Ahmed v Minister for Immigration and Border Protection

[2014] FCA 830

FEDERAL COURT OF AUSTRALIA

Ahmed v Minister for Immigration and Border Protection [2014] FCA 830

Citation:	Ahmed v Minister for Immigration and Border Protection [2014] FCA 830
Appeal from:	Application for extension of time and leave to appeal: Ahmed v Minister for Immigration & Anor [2014] FCCA 719
Parties:	IQRA AHMED v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:	NSD 423 of 2014
Judge:	NICHOLAS J
Date of judgment:	6 August 2014
Legislation:	Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a)
Date of hearing:	6 August 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	13
Counsel for the Applicant:	The applicant appeared in person
Solicitor for the First Respondent:	Ms N Blake of Clayton Utz
Solicitor for the Second Respondent:	The Second Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 423 of 2014

BETWEEN:

IQRA AHMED
Applicant

AND:

MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	6 AUGUST 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time and leave to appeal is dismissed.

2.The applicant pay the first respondent’s costs of the application fixed in the amount of $3,260.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 423 of 2014

BETWEEN:

IQRA AHMED
Applicant

AND:

MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	6 AUGUST 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(Revised from Transcript)

1. Before me is an application for an extension of time and leave to appeal from an interlocutory order of the Federal Circuit Court dismissing an application for judicial review of the decision of the Migration Review Tribunal (the Tribunal) whereby the Tribunal affirmed the decision of a Delegate of the Minister to refuse the visa applicant a Sponsored (Visitor) (Class UL) Visa (visitor visa).

2. The order the subject of the present application was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) which provides that the Court may dismiss an application if it is not satisfied that the application has raised an arguable case for the relief claimed.

3. The applicant is the daughter of the visa applicant.  The visa applicant is a national of the Islamic Republic of Pakistan.  He applied for a visitor visa on 17 December 2012 which was refused on the ground that the Delegate was not satisfied that the visa applicant’s intention to only visit Australia was genuine.  The Tribunal affirmed the Delegate’s decision on 18 September 2013.

4. The first respondent opposes the application for an extension of time and leave to appeal on the basis that the proposed appeal has no reasonable prospects of success.

5. It appears that the applicant contended before the primary judge that the Tribunal’s decision was affected by jurisdictional error in three respects.  First, it was contended the Tribunal failed to take medical evidence into account relating to psychological problems experienced by the applicant.  Second, it was contended that the Tribunal failed to take into account the fact that the visa applicant was employed in Pakistan as a taxi driver.  Third, it was contended that the Tribunal failed to consider the visa applicant’s care responsibility in respect of his elderly parents in Pakistan. 

6. The primary judge rejected each of these contentions.  His Honour found that on a fair reading of the Tribunal’s decision, the Tribunal gave consideration to all the available material.  His Honour was not persuaded that there existed an arguable case that the Tribunal failed to take into account relevant material or that his decision was unreasonable in the legal sense. 

7. The application for an extension of time and for leave to appeal is not supported by a draft notice of appeal.  However, the grounds of appeal which the applicant wishes to rely upon in the event leave to appeal is granted appear in the application for an extension of time and leave to appeal and are as follows:

   1.The learned Judge made error of fact and law there is arguable case exists to be granted visitor visa to the applicant father with no further stay condition or security bound deposit.

   2.Department produced false information in supplementary court book; in relation to applicant father deceptive employer nomination which was profoundly focused to refuse applicant father visitor visa to see his three children to whom he has not seen them last six years.

8. The first ground does not identify any error in the reasons of the primary judge.  At best it merely expresses disagreement with his Honour’s finding that there was no arguable case of jurisdictional error raised by the application for judicial review. 

9. As to the second ground, it apparently relates to an application by the visa applicant in 2003 for an Employer Nomination Scheme visa (the ENS visa) which was refused in 2004.  The decision to refuse the ENS visa was the subject of a review by the Tribunal, and appeals by the visa applicant to the Federal Magistrates Court (as it was then known) and the Federal Court of Australia.  An application for special leave to the High Court was dismissed on 27 March 2008. 

10. The gist of the applicant’s submissions in relation to the ENS visa seemed to be that the 2004 decision was unfairly arrived at and that the visa applicant and her mother’s uncle (who she apparently refers to as her grandfather) could have explained the true position with regard to the business in which the visa applicant was then employed if they had been given a proper opportunity to do so.  In the result, the applicant argues that the ENS visa application was refused on the basis of false information.  The applicant’s submissions seem to assume that the particular circumstances in which the ENS visa came to be refused (possibly because the employer nomination may not have been genuine) reflected adversely on the credibility of the visa applicant and that this contributed to the Tribunal’s decision to affirm the decision under review. 

11. But it is not apparent to me how this can have any bearing on the question whether the Tribunal committed jurisdictional error in the present case.  The Tribunal does not appear to have made any relevant adverse findings based upon the visa applicant’s migration history except to find that it demonstrated a desire on his part to remain in Australia.  Whether or not the visa applicant harboured that desire was a question of fact that the Tribunal was entitled to consider and decide. 

12. I have read and considered the statement of reasons for decision of the Tribunal with a view to seeing whether there is any indication that the matters which the applicant says the Tribunal overlooked were in fact overlooked by it.  It is apparent that the Tribunal had regard to the fact that the visa applicant was responsible for the care of his parents (para 22), that he was employed as a taxi driver in Pakistan (para 22) and the medical evidence which was relied upon before the Tribunal (para 25). 

13. In the result, I am not satisfied that the applicant’s proposed appeal against the decision of the primary judge has any reasonable prospect of success.  The application for an extension of time and leave to appeal will therefore be refused.  The applicant will be ordered to pay the first respondent’s costs of the application fixed in the amount of $3,260.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:
Dated:       11 August 2014