Lee v Minister for Immigration and Multicultural Affairs

[2001] FCA 1230

FEDERAL COURT OF AUSTRALIA

Lee v Minister for Immigration & Multicultural Affairs [2001] FCA 1230

HYUK KYU LEE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1043 OF 2001

EMMETT J
24 AUGUST 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1043 OF 2001

BETWEEN:	HYUK KYU LEE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	24 AUGUST 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed with costs.

2.        The respondent inform the applicant of the provisions of Order 35 Rule 7.

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 1043 OF 2001

BETWEEN:	HYUK KYU LEE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	24 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant in this case is a national of the Republic of Korea.  He applied for a Student (Temporary) (Class TU) visa on 15 March 2000.  On 10 May 2000, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, refused to grant a visa.  The applicant, however, did not receive notice of that decision until 16 June 2000 and lodged an application for review by the Migration Review Tribunal (“the Tribunal”) on 27 June 2000.  On 13 June 2001, the Tribunal affirmed the decision finding that the visa applicant was not entitled to the grant of a Student (Temporary) (Class TU) visa.

2. According to the reasons of the Tribunal, the applicant had most recently been granted a Subclass 560 visa on 28 March 1998, which was valid until 15 March 2000.  Since then, the applicant had held bridging visas granted on the basis of the application for a visa then under review.  The visa application that was held at the time of the application was subject to a number of conditions. One of them was that the holder must satisfy course requirements of the study that he had undertaken at The International School, Sydney.  There was evidence before the Tribunal that the applicant's attendance record was 46 per cent during 1999 due to hospitalisation with a leg fracture, which caused the applicant to be absent from school for a four week period.

3. The Tribunal recorded that, at the time of the application, Class TU contained a number of subclasses.  The only subclass in respect of which any claims were advanced was Subclass 560 and there was no evidence to suggest that the applicant met key criteria for any of the other subclasses.  The criteria for Subclass 560 included the requirements set out in clauses 560.213, 560.224 and 560.227.  The requirement in clause 560.213 is that the applicant has complied substantially with the conditions to which the visa was subject and at the time of decision the visa applicant must continue to satisfy the criterion in clause 560.213.

4. The requirement of clause 560.224 is that the Minister must be satisfied that the applicant is a genuine applicant having regard to:

   ·    the financial ability of the applicant,

   ·    the applicant’s comprehension of English, and

   ·    whether the applicant intends to comply with any condition subject to which the visa is granted. 

5. The Tribunal was satisfied that the applicant's comprehension of English was sufficient for the course.  However, the evidence before the Tribunal indicated that the applicant had had very little funds in his bank account until just before the application for review was lodged.  The Tribunal had no information as to the extent of the applicant's employment or his reliance on his earnings, if any.  The applicant was asked to provide details of his economic position and the Tribunal considered that he was given copious time to do so before the hearing but had failed to do so satisfactorily.

6. Further, the Tribunal did not believe that the applicant could fulfil the requirements of clause 560.224(c).  The applicant enrolled in a Diploma of Information Technology course on 19 April 2001 at Excelsior College.  The applicant did not attend classes.  He did not commence on 19 April 2001 because of the asserted serious problems with his leg.  This was so despite the fact that his doctor reported that he was able to attend to 80 per cent of his course at the college during that period. Further, the applicant was able to visit staff of the Tribunal with a host of submissions and to attend the Tribunal, at times twice in the same day, with no obvious difficulty.

7. The Tribunal did not believe that the applicant intended to comply with any conditions subject to which the visa was granted.  Further, the Tribunal also believed that the applicant was not a genuine student, having enrolled in his course merely to satisfy the provisions of the regulations.  The Tribunal recorded that the applicant had stated to Tribunal staff that his intention in holding a student visa was to prolong his stay in Australia pending the outcome of a claim for damages in respect of a motor vehicle accident in which his leg was injured.  The Tribunal concluded that the applicant's request for a student visa was merely a subterfuge to prolong his stay in Australia pending the hearing of his motor vehicle accident case. 

8. In the application to this court for review of the Tribunal's decision, which was lodged on 9 July 2001, no grounds of review are specified.  When the matter was called on for hearing this morning, the return date shown in the application, there was no appearance for the applicant.  The Minister therefore moved for summary dismissal of the application pursuant to Order 10 Rule 3.  In the circumstances, it appears to me to be appropriate to accede to that request. and accordingly I will order that the application be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             3 September 2001

Counsel for the Applicant:	No appearance
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 August 2001
Date of Judgment:	28 August 2001