GUO v Minister for Immigration
[2010] FMCA 576
•2 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GUO v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 576 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – applicant not making application for the visa soon enough after the expiry of her last substantive visa – no jurisdictional error. |
| Migration Regulations 1994 (Cth) |
| Applicant: | LULU GUO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1001 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 2 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2010 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr G Johnson DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1001 of 2010
| LULU GUO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was made on 12 April 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a temporary student visa.
Background facts relating to this matter are set out in the Minister’s written submissions filed on 9 July 2010.
The applicant is a female citizen from China who applied for a temporary Subclass 570 (Student) visa on 19 November 2008. The applicant first arrived in Australia on 5 August 2004 on a temporary Subclass 570 (Student) visa, which expired on 20 October 2004. The applicant was granted a further student visa on 20 October 2004, which expired on 15 March 2008. The applicant was granted a Bridging Visa E on 7 November 2008.
During her time in Australia, the applicant had studied towards, but not completed, a Diploma of Hospitality Management at Sydney International College in 2006 and 2007.
The application for a visa was refused by a delegate of the Minister on 26 November 2008 on the basis that the applicant did not satisfy clause 570.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate found that the applicant did not hold a substantive visa at the time of application and had not made the application within 28 days following the expiration of her previous substantive visa.
Review before the Tribunal
The application for review to the Tribunal did not include any further evidence to support her visa application. The Tribunal wrote to the applicant on 8 January 2010 inviting her to comment on or respond to information.[1]
[1] CB 49. The letter was sent to the applicant's authorised recipient by fax: see CB 48.
The Tribunal invited the applicant to comment on the records the Tribunal held which suggested that the applicant's original student visa had expired on the 15 March 2008 and that the application for a further student visa was made on 19 November 2009. The Tribunal informed the applicant that the information in respect of which she was invited to comment was relevant as it suggested that the applicant had not held a substantive visa as at the time she applied for the student visa, and further, that she had lodged her visa application more than 28 days after the cessation of her previous substantive visa.
The applicant wrote to the Tribunal explaining the delay in her visa application and the reasons why she failed to satisfy clause 570.211 of Schedule 2 of the Regulations.[2]
a)At the hearing before the Tribunal on 7 April 2010 the applicant described her fear of returning home to her parents without a qualification and of her shame and disappointment in having been deceived.
b)The Tribunal informed the applicant that it did not have discretion to decide the matter if the applicant did not fulfil the visa requirements.[3]
[2] CB 51.
[3] See [21] of the Tribunal decision record at CB 83.
The decision of the Tribunal
The Tribunal found, at [26] (court book, page 84), that the applicant did not satisfy clause 570.211 of Schedule 2 of the Regulations in that she did not hold a substantive visa of a type described in clause 570.211 (2), (4), (5) or (6).
a)In relation to clause 570.211(3), as a person who did not hold a substantive visa at the time of application, the applicant was required to satisfy clause 570.211(3)(c) by making her application within 28 days after the expiration of her previous student visa. However, the Tribunal found, at [30] (court book, page 84), based on the objective facts, that the applicant did not satisfy this requirement.
b)As the Tribunal held that it did not have discretion to waive the 28 day requirement, it consequently affirmed the decision under review.
These proceedings began with a show cause application filed on 7 May 2010. The applicant continues to rely upon that application. The application relevantly states:
1, I disagree with Immigration and [Tribunal’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 difficulties in understanding immigration letter and I did tried my best to seek help.
2, [Tribunal] did not consider the fact that I have been cheated by unprofessional people who assisted with my visa problem and caused me being overstayed.
3, [Tribunal] member questioned me at hearing made me feel very up sad. She kept telling me it was none of her business in relation to my terrible experience with the unregistered migration agent.
The Grounds of the Application are:
1, I am a Chinese citizen and have been a genuine student since I arrived in Australia. I was cheated by unprofessional people who assisted with my visa problem and caused me being overstayed.
2, I always obey my visa condition and never breached it. Currently I have been studying very hard to complete my course.
3, It is not fair for me not to be granted student visa and continue my study in Australia.
I received as a submission the affidavit accompanying that application.
I received as evidence the court book filed on 8 June 2010 and the applicant’s affidavit filed on 14 July 2010.
The applicant’s position before this Court is that she is seeking time in order to complete her studies at the LaTrobe University. Her previous student history is unfortunate and is detailed in her affidavit. Basically, it appears that the applicant came to believe that she had been notified of a breach of a condition on her visa by her educational institution and placed her affairs in the care of an unregistered migration agent who cheated her. She believes that she received a letter from the Minister’s Department informing her of the cancellation of her student visa. She consulted another unregistered agent and was also cheated by him. She told me from the bar table that he has since been detained and removed from Australia. Being afraid, the applicant did not approach the Minister’s Department until her last substantive visa expired. In those circumstances, when she applied for a fresh visa she was unable to qualify. That is because the relevant jurisdictional fact was that the applicant needed to apply for the new visa no more than 28 days after her previous student visa expired. That the applicant did not do. She therefore could not qualify for the visa she sought.
The applicant’s visa history is set out at page 43 of the court book. The Tribunal dealt with that visa history accurately in its decision. The Tribunal recounted the applicant’s claims as reproduced at [17] of its reasons (court book, page 82):
The applicant submitted a statutory declaration made on 2 February 2010, in response to the Tribunal’s letter (Tribunal file, folios 38-39). She said that she arrived in Australia on 5 August 2004. From February 2006 until May 2007 she studied towards a Diploma of Hospitality management at Sydney International College. Around April 2007 she received a letter from the Department requesting her to explain why she had not maintained satisfactory attendance at the College. She panicked. Through her friend, she was introduced to a “migration agent” to whom she [paid] $2000 in cash. The money disappeared. She then asked another friend for help. She was introduced to “Gordon”, who told her that he could “get [her] attendance restored to 100%”. Gordon instructed her to “have a break at home and return to school three months later”. She paid him $20000 in total (inclusive of her tuition fee). Around mid May 2007 she received another letter from the Department, which with her limited English, she understood explained that the visa had been cancelled. (Later she realised that this was not the case.) She gave this letter to Gordon who undertook to help her. When the new semester started, she returned to the College but she was not allowed to attend classes, and she was told that she had then reported to the Department because of her unsatisfactory attendance. She found that her “attendance remained the same rather than being restored to 100%.” When she tried to contact Gordon, she found his mobile phone was switched off all the time. She assumed that her visa had been cancelled so she “was afraid to approach the [I]mmigration [D]epartment to enquire about [her] visa status in fear of being caught and deported.” She did not tell her parents about the problems that she was having. She was anxious and remorseful. She became socially withdrawn. She started smoking, drinking and overeating to make herself feel better. She put on 25 kilograms during this period. On 7 November 2008, with the help of her current agent, she visited the Department to “make certain” the visa status. To her surprise, she was informed that the Department had not any notice of visa cancellation and her visa had expired on 15 March 2008. She has been a genuine student in Australia. She failed to make another student application before the last student visa expired because she thought her visa had been cancelled, long before. She wants a fair decision from the Tribunal.
The Tribunal dealt with the legal position as well as the applicant’s claims in its findings of reasons from [26]-[31] (court book, page 84):
On the evidence before it, the Tribunal finds that the visa application was made in Australia, and accordingly the applicant is required to satisfy cl.570.211. The Tribunal further finds that at the time of application, the applicant was not the holder of a substantive visa of the type described in sc.570.211(2), (4), (5) or (6), and accordingly meets the requirements of cl.570.211(3)(a). As such, the issue is whether the applicant meets the remaining requirements of sl. 570.211(3).
The last held substantive visa held by the applicant was student visa Subclass 571 which meets the requirements of cl.570.211(3)(b).
To meet cl.570.211(3)(c), the applicant was required to have lodged the current visa application within 28 days of the latter of either: the day when the last visa ceased to be in effect; or if the visa was cancelled and the Migration Review Tribunal set aside the decision to cancel or not revoke the cancellation, the day when the applicant was taken to be notified of that decision under ss.368C, 368D and 379C of the Act. The current visa application was made on 19 November 2008.
The Tribunal also finds that the applicant’s last substantive visa ceased to be in effect on 15 March 2008. The visa was not cancelled. There was no previous Tribunal review.
On the basis of the above, the Tribunal finds that the application was not made within 28 days after the last substantive visa ceased to be in effect. Accordingly, the Tribunal finds the applicant does not meet cl.570.211(3)(c).
In reaching the above conclusions, the Tribunal considered the matters raised in the applicant’s statutory declaration. It certainly appears that the applicant has been very naïve and advantage has been taken of her. It also appears that she compromised her own position by seeking to “restore” her attendance record. In this regard she appeared to be genuinely remorseful. She presented as a vulnerable and extremely anxious person. However, as explained to the applicant, the Tribunal has no discretion in regards to waiving the 28 day requirement.
While the Tribunal was sympathetic to the applicant’s circumstances, the Tribunal correctly found that it had no discretion and the applicant was not eligible for the visa she sought. I note that the applicant’s representative, at the hearing conducted by the Tribunal on 7 April 2010, foreshadowed that the applicant would request Ministerial intervention. I do not know if that has occurred, and in any event it is beyond the scope of these proceedings.
The applicant was frank in the hearing before me today in admitting that she saw no legal error in the Tribunal’s decision. She is hoping that she will be able to stay in Australia for a sufficient period to permit her to complete her studies at LaTrobe University next year. That is ultimately in the hands of the Minister.
I am satisfied that the decision of the Tribunal is free from any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I so order.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,900. That is significantly less than scale costs. The applicant did not make any submissions on costs, but did make submissions concerning her studies history. I am satisfied that costs of not less than $3,900 have been reasonably and properly incurred on behalf of the Minister assessed on a party and party basis. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,900.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 4 August 2010
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