Lim v Minister for Immigration - [2002] FMCA 172

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIM v MINISTER FOR IMMIGRATION

[2002] FMCA 172

MIGRATION – Review of decision of the Migration Review Tribunal affirming a delegate’s decision to refuse to grant a permanent resident visa – whether applicant ineligible for a permanent resident visa by reason of holding a non complying temporary student visa.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.65, 474

Migration Regulations

Tye [2000] MRTA 2196

Applicant:

KI SEOK LIM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ445 of 2002

Delivered on:

7 August 2002

Delivered at:

Sydney

Hearing Date:

7 August 2002

Judgment of:

Driver FM

REPRESENTATION

Migration Agent for the Applicant:

Mr P Pak

Counsel for the Respondent:

Ms M Allars

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, which are fixed at $4,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ486 of 2002

KI SEOK LIM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

I have before me for ex tempore judgment an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 1 May 2002. The applicant challenges the decision of the MRT on a fine point of interpretation of the Migration Regulations (“the Migration Regulations”) dealing with an entitlement to a permanent resident visa. The visa requirements in the Migration Regulations and schedules are highly prescriptive and it does not appear that this particular question of interpretation has received consideration by a court previously. It is necessary in the circumstances of this case to attempt to illuminate the somewhat stygian gloom surrounding the interpretation of some of these prescriptive criteria. The point in issue may be academic in other cases as the relevant regulations were repealed in 1999.
The facts relevant to this matter are accurately set out in paragraphs 2 to 11 of written submissions that have been prepared on behalf of the respondent Minister. The applicant is a citizen of Korea who entered Australia in 1995 on a student TU sub class 560 visa, valid until 15 January 1996. The applicant was granted a total of five student TU sub class 560 visas. Relevantly, in May 1998 the applicant successfully completed a Diploma of Business Management course at the Supreme Business College, while he held his third student TU sub class 560 visa. He obtained that diploma one month before that visa expired on 18 June 1998.
On 27 January 1999, the applicant was granted a fifth TU sub class 560 visa, valid until 18 August 2000. On 7 June 1999, the applicant applied for a general residence class AS visa. The application included the applicant's spouse, Ms Jung Ae Sim and his child Ki Seok Lim. Another child Chorong Lim who was born on 6 July 1999 was later added. On 27 January 2000, the respondent's delegate refused to grant the visas sought on the ground that the primary visa applicant, who is the applicant in these proceedings, failed to satisfy the prescribed criteria under subclause 805.212(4) of the Migration Regulations.
The applicant had failed, in the delegate's view, to provide evidence that he had completed an award course at associate diploma level or above related to the grant of the student visa he held at that time, during the period after the grant of his sub class 560 visa on 27 January 1999 and prior to his making the application. The applicant applied for review to the MRT on 23 February 2000. The applicant submitted that he was exempt from the requirements of subclause 805.212(4) by virtue of subclause 805.212(1A). He and his migration agent did not take up the opportunity to make further submissions as to his eligibility for a visa under other subclauses within clause 805.212.
The MRT considered whether the applicant met the criteria for a sub class 805 skilled visa, which was the only class in respect of which the applicant had made a claim. The MRT affirmed the refusal decision on 1 May 2002, finding that the applicant was not entitled to the grant of a general residence class AS visa. Section 65 of the Migration Act 1958 (Cth) (“the Migration Act”) empowers the Minister's delegate to grant a visa if satisfied, among other things, that the criteria described by the Regulations are satisfied. If the delegate is not satisfied then he or she must refuse the visa. As was found by the MRT, the criteria to be satisfied with respect to a general residence class AS visa are set out in the Migration Regulations. In particular schedule 2 part 805 clause 805.212 relevantly provides in subclause (1) that:
Subject to subclause (1A) the applicant must meet the requirements of subclauses (2), (3), (4), (5), (6) or (7).
It is not disputed that during the period the applicant held his third temporary student visa he could have satisfied the requirements of subclause 805.212(4) if he had applied pursuant to that subclause at the time he obtained his diploma. It is likewise not in dispute that at the time the applicant made his application for a permanent residence visa he could no longer satisfy the requirements of subclause 805.212(4).
The applicant's claim before the MRT, which was continued in the proceedings before me, was that he should have been granted a visa pursuant to the terms of subclause 805.212(1A). That subclause provides that the general requirement in subclause 805.212(1):
… does not apply to an applicant who does not hold a substantive visa if he or she would have satisfied the requirements of that subclause if the application had been made immediately before his or her substantive visa ceased.
The submission made to me by Mr Pak on behalf of the applicant is a straightforward one. He says that because the applicant could have satisfied the requirements of subclause 805.212(4) during the period that he held his third student temporary visa he meets the requirements of subclause 805.212(1A). The submission is that he meets those requirements because he did not hold that third substantive student visa at the time he made his application for a permanent residents visa, and that he would have met the requirements of subclause 805.212(4) if he had applied during the currency of that visa.
That submission did not persuade the MRT. The interpretation placed on subclause 805.212(1A) by the MRT is set out in paragraphs 33 to 37 of its reasons for decision. The MRT found that the applicant did not satisfy subclause 805.212(1A) because at the time he applied for a permanent residence visa he held a temporary student visa. The Minister submits through Ms Allars that the interpretation put on the subclause by the MRT was the correct one. Although no authority appears to be directly in point there is some support for that interpretation in the case of Tye [2000] MRTA 2196, in particular at paragraph 25.
It appears to have been assumed by the MRT in that case, as in this case, that an applicant can only have resort to subclause 805.212(1A) in circumstances where the substantive visa formerly held by the visa applicant was the most recent substantive visa held and where no substantive visa is held at the time of the application. That interpretation would mean that a visa applicant who could, like this applicant, have satisfied subclause (4) during the time that he held his third student temporary visa could take advantage of subclause (1A) only if no subsequent temporary student visa were granted.
The logical thing for the applicant to have done once he realised that he would not be able to meet the requirements of subclause (4) by making a timely application would have been to seek a bridging visa to cover the period necessary to make an application under subclause 805.212(1A). A bridging visa is, in my view, not a substantive visa. There is some logical public policy behind that interpretation. A visa applicant may have been in Australia for a long time and may have held a significant number of temporary visas. If the interpretation advanced by Mr Pak were available it would permit a visa applicant to pick and choose the particular substantive visa they wish to rely on in order to take advantage of subclause (1A). It might be in those circumstances that the particular visa relied upon had been held a long time previously and it may be inappropriate for a visa applicant to take advantage of that earlier visa in the then subsisting circumstances surrounding the application.
It is a reasonable and logical interpretation to place on subclause (1A) to require that the visa applicant at the time of application does not hold a substantive visa, which I take to be at least one of the classes of visa dealt with in clause 805.212 and to further require the applicant to have been able to satisfy the requirements of another subclause of clause 805.212 during the period when the applicant held their most recent substantive visa. That was the interpretation placed on the subclause by the MRT and I find that it was the correct interpretation. No error of law on the part of the MRT has been established. It is therefore unnecessary to consider the application of the privative clause in s.474 of the Migration Act. Accordingly, the application before me fails and I will dismiss it.
I will order that the applicant pay the Minister's costs and disbursements of an incidental to the application which I will fix pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $4,300.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 14 August 2002