Ahmed v Minister for Immigration

[2014] FCCA 2687

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHMED v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2687

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.359AA
Migration Regulations 1994 (Cth)

Applicant: A S M SALIM AHMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 875 of 2014

Judgment of: Judge Driver

Hearing date: 19 November 2014

Delivered at: Sydney

Delivered on: 19 November 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Wong of DLA Piper

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 875 of 2014

A S M SALIM AHMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 1 April 2014 seeking review of a decision of the Migration Review Tribunal (Tribunal).  The Tribunal decision was made on 5 March 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Ahmed, a temporary student visa.  The Tribunal’s decision records that Mr Ahmed first arrived in Australia on 2 March 2007 as the holder of a student visa.  He was granted his most recent student visa on 19 May 2011.  That visa was due to expire on 4 September 2012.  Mr Ahmed was granted a bridging visa on 5 September 2012. 

2. Mr Ahmed applied for the visa in issue before the Tribunal on 4 September 2012.  The Tribunal recorded that the delegate refused to grant the visa on the basis that Mr Ahmed did not satisfy several clauses of schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).  The problem appeared to have been that Mr Ahmed had not complied substantially with the conditions on his last substantive visa, and/or any subsequent bridging visa. 

3. Mr Ahmed was invited to attend a hearing before the Tribunal, and did attend on 5 March 2014.  He was questioned at the hearing about any current enrolment he had at an educational institution.  Mr Ahmed told the Tribunal that his last enrolment in a course of study was in 2012.   That is some two years before the Tribunal hearing.

4. At the Tribunal hearing, Mr Ahmed complained that he had only been informed about the hearing one week prior to it because the invitation which had been sent to his agent did not come to his attention, because his agent had been overseas.  He also told the Tribunal that he had difficulty organising his documents because a number of them had been misplaced.

5. The Tribunal purported to go through the procedure prescribed in s.359AA of the Migration Act 1958 (Cth) (Migration Act) to put adverse information to Mr Ahmed. The Tribunal concluded that the issue before it was whether Mr Ahmed was at the time of the Tribunal decision able to comply with the visa criteria, in particular, whether he was an eligible student. In order to be an eligible student, Mr Ahmed needed to be enrolled in a current course of study. He was not so enrolled, and hence was unable to meet the criteria for the class of visa he sought. The Tribunal accordingly affirmed the decision under review.

6. In his present application, Mr Ahmed asserts that the Tribunal failed to give full consideration to his circumstances, and that he was only made aware of the Tribunal hearing date one week before the hearing.  He also complains that the Tribunal failed to offer an extension of time to allow him to provide all documents. 

7. The application is supported by a short affidavit which I have received. 

8. I have before me as evidence the court book filed on 7 May 2014. 

9. The court book discloses at page 52 that Mr Ahmed nominated a representative to receive correspondence. It is apparent from page 111 of the court book that the Tribunal sent a hearing invitation to Mr Ahmed through his migration agent as required by the Migration Act. Mr Ahmed may well have been dissatisfied with the notice given to him by his agent, which would explain the withdrawal of authority set out on page 116 of the court book. He also drew his concern to the attention of the Tribunal. I am satisfied, however, that the Tribunal met its statutory obligation to invite Mr Ahmed to a hearing in the prescribed manner.

10. There is no indication that Mr Ahmed suffered any practical disadvantage by the short notice.  His lack of an enrolment was an insuperable problem.  There is no indication whether Mr Ahmed sought any post-hearing opportunity to submit further documents.  In the circumstances, it is unlikely that such an opportunity, if sought, would have made any difference. 

11. I conclude that there is no arguable case available of any jurisdictional error by the Tribunal. It follows that I should dismiss the application, and I will do so pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

12. I will order that Mr Ahmed is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  25 November 2014