Lee v Minister for Immigration

[2007] FMCA 1554

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1554

MIGRATION – Application for tourist visa – application made one day out of time – whether s.36(2) Acts Interpretation Act 1901 (Cth) applies.

Acts Interpretation Act 1901 (Cth), s.36
Migration Regulations 1994, Schedule 2, clause 676; Schedule 3, criterion 3004

Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476
Zangzinchai v Mallanta (1993) 116 ALR 357; on appeal 125 ALR 265
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Applicant: YOUNG AE LEE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: BRG 551 of 2007

Judgment of: Wilson FM

Hearing date: 7 September 2007

Date of last submission: 7 September 2007

Delivered at: Brisbane

Delivered on: 14 September 2007

REPRESENTATION

Counsel for the Applicant: N/A

The Applicant in person: Ms Lee

Counsel for the Respondent: N/A

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application filed 28 June 2007 is dismissed.

2. The applicant is to pay the respondent’s costs of and incidental to the application fixed in the sum of $6715.00

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 551 of 2007

YOUNG AE LEE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Korea.  She arrived in Australia on

   
   

   13 November 2005 under a valid tourist visa.  She was granted a further tourist visa again on 17 February 2006 and 12 May 2006.  Each visa was for a period of three months.  The applicant’s tourist visa expired on 13 August 2006, a Sunday.  On 14 August 2006 the applicant lodged an application for another visa.  That application was refused by the Minister’s delegate, whose decision was affirmed by the Migration Review Tribunal.  The applicant seeks to review the decision of the Tribunal on two grounds:

   a)The applicant was denied procedural fairness by the second respondent because the second respondent erred in concluding that s.36 of the Acts Interpretation Act 1901 (Cth) did not apply to the circumstances of the applicant;

   b)The applicant was denied an opportunity to comment or provide evidence on the alleged failure to comply with criterion 676.215 of Schedule 2 of the Migration Regulations 1994.

2. The decision of the Migration Review Tribunal is a privative clause decision.  It is therefore final and conclusive unless the decision is vitiated by jurisdictional error, as that term was explained in cases such as Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476.

3. The visa being applied for by the applicant is prescribed by subclass 676 in Schedule 2 to the Migration Regulations 1994. There were a number of criteria to be satisfied at the time of the application. Clause 676.215 provides:

   “If the applicant is in Australia:

   a)  the applicant:

   i)   is the holder of a substantive temporary visa …; or

   ii) does not hold a substantive visa, and :

   A     immediately before ceasing to hold a substantive visa, was the holder of a substantive temporary visa other than a subclass 426 visa; and

   B     satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005 and

   b)  the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa”

4. The Tribunal correctly concluded that because the applicant did not apply for a further tourist visa until 14 August 2006 her application had to be dealt with under clause 676.215(a)(ii).

5. The applicant submits that s.36(2) Acts Interpretation Act 1901 (Cth) applies. That section states:

   “Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a Bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or a Bank holiday in that place.”

6. The applicant argues that because her visa expired on 13 August 2006 she was entitled, pursuant to s.36(2) Acts Interpretation Act 1901 (Cth) to make her application for a further visa on Monday 14 August 2006.

7. This argument was rejected by the Full Federal Court in Zangzinchai v Mallanta (1993) 116 ALR 357; on appeal 125 ALR 265.

8. In my view, in its reasons at page 9, the Tribunal has correctly applied the law and no jurisdictional error is demonstrated.

9. The second ground in the applicant’s application is more oblique.  In oral submissions the argument was put that the applicant was not permitted to respond to any concerns that the Tribunal had after the hearing before it, and the applicant should have been given one last chance to respond to the Tribunal’s concerns.  It is not alleged that the Tribunal failed to hear the applicant.  Indeed a transcript of the hearing before the Tribunal was put before the court.  At page 35 the applicant was given the opportunity to explain why she lodged her application one day out of time.  There was no obligation on the Tribunal to provide the applicant with any further opportunity to comment on the Tribunal’s thought processes or concerns following the hearing: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. No jurisdictional error is demonstrated in respect of this ground of application.

10. A perusal of the Tribunal’s decisions reveal that it correctly applied the relevant clause applicable to the application and was not satisfied that criteria 3004 in Schedule 3 was satisfied.  Any challenge to that decision seeks a merits review which is impermissible. 

11. It follows that the application must be dismissed, with costs. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate:  Lynnette Chin

Date:  14 September 2007