BAIDAKOVA v Minister for Immigration

[2002] FMCA 332

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAIDAKOVA v MINISTER FOR IMMIGRATION [2002] FMCA 332

MIGRATION – Review of Migration Review Tribunal’s decision – entry to Australia on student visa – change in circumstance – application for family change in circumstance residence visa – failure to comply with pre-requisite of visa application – no reviewable error.

Migration Regulations (1994) Schedule 2, clause 806 and Schedule 3, clause 3001 and 3002

Holani v Minister for Immigration and Multicultural Affairs (1999) FCA 707

Applicant: NATALIA BAIDAKOVA

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 851 of 2002

Delivered on: 6 December 2002

Delivered at: Sydney

Hearing Date: 6 December 2002

Judgment of: Raphael FM

REPRESENTATION

Applicant Self-represented

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent's costs assessed pursuant to rule 21.02(2)(a) of the Federal Magistrate Court rules, in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 851 of 2001

NATALIA BAIDAKOVA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter seeks a review of a decision of the Migration Review Tribunal dated 10 July 2002 which refused her and her family change of circumstance (residence) (class AG) visa for which she had applied on 23 July 1999.  The Tribunal had upheld the decision of the delegate made on 21 February 2000.

2. The history of this matter is that the applicant arrived in Australia on a student visa on 7 September 1993.  She last held a student visa on 24 July 1996.  After that visa had expired on 13 September 1996 she was refused a further student visa.  The refusal of that visa was affirmed both by the migration internal office and by the Immigration Review Tribunal.  The decision of the Tribunal was made on 22 May 1998.

3. The change in circumstances visa for which the applicant applied is subject to criteria set out in clause 806 of schedule 2 of the Migration Regulations (1994).  Clause 806.212 requires an applicant to satisfy clause 3002 of Schedule 3 of the Regulations.  That clause requires the visa application to be made within 12 months after the relevant day (within the meaning of subclause 3001(2) of Schedule 3 of the Regulations).

4. Clause 3002(2) relevantly provides that the relevant day for a person who ceases to hold a substantive visa on or after 1 September 1994 is the later of the last day when the applicant held that substantive visa or the day when the applicant last entered Australia lawfully.

5. The last day upon which the applicant could have applied for the change in circumstances visa was therefore 24 July 1997.  This application was lodged almost two years later on 23 July 1999 and did not satisfy the criteria in clause 806.212.  As a result the applicant was not eligible for such a visa.

6. This is essentially the decision of the Tribunal found between CB65-69.  The Tribunal in its decision refers to the decision of the Full Bench in Holani v Minister for Immigration and Multicultural Affairs (1999) FCA 707. That very short decision of the Full Bench upheld a decision of Madgwick J on almost identical grounds to the matter before me today. [3] The Full Bench said:

   “The Tribunal and Madgwick J both held that she did not comply with the prerequisite in that her application was not made within 12 months of the expiry of the last substantive visa which she had held.  This requirement is laid down by criteria 3001 and 3002 of schedule 3 to the Act.  The learned first instance judge set out the reasons why the application for permanent residency was bound to fail and for his Honour's consequent dismissal of the application to review the decision of the Tribunal.”

7. As in that case, no basis has been shown for the finding of any error by the Tribunal nor has anything been shown as to why, or in what way, the Tribunal itself had erred in its consideration of this particular matter.  Like the Full Bench in Holani I therefore have no option but to dismiss the application for review.

8. The application is dismissed.  I order that the applicant pay the respondent's costs which are assessed pursuant to rule 21.02(2)(a) of the Federal Magistrate Court rules, in the sum of $3,000.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: