Wang v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1313

FEDERAL COURT OF AUSTRALIA

Wang v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCA 1313

WANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1202 of 2004

WHITLAM J
6 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1202 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	QI WANG APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	6 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1202 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	QI WANG APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	6 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’), which affirmed the decision of a delegate of the Minister finding that the visa applicant was not entitled to the grant of a student visa: Wang v Minister for Immigration [2004] FMCA 454. The background to that proceeding is set out in the following paragraphs from the Federal Magistrate’s reasons for judgment.

   ‘1.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.

   2.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)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.’

   3. 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.

   4.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. 

   5.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.’

2. The grounds of appeal are stated in the notice of appeal as follows:

   “1.      The procedures that were required by law to be observed in connection with the making of the decision and in connection with conduct for the purpose of making the decision were not observed.

   2.        The decision involves errors of law.

   3.        The applicant was a victim of the law which has flaws.”

   Nothing was said by the appellant in support of grounds 1 or 2.  Moreover, I can discern no jurisdictional error on the part of the Tribunal.  Ground 3 was elaborated in the written submissions prepared by the appellant, and it may be that on one view it would be possible to characterise the workings of the Migration Act 1958 and the Migration Regulations 1994 as rendering the appellant ‘a victim of the law which has flaws’.  However that may be, that will not mean that there was any jurisdictional error on the part of the Tribunal.  The Federal Magistrate correctly understood the position, and no error is revealed in his judgment.  Accordingly this appeal must be dismissed with costs.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             11 October 2004

The appellant appeared in person

Solicitor for the respondent:	Ms Sharon Burnett from Clayton Utz
Date of hearing:	6 October 2004
Date of judgment:	6 October 2004