Ahmad v Minister for Immigration

[2004] FMCA 376

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AHMAD v MINISTER FOR IMMIGRATION [2004] FMCA 376

MIGRATION – Review of MRT decision – Application by respondent Minister for summary dismissal – where applicant did not have an approved business sponsor – whether application disclosed a reasonable cause of action – whether application constitutes an abuse of process – whether findings and reasons of Tribunal evidence jurisdictional error.

Applicant: MUNIR AHMAD

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS

File No: SYG 911 of 2004

Delivered on: 10 June 2004

Delivered at: Sydney

Hearing date: 10 June 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in Person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules.

2. The applicant to pay the respondent's costs assessed in the sum of $1,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 911 of 2004

MUNIR AHMAD

Applicant

And

MINISTER OF IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. These proceedings come before me today on the application of the Minister filed on 25 May 2004 that the proceedings be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules as disclosing no reasonable cause of action or alternatively that they be dismissed pursuant to Rule 13.10(c) of the rules as an abuse of process. The Minister asks that the applicant pay her costs.

2. Mr Ahmad, the applicant, arrived in Australia on a business (long stay) visa on 9 September 2000.  This visa expired on 8 September 2002 and since then the applicant has held a bridging visa granted on the basis of an application which he made on 5 September 2002 for a temporary business entry (class UC) visa.

3. A delegate of the Ministry refused to grant that visa on 23 April 2003 on the grounds that the applicant did not have an approved business sponsor.  The reason for this was that the applicant's previously approved business sponsor, a company known as Moving Time Pty Limited (trading as D'Tandoori Indian Restaurant) had withdrawn its sponsorship of the visa applicant on 9 April 2003.

4. The applicant applied for a review of the decision of the delegate by the Migration Review Tribunal and there was certain correspondence between the Tribunal and solicitors representing the applicant which is of importance.  The first letter is dated 21 January 2004.  It is a letter requesting the applicant to comment upon certain information pursuant to s.359A of the Migration Act being information which the Tribunal considered would be a reason or part of the reason for affirming the decision that was under review.  The information referred to was that another sponsor of the applicant, a company known as Fobupu Pty Limited trading as Pak Tandoori Restaurant, was approved as a standard business sponsor on 20 January 2003 valid for 12 months.  This approval had expired by 21 January 2004, the day the letter was written.

5. The applicant's lawyers wrote back to the Tribunal on 30 January 2004 stating:

   “ We confirm that our client is not presently nominated by an approved standard business sponsor.”

   The next thing that happened was that a letter was written to the solicitors advising that a hearing of the Tribunal proceedings would take place on 16 February 2004.  The solicitors replied to that letter on 11 February enclosing a form MRT19 which indicated that the applicant would not be attending the hearing and stating:

   “We note that the MRT will proceed to make a decision to affirm the decision under review.  Our client requires that a decision be made for the purposes of any request to the Minister under s.351 Migration Act.”

6. The Tribunal then proceeded to determine the matter on 8 March 2004.  It determined the decision under review on the basis that the applicant had at the time no current sponsor, a necessary criterion for a visa of subclause 457, see subclause 457.223(4) of schedule 2 of the regulations.  In its conclusions, the Tribunal said:

   “The Tribunal finds that the visa applicant's proposed employer has not renewed their business sponsorship.  The business applicant does not have an approved business sponsor at the time of the decision as required by subclause 457.223(4).  The visa applicant does not meet the criteria for a subclass 456 visa or the criteria for a subclass 457 visa.  The Tribunal must affirm the decision under review.”

7. Mr Ahmad appeared before me today in person.  He speaks excellent English.  These matters which have been set out above were put to him by Ms Watson on behalf of the Minister.  I asked him if he had anything to say in relation to it and he told me that he did not and that I should make my decision.  It seems to me in the circumstances that there is nothing which I can say or find that would indicate that the Tribunal fell into jurisdictional error in the manner in which it came to its conclusions in this particular case.  Indeed, it would seem, that the applicant through his solicitors consciously promoted the very decision he now seeks to have reviewed.

8. In the circumstances, I do not believe that this matter should await further hearing and I dismiss it pursuant to Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules as disclosing no reasonable cause of action. I order that the applicant pay the respondent's costs which I assess in the sum of $1,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  15 June 2004