Weng v Minister for Immigration and Multicultural Affairs

[2000] FCA 1832

FEDERAL COURT OF AUSTRALIA

Weng v Minister for Immigration & Multicultural Affairs [2000] FCA 1832

MIGRATION – review of decision of Migration Review Tribunal to refuse to grant applicant a Student (Temporary) (Class TU) visa – whether there was no evidence or other material to justify the making of the decision – whether there was evidence that the applicant had failed to provide documents relevant to the establishment of his eligibility for a substantive visa prior to the expiry of his last substantive visa – whether there was evidence that the application under review had been made outside the prescribed time

Migration Act 1958 (Cth) s 476
Migration Regulations 1994 Sch 2 cl 560.212(2) and (3)

JIAN BIN WENG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1030 of 2000

BRANSON J
SYDNEY
6 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1030 of 2000

BETWEEN:	JIAN BIN WENG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	6 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The decision of the Tribunal be affirmed.

2.        The applicant pay the respondent’s 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	N 1030 of 2000

BETWEEN:	JIAN BIN WENG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	6 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under s 476 of the Migration Act 1958 (Cth). It is an application for judicial review of a decision of the Migration Review Tribunal dated 30 August 2000. By its decision the Tribunal affirmed a decision that the applicant is not entitled to the grant of a Student (Temporary) (Class TU) visa. The applicant relies upon two grounds of review. First, that the decision of the Tribunal was induced or affected by actual bias of the member who constituted the Tribunal. Secondly, that there was no evidence or other material to justify the decision of the Tribunal.

2. As to ground one, the application contains no particulars of the actual bias relied upon other than the assertion of ground two.  Ground one is plainly unsustainable.  Nothing before me suggests that the Tribunal member came to consider the applicant’s case with a closed mind or that the Tribunal member was otherwise unwilling or unable to give the applicant a fair hearing.  This ground of review is entirely without merit.

3. As to the second ground, the Tribunal concluded that the applicant did not meet key criteria for any subclass of visa other than subclass 560. This conclusion is not challenged by the applicant. For the applicant to qualify for the grant of the subclass 560 visa, he was required to meet the requirements of subcl 2 or 3 of cl 560.212 of Sch 2 to the Migration Regulations 1994. Subclause 560.212(2) provides as follows:

   “(2).    An applicant meets the requirements of this subclause if:

   (aa)     the applicant is not the holder of a substantive visa; and

   (a)the last substantive visa held by the applicant was a Student (Temporary) (Class TU) visa; and

   (b)documents relevant to the establishment of the applicant’s eligibility for the grant of the substantive visa applied for were given to Education or to an Australian educational institution before the expiry of the substantive visa mentioned in paragraph (a); and

   (c)the application is made within 12 months of the expiry of that visa.”

4. The Tribunal found that the applicant met the requirements of subcl 560.212(2) other than the requirement of par (b).  That is, the Tribunal found that documents relevant to the establishment of the applicant’s eligibility for the grant of the substantive visa applied for were not given to the Department of Education, Training and Youth Affairs or to an Australian educational institution before the expiry of his substantive visa.

5. The Tribunal noted the evidence of the applicant and his uncle that they did not look around for another course of study for the applicant until he had completed his first course at UTS Insearch.  I note, incidentally, that the applicant has repeated that evidence in front of me today.  There was evidence before the Tribunal that that course ended four days after the expiry of the applicant’s substantive visa.  On that basis, the finding of the Tribunal that the applicant did not meet the requirements of subcl 560.212(2) cannot be challenged on the “no evidence” ground.

6. Relevantly, subcl 560.212(3) provides:

   “An applicant meets the requirements of this subclause if:

   (aa)     the applicant is not the holder of a substantive visa; and

   (a)the last substantive visa held by the applicant was:

   (i)a visa of one of the following classes:

   …

   (M)Student (Temporary) (Class TU);

   …
   and

   (b)       the applicant satisfies Schedule 3 criteria 3001 and 3005.”

7. The effect of criterion 3001 is that the application under review must have been made within 28 days after the last day on which the applicant held a substantive visa.  The Tribunal found that the application under review was made outside that period of time; that is, more than 28 days after his substantive visa expired.  It cannot be suggested that there was no evidence or other material before the Tribunal to justify this finding.  The relevant departmental files were before the Tribunal.  This ground of review is also without merit.

8. I am not satisfied that any other ground of review is available to the applicant.  The decision of the Tribunal is affirmed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:  14 December 2000

The applicant appeared in person
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	6 December 2000
Date of Judgment:	6 December 2000