Chen v Minister for Immigration
[2007] FMCA 2163
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHEN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2163 |
| MIGRATION – Review of Migration Review Tribunal decision – student (temporary) visa. |
| Migration Act 1958 (Cth) Migration Regulations |
| Applicant: | YING CHEN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1075 of 2006 |
| Judgment of: | Burnett FM |
| Hearing date: | 5 December 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 22 August 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms S Hanstein Australian Government Solicitor |
ORDERS
That the application filed 22 June 2006 be dismissed.
That the Applicant pay the Respondents’ costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1075 of 2006
| YING CHEN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application the applicant applied by an amended application for a review of a decision made by the Migration Review Tribunal (“the Tribunal”) dated 22 March 2006 dismissing the applicant’s application for review of a decision made by a Delegate of the Minister for Immigration and Multicultural Affairs (“the Delegate”) to refuse the grant of a visa on 18 May 2005.
Background facts
The applicant is a national of the People’s Republic of China. He was born on 6 December 1984 and is presently 22 years of age. In 2003 he applied for and succeeded in being granted a student visa allowing him to undertake studies as a secondary student at Marist College, Eastwood (The School). He was at all material times enrolled as a student at that college and continued there until his completion of high school at the end of 2004. From that time forward he undertook studies as an undergraduate at the University of Sydney.
The student visa granted to him was due to expire on 15 March 2004. Approximately one month prior to the due date of expiration of his visa he consulted the international students liaison officer at the School, and sought his assistance in the making of an application for a further sub class 571 visa to permit him to continue with his secondary studies upon the expiration of his original student visa.
In material attached to the amended application the applicant stated that he had consulted the college administration about his visa extension “many times before (his) student visa expired on 15 March 2004”. He stated that he applied for a student visa in accordance with the instructions from the college administration, which instructions included a direction to attend at a hospital for a physical examination. Although it is not entirely clear from the application how it came to pass that the applicant ascertained by 20 May 2004 of the need to make an application, it appears that from that time he did become aware of that need and subsequently made an application for a Student (Temporary) visa in accordance with form 157A. The application was one for a “sub class 571 (schools)” visa and is noted as having been received by DIMIA on 25 May 2004. The School has acknowledged some culpability in respect of this matter. In a letter dated 22 December 2005 attached to the application, the international students liaison officer noted in part:
“The Applicant’s failure to lodge a student visa application within 28 days of his 2004 student visa expiring (March 15, 2004) is in part due to an administrative oversight at Marist College, Eastwood.”
The application having been made, it was subsequently considered by the Delegate. In the Delegate’s letter of 18 May 2005 the Delegate noted that “after careful consideration of the information provided and the merits of the application a decision was taken on 18 May 2005 to refuse to grant that visa”.
The decision record was attached to the Delegate’s letter of 18 May 2005. In particular, at clause 4.2 of the decision record the Delegate detailed the criteria to be satisfied at the time of the application. Clause 4.2 of the Delegate’s decision proceeded to recite schedule 2, clause 571.211 and the relevant sub clauses. At clause 4.3 of the Delegate’s decision, the Delegate relevantly noted:
“After considering the application I find that the applicant does not satisfy criteria 571.211. The Applicant’s substantive visa expired on 15 March 2004. As such he had 28 days, as prescribed by regulation 571.211(3)(c), to make an application for a further stay. The 28 day period expired on 12 April 2004. The student visa lodged by the Applicant was made on 27 May 2005 thereby making the lodgement date of the student visa application over 28 days from when the Applicant’s substantive visa expired. In light of the above reasons, I am therefore not satisfied that the applicant meets regulation 571.211.”
By the time the delegate came to consider the application made by Mr Chen the applicant he had matriculated from high school and had commenced studies in a Bachelor of Science course at the University of Sydney. Although it is not apparent from the relevant documents (the green book) it appears that the Delegate had some basis to also consider the prospect of an application against the criteria for the grant of, inter alia, a visa pursuant to sub class 573. The Delegate also determined that the applicant did not meet the criteria for the grant of such a visa.
On 7 June 2005 the applicant applied to the Tribunal for a review of the delegate’s decision. Acknowledgement of receipt of the application was provided to him under cover of a letter from the Tribunal dated 25 June 2005.
By letter dated 17 November 2005 the Tribunal extended to the applicant an invitation to comment on information. It appears that by about this time the applicant had engaged a migration agent, ABC Migration & Education Centre, to represent his interests. The applicant’s migration agent responded to the Tribunal’s invitation of 17 November 2005 via a letter of 23 December 2005. At that time the applicant’s agent requested a one month extension to comment on information. By letter dated 6 January 2006 the Tribunal responded to the applicant’s agent informing them that such an extension was granted. The Tribunal also noted at that time:
“If the Tribunal does not receive any comments within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your comments or to invite you to appear before the Tribunal.”
That sentence in the Tribunal’s letter reflected the powers available to the Tribunal pursuant to s.424C of the Migration Act 1958 (Cth) (“the Migration Act”).
The applicant provided no further comments in writing in accordance with the extended time and the Tribunal, in the absence of that failure, proceeded to consider the applicant’s case. By letter dated 6 March 2006, the Tribunal wrote to the applicant inviting him to the Tribunal’s handing down of its decision.
On 22 March 2006 the Tribunal’s decision was handed down. The Tribunal affirmed the decision of the Delegate under review and found that the applicant was not entitled to the grant of a Student (Temporary) (class TU) visa.
On 10 April 2006 the applicant subsequently lodged its application under the Migration Act calling upon the respondents to show cause why a remedy should not be granted in the exercise of the Court’s discretion under s.476 of the Migration Act in respect of the Tribunal’s decision of 22 March 2006.
The Tribunal’s decision
In its discussion concerning jurisdiction and standing the Tribunal noted:
“At the time the visa application was lodged Student (Temporary) (class TU) visa class contained a number of sub classes. The visa applicant originally applied for a sub class 571 visa to complete his secondary school education. However, the Integrated Client Services Environment (ICSE) reveals that the visa applicant is now enrolled in a Bachelor of Applied Science (medical radiation sciences) at the University of Sydney. The appropriate sub class to consider the visa applicant against is sub class 573. There is no evidence before the Tribunal to suggest that the visa applicant meets key criteria for any of the other sub classes. The Tribunal finds that the visa applicant is not entitled to the grant of any other sub classes of visa contained in Student (Temporary) (Class TU) visa class.”
The Tribunal identified the issue as to whether or not the applicant had made his visa application within 28 days after his last substantive visa ceased to be in effect as required by paragraph 573.211(3)(c) of schedule 2 to the Migration Regulations (“the Migration Regulations”).
The Tribunal found that:
a)the applicant’s last held substantive visa was a sub class 571 visa which ceased on 15 March 2004;
b)the applicant made a visa application the subject of the review application on 27 may 2004.
The Tribunal held that as the applicant’s last held substantive visa was a sub class 571 visa and that visa had ceased on 15 March 2004 and that the applicant had lodged his present visa application on 27 May 2004, the present visa application had been lodged more than 28 days after the sub class 571 visa had expired. Accordingly, the Tribunal determined that the visa applicant did not make his visa application within 28 days after his last substantive visa ceased to be in effect. Upon that basis the Tribunal determined that the visa applicant had not satisfied paragraph 573.211(3)(c) and did not satisfy clause 573.211 of schedule 2 to the Regulations and, accordingly, he was not entitled to the grant of a sub class 573 visa.
In dealing with matters relevant to evidence and findings, the Tribunal also made observations concerning the applicant’s purported attempt to fulfil his statutory requirements by attending Health Services Australia for a medical examination and subsequent submission of results to the Department premised upon advice provided to him by the international student advisor at Marist College. The Tribunal also considered the process associated with the review and in particular the applicant’s failure to respond to the invitation inviting him to comment upon information the Tribunal considered would be the reason or part of the reason for affirming the decision that was then under review.
Grounds for review
The applicant, in his amended application, submitted four grounds for review, namely:
(1)that prior to 15 March 2004 he consulted with an advisor at the school on how to extend his visa application and acted in accordance with the advice provided to him;
(2)consequent upon that advice, he attended for a medical examination which was undertaken on 21 February 2004, the results of which were sent to DIMIA;
(3)that upon becoming aware of the need to file a formal application he immediately proceeded to file such an application in accordance with the form provided for in the Migration Act;
(4)at the time of its decision on 22 March 2006 the Tribunal was required or, alternatively, required to take into account exceptional circumstances in relation to the applicant’s non compliance with condition 573.211(3)(c) of schedule 2 to the Migration Regulations for the purposes of his formal student visa application.
Ground 1
The legislative basis for ground 1 is not articulated. However, the applicant seeks to invoke the exercise of a general discretion in his favour premised upon a reasonable explanation provided by him for his failure to make the application in accordance with the Regulations. The Tribunal had no such powers.
The scheme of the legislation is clear. Section 65 of the Migration Act relevantly provides:
“[65] Decision to grant or refuse to grant visa
(1)After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) …; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) …;
(iv) …;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.”
As was submitted by Ms Hanstein, for the Minister, the Minister’s options are limited – if satisfied, grant the visa or if not so satisfied, refuse to grant the visa.
Whilst I accept the explanation provided by the applicant is a cogent and reasonable explanation for his failure to make his application within the prescribed time, the Tribunal was correct in its approach in refusing to entertain any argument concerning the discretion. I note that the Tribunal in its reasons for decision did not expressly address the question of a discretion but it is plain by reference to the material which was submitted to the Tribunal by the applicant that the Tribunal was aware of the applicant’s explanation for his failure to make application within sufficient time and, notwithstanding its awareness of that matter, proceeded to determine the application according to law and by inference did not accept that the applicant’s explanation afforded the Tribunal any basis for the exercise of a discretion. In my view, the Tribunal’s approach on this matter was plainly correct. There was no discretion available to be exercised by the Tribunal and the Tribunal proceeded correctly in its review of the applicant’s application on that point.
Ground 2
As with ground 1, ground 2 does not make any express reference to any legal basis. However, I apprehend ground 2 to assert that by submitting to medical examination on 21 February 2004 and arranging for the results to be forwarded to DIMIA. The applicant contends that he made a proper application for the grant of a visa.
Section 65 of the Migration Act provides that, first, there must a “valid application” for a visa. Section 46 of the Migration Act concerns the subject of a valid visa application. It provides:
“[46] Valid visa application
(1) …an application for a visa is valid if, and only if:
(a)it is for a visa of a class specified in the application; and
(b)it satisfies the criteria and requirements prescribed under this section; and
…
(3)The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4)Without limiting subsection (3), the regulations may also prescribe:
(a)the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b)how an application for a visa of a specified class must be made; and
(c)where an application for a visa of a specified class must be made; and
(d)where an applicant must be when an application for a visa of a specified class is made.”
The Migration Regulations provide at Part 2 four classes and sub classes of visas. In particular, regulation 2.01 concerns classes of visas and provides:
“For the purposes of section 31 of the Act, the prescribed classes of visas are:
(a)such classes (other than those created by the Act) as are set out in the respective items in Schedule 1; and
(b) the following classes:
(i) transitional (permanent); and
(ii) transitional (temporary).”
Schedule 1 in turn at clause 1222 provides for a class of visa described as a “Student (Temporary) (Class TU)”. It provides the relevant form to be a form 157A.
It follows that for an application to be a valid application in terms of s.46, the application is one which had to be made on a form 157A in the applicant’s circumstances. The applicant’s purported application made by merely seeking a medical examination and forwarding the results of that medical examination to DIMIA did not remotely comply with the requirements provided by the Regulations and, accordingly, the application could not be said to be a “valid application” within the meaning provided for in s.46.
In its statement of decision and reasons the Tribunal found at paragraph 14 that the applicant had lodged his visa application on 27 May 2005 and that that was more than 28 days after his sub class 571 visa had expired. Although not expressly dealt with, it is clear by reason of the Tribunal having considered the relevant background facts concerning the applicant’s approach to his visa application that it well understood that the applicant’s submission to Health Services Australia for a medical examination and delivery of those results to the Department was intended by the applicant to be his visa application. By inference, the Tribunal rejected any assertion by the applicant that that process complied with the statutory obligations provided for in the Migration Act and Regulations. In my view, the Tribunal’s determination on this point was plainly correct.
Ground 3
The applicant’s ground 3 was really a re-statement of his ground 1. In other words, the applicant sought to invoke a favourable exercise of a discretion he believed was vested in the hands of the Tribunal to consider the circumstances giving rise to the late making of his application for a visa. For reasons I have detailed at paragraphs 20 to 23 above, I conclude that the Tribunal had no power permitting it a discretion in relation to these matters and that the Tribunal was correct in its approach by inferentially determining it had no discretion to exercise and in rejecting any argument the applicant raised to that effect.
Ground 4
Ground 4 was contained in the amended application. The applicant’s submission was to the effect that his non compliance with condition 573.211(3)(c) of schedule 2 to the Migration Regulations enlivened an entitlement on the part of the Tribunal to take into account exceptional circumstances in relation to his non compliance with condition 573.211(3)(c) of schedule 2 to the Migration Regulations. The Migration Regulations relevantly provide at schedule 2:
“573.211
(1)If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4), (5) or (6).
(2)An applicant meets the requirements of this subclause if the applicant is:
(a) the holder of a visa of one of the following classes:
…
(3) An applicant meets the requirements of this subclause if:
(a)the applicant is not the holder of a substantive visa; and
(b) the last substantive visa held by the applicant was:
(i) a student visa; or
(ii) …
(c) the application is made within 28 days … after:
(i) the day when that last substantive visa ceased to be in effect; or
(ii) …; and
(d) the applicant satisfies Schedule 3 criterion 3005.”
The contention maintained by the applicant was that some discretion lay in the hands of the Minister by reason of regulation 2.43(2)(b) of the Migration Regulations. Regulation 2.43 concerns grounds for cancellation of visas. Relevantly, it provides:
“2.43
(1)For the purposes of paragraph 116 (1) (g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:
(a) …
(2)For subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a) …
(b) in the case of a Student (Temporary) (Class TU) visa:
(i)that the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (if the condition applies to the visa); or
(ii)that the Minister is satisfied that:
(A) the visa holder has not complied with condition 8202; and
(B) the non‑compliance was not due to exceptional circumstances beyond the visa holder's control.”
Unfortunately for the applicant, this particular provision is inapposite in the present circumstances. Regulation 2.43 clearly relates to “cancellation” of a visa. This is not a situation involving a cancellation of a visa but rather a situation whereby there has been a refusal to grant a visa.
I accept the submissions made by Ms Hanstein that there is no similar provision permitting or requiring “exceptional circumstances” to be taken into account in circumstances concerning an application
Unfortunately for the applicant, this ground also fails.
Conclusion
In this case I consider the Tribunal’s review of the applicant’s application to have been conducted according to law and that the findings made by it were open to it to be made and indeed were the only findings open to be made on the facts before it. The applicant has failed to demonstrate any proper basis for review. I dismiss the application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date: 22 August 2007
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