MIAO v Minister for Immigration

[2015] FCCA 988

FEDERAL CIRCUIT COURT OF AUSTRALIA

MIAO v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 988

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – whether applicant applied for student visa within 28 days after the day last substantive visa ceased to have effect – whether Tribunal has discretion to consider applications made more than 28 days after the day on which the last substantive visa held ceased to have effect – no jurisdictional error – application dismissed.

Legislation:  

Migration Regulations 1994 (Cth), cl.573.211(3)(b), 573.211(3)(c)

Jiayi Chen v Minister for Immigration [2008] FMCA 1285
Kaur v Minister for Immigration and Citizenship [2013] FCA 275

Applicant: MENGCHENG MIAO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1453 of 2014

Judgment of: Judge Manousaridis

Hearing date: 15 April 2015

Date of Last Submission: 8 April 2015

Delivered at: Sydney

Delivered on: 15 April 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the First Respondent: Ms Z Taylor of
Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1453 of 2014

MENGCHENG MIAO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the second respondent affirming the decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) (Subclass 573) visa.  In these reasons, I will refer to that visa simply as “the student visa”. 

2. To have been entitled to a student visa, the applicant either had to be the holder of one of the substantive visas identified in clause 573.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), as at the day he applied for the student visa, or, if the applicant was not the holder of any of those substantive visas on that day, the applicant must have been the holder of one of the substantive visas specified in clause 573.211(3)(b) of schedule 2 to the Regulations, and the applicant applied for the student visa within 28 days after the day when such substantive visa ceased to have effect. This requirement is prescribed by clause 573.211(3)(b) of Schedule 2 to the Regulations.

3. At the time the applicant applied for the student visa, he was not the holder of any of the substantive visas specified in clause 573.211(3)(b) of Schedule 2 to the Regulations. The applicant, however, had been the holder of such visa, the relevant visa being a student visa, up to 13 August 2013, when that visa ceased to have effect. I will refer to that visa simply as “the previous visa”.  A delegate of the first respondent refused to grant the applicant the student visa for which he applied on 16 December 2013 because the delegate found the applicant did not apply for that visa within 28 days after 13 August 2013, being the day when the previous visa ceased to have effect.

4. The Tribunal affirmed the delegate’s decision.  There is no issue that on the day the applicant applied for the student visa he did not hold any substantive visa.  There is also no issue that the last visa the applicant held was the previous visa, and that that visa ceased to have effect on 13 August 2013.  In his application for judicial review, the applicant, who is not legally represented, relies on a number of grounds.  These are as follows:

   Orders sought by Applicant

   1,  I disagree with Immigration and MRT’s decision.  They did not consider that I have been a genuine student and had not breached my visa condition.  They did not consider the fact that I had compelling reasons not to extend my visa when it was expired. And I did try my best to seek help.

   2,  DIBP and MRT did not give a good consideration as I had strong reasons which was out of my control for delaying my visa extension application.

   3,  DIBP and MRT should [have] granted my student visa application and allow me to continue my study.

   The Grounds of the Application are:

   1,  I am a Chinese citizen and have been a genuine student since I arrived in Australia.  I did not extend my student visa due to situation beyond my control.

   2,  I always obey my visa condition and never breached it.

   3,  It is not fair to refuse my visa, I hope I can continue my study in Australia.

5. At the hearing before me, the applicant made submissions only in relation to the second ground that is to be found under the heading “Orders sought by Applicant”.  The applicant said that the Department of Immigration and Citizenship, as the Department of Immigration and Border Protection was then known, communicated with the applicant to an email address that ceased to be functioning. 

6. The grounds contained in the application and the submissions the applicant made before me, whether considered individually or together, assume it was open to the Tribunal to grant the applicant the student visa for which the applicant applied. That assumption, however, is incorrect. The Tribunal does not have any discretion, and did not in this case have any discretion to extend the time provided by clause 573.211(3)(c) of Schedule 2 of the Regulations. This was confirmed by Cowdroy J in Kaur v Minister for Immigration and Citizenship[1], where, speaking of clause 573.211(3)(c),[2] his Honour said that the:

   The Regulations do not afford any discretion for processing applications filed outside of the 28 day period.

   His Honour set out, with approval, the following passage from the reasons for judgment of Barnes FM (as her Honour was then known) in Jiayi Chen v Minister for Immigration:[3]

   Hence in so far as the applicant contends that the tribunal erred in failing to exercise a discretion based on her claims about being misled or on the basis that her late application was due to exceptional circumstances, that does not establish jurisdictional error.  Such matters were not matters which it was open to the tribunal to take into account in determining whether the applicant met the requirement in issue in relation to the time of application for the student visa. 

   In other words, as the first respondent submitted the reasons the applicant gave for lodging her student visa application outside the prescribed 28-day period had no bearing on the tribunal decision.  The tribunal was required by law to refuse the grant of the visa if the applicant did not meet the mandatory criteria prescribed in the Migration Regulations for the class of the visa in issue.

   [1] [2013] FCA 275 at [15]

   [2] His Honour actually referred to cl.572.211(3)(c). The wording is the same as cl.573.211(3)(c) but it applies to Subclass 572 visas.

   [3] [2008] FMCA 1285 at [31]-[32]

7. Given the delegate and, hence, the Tribunal, did not have a discretion to consider an application for a student visa that was made more than 28 days after the day on which the last substantive visa the applicant held ceased to have effect, the Tribunal made no jurisdictional error in affirming the delegate’s decision not to grant the applicant a student visa on the ground that the application was made more than 28 days after the day on which the applicant’s last substantive visa ceased to have effect.  The only option available to the applicant now is to make inquiries of the Department about the options that are available to him to continue to study in Australia. 

8. I propose, therefore, to dismiss the application and order that the applicant pay the first respondent’s costs.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  17 April 2015