012.

4.    Consideration

4.1    Relevant principles for determining whether to grant an extension of time

15    In determining whether to grant an extension of time, factors to be taken into account include the extent of the delay, and the explanation for it, any prejudice that the respondents may suffer by reason of the delay and the merits of the proposed appeal: see e.g. SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15] – [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 – 349.

16    The Minister did not contend that he would suffer any prejudice if an extension of time were granted. Nor is delay substantial, being a period of 17 days only. In this regard, the Minister accepted that if the proposed grounds of appeal had merit, so short a delay should not serve as an impediment to the grant of an extension of time. Furthermore, while the Minister submitted that the explanation for the delay, namely, that the applicant was not aware of the appeal time, was not adequate, I would not attribute much weight to that consideration in all of the circumstances; nor did the Minister suggest otherwise. The critical issue here, in my view, is that the application for leave to appeal is lacking in any merit for the reasons I explain below, as a consequence of which there is no utility in granting an extension of time: see Ford v La Forrest [2001] QCA 455; [2002] 2 Qd R 44 at [4] Thomas JA (McMurdo P and Cullinane J agreeing); Vatti v Minister for Immigration and Border Protection [2014] FCA 893 at [24] (Mortimer J). It is on this ground that I would refuse the application for an extension of time.

4.2    Any appeal would have no reasonable prospect of success

17    I would emphasise at the outset that neither this Court nor the Court below has jurisdiction to undertake its own assessment of the factual merits of the Tribunal’s decision to refuse to grant a visa to the applicant. The jurisdiction of the Federal Circuit Court is limited to considering only the legality of the Tribunal’s decision to refuse to grant the applicant a visa, that is, to a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127; [2009] HCA 39 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, in the event that leave to appeal were granted, this Court is required on an appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth) to consider whether there is error in the decision of the Court below. As such, I am equally constrained from embarking upon a consideration of the merits of the applicant’s claims.

18    To determine whether a valid application was made within time, and the effect of failing to provide a valid application within time, it is necessary to navigate a careful pathway through the labyrinthal provisions of the Migration Act and regulations.

4.2.1    Is it arguable that a valid visa application was made online on 23 May 2012 before the applicant’s student visa expired?

19    In my view, there is no error in the Tribunal’s finding that no valid visa application was lodged on 23 May 2012 and that the later valid application could not apply retrospectively, as the Court below held.

20    First, under s 45(1), subject to the Act and Regulations, a non-citizen who wants a visa “must apply” for a visa of a particular class. However, it is only where the application is “valid” that the Minister is under an obligation to consider it by virtue of s 47(1) of the Act. If an application is not a valid application, the Minister is not to consider it (s 47(3)). In this regard, s 47(4) confirms a decision that the application is not valid is not a decision to refuse the visa. It follows that the Act prevents the Minister, and therefore the Tribunal standing in the Minister’s stead by virtue of s 349 of the Act, from considering a purported visa application if it is not valid: Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 (Wu) at 261 (Carr J), 278-279 (R D Nicholson J with whom Jenkinson J agreed); Minister for Immigration and Multicultural Affairs v Hayman [1999] FCA 217; (1999) 90 FCR 120 (Hayman) at 124 [21]-[22] (Finkelstein J). In this statutory scheme, there is no room for retrospective validation of an invalid application. An application is valid under s 46(1) “if, and only if” it meets the requirement for a valid application at which point the obligation to consider the application is engaged: Wu at 261 and 279-280; Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254 at 261 (Finkelstein J); Muradzi v Minister for Immigration and Citizenship [2011] FCA 976 at [34]-[35] (Tracey J).

21    Secondly, the conditions with which a valid application must comply are set out in s 46(1) which provides that:

(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

(a)    it is for a visa of a class specified in the application; and

(b)    it satisfies the criteria and requirements prescribed under this section; and

(ba)    subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid and

(c)    any fees payable in respect of it under the regulations have been paid; … (emphasis added)

22    As to s 46(1)(a), reg 2.01 of the Migration Regulations provides that for the purposes of s 31 of the Act, those classes set out in Schedule 1 to the regulations are prescribed classes of visa. It will be recalled that the applicant here sought the Student (Temporary) (Class TU) visa which was prescribed by clause 1222 of Schedule 1 to the Regulations.

23    As to s 46(1)(b) of the Act, ss 46(3) and (4) provide for the regulations to prescribe the criteria for the making of a valid application, including the circumstances that must exist for a valid application, and where and how a valid application must be made. Relevantly reg 2.07 of the Regulations provided as at (relevantly) May 2012:

(1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:

(a) the approved form (if any) to be completed by an applicant;

(b) the visa application charge (if any) payable in relation to an application;

(c) other matters relating to the application.

24    Regulation 2.07(3) further provided that an applicant must complete an approved form in accordance with any directions on it.

25    Under item 1222, as the Tribunal found, applications were to be made using the approved form as specified in subitem 1222(1), relevantly Form 157A by reason of cl 1222(1)(aa)(i). Furthermore, by reason of the application having been made on Form 157A, clause 1222(3)(c)(i) and (ii) of Schedule 1 to the Regulations provided that the application must be accompanied by satisfactory evidence that (relevantly) the applicant is enrolled in a registered full-time course of study or has been offered a place in a registered full-time course of study.

26    As to the requirement in s 46(1)(ba) that to be valid, any visa application charge to be paid when the application is made, has been paid, s 45A of the Act imposes (and at the relevant time imposed) a liability upon a prospective applicant to pay the charge in the following terms:

A non-citizen who makes an application for a visa is liable to pay the visa application charge if, assuming the charge were paid, the application would be a valid visa application.

27    The visa application charge, in turn, in relation to an application for a visa of a class in Schedule 1, is prescribed for the purposes of s 45B(1) by reg 2.12C. That charge is the sum of the first instalment which is payable when the application is made and the second instalment, which is payable before the grant of the visa: reg 2.12C(1)(a) and (b) respectively. Clause 1222, in turn, prescribes visa application charges according to certain specified circumstances. The relevant charge payable when the application was made was that prescribed in clause 1222(2)(a)(iv) “in any other case”, being a first instalment comprised of a base application charge of $535.

28    It follows the applicant was liable to pay the first instalment of the charge at the time he made his application and, by virtue of s 46(1)(b), reg 2.07 and 2.12C(1)(a), no valid application was made until that instalment of the charge was paid. If for no other reason, therefore, it cannot be said that any valid application was made until the fee was paid by the applicant on 24 May 2012, as the Tribunal found: Hayman at 124 [21]-[22] (Finkelstein J); Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31; (1999) 90 FCR 513 at 527 [70] (Weinberg J). Further and in any event I agree with the primary judge (at [29]) that the same result follows from the fact that no completed online form was lodged. This is not a case where an application was lodged but subsequently lost or not acted upon.

4.2.2    There having been no valid visa application lodged on 23 May 2012, it followed that there is no error in the Tribunal’s decision that the applicant could not satisfy the criteria for the grant of the visa

29    No valid application having been lodged on 23 May 2012, the question is whether any jurisdictional error is apparent in the Tribunal’s decision that the application lodged on 24 May 2012 did not satisfy the criteria for the grant of a Student (Temporary) (Class TU) visa.

30    Relevantly, clause 573.21 of Schedule 2 to the Regulations sets out the primary criteria to be satisfied at the time of the application where, as here, the application is made in Australia, the applicant is not the holder of a substantive visa and the last substantive visa held by the applicant was a student visa, namely:

(a)    the application must be made within 28 days (or within such period specified in the legislative instrument made by the Minister) after the day when that last substantive visa ceased to be in effect (cl 573.211(3)(c)(i)); and

(b)    the applicant must satisfy Schedule 3 criterion 3005 (cl 573.211(3)(d)).

31    While the applicant satisfied the criterion in (a) above, there is no error in the Tribunal’s finding that he failed to satisfy (b). Criterion 3005 of Schedule 3 to the Regulations required that “[a] visa…. 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;…”. The Tribunal found at [52] of its reasons that he previously had a visa granted to him on the basis of satisfying Schedule 3 criterion 3005. As such, he did not satisfy criterion 3005 on his current application and therefore, the requirements of clause 573.211(3)(d) of the Regulations.

5.    Conclusion

32    For the reasons set out above, the application for an extension of time should be dismissed.

33    Finally, I note the observations of the primary judge at [31], after finding that the Tribunal was correct to find that the requirements for a valid visa were not met until the paper application was given to the Department on 24 May 2012:

The consequence is an unfortunate one for Mr Mohammed. He lost an opportunity. … the Minister has the statutory power to make a more favourable decision than that of the Tribunal [referring to s 351 of the Act]. The Court has no influence over the exercise of that power. However, I observe that the power is a significant one in order to alleviate injustice in circumstances where no relevant discretion is reposed in the Minister’s delegate or the Tribunal.

I endorse his Honour’s observations in this regard. I would also add that this case suggests that there may be value in considering whether some mechanism should be contained in the Act which will accept an application as valid in circumstances where, through no fault of the individual, the Department’s online systems now preferred for the lodging of visa applications fail (c.f. s 495B of the Act).

Associate:

Dated:    6 March 2015