WANG v Minister for Immigration
[2004] FMCA 351
•25 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WANG v MINISTER FOR IMMIGRATION | [2004] FMCA 351 |
| MIGRATION – Review of MRT decision – where applicant’s student visa cancelled – where prior to cancellation applicant offered opportunity to be heard on the matter but he did not attend hearing – where applicant applied for a bridging visa – where no substantive application in existence – where applicant alleged he had been “cheated” by his migration agent – whether the Tribunal’s decision evidences jurisdictional error – whether Tribunal acted with bias. |
Education Services for Overseas Students Act 2000 (Cth) s.20
| Applicant: | HAO WANG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1496 of 2004 |
| Delivered on: | 25 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 25 May 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in Person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
The applicant to pay the respondent's costs assessed in the sum of $1500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1496 of 2004
| HAO WANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
There comes before me today an application for review of a decision of the Migration Review Tribunal made on 11 May 2004. The Tribunal had decided to affirm a decision of the delegate not to grant the applicant a Bridging E (class WE) visa.
The applicant had come to Australia on a student visa which was subject to provisions for cancellation pursuant to s.20 Education Services for Overseas Students Act 2000 and the regulations of the Migration Act. The applicant had been reported as being in breach of his visa conditions and the Department offered him an opportunity to be heard in relation to the possible cancellation of his sub-class 571 visa.
The applicant did not attend upon an interview which had been arranged for 24 February 2004 and so his visa was cancelled on 26 February 2004. On 23 April 2004 the applicant was apprehended by the New South Wales Police Force and was placed into immigration detention.
On 27 April 2004 the applicant lodged a request for a Bridging E visa. A bridging visa of this type requires there to be some substantive application in existence. The one proposed by the applicant was a request for a review of the decision to cancel his student visa. No application for review of that decision had been made when the bridging visa application came before the delegate, nor had it existed at the time that the matter came before the Tribunal, although the Tribunal extended the time for the applicant's agent to pay the relevant fee until 4.30pm on 10 May 2004 (see paragraph 31 of the decision).
Therefore, at no relevant time has there been any application for a substantive visa made. Because of this the applicant would not satisfy the provisions of sub-classes 050.212 of the Migration Regulations. This is what the Tribunal found in its reasons for decision.
The applicant appeared before me today by telephone. He told me that he had been cheated by his migration agent. All his money had been taken. He told me that he had come to Australia to study and he was sent to a school in an area he did not know and he had been cheated and he relied on the court to provide him with an explanation for this and to give him a chance by granting him a visa.
The applicant should be assured that the court does take very seriously the possibility that persons in his position can be cheated by migration agents. The court would hope that the activities of this particular agent are looked into by the Department but these facts do not ground an application for review even if they were true, about which there is no evidence currently before me.
The applicant suggests that the Tribunal's decision was illegal but has provided no particulars. I have examined the Tribunal's decision and it seems to me to be entirely legal. I am unable to see how it is infected by any jurisdictional error. The Tribunal addressed the correct legal questions in relation to whether or not it could be satisfied that the applicant had fulfilled the necessary criteria for the visa which he was seeking.
The applicant suggested that the Tribunal had acted with bias. It has been said several times, not least in SBBS v MIMA [2002] FCAFC 361, that an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker. The allegation is not to be lightly made and must be clearly alleged and proved. Nothing that the applicant has said to me today constitutes proof of bias.
In all the circumstances I am unable to grant the applicant review and I am unable to grant what I believe he really wants today, which is an order staying the deportation which is due to take place tomorrow morning at approximately 11.00 am. I dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $1500.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
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