Wang v Minister for Immigration - [2004] FMCA 454

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION

[2004] FMCA 454

MIGRATION – Review of MRT decision – where applicant’s student visa cancelled – where applicant immediately sought review – where MRT set aside decision of the delegate – where this decision handed down outside the 28 days within which the applicant had to make a visa application – where consequently the application for a new substantive visa was declined because of failure to comply with the regulations – where applicant sought review of this decision – whether the decision of the Tribunal evidences a denial of procedural fairness or jurisdictional error.

Migration Act 1958 (Cth), s.48

Applicant:

QI WANG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 2012 of 2003

Delivered on:

2 August 2004

Delivered at:

Sydney

Hearing date:

19 July 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 2012 of 2003

QI WANG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a Chinese citizen who had been granted a Sub-Class 560 Student Visa valid until 23 November 2001 on 1 May 2001. He had been the holder of similar visas since his first arrival in Australia on 28 February 1999. He attended an English language college and then enrolled in Hunters Hill High School to undertake year 11 studies, on completion of those studies he was admitted to study for the Diploma of Business and Commerce at UTS. It was almost at the end of that course that his current visa was cancelled for breach of Condition 8202 regarding his attendance on 15 November 2001. Mr Wang immediately sought review of that decision from the Migration Review Tribunal.
In the normal course of events Mr Wang’s substantive visa would have run out on 23 November 2001 and within twenty-eight days thereof he would have had the opportunity to apply for a further visa which would have seen him to the end of his course and on to a degree course. But the criteria to be satisfied at the time of a decision to grant a Sub-Class 573 Visa found at Regulations 573.211 include the following:
“573.211(1) If the application is made in Australia, the applicant meets the requirements of Sub-Clause (2), (3), (4), (5) or (6).
(3) An applicant meets the requirements of this sub-clause if:
(a) The applicant is not the holder of a substantive visa; and
(c) The application is made within twenty-eight days (or within such period specified by Gazette Notice) after that last substantive visa ceased to be in effect.”
It is common ground that DIMIA will not permit an application for a substantive visa onshore where the previous substantive visa has been cancelled under s.116. This is because s.48 of the Migration Act 1958 (Cth) applies.
Mr Wang was therefore not in a position to apply for a new substantive visa unless a decision to revoke the cancellation of his original visa was made within twenty eight days of 23 November 2001. This did not happen. As Mr Wang told me with some vehemence in his submissions it took the Migration Review Tribunal 158 days to set aside the decision of the delegate and “restore” his original visa.
By this time the 28 day period had expired and so the application which Mr Wang made was declined by the delegate on the grounds that it did not comply with the Regulations. Mr Wang sought review of the decision of the delegate and that decision was handed down by the Tribunal on 28 May 2003. It is this decision which is presently before me for review. So far as I am aware this decision was made by a Tribunal differently constituted to that of the Tribunal which set aside the original decision of the delegate.
At [14] the Tribunal came to the only conclusion that it could:
“Accordingly the Tribunal finds that the visa applicant did not make his visa application within twenty-eight days after his last substantive visa ceased to be in effect. The visa applicant has not satisfied paragraph 573.211(3)(c) and has not in other ways satisfied Clause 573.211 of Schedule 2 to the Regulations.”
The learned Tribunal member who is also the editor of the Migration Law Service went on to state at [15] and [16]:
“On the larger point as to how the lateness came about in this case, I add remarks that I have made in similar cases. Where persons seek Tribunal review of cancellation decisions there inevitably will be a gap in time between the delegates decision to cancel and the eventual setting aside by the Tribunal (if indeed this is the result of the review). This gap in time gave rise to an unexpected difficulty with the change from the old Subclass 560 visa to the new student visa subclasses; a change brought about by Amendment Regulations that took effect from 1 July 2001. The new subclasses deal differently from the old subclass 560 with persons who do not hold a substantive visa at the date of application. As we have seen in this case, for instance, 573.211(3)(c) states in clear terms, without acknowledgment of complicating cases, that the application must be within 28 days of the cessation of the last held substantive visa. The subclass 560 criterion more or less allowed 12 months to pass in which applicants could make a valid visa application even though they did not hold a substantive visa.
In addition, there seems no way at present for applicants to protect themselves from the effect of these new provisions in the event that the original visa ceases before the Tribunal decides the case one way or the other. For during the course of the Tribunal proceedings the applicant is in the position of someone who has had a visa cancelled under s.116. Accordingly, s.48 of the Act applies and applicants cannot lodge an on-shore student application. Perhaps the Department could be encouraged to hold these applications pending the Tribunal decision. Alternatively, provisions such as 573.211(3)(c) already have within them the potential for specifying periods different from 28 days by way of Gazette Notice. Possibly this difficulty could be dealt with simply in this way.”
I note that Mr Wang thereafter made an application to the Minister for him to exercise his discretion to substitute a more favourable decision but the Minister declined without giving reasons.
The matter now comes before me for review of the Tribunal’s decision. The applicant was self-represented. He explained to me that he believed that the action of the Tribunal had been unfair because it knew of the requirement for him to lodge a further application within twenty-eight days of the expiry of his first visa but did not set a hearing date until after the end of that period. But this was a complaint about the first Tribunal. No doubt he was grateful to the first Tribunal for setting aside the decision of the delegate, but for him (with apologies to AH Clough) ‘ the struggle naught availeth.’ The Tribunal had done its work too late and the applicant had been placed in the position that any application that he made onshore for a Student Temporary (class TU) visa must fail.
This fact was pointed out to the applicant in the decision of the later Tribunal. There is no assertion by the applicant, let alone any evidence, of procedural unfairness by the second Tribunal. Nor is there any other allegation of jurisdictional error. The applicant sought to argue that the second Tribunal had fallen into error because the delays of the first but this is a new decision in respect of a new matter and those arguments are clearly not tenable.
At the hearing Mr Wang told me that he was awaiting the results of his degree examinations. If he secures a degree he hopes to continue his studies for an MBA. This may not be possible unless the applicant returns to China and makes his application from there.
I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

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

Associate:

Date: