Leal v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 932

FEDERAL COURT OF AUSTRALIA

Leal v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 932

JONNY TIN FU LEAL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 383 OF 2002

EMMETT J
22 JULY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 383 OF 2002

BETWEEN:	JONNY TIN FU LEAL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	22 JULY 2002
PLACE:	SYDNEY

CORRIGENDUM

1. The reference to the “Refugee Review Tribunal” in paragraph 1 and subsequently references to “the Tribunal” in the Reasons for Judgment should instead refer to the “Migration Review Tribunal”.

I certify that this is a true and correct copy of the corrigendum to the Reasons for Judgment of the Honourable Justice Emmett.

Associate:

Dated:            2 August 2002

FEDERAL COURT OF AUSTRALIA

Leal v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 932

JONNY TIN FU LEAL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 383 OF 2002

EMMETT J
22 JULY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 383 OF 2002

BETWEEN:	JONNY TIN FU LEAL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	22 JULY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed; and

2.        the applicant pay the respondent’s costs of the proceeding.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 383 OF 2002

BETWEEN:	JONNY TIN FU LEAL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	22 JULY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a national of Brazil.  He first entered Australia on a student visa on 20 January 1996.  That visa was valid until 17 February 1997.  On that day, the applicant was granted a further visa which remained valid until 15 March 2000.  On 15 June 2000 the applicant was granted a further student visa which was valid until 16 April 2001.  On 2 April 2001 the applicant applied for Student (Temporary) (Class TU) visa.  He has since held a bridging visa granted on the basis of the basis of that application.  On 2 May 2001 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) refused to grant a student visa.  On 30 May 2001 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision.  On 8 April 2002 the Tribunal affirmed the Minister's decision not to grant a visa.

2. The applicant commenced this proceeding on 2 May 2002 by application and affidavit. In his application the applicant seeks review of the Tribunal’s decision under s 39(b) of the Judiciary Act 1903 (Cth). In the affidavit in support filed on 2 May 2002 the applicant says:

   “I believe that MRT does not make a correct view of decision on my student visa cancellation.  Enclosed are documents of decision from MRT.  I am a genuine student in Australia.”

   The affidavit then goes on to describe in more detail the applicant’s study history in Australia by way of justification of the assertion that the Tribunal did not “make a correct view” of his application.

3. The decision of the Tribunal is a “privative clause decision” within the meaning of s 474(2) of the Migration Act 1958 (Cth) (“the Act”), in that it was a decision of an administrative character made under the Act. Section 474(1) of the Act provides that a privative clause decision:

   “(a)is final and conclusive; and

   (b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

   (c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

4. The applicant was notified of the Tribunal's decision by letter of 8 April 2002, which enclosed a copy of the Tribunal's reasons.  The letter went on to say as follows:

   “If you disagree with the Tribunal’s decision, you may have appear rights, including under Part 8 of the Migration Act 1958, which deals with the review of decisions by the Federal Court or the Federal Magistrates Court.  If you wish to find out more about your appeal rights, you could seek advice from a registered migration agent, a solicitor, a legal service or a relevant community organisation. 

   There are strict requirements attached to appeal right.,  For example an appeal to the Federal Court or the Federal Magistrates’ Court under Part 8 must be lodged within 28 days of the notification of a decision.  If you are contemplating an appeal, it is suggested you seek advice as soon as possible, in order to comply with the time limit.

   If you are intending to lodge an appeal against the Tribunal’s decision or consider that you have another basis for remaining in Australia, you should contact DIMIA within 28 calendar days of the notification of this decision, to enquire about maintaining your lawful status in Australia.”

5. It is unfortunate that the Tribunal writes letters of that sort, having regard to the clear and express terms of s 474 of the Act. It may be that the author of the letter has in mind the very limited power of this Court to interfere with decisions of the Tribunal as a result of the decision of the High Court in The King v Hickman  (1945) 70 CLR 598

6. Notwithstanding the clear language of s 474 of the Act, this Court could nevertheless interfere with the decision of the Tribunal if it were established that the Tribunal’s decision did not relate to the subject matter of the Act or that the decision was not reasonably capable of reference to the power given to the Tribunal under the Act. It is quite clear that those two prerequisites are not satisfied in the present case. The decision was one given by the Tribunal under the express power of the Tribunal to review a decision of a delegate of the Minister.

7. The High Court has also said that a decision of this sort by the Tribunal could be challenged before this Court if it were shown that the Tribunal did not make a bona fide attempt to exercise its power.  The applicant is clearly unhappy with the Tribunal’s decision and it could be that the decision of the Tribunal is one that I would not have made had I been standing in the shoes of the Tribunal I express no view about that.  But even if that were so, that of itself would not be a basis for indicating that the Tribunal had not made a bona fide attempt to exercise its power.

8. In its reasons the Tribunal set out the criteria which must be satisfied for the grant of a student visa of the relevant kind.  The criteria for such a visa include those set out in Clause 560.224 of the relevant Schedule of the Regulations (as they stood at the time of the decision).  Those criteria require the Minister be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   “(a)the financial ability of the applicant to undertake the course……and

   (b)…the applicant’s comprehension of English….and

   (c)whether the applicant intends to comply with any conditions subject to which the visa is granted; and

   (d)any other relevant matter.”

   The Tribunal was satisfied, standing in the shoes of the Minister as the decision maker, as to matters (a), (b) and (c). 

9. In considering matter (d) the Tribunal had regard to the Department’s policy document “Procedures Advice Manual 3: Generic Guidelines for Student Visas”.  The guidelines set out factors that are to be taken into account, such as:

   ·     the student’s situation in his or her home country,;

   ·     the student’s immigration history;

   ·     the student’s academic record;

   ·     the student’s links with Australia;

   ·     whether the student satisfies officers that he or she will leave Australia at the end of any authorised period of temporary stay;

   ·     whether the proposed course of study will commence within a reasonable time;

   ·     whether the purpose in studying in Australia is consistent with the applicant’s circumstances;

   ·     whether the student is seeking to undertake a course consistent with and appropriate to his or her current level of education; and

   ·     whether the study is relevant to the student's past or proposed future employment in his or her home country.

10. The Tribunal considered those factors and concluded that, having regard to the factors covered by the policy, including the applicant’s study history since completing his bachelor’s degree, his proposed further changes to his studies, his academic progress in his post graduate course to date, it was not satisfied, at the time of its decision, that “the visa applicant is a genuine applicant for stay as a student”.  The Tribunal therefore found that he did not meet Clause 560.224 at the time of the decision.

11. The applicant’s affidavit in support does no more than call in question the conclusions of the Tribunal in relation to those matters.  There is no basis for concluding on the material before me that the Tribunal did not make a bona fide attempt to exercise its power.  In the circumstances, this Court has no power to interfere with the decision of the Tribunal and the application must be dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            26 July 2002

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr T. Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 July 2002
Date of Judgment:	22 July 2002