Adiluzzaman v Minister for Immigration
[2003] FMCA 600
•10 December 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ADILUZZAMAN v MINISTER FOR IMMIGRATION | [2003] FMCA 600 |
| MIGRATION – Refusal of MRT to grant temporary business entry visa – where applicant was late to Court hearing and an order was made setting aside application for review – application to vacate orders – where applicant did not provide particulars of alleged jurisdictional error. |
Carolyn Hqo v MIMA [2002] FCA 617
| Applicant: | ADIL ABM ADILUZZAMAN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 411 of 2003 |
| Delivered on: | 10 December 2003 |
| Delivered at: | Sydney |
| Hearing date: | 10 December 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant pay the respondent's costs of this application assessed in the sum of $500 pursuant to Part 21 Rule 21.2(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 411 of 2003
| ADIL ABM ADILUZZAMAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant sought judicial review of a decision of the Migration Review Tribunal made on 12 March 2003 affirming a decision finding that the visa applicant was not entitled to the grant of a temporary business entry (class UC) visa. The matter came to this Court by way of an application dated 21 March 2003. The application stated:
a) The MRT decision made on 12 March 2003 is incorrect and liable to be set aside. All the material facts on the file has not been considered.
And then on the second page the following words appeared:
“A detailed submission will be filed after seeking legal advice.”
On 23 April 2003 the matter was called over before the Registrar who made standard short minutes including a requirement upon the applicant to file and serve any amended application and any additional evidence upon which he intended to rely on or before 25 June 2003. The applicant was also required to file and serve an outline of submissions no later than 2 clear working days before the hearing date which was appointed at 10.15 am on 20 November 2003.
The applicant did not amend his application, did not provide an affidavit, did not provide submissions and did not attend on 20 November 2003. He now comes before this Court by way of an application dated 20 November 2003 seeking, pursuant to Order 32 Rule 2(2) of the Federal Court rules to set aside the order which I made on that date dismissing his application pursuant to Order 32 Rule 2(1)(c) of the Federal Court rules.
The report of listing document indicates that the case commenced its hearing at 10.33 am and concluded at 10.36. It is my usual practice not to commence hearings at 10.15 where an applicant does not appear so that he or she will have an opportunity to attend if they are late in the normal course of public transport vagaries. This applicant says that he was 20 minutes late and that he went straight to the registry who told him to fill out the application which is presently before me. Having heard the applicant in person I am satisfied that he was here on the date in question, probably around the time he stated, and that if he had come to the eighteenth level rather than the sixteenth his matter may well have still been available to be heard.
In considering whether or not to exercise my discretion to vacate the orders which I have made I have to consider the applicant's reason for non-attendance and, more importantly in this particular case, whether there is any utility in conducting the hearing.
As the respondent stated in his counsel's outline of submissions the only ground in the application is that the Tribunal did not consider all the material facts on the file, but no particulars are provided. The facts are that the applicant applied for a temporary business entry visa on 15 March 2001 and the delegate made a decision to refuse to grant that visa on 30 April 2002. The reason for the refusal was principally that the applicant had not been nominated by an employer who was an approved business sponsor for an activity that is a key activity, and therefore he did not meet the criterion in clause 457.223(4) of the schedule to the Migration Regulations 1994. The delegate also considered whether the applicant met any of the other necessary criteria in Schedule 1.
When the matter came before the Tribunal on review of the delegate's decision the applicant had still not obtained an approved business sponsor as is necessary under the criteria. He had by the time of the hearing appointed a migration agent to seek out a sponsor for him. The tribunal telephoned that agent to ascertain what the situation was. The agent said that there was a company that was prepared to sponsor the applicant and that the agent was waiting for confirmation from that company.
The Tribunal found that the applicant did not have an actual prospective employer approved as a business sponsor. That finding meant that the applicant could not satisfy the criteria in clause 457.223(4): Carolyn Hqo v MIMA [2002] FCA 617. In the light of the fact that the applicant had been aware since May 2001, some 18 months before the decision that one was required in order for the grant of a visa, the Tribunal did not delay the making of its decision in order to wait for the outcome of the agent's discussions. The Tribunal also considered the other criteria for the grant of a visa and found that none of them were met.
It will be clear from this summary of the facts that no ground of jurisdictional error has been suggested by the applicant and it is difficult to see one in the decision. When the applicant appeared before me today I explained to him that I would have to consider whether or not there was any utility in his having a hearing and I asked him why he believed that the Tribunal had been wrong in law in the manner in which it came to its conclusion. The applicant's response was to indicate his concern about the difficulty which any employer might have in meeting the criteria for the sponsorship of a person in his position. He told me that he did now have a sponsor but that is many months after the Tribunal's decision. I have explained to the applicant that this Court, in conducting a review of the decision of the Migration Review Tribunal, is not permitted to conduct a merits review or to substitute for the decision of the Tribunal a decision of its own. This is essentially what the applicant wishes me to do.
Taking into account the failure of the applicant over the whole period of the hearing of this case to provide any particulars of any alleged jurisdictional error and given the facts as I have recited them, I am unwilling to grant the applicant an opportunity to be heard further in the matter. It is clear to me that the case holds no prospects of success and that there is no utility in setting aside the order which I made on 20 November 2003. I order that the applicant pay the respondent's costs of this application which I assess in the sum of $500 pursuant to Part 21 Rule 21.2(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
0
1
0