Tang v Minister for Immigration and Citizenship

[2011] FCA 1273

FEDERAL COURT OF AUSTRALIA

Tang v Minister for Immigration and Citizenship [2011] FCA 1273

Citation:		Tang v Minister for Immigration and Citizenship [2011] FCA 1273
Appeal from:		Xianda Tang v Minister for Immigration and Citizenship & Anor [2011] FMCA 631
Parties:		XIANDA TANG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number:		NSD 1514 of 2011
Judge:		COLLIER J
Date of judgment:		9 November 2011
Catchwords:		MIGRATION – appeal from Federal Magistrates Court – application for Student (Temporary) (Class TU) visa – appellant not meeting criteria stipulated in cl 572.211 of Migration Regulations – appellant did not hold valid visa at time of application – dispute with educational institution – no error in Tribunal finding – Tribunal had no discretion to consider reasons why application for visa delayed – no evidence of lack of procedural fairness – no appealable error in decision of Federal Magistrate
Legislation:		Migration Act 1958 (Cth) s 65 Migration Regulations 1994 (Cth) Sch 2 cl 572.211
Date of hearing:	7 November 2011
Place:	Brisbane (Heard in Sydney)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	21
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the First and Second Respondents:	Mr A Wood of Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1514 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

XIANDA TANG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	9 NOVEMBER 2011
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

The appeal be dismissed with costs fixed in the amount of $2,610 to be paid by the appellant to the first respondent by 9 May 2012.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1514 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

XIANDA TANG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	9 NOVEMBER 2011
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Scarlett FM dated 19 August 2011 dismissing an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) handed down 8 April 2011. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse the appellant’s application for a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).

   Background

2. The appellant is a citizen of China who arrived in Australia on 6 August 2001. It appears that between that date and September 2009 the appellant successfully applied for six student visas, consecutively.

3. On 28 October 2009 the appellant lodged an application with the Department of Immigration and Citizenship for the visa relevant to these proceedings. A delegate of the first respondent refused the application for the visa on 27 November 2009. The material before the Court indicates that the delegate refused the application on the basis that the appellant did not meet the criteria stipulated by cl 572.211 of the Migration Regulations 1994 (Cth) (“Migration Regulations”).

4. On 21 December 2009 the appellant applied to the Tribunal for a review of that decision.

   Relevant legislation

5. In summary cl 572.211 prescribes criteria which must be satisfied where an application for a student visa is made in Australia. Specifically, cl 572.211(1) states that if the application is made in Australia, the applicant must meet the requirements of subcl (2), (3), (4) or (6).

6. In this case it is not in dispute that the appellant’s application for the visa was made at a time when the appellant was in Australia.

7. Subclauses 572.211(2), (4) and (6) contemplate that, at the time of the application for the visa, the appellant was already the holder of a nominated class of visa. In this case it is not in dispute that, at the time of the application for the visa, the appellant did not hold a valid visa.

8. The criteria stipulated by subcl 572.211(3) contemplate that the applicant for a visa does not hold a substantive visa at the time of the application. However in such circumstances the applicant for the visa must, inter alia, satisfy Migration Regulations Schedule 3 Criterion 3005. This criterion is as follows:

   A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:
   (a) this Schedule; or
   (b) Schedule 6 of the Migration (1993) Regulations; or
   (c) regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.

9. It is not in dispute that the appellant has previously been granted a visa of a class described by Criterion 3005, and therefore could not satisfy this criterion.

   Findings of the Tribunal

10. The Tribunal examined the relevant legislative provision, and noted the appellant’s claims that his application for a visa was delayed because he had been in dispute with his former college about payment of fees, and was unable to obtain a Confirmation of Enrolment from the college before application date in respect of his visa had expired. The Tribunal also accepted the appellant’s evidence that he was unable to sit his final semester examinations at the college as he was ill with the flu and had to be quarantined. The Tribunal accepted that the appellant had been a genuine student in Australia and genuinely wanted to finish the last semester of his course. However the Tribunal found that, unfortunately, there was no discretion in the legislation to allow it to take into account the reasons why the appellant had been delayed in lodging his visa application.

11. Accordingly, the Tribunal concluded that because the appellant did not meet one of the elements of subcl 572.211(3), he had failed to meet the requirements of cl 572.211 of Sch 2 to the Migration Regulations.

    Federal Magistrates Court

12. On 4 May 2011 the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal decision. The application contained the following grounds:

    1.  The MRT made an error in making the decision on my review application.

13. The Federal Magistrate set out in detail the findings of the Tribunal and the submissions made by the appellant before his Honour.

14. His Honour found that the Tribunal had correctly identified that in order to meet the requirements of subcl 572.211(3)(d), the appellant was required to satisfy Schedule 3 Criterion 3005. His Honour concluded that the Tribunal’s interpretation of the requirements of cl 572.211 was correct, and that no error existed in the Tribunal’s finding that the appellant did not meet the requirements of cl 572.211. His Honour also found that the Tribunal was correct in finding that it had no discretion to allow it to take into account reasons why the appellant was delayed in lodging his application.

15. His Honour found that the Tribunal had considered all aspects of the appellant’s claim, and that there was no evidence of a lack of procedural fairness in the Tribunal decision.

    Appeal to this Court

16. On 6 September 2011 the appellant filed a notice of appeal against the decision of his Honour. The notice contained the following ground:

    1.  The Federal Magistrate’s Court made an error in making the order to dismiss my application filed on 4 May 2011.

17. Accompanying the notice of appeal is an affidavit in which the appellant deposed as follows:

    I BELIEVE THAT THE FEDERAL MAGISTRATES COURST OF AUSTRALIA MADE AN ERROR IN MAKE THE ORDER TO DISMISS MY APPLICATION FILED ON 4 May 2011

    1.        I am the applicant.

    2.I believe I satisfied schedule 3 criterion 3005 of the Regulation to meet the requirements of cl. 572.211(3)(d) and my student visa application should not be refused.

    (Errors in original.)

18. At the hearing, the appellant was self-represented. In summary, the appellant submitted that the Tribunal had erred in failing to take into account the reasons why the appellant had been delayed in obtaining a Confirmation of Enrolment from the college by the date required for lodgement of his visa application.

19. The Minister submits that the appellant’s ground of appeal and statement in his affidavit are bald assertions, baseless and contrary to law. The Minister further submits that the appellant has not identified any appealable error in the decision of the Federal Magistrate.

20. While I sympathise with the appellant’s predicament, unfortunately the Minister’s submissions accurately summarise the position. Before me the appellant clearly sought to agitate the same complaints as he had done before his Honour. However as the his Honour – in my view, correctly – observed, the Tribunal had properly interpreted and applied the relevant provisions from the Regulations as it was bound to do.

21. The appropriate order is that the appeal be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        9 November 2011