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MIGRATION - Review of decision of MRT - where applicant claims the delegate's decision contained jurisdictional error - whether Tribunal is empowered to consider invalid decision of delegate.

VISAS - Where applicant applied for Class TU visa under two sub classes - where visa was granted without reference to sub classes - whether cancellation of visa under one sub class left application for visa under other sub class still extant - whether visa was intended to cover principal course and any other course being undertaken.

Sharma v Minister for Immigration [2004] FMCA 784 (3 November 2004)

Sharma v Minister for Immigration [2004] FMCA 784 (3 November 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION
[2004] FMCA 784




MIGRATION - Review of decision of MRT - where applicant claims the delegate's decision contained jurisdictional error - whether Tribunal is empowered to consider invalid decision of delegate.

VISAS - Where applicant applied for Class TU visa under two sub classes - where visa was granted without reference to sub classes - whether cancellation of visa under one sub class left application for visa under other sub class still extant - whether visa was intended to cover principal course and any other course being undertaken.




Migration Regulations 1994

Federal Magistrates Court Rules 2001

Migration Act 1958 (Cth), ss.31, 45, 46, 119, 121, 351

Zubair v Minister for Immigration [2004] FCAFC 248

Luan v Minister for Immigration [2004] FCA 72

Applicant:
VARJESH SHARMA




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ 1356 of 2003




Delivered on:


3 November 2004




Delivered at:


Sydney




Hearing date:


3 November 2004




Judgment of:


Raphael FM




REPRESENTATION

Solicitors for the Applicant:


Parish Patience Immigration




Counsel for the Respondent:


Mr G Johnson




Solicitors for the Respondent:


Sparke Helmore




ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1356 of 2003

VARJESH SHARMA



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. The applicant in these proceedings moves on an amended application filed on 8 July 2004 together with an affidavit of the applicant dated 1 November 2004 and an affidavit of Mr Dobbie dated 8 July 2004. Between pages 9 and 28 of Mr Dobbie's affidavit there is found an application for a student (temporary) visa form 157A completed by the applicant. In the left hand part of Part A of that document found on page 19 there is a question put to the completer of the form. The question is as follows:

" Which of the visa subclasses listed below do you wish your application to be assessed against?

There is then a reference to a helpful booklet before the form proceeds with:

If you intend to take more than one course, you should select the subclass appropriate to your proposed principal course."

2. The applicant ticked two of the seven classes. These were subclass 572 (Vocational Education and Training sector) and subclass 574 (Masters and Doctorate sector).

3. The applicant received a visa known as a class TU visa subclass 574. That visa was given to him in order to undertake a Masters of Professional Accounting at the University of Western Sydney which was to commence in February 2002. The 572 subclass which had been ticked referred to an Advanced Diploma in Marketing Management to be undertaken at the Canterbury Business College [page 23 affidavit]. The visa which was granted to the applicant on 24 December 2001 can be found as Exhibit C page 4, to Mr Sharma's affidavit of 1 November 2004.

4. That visa contained a number of conditions including relevantly for these proceedings 8105. This condition means that the applicant was only able to work for 20 hours per week during any week that the course he was enrolled in was in session. It transpired that Mr Sharma supplemented his income by driving a taxi for a number of taxi operators in Sydney. This appears to have come to the notice of the Department of Immigration who obtained details of his worksheets from the taxi companies and on 2 October 2002 provided him with notice of its intention to cancel his visa. On the same day the visa was cancelled on the grounds that there had been a breach of condition 8105.

5. On 4 October 2002 the applicant applied for review of that decision to the Migration Review Tribunal. The applicant was at all times represented. By letter dated 16 December 2002, [CB 61] from the applicant's solicitor he requested that the Tribunal deal with the matter on the papers and made submissions as to why the Tribunal, whilst being bound to uphold the decision of the delegate, should nonetheless make certain findings which could be used by the applicant in an application to the Minister to exercise his discretion under s.351 of the Migration Act 1958 (Cth) (the "Act"). Nothing was said in that letter about any alleged failure on the part of the delegate in the manner in which he or she came to his or her decision.

6. The Tribunal gave an independent consideration to the merits of the applicant's case in its review. It came to the only conclusion it could do based upon the facts and the admissions and affirmed the decision but, as had been hoped, the Tribunal did make a number of comments favourable to the applicant which were utilised by the applicant in his application under s.351. That application was unsuccessful and thereafter further consideration was given to the events resulting in the application to this court made on 16 July 2003. In that application and in the amended application the applicant argued that the delegate had fallen into error and by breaching ss.119 and 121 of the Act, therefore the decision which came before the Tribunal for review was not a valid decision and was not a decision capable of being reviewed.

7. The argument sought to be made by the applicant was one which was or certainly capable of being made, at least up until 3 September 2004, when a full bench consisting of Finn, Mansfield and Gyles JJ handed down judgment in an appeal against a decision of mine known as Zubair v Minister for Immigration [2004] FCAFC 248. In that decision the full bench upheld my original decision that a merits review could be undertaken of an invalid decision and that even an invalid decision was a decision capable of being reviewed. As their Honours say at [27]:

" In our view, the clear words of section 338 indicate that the decision of the delegate and the respondent to cancel the visa was an "MRT reviewable decision" and the Tribunal was not only entitled to, but obliged to, review it."

8. As Mr Johnson, who appeared on behalf of The Minister, helpfully pointed out, the decision in Zubair should have come as no surprise not only because of the authorities which both myself and that court followed but also because of the decision of Hely J in Luan v Minister for Immigration [2004] FCA 72 at [24]. Mr Dobbie accepts, as he has to, that Zubair is binding on me but he argues nonetheless that the Tribunal has no authority to deal with an invalid decision and makes such arguments as are necessary to protect his position should another full bench differ from the full bench in Zubair or the High Court determine that Zubair was wrongly decided.

9. The applicant has an additional point. It is not a point on review of the Tribunal's decision, it is a request for a declaration that:

"The applicant's application for a subclass 572 visa lodged on 25 October 2001 is pending before DIMIA -

And:

"A declaration that the applicant is eligible to be granted a bridging visa WA (subclass 010) in association with that application."

10. To put the applicant's case most succinctly, he argues that he applied for a visa of two subclasses and he was only granted one therefore the application for the other is still outstanding. Mr Johnson, on behalf of The Minister says:

"The applicant applied for a "class" visa, namely a class TU, and that was granted and there is nothing left to do."

11. The Minister's power to grant visas is set out in division 3 of the Migration Act. Section 31 of the Act provides that there are to be prescribed classes of visas and that the regulations may prescribe criteria for a visa or visas of a specified class. It is noteworthy that s.31(3) states that:

"The regulations may prescribe criteria for visa or visas of a specified class" (emphasis added).

Section 45 states:

"(1) Subject to this act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class."

Section 46 of the Act describes the conditions under which an application for a visa is valid and section 47 is in the following form:

"(1) The Minister is to consider a valid application for a visa.

(2) The requirement to consider an application for a visa continues until:

(a) the application is withdrawn; or

(b) The Minister grants or refuses to grant the visa - "

12. There are then a number of important regulations relating to visas which divide visas into classes and those classes into subclasses (See 1.06, 2.01 in schedule 1, 1.07, 2.02 in schedule 2 Migration Regulations 1994). These provisions indicate that an applicant applies for a class of visa and his application is then considered against the various categories within that class before being granted or refused after a determination has been made as to whether or not the application fits within the criteria for any particular category. Mr Dobbie's arguments would seem to require that the Minister consider an application for various subclasses of visa and grant visas under more than one subclass.

13. But that does not appear to me to be what was intended because of the wording in the form. It seems clear to me from the wording in the form that the applicant was only meant to tick one of the subclasses even though he was proposing to undertake more than one course. He was intended to tick the subclass appropriate to his principal course. It may well be that it is intended that the visa which is granted shall cover more than one course. The form, which is found as Exhibit C of the affidavit being the notification of a grant of a student temporary visa, does not specify the course which the applicant is to undertake, only the date of the granted visa and the date until which the visa allows the applicant to remain in the country.

14. So it may very well be that the visa that the applicant was provided with allowed him to undertake both of the courses he wished to undertake, being one under subclass 574 and one under subclass 572. The principle course being the 574. I made these remarks based upon the evidence which is before me and the affidavits in the court book where I can find no other specific reference to the subclass of visa other than in the Tribunal's reasons for decision at [CB 215].

15. If I am right about this then the application is truly exhausted and any permission which the applicant might have had to undertake the course of study for the Advanced Diploma has been lost as a result of the cancellation of the visa for breach of condition 8105. I also note that the applicant would appear to have been enrolled in the Advanced Diploma of Marketing Management commencing on 27 September 1999 (see document 12 in the annexures to the affidavit of Mr Dobbie). This enrolment seems to have been pursuant to another visa granted to him, the application for which is found in pages three to six of Mr Dobbie's affidavit dated 12 February 2001, which he had obviously not completed at the time he made the second application.

16. Presumably, the Department was well aware of the earlier visa which the applicant indicated that he had in the later application and thus at all times it was intended that whatever visa he would be given would cover both courses which would appear to have been intended to be undertaken concurrently. I am satisfied that the application which was made in October 2001 was an application for a class TU visa and that application was acceded to.

17. I am not satisfied that the application did not cover the continuation of the subclass 572 course and related only to the class 574 course. In my view it related to both and in those circumstances there is nothing outstanding and I am unable to grant the relief requested. I dismiss this application.

18. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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