Chitrakar v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant is to pay the costs of the first respondent in the amount of $6,042. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ROBERTSON J: 1 This is an appeal from the judgment and orders made by the primary judge on 16 December 2016 dismissing an application for judicial review of a decision made by the Administrative Appeals Tribunal on 16 September 2015 affirming the decision not to grant the appellant a Student (Temporary) (Class TU) visa. 2 I note that both the Tribunal in its reasons and the Minister in his submissions describe the circumstances as unfortunate. I agree, but the unfortunate circumstances are not the subject of the Court's jurisdiction. 3 As found by the Tribunal, the appellant's last substantive visa was a subclass 485. This ceased on 20 March 2015. 4 Clause 572.211(2)(a) of sch 2 to the Migration Regulations 1994 (Cth) provided that an applicant met the requirements of the subclass if the applicant is the holder of a visa of one of a number of subclasses, including a subclass 485 (Temporary Graduate). It read: 572.21 - Criteria to be satisfied at time of application 572.211 (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: … (d) the holder of a visa of one of the following subclasses: … (iia) Subclass 485 (Temporary Graduate); … … 5 The question is whether there was any relevant legal error in circumstances where the delegate refused to grant the appellant the Student (Temporary) (Class TU) visa she had applied for on the basis that the appellant did not satisfy the requirements of cl 572.211 because the appellant's last substantive visa had ceased at the time of application for the Student visa and her last substantive visa was not one of the types of visa otherwise specified in cl 572.211. As I have said, the Tribunal found the appellant's last substantive visa, a subclass 485, ceased on 20 March 2015. 6 The facts are that the relevant application form was sent on 19 March 2015 and received by the Department on 19 or 20 March 2015. (There had been an immaterial issue as to which was the correct date.) However funds were not available for the payment of the visa application charge when the application was received by the Department. It appears that the appellant requested that payment be made on a card but on 19 March 2015 an unexpected charge for health insurance was made on the card and as a result the available balance was insufficient to meet the application charge for the visa. 7 The Tribunal concluded, as a consequence, that a valid application was not made on 20 March 2015 and that the date of application was 24 March 2015 which was when the funds were available to enable the application to be processed. By that time of course the appellant was not the holder of a subclass 485 (Temporary Graduate) visa. 8 At [25], the Tribunal accepted that the circumstances were unfortunate and were no fault of the appellant, but was not satisfied that the application was validly made on 20 March 2015, or 19 March 2015 as submitted by the representative of the appellant. The Tribunal found that the application was validly made on 24 March 2015 when the appellant added the required funds to her account and the Department was in a position to process the application. 9 The Tribunal therefore found, at [26], that the appellant was not the holder of the specified visa at the time of application as her Subclass 485 visa ceased on 20 March 2015. 10 On that basis the Tribunal found that the appellant did not satisfy cl 573.211(3), which dealt with substantive visas of other types where the applicant was not the holder of a substantive visa, and therefore did not meet the requirements of cl 573.211 of sch 2 to the Migration Regulations. (I note that the appellant's last substantive visa was not a "student visa" within cl 572.211(3)(b)(i) by virtue of the definition of "student visa" in r 1.03 of the Migration Regulations as then in force, as noted by the primary judge at [13] and footnote 2.) 11 The application to the Federal Circuit Court of Australia for judicial review of the decision of the Tribunal stated as its only ground: 1. The Tribunal erred in law in considering that I met all requirements of schedule 5A to be genuine student in Australia. 12 Schedule 5A established requirements in relation to English-language proficiency, enrolment in a vocational education and training course; and the provision of evidence that the visa applicant had funds sufficient to meet specified expenses and fees. 13 The primary judge held that in order to qualify for the student visa, the visa application had to be valid at the time when the appellant's Graduate visa had not expired. In order to be valid, the appellant had to have placed the Minister, through the Department, in a position from which payment of the visa charge could be acquired, through its banker, from the appellant's bank. On the facts, the appellant did not do so until 24 March 2015 and by that time her Graduate visa had expired. 14 The primary judge said that the question arose whether the "time of the application" referred to in cl 572. 211, as then in force, was the date on which a valid visa application was made or whether it could be at some earlier time. The primary judge held that it was the date on which a valid visa application was made, and applied Mohammed v Minister for Immigration and Border Protection [2015] FCA 184; 231 FCR 243. 15 In that case, Perry J referred in particular to s 46(1)(ba) and s 45A of the Migration Act 1958 (Cth). Those provisions were in the following form: 45A Visa application charge A non-citizen who makes an application for a visa is liable to pay visa application charge if, assuming the charge were paid, the application would be a valid visa application. 46 Valid visa application Validity - general (1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if: … (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 … 16 The relevant provisions of the Migration Regulations were rr 2.07 and 2.12C. They provided that the first instalment of the visa application charge in relation to an application for a visa of a class to which an item of sch 1 related was payable when the application was made. The relevant item was 1222(2)(a)(x), headed "Student (Temporary) Class TU)" as stated in item 1222(2)(a): see per Perry J in Mohammed at [27] and [28]. 17 The primary judge then went on to consider when the visa application charge "has been paid" where payment is tendered either by way of a credit card or a debit card. The primary judge said, at [39], there was no dispute that the withdrawal made by the appellant's health insurance company on 19 March 2015 meant that there were insufficient funds on that day to pay for the visa application charge. Further, there was undisputed evidence that on 23 March 2015 an officer of the Department attempted to process the visa application charge and that attempt failed. Further funds were deposited by the appellant in her account on the following day in order to pay the charge. 18 The primary judge said that he was satisfied that there were not sufficient funds available in the appellant's debit card account to put the Department in the position of being able to require the bank to pay the charge. For that reason, the primary judge said, the Tribunal was correct to find there was no valid application made on that day and, as a consequence, it was open to it to find that the appellant did not satisfy the criteria in cl 572.211. 19 The grounds of appeal to this Court are as follows: 1. The Federal Circuit Court Judge erred by failing to find that the Tribunal Member committed an error of law in making its decision given the fact I satisfied all requirements of schedule 5A to be genuine student in Australia. 2. The Tribunal Member failed to give me the benefit of the doubt given the circumstances beyond my control such circumstances include inadvertence. 20 As was the case before the FCCA, the grounds of appeal are not apposite to raise the issue the appellant seeks to raise. 21 The appellant did not file written submissions. Her oral submissions were that she was a genuine student and was hoping to get some chance to complete her studies in Australia. She submitted that the circumstances came as a surprise to her, and it was hard for her to accept as she did not know how they all happened together. The situation, she said, was not in her control and it was not the case that she did not have money at the time or that she had tried to avoid paying the visa application charge. 22 The Minister submitted that the grounds of appeal were misconceived in light of the Tribunal's reasons and the issues canvassed in the judgment of the primary judge. 23 In relation to the first ground of appeal, the Minister submitted that the reference to sch 5A did not assist the appellant as it had nothing to do with the application of the visa application charge. It was not relevant to any question to be canvassed by means of judicial review of the Tribunal's reasons as the issue had no bearing on the Tribunal's reasons or the conclusion to which it came. For similar reasons, the primary judge did not address that issue. 24 As to the second ground of appeal, the Minister submitted that it seemed to be suggested that in the circumstances of the appellant's case (which were unfortunate) the Tribunal was required to give the appellant the "benefit of the doubt" or exercise some form of discretion to set aside the delegate's decision. The Minister submitted that the relevant provisions were not framed in terms that allowed for a decision maker to apply them or not apply them as an exercise of discretion. An application was either valid or it was not, in accordance with s 46 of the Migration Act. It also followed that it was not open to the appellant to characterise what the Tribunal did as legally unreasonable. 25 Counsel for the Minister went through the statutory provisions in detail, and also the reasons of the Tribunal and the reasons of the primary judge, in the alternative to dealing with the grounds of appeal as framed.