Luk v Minister for Immigration

[2018] FCCA 2740

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUK v MINISTER FOR IMMIGRATION [2018] FCCA 2740

Catchwords:
MIGRATION – Notification of invalid application for a Temporary Graduate (Post-Study Work) (subclass 485) visa – failure by the applicant to meet Item 1229(3)(g) of the Regulations – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), Item. 1229(3)(g)

Applicant: ISABELLA EMILY JING-YIN LUK

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 3544 of 2017

Judgment of: Judge Street

Hearing date: 24 September 2018

Date of Last Submission: 24 September 2018

Delivered at: Sydney

Delivered on: 24 September 2018

REPRESENTATION

Counsel for the Applicant:	Mr L Karp
Mr G Schipp

Solicitors for the Applicant: Kinslor Prince Lawyers

Counsel for the Respondent: Mr H Bevan

Solicitors for the Respondent: Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant pay the respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 24 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3544 of 2017

ISABELLA EMILY JING-YIN LUK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a notification of invalid applications for a Temporary Graduate (Post-Study Work) Subclass 485 visa being a non-reviewable migration decision made on 2 May 2017 and accordingly within this Court’s jurisdiction. 

2. In the present case, two applications made by the applicant on 3 March 2017 and 9 March 2017 are in issue and the applicant was not in Australia on either date. The Department found the applicant failed to meet Item 1229(3)(g) of Schedule 1 to the Migration Regulations 1994 (Cth) (“the Regulations”), which provides as follows:

   (g) An applicant to whom paragraph (f) does not apply must be in Australia, but not in immigration clearance, when making his or her application.

3. Mr Karp of counsel on behalf of the applicant submitted that the application lodged by the applicant be said to be inchoate and thereby could escape the ordinary natural meaning of the words that make clear the application must be made, in order to satisfy the requirements under Item 1229(3)(g) of the Regulations, by a person in Australia, not in immigration clearance.  Mr Karp submitted that the first respondent had not made a decision on validity at the time the applicant arrived back in Australia and that her arrival therefore had the effect of rendering valid as at 11 March 2017 the inchoate application lodged the previous day.

4. I accept the first respondent’s submission that Mr Karp’s contention is inconsistent with the plain words of paragraph 46(4)(d) of the Act, subregulation 2.10(2A) and paragraph 1229(3)(g) of Schedule 1 of the Regulations. There is no scope for an inchoate application as advanced by the applicant in the present case. The applications were not valid as the applicant was not in Australia at the time of their making.

5. No jurisdictional error as alleged in the application is made out. The application is dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 December 2018