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MIGRATION - Application for review of decision of the Migration Review Tribunal - no jurisdictional error - privative clause decision - application dismissed.

Thapa v Minister for Immigration [2002] FMCA 270 (26 September 2002)

Thapa v Minister for Immigration [2002] FMCA 270 (26 September 2002)
Last Updated: 6 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THAPA v MINISTER FOR IMMIGRATION
[2002] FMCA 270



MIGRATION - Application for review of decision of the Migration Review Tribunal - no jurisdictional error - privative clause decision - application dismissed.



Migration Act 1958

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228

Applicant:
SHIVENDRA THAPA



Respondent:


THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ443 of 2002



Delivered on:


26 September 2002



Delivered at:


Sydney



Hearing Date:


26 September 2002



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr S Lloyd



Solicitors for the Respondent:


Clayton Utz Lawyers



ORDERS

(1) That the application be dismissed.

(2) That the Applicant pay the Respondent's costs assessed in the sum of $3,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ443 of 2002

SHIVENDRA THAPA


Applicant

And

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The application

1. This is an ex tempore judgment in relation to an application for review of a decision of the Migration Review Tribunal made on 20 May 2002 affirming a decision refusing to grant the Applicant a Student Temporary (Class TU) visa.

2. The Applicant entered Australia on a student visa on 20 October 1996. That visa expired on 20 November 1998. On that day, the Applicant applied for a further student visa. On 16 June 1999 a delegate of the Minister refused the application because the Applicant did not meet the requirements of paragraph 560.224(1)(a) of Schedule 2 to the Migration Regulations in relation to his financial capacity to maintain himself during his proposed studies.

3. On 12 July 1999 the Applicant applied to the Migration Review Tribunal in relation to that decision. His application was successful. The Tribunal remitted the application to the Department of Immigration for the delegate to consider whether the Applicant met the other criteria for a student visa. The Applicant was required to provide certain documentation to the department by 9 November 2000. He did not provide the documentation or attend an interview that had been scheduled with the Department. The delegate refused his application on 21 August 2001. He sought review of that decision by the Migration Review Tribunal on 18 September 2001. The Tribunal affirmed the decision on 20 May 2002. This is the decision that is the subject of the application for judicial review.

4. The Tribunal affirmed the decision of the delegate on the ground that the Applicant had not complied with clauses 560.222 and 560.226 of Schedule 2 to the Migration Regulations. Clause 560.222, in so far as relevant, required evidence of enrolment in a registered course. The Tribunal found that the Applicant had not been enrolled in a registered course since August 2000 and had not produced evidence of current enrolment in a registered course and, thus, did not meet clause 560.222. Furthermore, he had not produced evidence of current health insurance as required by clause 560.226, which requires the Applicant to produce evidence of adequate arrangements in Australia for health insurance during the period of the Applicant's intended stay in Australia.

5. The Applicant applied to the Federal Court on 25 June 2002. He filed an affidavit in support. At a directions hearing on 17 July 2002 he was ordered to file and serve any amended application and evidence upon which he proposed to rely by 2 September 2002 and an outline of submissions on or before five working days prior to the hearing. This did not occur. The matter was transferred to this Court. At the hearing today the Applicant said that he had applied to Sydney University at the time the matter was before the Tribunal and that he had not been able to provide a confirmation of enrolment because he had not at that time paid the fees to the University. He was not sure if he could get enrolled at Sydney University.

6. Other than this, he raised no issue in relation to the Tribunal decision. He did not identify any error by the Tribunal. His application and the supporting affidavit merely indicate that he filed the application to the Court in order to extend his student visa, that he believed that the Tribunal had treated his case fairly, but that he was pursuing this matter with the Court in order to bring to light other important and relevant issues that were overlooked by the Tribunal. No such issues were brought to the attention of the Court today other than the issue in relation to his enrolment with Sydney University.

7. The Applicant, as I have said, acknowledges that the Tribunal treated his case fairly. He has not alleged any reviewable error. He has explained why he did not have evidence of enrolment in a registered course, but the fact remains that at the time of the Tribunal decision he had not produced evidence of current enrolment to undertake a full-time course of study that is a registered course as required by clause 560.222 of Schedule 2 to the Migration Regulations. He has not identified any other matters which raise issues about the Tribunal decision. I have read the Tribunal decision and there are no grounds for review apparent to me from a reading of that decision or the other material before the Court.

8. There is no dispute that Mr Thapa had not provided evidence of enrolment or of current health insurance as required by the criteria at the time of decision for the grant of a Student Temporary (Class TU) visa. As there is no evidence of any error, whether of law or fact or otherwise, in the decision or procedures of the Tribunal it is not necessary for me to consider the effect of the privative clause or the interpretation of section 474 of the Migration Act 1958 in the recent decision of the Full Court of the Federal Court in NAAV v MIMIA [2002] FCAFC 228. No error has been identified and I am satisfied that the application should be dismissed.

9. I also consider it appropriate that the Applicant should meet the respondent's costs in this matter. The respondent's costs have been calculated in the amount of $3000 and I consider that that is an appropriate amount in this case. Accordingly, it is ordered that the application is dismissed and that the Applicant pay the respondent's costs assessed in the sum of $3000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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