Lu v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LU v MINISTER FOR IMMIGRATION [2005] FMCA 178

MIGRATION – Review of Migration Review Tribunal decision – refusal of a Student (Temporary) (Class TU) visa ­ no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.357A, 366A
Migration Regulations 1994 (Cth), Sch.2, cl.570.212
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(d)

Migration Legislation Amendment (Overseas Student) Act 2000 (Cth), Sch.4, Item 4(3)

Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155

Applicant: YANG LU

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 2611 of 2004

Delivered on: 9 March 2005

Delivered at: Sydney

Hearing date: 23 February 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

There was no appearance by or on behalf of the applicant.

Solicitors for the Respondent: Mr B Cramer of Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2611 of 2004

YANG LU

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. This is an application for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 28 July 2004 and handed down on 5 August 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 26 February 2004 to refuse to grant a Student (Temporary) (Class TU) visa to the primary applicant, Mr Yang Lu.

Background

1. Mr Yang Lu (the applicant), a national of the People’s Republic of China, born on 25 June 1982, applied for a Student (Temporary) (Class TU) visa on 11 March 2003.  The delegate’s decision to refuse to grant a visa was made on 26 February 2004.  The applicant lodged an application for a review of the delegate’s decision with the Tribunal on 15 March 2004.

2. The applicant applied for a new visa on 11 March 2003.  At the time of the visa application, the applicant held a subclass 560 visa which was subject to condition 8202.  The previous visa was granted on

   
   

   29 November 2000 and was valid until 15 March 2003. The delegate refused the visa application because the applicant did not satisfy clause 570.212 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate was not satisfied that the applicant had complied substantially with condition 8202 of the previous visa.

The Tribunal’s findings and reasons

1. The Tribunal noted that the delegate had asked the applicant to provide documentation relevant to compliance with condition 8202 attached to his previous visa.  It also noted that the delegate had invited the applicant to attend an interview.  The applicant failed to do either.

2. The Tribunal sent a hearing invitation to the applicant which also asked the applicant to bring documentation relevant to his compliance with…