DIAC Misinterprets the Provision Which Allows Students to Apply for a Further Student Visa Within 28 Days After Becoming Illegal
DIAC is misinterpreting the provision which allows students to apply for a further student visa within 28 days after becoming illegal. If that 28th day falls on a Saturday, Sunday or Public Holiday then the writer asserts the applicant has until the next business day to apply for the next student visa
Under paragraph 573.211(3), as relevant:
(3) An applicant meets the requirements of this subclause if:
(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;
But DIAC uses the Federal Court decision of Manit Zangzinchai v Marilyn Milanta [1994] FCA 1361; (1994) 53 FCR 35 (23.9.1994) to assert that if the 28th day falls on a non-business day the visa must be lodged before the 28 days expires.
That case referred to a very differently worded part of the then regulations and has no relevance to the schedule 2 criteria for a student visa in 2008.
That case concerned Reg 21(3)(a) of the Migration (Review) Regulations as in existence in the early 1990’s which required that a review of a relevant decision, could only occur, if the applicant was “lawfully present in Australia, when he or she lodged the application”.
It is obvious that if an application is lodged after the applicant is lawfully present in Australia then the applicant in that case had no right of review because a person’s lawful presence expires when the visa expires.
Neaves & Beazley JJ in Manit Zangzinchai v Marilyn Milanta said:
13. The effect of the relevant provisions of the Migration Act and the Migration Regulations to which we have referred above, was that an entry permit might be limited in duration, both as to the period in which it was valid and as the time the holder might remain in Australia. These regulations did not provide for the doing of anything. Nor did they prescribe or allow a time for the doing of anything. Rather, during the currency of a temporary entry permit, or during the period in which the holder might remain in Australia, whichever was the shorter, the holder was authorised to be in Australia. Once the shorter of those periods had expired, the holder became an illegal entrant, assuming for the purposes of the argument that no other entry permit had been granted. In other words, Beaumont J said, regs 24 and 27 affected status. They did not prescribe or allow a time for the doing of anything. The consequence of being an illegal entrant was that a person had to satisfy different regulatory criteria to be eligible for the grant of a further entry permit.
But the situation with student visas is totally different situation.
Paragraph 573.211(3), sets the deadline within which the student must apply for a further student visa, it is NOT a requirement about migration status. This paragraph 573.211(3)(c) specifically required an applicant to do something by a specified day. If day turns out to be a Saturday, an internet application was not possible so the Acts Interpretation Act extends the time to the next business day.
S. 36(2) of the Acts Interpretation Act 1901 (Cwth) states:
36 Reckoning of time
(2) Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.
The writer is prepared to take on litigation involving the above issue on a NO WIN NO FEE basis.