HITESH Chandkani v Minister for Immigration
[2011] FMCA 852
•20 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HITESH CHANDKANI v MINISTER FOR IMMIGRATION | [2011] FMCA 852 |
| MIGRATION – MRT – where application for review was not received by the Tribunal within statutory period. |
| Migration Act 1958 (Cth), ss.338(2), 347(1)(b)(i), 351, 476(2)(a) Migration Regulations 1994, R.572.223(2)(a)(i)(B), 4.10(1)(a), 4.10(5), (6) |
| Applicant: | HITESH CHANDKANI |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 1244 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 20 October 2011 |
| Date of Last Submission: | 20 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2011 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
Application dismissed.
Applicant to pay the Respondent’s costs assessed in the sum of $3,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1244 of 2011
| HITESH CHANDKANI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Mr Chandkani is an Indian national, aged 23, who has been in Australia for two years. He came to Australia under a student visa which allowed him to study a course in IT. By July 2010 he had passed that course and on 31 July 2010 he applied for a Student (Temporary) (Class TU) visa to enable him to study a Diploma in Business Management and an Advanced Diploma in Business Management.
In the meantime he was granted a bridging visa and commenced his courses. He has now passed both of those courses achieving an academic standard known as BM which, from what he tells me, would appear to be similar to a credit in an institute of higher education.
On 4 November 2010 Mr Chandkani’s application was declined by a delegate of the Minister. The reason for the visa being declined was that it was said that he did not comply with Regulation 572.223(2)(a)(i)(B) of the Migration Regulations 1994 (the “Regulations”) which relates to the deposit of funds sufficient to enable him to complete his course. The words used by the delegate were:
“The applicant provided financial evidence showing funds held in an offshore account in someone else’s name, however, no evidence of how these funds are accessed by the applicant was provided and there is nothing to indicate that the applicant has received money from this source in the past. Therefore, I am not satisfied that the applicant is a genuine applicant for stay as a student visa holder as he has not demonstrated that he has access to the funds declared in accordance with schedule 5A.”
The decision of the delegate was a reviewable decision under s.338(2) of the Migration Act 1958 (the “Act), but in order to access the Migration Review Tribunal an applicant must comply with various sections of the Acts and the Regulations relating to making his application. The most relevant for the purposes of this case is that the applicant had 21 days in which to lodge his application for review in accordance with s.347(1)(b)(i) of the Act and Regulation 4.10(1)(a) of the Regulations. Regulations 4.10(5) and (6) provides that an application for review by the MRT is not lodged until it is physically received by the registry. Mr Chandkani tells the Court that he completed an application for review and sent it by post to the Tribunal on 26 November 2010. It is accepted that the last day upon which the Tribunal could receive an application in time was 6 December 2010. Mr Chandkani tells the court that he has a photocopy of the application which he made on that day.
Mr Chandkani did not receive any acknowledgment of his application and so he went himself to the Tribunal on 13 December 2010 to inquire as to the progress of his application. Mr Chandkani tells the Court that he did not wish to become an illegal immigrant within this country. When he went to the Tribunal a search was made for the application and it was not found. Mr Chandkani was then given a new application form which he completed on the spot and handed in. The original application was never found.
When the matter came before the Migration Review Tribunal on 19 May 2011 the Tribunal wrote a decision in which it sets out in considerable detail all the relevant law relating to the delivery of decisions from the delegate to an applicant and the making of an application by an applicant to the Tribunal. At [22] [CB 33] the Tribunal says:
“[22]The Tribunal has considered the applicant’s submission, [that he posted his application on 26 November] however, finds that it affords no basis for accepting the review application lodged on 13 December 2010. The evidence before the Tribunal indicates, and the Tribunal finds, that the application for review was received by the Tribunal on 13 December 2010 and that the application was lodged by hand. Even if the applicant had posted the application for review through Australia Post as claimed, the application must be physically received at a registry of the Tribunal for lodgement to have occurred (regulations 4.10(5) and (6)).
[23]The Tribunal finds that the applicant was properly notified of the delegate’s decision and is taken to have been notified on 15 November 2010. Therefore the prescribed period of 21 days within which the application for review could be lodged ended on 6 December 2010.
[24]The application for review was not received by the Tribunal until 13 December 2010, after the prescribed period had expired.
[25]For these reasons, the application for review was not valid and the Tribunal has no jurisdiction in the matter.”
I have considered the Tribunal’s decision and the representations made both by Mr Chandkani himself and Ms Collins on behalf of the respondent. I regret that I must accept as good law the decision of the Tribunal and therefore I am unable to review this application. I should note that in Mr Chandkani’s own application for review to this Court he sought what was effectively a review of the delegate’s decision. That is not a matter with which this Court can deal. (Section 476(2)(a) of the Act). The court has made no attempt to look in to what Mr Chandkani says was the error of the delegate apart from noting that he believes that the delegate based his decision upon a misreading of the relevant regulation.
Whilst this finding is regrettable the Court noted with some relief that Mr Chandkani has in fact completed the two courses, for which his application was made, with some success. It may be open to Mr Chandkani to ask the Minister to regularise his position under s.351 of the Act so that he can, as I believe he intends, apply for further student visas to improve his qualifications.
I dismiss the application and order that the Applicant pay the Respondent’s costs assessed in the sum of $3,000.00.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 2 November 2011
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