Le Tran Thuy v Minister for Immigration & Multicultural Affairs [1999] FCA 1598

FEDERAL COURT OF AUSTRALIA

Le Tran Thuy v Minister for Immigration and Multicultural Affairs

[1999] FCA 1598

MIGRATION – Migration Act 1958 (Cth) – whether decision of delegate of Minister to cancel student visa judicially-reviewable decision – whether decision of administrative officer of Immigration Review Tribunal that application not properly made a decision under the Act relating to visas – whether decision of administrative officer of Immigration Review Tribunal a decision of the Immigration Review Tribunal Migration Act 1958 (Cth) s 5, 116(1)(b), 337, 346, 347, 348, 475(1)(c), 475(2), 476(1)(a), 485(1) Migration Regulations 1994 r 4.09 Singh v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 295, followed LE TRAN THUY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 295 of 1999 BRANSON J SYDNEY 18 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 295 of 1999

BETWEEN: LE TRAN THUY

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: BRANSON J

DATE: 18 NOVEMBER 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 By an application dated 9 April 1999 made under s 476 of the Migration Act 1958 (Cth) ("the Act"), the applicant has sought review by the Court of two decisions. First, a decision made on 12 March 1999 by the Department of Immigration and Multicultural Affairs ("the Department") to cancel the applicant's student visa pursuant to s 116 of the Act. Secondly, a decision made on 24 March 1999 by the Immigration Review Tribunal ("the Tribunal") to refuse to review the decision of the Department to cancel the applicant's student visa. 2 On 23 June 1999 the respondent filed a notice of objection to competency by which he contended that neither of the decisions referred to in the application is a "judicially reviewable decision" within the meaning of the Act. 3 If the application is otherwise competent, a question may arise as to whether the application for review of the second "decision" was made within a mandatory time limit. However, the parties have invited me to give consideration to the competency of the application without determining any issue as to timeliness. I consider it appropriate to accede to that request. FACTS 4 The applicant is a twenty year old citizen of the Socialist Republic of Vietnam. He arrived in Australia on 23 April 1998 on a student visa. On 12 March 1999 the applicant's visa was cancelled on the ground that he had not complied with certain conditions of the visa (s 116(1)(b) of the Act). It appears that the applicant had ceased to study and had undertaken paid work contrary to conditions of his student visa. It is accepted that at the time of the cancellation of the applicant's student visa, the applicant was a "non citizen" who was in the "migration zone" within the meaning of the Act (s 5 of the Act). 5 On 22 March 1999 the applicant sought review by the Tribunal of the decision to cancel his student visa. By letter dated 24 March 1999, on the letterhead of the Tribunal, the applicant received advice as follows: "Dear Mr Tran I regret to inform you that the Tribunal is unable to accept your application for a review of a decision to cancel your student visa. Your application to the Tribunal should have been lodged within a 2 day time limit, or if you needed more time, to contact (sic) the Tribunal for an extension of another 5 days within the 2 days. The decision on your application was made by the Department of Immigration and Multicultural Affairs (DIMA) on 12 March 1999, and it appears that you received notification of the decision on the same day. Your application to the Tribunal was not lodged until 22 March 1999. Therefore, the Tribunal has deemed your application to be ineligible (sic) for review. … Yours sincerely (signed) Franca Di Natale for Assistant Registrar" (Emphasis added).