DING v Minister for Immigration

[2014] FCCA 1348

FEDERAL CIRCUIT COURT OF AUSTRALIA

DING v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1348

Catchwords:
MIGRATION – Review by Migration Review Tribunal – application for order dismissing application because it raises no arguable claim for relief – no arguable claim for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), s.351

Migration Regulations 1994 (Cth), cl.573.211(3)(c), cl.573.211(3)(c)(i)

Applicant: XIAOXIANG DING

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2637 of 2013

Judgment of: Judge Manousaridis

Hearing date: 16 May 2014

Delivered at: Sydney

Delivered on: 27 June 2014

REPRESENTATION

Applicant appeared in person assisted by an interpreter.

Solicitors for the Respondents: Ms Jones
Australia Government Solicitor

ORDERS

1. The application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2637 of 2013

XIAOXIANG DING

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In these reasons, I consider whether the applicant has raised an arguable case for the relief he seeks in an application for judicial review of a decision of the second respondent (Tribunal).

Background

1. On 15 April 2013 the applicant applied to the Minister for a Student (Temporary) (Class TU) visa (student visa). The relevant subclass of student visa for which the applicant applied was Subclass 573.

2. At the time he applied for the student visa, the applicant did not hold a substantive visa. He did, however, hold another student visa (previous visa) before he applied for the student visa, but that visa expired on 15 March 2013.

3. The criteria for granting a Subclass 573 visa are set out in Part 573 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). One criterion is that the application for the student visa is made “within 28 days . . . after . . . the day when [the] last substantive visa ceased to be in effect”.[1] Because he applied for the student visa on 15 April 2013, which is more than 28 days after his previous visa expired, the applicant was unable to satisfy this criterion. On 10 May 2013 a delegate of the Minister refused the applicant’s application for a student visa.

   [1] Cl.573.211(3)(c)(i) of Schedule 2

4. On 29 May 2013 the applicant applied to the Tribunal for a review of the delegate’s decision. The applicant attached to his application a letter dated 15 May 2013 addressed to the “Case officer Student visa Centre” in which he set out various submissions in support of his request that he be given one more chance to continue to study in Australia.[2]

   [2] CB50-51

5. The applicant appeared before the Tribunal, and gave evidence of the circumstances surrounding the lodgement of his application for a student visa. The evidence the applicant gave, as recorded in the Tribunal’s decision, was as follows:[3]

   Of when his last student visa ceased, the applicant said it was on 15 March 2013. He tried to lodge a visa renewal application online after 15 March but before the end of 28 days but found that the system would not accept his application. His agent informed him that he would have to make his application in person. The applicant did that, but he thought his visa expired at the end of March 2013 (not 15 March). The agent was not aware of the correct visa expiry date and so they prepared the application for lodgement before the end of March 2013 or within 28 days of the end of March 2013. He was waiting for the decision of UTS on the appeal he made against his exclusion from that University. His agent advised him to enrol in another course but he did not do so because he preferred to wait for the UTS decision on his appeal. After he received the appeal outcome letter from UTS, they started preparing the application.

   The Tribunal showed the applicant his visa application on file showing a ‘received’ stamp for 15 April 2013. The applicant agreed that this was the date the Department received the application. He said however that the agent told him to lodge the application on Friday 12 April, which was the 28^th day, but there were traffic problems and at first he went to the wrong address so by the time he arrived at the right place, the office was closed. He then lodged the application on the next working day, Monday 15 April, but he was outside the 28 day period.

   [3] CB76-77, [16]-[17]

6. The Tribunal affirmed the decision on the ground that the applicant did not make his application for a student visa within 28 days after the last substantive visa held by the applicant ceased to have effect. The Tribunal acknowledged that the applicant had given evidence “concerning factors that affected his studies and the timing of the lodgement of his visa application”, but noted that “the Tribunal has no discretion in relation to this 28 day requirement”.[4]

   [4] CB77, [20]

Application for review

1. The application for review contains six grounds. The first ground is:

   I disagree with Immigration and MRT’s decision. They did not consider that I have been a genuine student and had not breached my visa condition. They did not consider the fact that I had compelling reasons not to extend my visa when it was expired. And I did tried my best to seek help.

2. At the hearing, the applicant, who was not legally represented, made a number of submissions in relation to this ground. In essence, the applicant said he engaged an agent to assist him to enrol in a course. On or about 11 April 2013 the applicant received a letter of the same date from the Holmes Institute offering the applicant enrolment in an English for Academic Purpose course.[5] At the time the agent assisted the applicant to obtain that enrolment, the applicant left relevant documents with the agent to enable the agent to prepare an application for a visa. The applicant did not know the date on which his previous visa was due to expire. He informed his agent that it was due to expire at the end of March 2013.

   [5] CB26

3. The applicant attempted to lodge his application for the student visa online. He did this “between the expiry date and the 28 day extension dates”.[6] The attempt was unsuccessful. That failure was recorded on the webpage through which the applicant attempted to lodge his application itself by the following words:[7]

   Your application cannot be accepted online as the department has not been able to identify you. Please check and re-enter details. You will not be able to continue with this online application if we are unable to identify you. For further information or assistance, please contact an office of this department. See: eVisa Enquiries and Technical Help.

   [6] T9.5

   [7] CB27

4. The applicant printed out the application. The applicant described what happened next as follows:[8]

   My agent told me that I need to submit these documents to the immigration office by myself, and I did go there to do it but the traffic was pretty bad, so I couldn’t make it. So I thought, I still have time to do it next Monday, and then that’s why I lodge it on next Monday.

   [8] T14.30

5. I have great sympathy for the applicant. He failed to lodge his application by a weekend, or one business day. However, the matters he raises by his first ground, and the matters he stated at the hearing before me, are not matters that disclose an arguable case that the Tribunal made any jurisdictional error. The Minister, however, may consider exercising his power under s.351 of the Migration Act 1958 (Cth).

6. The Tribunal referred to the matters the applicant says the Tribunal did not consider. The Tribunal, however, correctly concluded that these matters were irrelevant to whether the applicant had complied with cl.573.211(3)(c) of Schedule 2 to the Regulations. The making of an application within 28 days after the last substantive visa ceased to have effect was a mandatory requirement for the granting of the student visa; and the Tribunal had no discretion to ignore that requirement.

7. The applicant made no further submission in relation to the first ground, or in relation to the other grounds. The other grounds are as follows:

   2.DIBP and MRT did not give a good consideration as I was totally mislead [sic] by ex-agent for delaying my visa extension application.

   3.Immigration should [have] granted my visa for student visa and allow me to continue my study here.

   . . .

   1.I am a Chinese citizen and have been a genuine student since I arrived in Australia. I did not extend my student visa due to situation beyond my control.

   2.I always obey my visa condition and never breached it. I am a victim by the misleading information from the ex-agent.

   3.It is not fair to refuse my visa, I hope I can continue my study in Australia.

8. None of these grounds raises an arguable case of jurisdictional error on the part of the Tribunal.

Conclusion and disposition

1. The applicant has not demonstrated any arguable grounds for the relief he seeks. Accordingly, I propose to dismiss the application pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). I also propose to order that the applicant pay the Minister’s costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 27 June 2014