PASULA v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 121
•16 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PASULA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 121 |
| MIGRATION – Judicial review of decision of the Migration Review Tribunal – Applicant an Indian citizen – failure of Applicant to comply with Regulations with respect to application for a student visa – application dismissed – costs granted. |
| Migration Act 1958 (Cth), s.65(1) Migration Regulations 1994 (Cth) Schedule 2, Part 572, cl.572.211 |
| Applicant: | SRIDHAR REDDY PASULA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1168 of 2011 |
| Judgment of: | Whelan FM |
| Hearing date: | 16 February 2012 |
| Date of Last Submission: | 16 February 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 16 February 2012 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Ms Holt |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application in this matter is dismissed.
The Applicant pay the Respondent’s costs in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1168 of 2011
| SRIDHAR REDDY PASULA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application by Mr Pasula in which he seeks a judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) which was made on 12 July 2011.
Background
The Applicant is an Indian citizen who arrived in Australia on 1 August 2005 on a student (subclass 573) visa. He was granted a further (subclass 573) student visa on 8 August 2005 which was valid until 31 August 2007. Since that time, the Applicant has been granted a number of bridging visas.
On 6 May 2010, the Applicant applied for a student (class TU) visa.
On 7 May 2010, the delegate of the Minister refused to grant the visa on the basis that the application did not satisfy cl.572.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) as the visa application was not lodged within 28 days of the expiry of the Applicant’s previous substantive visa.
On 24 May 2010, the Applicant applied to the Tribunal for a review of the delegate’s decision. On 12 July 2010, the Applicant appeared at a hearing of the Tribunal and gave evidence and made submissions. On the same day, the Tribunal made a decision affirming the delegate’s decision. On 11 August 2011, the Applicant lodged this application for a judicial review.
Grounds
The application is made on the following grounds:
1. I applied for student visa on 6 May 2010 to Melbourne regional office, but I did not get approval with reason that you do not meet criteria for student visa on 7 May 2010.
2. Then I apply to MRT for review of that decision.[1]
[1] Application filed by the Applicant on 11 August 2011.
The Applicant was given the opportunity to amend his application, but did not do so. The Applicant lodged a written submission which addressed the reasons why he should be issued with a student visa.
He was asked by the Court to address the reason why he claims the Tribunal was in error in reaffirming the delegate’s decision.
In essence, what the Applicant put to the Court was that he had been told that he could make application for a visa. He agreed he was not told that he would be granted a visa. He does understand that the reason he was unsuccessful was the failure to meet the requirement that the application be made within 28 days of the expiry of his previous student visa. He does not challenge that finding.
The Legislative Provisions
Section 65(1) of the Migration Act 1958 (Cth) (“the Act”) provides that a visa may be granted only if the decision-maker is satisfied that the prescribed criteria for the visa have been satisfied. The relevant regulation in Part 572 of Schedule 2 of the Regulations in this case is 572.211, as the visa application was made in Australia. As the Applicant was not the holder of a substantive visa of the type described in the Regulations, the Applicant was required to meet all of the requirements of cl.572.211(3).
Clause 572.211(3)(a) applies to an Applicant who is not the holder of a substantive visa. Relevant to the Applicant, subcl.3(b) applies if the last substantive visa held by the Applicant was a student visa. Relevant to this application, subcl.3(c) provides that the application must be made within 28 days after the day when the last substantive visa ceased to have effect.
The decision under review is the Tribunal’s decision that it was not satisfied that the Applicant met that criteria.
The Tribunal had before it the Department’s file relating to the Applicant and heard from the Applicant on 12 July. In written reasons, the Tribunal found that the delegate’s decision was a reviewable decision under the Act and the Applicant had made a valid application for review. The Tribunal determined that the relevant provisions were the provisions as set out in the legislation previously referred to and, after setting out the Applicant’s claims and the evidence, the Tribunal made findings on the Applicant’s claims.
The Tribunal determined that the relevant regulation was as determined by the delegate, cl.572.211, as the visa application was made in Australia. As the Applicant was not the holder of a substantive visa of the type described, the Tribunal found that the Applicant therefore had to meet the requirements of cl.572.211(3). It therefore followed that the Applicant was required to make an application within 28 days of the expiry of his previous substantive visa.
The Tribunal determined that the Applicant had been granted a student visa in July 2005 and that he had subsequently been granted a further student visa and a number of bridging visas. The Tribunal determined that the last substantive visa held by the Applicant was a student temporary class TU, subclass 573 Higher Education Sector visa which had expired on 31 August 2007. The Tribunal therefore found that, on 6 May 2010, when the Applicant made the application for a student temporary class TU visa, the Applicant was unable to meet the requirements of the Regulations as the previous visa had expired on 31 August 2007. Accordingly, the Tribunal affirmed the decision under review.
The submissions
The First Respondent submits that the Applicant has failed to identify any jurisdictional error in the Tribunal’s decision and essentially is seeking an impermissible review of the Tribunal’s decision on its merits. It is not the Court’s function in reviewing an administrative decision to substitute its own decision for that of the Tribunal by exercising a power which the legislature has vested in the Tribunal. The First Respondent also submits that the Tribunal applied the relevant criteria pursuant to Part 572 Schedule 2 of the Regulations and, in doing so, after considering the evidence, determined that the Applicant did not satisfy the relevant criteria as he had failed to apply for the visa within the period of time prescribed.
The First Respondent also dealt with the issue of whether the Tribunal had complied with the requirements of the Act, and, in particular, s.357A, and s.359A and s.360, and submitted that the Tribunal had complied and there was no issue of denial of natural justice that therefore arose. The First Respondent therefore submitted that for those reasons the Tribunal’s decision was not affected by jurisdictional error and the Court had no jurisdiction to hear the application presently before it.
Conclusions
Neither in the grounds set out in the application nor in written or oral submissions, does the Applicant allege that the Tribunal has made a jurisdictional error in applying the requirements of the Regulations to his case. The Applicant essentially seeks to argue the merit of why he should be granted a student visa, while not challenging that he has failed to comply with the relevant Regulations. It is not the role of the Court, in conducting a judicial review, to consider the merits of the Applicant’s claim. The Court can only set aside the decision of the Tribunal if it is satisfied that the Tribunal has acted beyond jurisdiction or made a jurisdictional error.
The Tribunal, in this case, made findings of fact based on the evidence before it. Even if it were open to the Court to overturn those findings, there is no basis in the Applicant’s material to do so. The Tribunal correctly applied the relevant Regulations to the facts of the case in upholding the delegate’s decision. In doing so, the Tribunal invited the Applicant to appear before it. The Applicant did appear and was afforded the opportunity to make submissions. The Tribunal correctly put to the Applicant the relevant issues in relation to the decision under review and sought his comments.
The procedure adopted by the Tribunal was consistent with the requirements of the legislation. For these reasons, the application must, therefore, be dismissed. On the basis of the material before the Court, I am satisfied that the application for costs should be granted.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 23 February 2012
0
0
2