TUTAK v Minister for Immigration

[2015] FCCA 1706

FEDERAL CIRCUIT COURT OF AUSTRALIA

TUTAK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1706

Catchwords:
MIGRATION – Migration Review Tribunal – Student (Temporary) (Class TU) visa – application lodged more than 28 days after visa expiry – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958, ss.347, 476
Migration Regulations 1994

Applicant: BURKAY TUTAK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 920 of 2015

Judgment of: Judge Street

Hearing date: 19 June 2015

Date of Last Submission: 19 June 2015

Delivered at: Sydney

Delivered on: 19 June 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Mr J. Pinder
Minter Ellison

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $4900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 920 of 2015

BURKAY TUTAK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision made by the Tribunal on 5 March 2015 affirming a decision not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The application identifies the following grounds:

   1. The tribunal member was biased

   2. The tribunal member didn't review my claims properly and fairly

   3. The tribunal did not consider that my documents were kept by force and could only be retrieved when NSW Police interfered

3. The applicant initially applied for a Student (Temporary) (Class TU) vocational education and training sector, subclass 572 visa which was rejected on 7 July 2014 by reason of an assessment that the application was invalid because of insufficient funds.  The applicant contends that this was not due to any fault of his, and he lodged a further application for a Student (Temporary) (Class TU) 572 visa which was refused on 23 October 2014. Given that the application was lodged more than 28 days after the day of the last substantive visa ceased to be in effect, the applicant was found not to satisfy cl.572.211.

4. The Tribunal identified the criteria for the grant of a subclass 572 visa, as set out in Part 572 of Schedule 2 of the Regulations, which relevantly includes cl.572.211.  In substance, cl.572.211 requires the applicant to be the holder of a substantive visa or to have made a visa application within 28 days of the last substantive visa ceasing.  In this case, the delegate found that the applicant’s last substantive visa ceased on 9 July 2014 and the Student (Temporary) (Class TU) visa application was not lodged until 2 September 2014.

5. The Tribunal notes that the applicant attended a hearing on 5 March 2015 and confirmed that his last substantive visa, a student visa, ceased on 9 July 2014 and that his current student visa application was not lodged until 2 September 2014.  The applicant made a written submission after the hearing in which he agitated whether or not the Department had an obligation to inform him that the application was invalid so he could do something about it. 

6. The Tribunal relevantly found:

   12. On the evidence before the Tribunal, the current visa application was made on 2 September 2014 and the applicant’s last substantive visa ceased to be in effect on 9 July 2014. On that basis, the Tribunal finds that the application was not made within 28 days after the last substantive visa ceased to be in effect and the requirements of cl.572.211(3)(c) are not met. Accordingly, the Tribunal finds that the applicant does not satisfy the requirements of cl.572.211 of Schedule 2 to the Regulations.

   13. For applicants in Australia who do not hold a substantive visa at the time of visa application, the other subclasses within the Class TU visa class have a requirement that is the same as cl.572.211(3). For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses.

   14. The Tribunal has considered the applicant’s claims relating to an earlier student visa application which was lodged on 4 July 2014 but later found to be invalid because the applicant’s agent did not have sufficient funds in his account to pay the fee. The Tribunal sympathises with the applicant’s predicament. However, that earlier application is not the application which is the subject of this review. The relevant application is the one lodged on 2 September 2014. The Tribunal has no discretion to intervene in relation to that earlier application or make findings on the issues raised by the applicant. 

7. It is clear from the evidence before the Court that the notification of the invalid application for a Student (Temporary) (Class TU) vocational education and training sector subclass visa was sent by letter to the applicant’s correct address. 

8. In relation to ground 1, the adverse determination by the Tribunal is not a ground upon which there is any substance in the assertion that thereby the Tribunal member was biased.  The adverse determination is not conduct which would cause a fair minded person to believe that the Tribunal member might not bring an impartial or independent mind to the determination of the matter on the merits.  There is no substance in relation to ground 1.

9. In relation to ground 2, it is clear that the Tribunal provided the applicant with an opportunity to attend the hearing in respect of which the issue of whether the applicant satisfied the requirements of cl.572.211 was clearly put to the applicant and, as is apparent from para.7 of the Tribunal’s reasons, the applicant confirmed the facts that meant the requirements of cl.572.211 could not be satisfied.   There is no substance in the contention that the Tribunal failed to properly and fairly determine the application for review.  The Tribunal was bound to apply cl.572.211 and on the evidence before the Tribunal it is clear that the Tribunal was bound to find that the requirements of cl.572.211(3)(c) were not met. 

10. To the extent that the applicant raised a concern about the conduct of the Department, the Tribunal did refer to that concern and the Tribunal said that it sympathised with the applicant’s predicament, but correctly concluded that the Tribunal had no discretion, and that the requirements of cl.572.211(3) were not met. It was, in those circumstances, that it was not necessary to make other findings about the applicant’s complaints.  There is no substance in relation to ground 2.

11. Ground 3 does not identify any jurisdictional error, and it was not necessary for the Tribunal to consider the matter identified.  This is not a case in which the applicant’s allegations against the migration agent give rise to a fault of the kind that would reflect a jurisdictional error.  Further, this is not a case where the conduct of the migration agent was relevant to any part of the Tribunal’s review in respect of the second student visa application. 

12. I also note that by the time that the application was lodged for review by the Tribunal, the time for seeking review of the decision of 7 July 2014 had also expired under s.347 and, accordingly, there is no other basis upon which the applicant could be entitled to relief. The application is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  30 June 2015