FEDERAL COURT OF AUSTRALIA

Manage v Minister for Immigration and Border Protection [2019] FCA 1891

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, a citizen of Sri Lanka, appeals from a judgment of the Federal Circuit Court of Australia, which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The decision of the Tribunal was to affirm a decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a Student (Temporary) (Class TU) Subclass 573 visa (student visa).

Background

2    The background to the matter is set out in the reasons of the primary judge at [4]-[6] and is as follows.

3    The appellant arrived in Australia as the holder of a student visa on 22 August 2005. The appellant’s most recent student visa was granted on 26 October 2011 and was valid until 30 August 2013. That visa was cancelled on 18 June 2012 and the cancellation decision was affirmed by the (then) Migration Review Tribunal (MRT) on 15 August 2013. On 1 July 2014, this Court set aside the MRT decision and remitted the matter to the Tribunal for reconsideration. On 1 February 2016, the Tribunal set aside the cancellation decision.

4    On 3 March 2016, the appellant was granted a bridging visa with an expiry date of 10 March 2016. On 9 March 2016, the appellant applied for a student visa. (There is a question as to whether the application was made on 8 or 9 March 2016, but ultimately that question is not determinative.) On 22 April 2016, a delegate of the Minister refused to grant the visa on the basis that the appellant did not satisfy cl 573.211 of Sch 2 to the Migration Regulations 1994 (Cth).

5    On 9 May 2016, the appellant lodged an application for review with the Tribunal and gave the Tribunal a copy of the delegate’s decision and refusal notification letter with his application.

6    On 23 August 2016, the Tribunal decided to affirm the decision of the delegate not to grant the appellant the visa and provided oral reasons for its decision. The Tribunal provided written reasons for its decision on 30 August 2016.

The decision of the Tribunal

7    As noted by the primary judge, the reasons of the Tribunal were brief. The reasons were as follows:

1.    This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 April 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under the Migration Act 1958 (the Act).

2.    At the hearing on 23 August 2016 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

3.    To be granted a student visa, applicants must satisfy a range of criteria set out in the Regulations.

4.    In your case, to satisfy cl.573.211 you needed to lodge your application no more than 28 days from when you were notified the Tribunal had made the decision to set aside the cancellation decision.

5.    Your previous 573 visa was cancelled on 18 June 2012. You appealed that decision to the then MRT and on 15 August 2103 (sic) the MRT affirmed that decision.

6.    On 10 September 2013 you appealed to Federal Court to review the MRT decision. The Federal Court remitted the matter to the then MRT to be re-heard.

7.    It came back to this Tribunal and on 1 February 2016 a decision was made to set aside the previous decision to cancel your visa. This meant your visa was not cancelled.

8.    You were notified of that decision by email on 1 February 2016 after which you had 28 days to lodge a new application.

9.    You lodged your application for a new student visa on 9 March 2016. Because this was more than 28 days since you were notified of the decision not to cancel your visa, you do not meet the requirements of 573.211

10.    This is not a matter in which the Tribunal has discretion

11.    As your application does not meet an essential requirement for the grant of a visa, I must affirm the decision under review

12.    This means the original decision of the Department remains

DECISION

  13.    The Tribunal affirms the decision under review.

The proceeding in the Federal Circuit Court

8    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. Although the appellant originally raised four grounds of review, grounds 3 and 4 were not pressed at the hearing before the primary judge: see the reasons of the primary judge at [16].

9    Grounds 1 and 2 were set out at [17] of the reasons of the primary judge. Ultimately, however, the oral argument presented on behalf of the appellant bore little resemblance to those grounds: see the reasons of the primary judge at [20].

10    The key relevant provisions – cl 573.211 of Sch 2 to the Migration Regulations – was set out at [18] of the reasons of the primary judge and need not be set out here.

11    At the hearing before the primary judge, counsel for the appellant conceded that the appellant had not made a visa application within 28 days of being notified of the Tribunal’s decision of 1 February 2016.

12    The submissions advanced by counsel for the appellant at the hearing before the primary judge were summarised at [22] of the primary judge’s reasons. The submissions relied heavily on the wording of the notification from the Department granting the bridging visa. (The notification, which was dated 3 March 2016, is reproduced in the Appeal Book.) It was submitted that the notification permitted the appellant to make an application for a student visa and that the Tribunal’s failure to consider this constituted a jurisdictional error. These submissions were rejected by the primary judge for the reasons set out at [26]-[32].

13    The primary judge also considered a contention contained in the appellant’s written submissions that he had not received notice of the decision of 1 February 2016, and that is why he did not apply within the time period contemplated by cl 573.211. The primary judge rejected this for the reasons set out at [35]-[36]. In summary, the primary judge found that the decision of 1 February 2016 was emailed to the appellant’s representative on that day, and the relevant provisions of the Migration Act 1958 (Cth) operated to deem the notice to have been received by the appellant on that day.

14    Accordingly, the primary judge dismissed the application for judicial review.

The appeal

15    The appellant relies on two grounds in his notice of appeal:

1.    The learned Federal Circuit Court Judge erred in law by failing to decide that the Administrative Appeal Tribunal fell into jurisdictional error when it did not consider that bridging visa notice issued by the Department if (sic) Immigration and Border Protection granted to the appellant a right or ability to apply for a visa of a class that can be granted in Australia.

2.    The learned Federal Circuit Court Judge erred in law failing to consider that the Administrative Appeal Tribunal did not follow the relevant circumstances of the applicant and satisfied the criteria for the grant of the visa.

16    Ground 1 of the notice of appeal raises the same contention as that presented to the primary judge. As explained in oral submissions at the hearing today, ground 2 is another way of raising the same contention. The appellant relies on the wording of the bridging visa notification dated 3 March 2016. In particular, the appellant relies on the statement on page 3 of that document that “[b]y 10:00am on 08/03/2016 the holder must make a valid application for a visa of a class that can be granted in Australia”. The appellant submits, in summary, that the notification communicated to the appellant that he had a right to apply for a substantive visa within that period referred (i.e. up to 10.00 am on 8 March 2016). The appellant submits that he lodged his application by that time (although it was stamped as received on 9 March 2016). The appellant accepts that the 28 day period that commenced on 1 February 2016 had come to an end on 1 March 2016, but he submits that the bridging visa notification gave him until 10.00 am on 8 March 2016 to apply for a visa.

17    In my view, this contention should be rejected, essentially for the reasons given by the primary judge. The bridging visa notification stated that the appellant was required to make a “valid application” for a visa by 8 March 2016. Whether or not the appellant was able to make a valid application for a visa depended on the operation of the Migration Act and the Migration Regulations. The bridging visa notification did not confer on the appellant a right to make a valid application for a visa if none otherwise existed. It has not been shown that the Migration Act or the Migration Regulations conferred on the appellant a right to make a valid application for a student visa. As the appellant concedes, the relevant application was not made within the applicable 28 day period.

18    In oral argument, reference was made to a further bridging visa notification dated 10 March 2016. This document was not in the materials before the Court. The appellant submits that it can be assumed to have contained similar wording. Even if that be so, the same reasoning would apply.

19    For these reasons, I reject the appellant’s contention. It follows that the appeal is to be dismissed.

Associate:

Dated:    15 November 2019