Tang v Minister for Immigration

The matter of Tang v Minister for Immigration & Anor involved an application for judicial review of a decision of the Migration Review Tribunal (Tribunal). The applicant, Renjie Tang, sought to challenge the Tribunal's decision not to revoke the automatic cancellation of his student visa under the Migration Act 1958 (Act). The application for judicial review was brought out of time and the applicant sought an extension of time within which to bring the proceedings. The court was required to determine whether the application for an extension of time should be granted. The court considered the relevant provisions of the Act, the Migration Regulations 2004, the Education Services for Overseas Students Act 2000, and relevant case law.

The court found that the applicant had provided a satisfactory explanation for the delay in commencing the proceedings, as he did not receive a copy of the Tribunal's decision until 1 May 2012. However, the court found that the applicant's substantive application did not have reasonable prospects of success. The applicant alleged that the Tribunal had failed to exercise its jurisdiction by not being satisfied that his breach of visa condition 8202 was not due to exceptional circumstances beyond his control. The court found that the Tribunal was not required to consider whether the education provider had failed to monitor the applicant's course progress accurately, as there was no evidence that the Department of Education Science and Training or an education provider had expressed concerns in writing about the process leading to the breach and the reporting thereof. Additionally, the court found that the Tribunal was not required to make enquiries into whether the education provider had satisfied its obligations under the National Code, as the applicant had not alleged that the education provider had not met those obligations. Lastly, the court found that procedural fairness did not require the Tribunal to make the postulated enquiries, as the High Court had stated that failure to make obvious inquiries could not constitute a breach of the requirements of procedural fairness at common law.

In conclusion, although the applicant had provided a satisfactory explanation for the delay in commencing the proceedings, his substantive application did not have reasonable prospects of success. Therefore, the application for an extension of time within which to bring the proceedings was dismissed.