Ralalage v Minister for Immigration

[2014] FCCA 1252

FEDERAL CIRCUIT COURT OF AUSTRALIA

RALALAGE v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1252

Catchwords:
MIGRATION – Judicial review – whether application for visa made within the prescribed time – once found criteria not satisfied Minister must refuse a visa.

Legislation:

Federal Circuit Court Rules 2001, rr.13.03C(1)(e), 15.03, 44.12

Migration Act 1958 (Cth), ss.5, 65(1)(b), 362B

Migration Regulations 1994, cl.572

Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZIGQ & Anor v Minister for Immigration & Citizenship & Anor(Corrigendum dated 14 March 2007) [2007] FCA 328

Applicant: SHANAKA IROSHI JAYATHILAKA MORAGASPITIYA RALALAGE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1980 of 2013

Judgment of: Judge F. Turner

Hearing date: 22 April 2014

Date of Last Submission: 22 April 2014

Delivered at: Melbourne

Delivered on: 22 April 2014

REPRESENTATION

The Applicant did not appear at the hearing

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 the Court proceeds to deal with the claim for relief in the absence of the applicant.

2. The application for judicial review filed 19 November 2013 is dismissed.

3. The applicant pay the first respondent’s cost fixed in the sum of $2,450.00.

4. All extant applications are dismised and the matter is removed from the list of pending cases.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1980 of 2013

SHANAKA IROSHI JAYATHILAKA MORAGASPITIYA RALALAGE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

1. This is an application for judicial review of a decision of the Migration Review Tribunal (the “Tribunal”) dated 24 October 2013 (Court Book “CB” p.70). That decision affirmed a decision of a delegate to the Minister for Immigration & Border Protection not to grant the applicant a Student (Temporary) Class TU visa (CB p.37).

2. By order dated 5 February 2014, Registrar Caporale dispensed with a hearing under r.44.12 of the Federal Circuit Court Rules 2001 (the “Rules”) and ordered that the matter be listed for final hearing.

3. The applicant has not appeared at the final hearing today. The Court is proceeding to deal with the matter pursuant to r.13.03C(1)(e) of the Rules. The first respondent is represented by Mr McDermott.

4. By order 4 of the orders dated 5 February 2014, the applicant was ordered to file and serve written submissions by 8 April 2014. None have been filed. Mr McDermott consents, on behalf of the Minister, that the Court deal with this matter pursuant to r.15.03 of the Rules, without oral submissions.

5. The sole ground in the application for judicial review is that:

   (1)Here, the First and Second respondent erred in the application of clause 572.211 of Schedule 2 of the Migration Regulations.

6. The Tribunal summarised the relevant requirements of cl.572.211 of the Migration Regulations 1994 (the “Regulations”) (CB p.72) as follows:

   (11)The issue in the present case is whether the applicant satisfies cl.572.211. That criterion requires that if the visa application is made in Australia, the applicant holds a specified substantive visa at that time, or alternatively, if not such a visa holder:

   ·the last substantive visa held was of a specified type, which relevantly includes a student visa: cl.572.211(3)(b); and

   ·the visa application was made within 28 days after the day when that last substantive visa ceased to be in effect; or if that last substantive visa was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation – the later of the day when that last substantive visa ceased to be in effect and the day when the applicant is taken to have been notified of the Tribunal’s decision: cl.572.211(3)(c); and

   ·the applicant satisfies Schedule 3 criterion 3005: cl.572.211(3)(d).

7. To quote the Tribunal (CB p.71 [3]):

   “Broadly speaking, for visa applications made in Australia, it requires the applicant to be the holder of the substantive visa or to have made the visa application within 28 days of the last substantive visa ceasing.”

8. The Court finds no error of law in that statement. As the visa application was made in Australia (CB p.8) and as the applicant did not hold a substantive visa under a type specified in the criteria (CB p.72 [12]), the applicant had to meet the requirements of cl.572.211(3). That again is referenced on CB p.72 at [12].

9. The term “substantive visa” is defined in s.5 of the Migration Act 1958 (the “Act”) as a visa other than a bridging visa, a criminal justice visa or an enforcement visa.

10. The last substantive visa that the applicant held ceased on 15 February 2012 (CB pp.66, 11 [34]).

11. Sub-clause 572.211(3)(c)(1) required that the application for a visa had to be made within 28 days of the day when the last substantive visa ceased to be of effect. That is, 28 days from 15 February 2012. The current visa application considered by the Tribunal was made on 9 May 2013 (CB p.7).

12. The applicant’s last substantive visa ceased to be in effect on

    
    

    15 February 2012. That is the date the last TU visa ceased (CB p.66). The Tribunal found, therefore, that the application for a visa was not made within 28 days after the last substantive visa ceased to be in effect.

13. The Tribunal found, therefore, that the applicant did not satisfy cl.572.211(3) and so did not meet cl.572.211 of Schedule 2 to the Regulations (CB p.72 [16]).

14. The Tribunal found the applicant did not meet the requirements of the other subclasses within class TU (CB p.72 [17]). The Tribunal therefore, affirmed the decision of the delegate.

15. The applicant has not established that the Tribunal made an error of law in its application of cl.572.211 of Schedule 2 to the Regulations or otherwise.

16. Once the Minister was not satisfied that the applicant had satisfied the criteria for the visa, s.65(1)(b) of the Act required the Minister to refuse to grant the visa. That is what occurred.

17. By letter dated 19 September 2013 (CB p.59), the applicant was invited to appear before the Tribunal at the hearing on 21 October 2013. The applicant did not appear at the hearing (CB p.71 [8]).

18. As the applicant failed to attend at the hearing, the Tribunal was empowered by s.362B of the Act to proceed to make a decision without his attendance.

19. When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: see SZIGQ & Anor v Minister for Immigration & Citizenship & Anor(Corrigendum dated 14 March 2007) [2007] FCA 328 at [4] (citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287 at [5]).

20. It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, “the reason for non-attendance at a hearing does not matter”: see SZIGQ (supra) per Downes J at [5].

21. By proceeding to a decision without hearing from the applicant, the Tribunal acted in accordance with the statutory scheme: see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [48]. Further, there is no obligation on the Tribunal to make inquiry as to the failure on the part of an applicant to appear: see Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39].

22. The Court finds that the Tribunal proceeded in accordance with s.362B of the Act. Division 5 of Part 5 of the Act provides that the Division is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters that that division deals with.

23. The Court finds no breach of Division 5. The Court accepts the written submissions for the first respondent that:

    “The Tribunal’s findings of fact were open on the available material and were not unreasonable, illogical or irrational”.

24. The applicant has not established that the Tribunal erred in law.

25. The application for judicial review is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date: 10 June 2014