AHSAN v Minister for Immigration

[2015] FCCA 992

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHSAN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 992

Catchwords:
MIGRATION – Migration Review Tribunal – Student (Temporary) (Class TU) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: SAIMA AHSAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 786 of 2015

Judgment of: Judge Street

Hearing date: 16 April 2015

Date of Last Submission: 16 April 2015

Delivered at: Sydney

Delivered on: 16 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms E. Warner-Knight
Australian Government Solicitor

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 786 of 2015

SAIMA AHSAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ in respect of a decision of the Tribunal on 4 March 2015 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa. 

2. The application identifies the following grounds:

   1. Migration Review Tribunal made a procedural mistake that the Tribunal did not understand in respect of each of those claims I requested the Tribunal but it relied upon in reaching its conclusions that it was not satisfied on each particular claim. The Delegates of the Minister for Immigration also wrongly refused my application for the Student Visa.

   2. In respect of each of those claims made by me, the Tribunal was not satisfied that my claims were established. (Point numbers S, 13, 14, 15 and 16 of the Tribunal Decision). Each of those conclusions were reasonably open to the Tribunal on the evidence before the Tribunal but no grounds of review arise.

   3. The Tribunal in its decision at point number 13 says that " The Tribunal has taken into account the submission made by the applicant both prior to and during the hearing ... Having considered the evidence before it the Tribunal finds the applicant's circumstances are not such that it can find exceptional reasons have been established".

   In reply to this I would say that although the Tribunal says that it considered the submissions made by the applicant but my contention is that it did not give it proper weight to the contents of my submissions. And if the 1ribunal was going to reject it, I should have been given an opportunity to provide the Tribunal any further material to establish my Exceptional Reasons for grant of the student visa.

   4. The Tribunal at Point number 14 says that" ... In making finding the tribunal has considered the submissions made by the applicant, including the benefit that it will have to her own future and career prospects, the benefit that will have Australia employers and businesses in the future, the benefit to applicant's children of studying in Australia, and the benefit to other children of the applicant and her family being in Australia. The tribunal has also considered the difficulties that the applicant has raised if she was forced to go offshore and apply, including the difficulties that it would cause to her and her family, consequences of having to travel overseas, and possibly of continuing to pay rent in Australia while not living here, the delay and uncertainly that the applicant may experience and the consequences for her family. The Tribunal has also considered the Attendance Letter provided by the applicant’s education provider recording that she was currently enrolled as a full-time international student.

   To this I would refer to my reply above again as mentioned in point number 3. I would say that although the Tribunal says that it considered the submissions made by me, my contention remains the same that the Tribunal did not give proper weight to my submissions. And if the Tribunal was going to reject it, I should have been given an opportunity to provide the Tribunal any further material to establish my Exceptional Reasons for grant of the student visa.

   5. The Tribunal at point 15 says that " . . . the tribunal does not consider these circumstances, to be exceptional reasons. That is, the Tribunal finds that many applicants who apply for a Student Visa whilst the holder of a different visa, who are required to travel overseas and reapply, would face similar circumstances. The tribunal also noted that it is required to assume that the applicant should not be granted the visa unless some reasons can be positively identified which justify the grant the visa, and that these reasons have not been identified in the current matter. As a result the Tribunal finds the applicant does not satisfy clause 572.227."

   In response to above I would say that the Tribunal has erred for not accepting my circumstances as exceptional reasons for grant of the visa. The Tribunal made it very generalised statement that many applicants follow the same practice. My contention is that I meet the criteria for exceptional reasons for grant of the student visa. The exceptional reasons are not defined in clause 572.227. In subclass (B) of clause 572.227 it only says that the applicants who " immediately before ceasing to hold a substantive visa, was the holder of a visa mentioned in subparagraph (i), (ii) or (iii); the applicant establishes exceptional reasons for the grant of a Subclass 572 visa". However, it does not describe what circumstances constitute exceptional reasons.

   6. I have satisfied the criteria under clause 572.227 I do not agree with the Tribunal's decision. This is totally one sided opinion of the Tribunal and I am appealing against this.

   7. I am not satisfied that my answers during Tribunal interview were in fact properly understood by the Tribunal. I would request the Honourable Court to grant me an opportunity to provide the script of the interview CDs.

3. The application identifies the first Court date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

4. The Court identified to the applicant its concern that the application failed to disclose any arguable jurisdictional error, taking into account the reasons of the Tribunal, and that the Court was minded to consider whether to exercise its summary dismissal powers. In considering exercise of the Court’s summary jurisdiction under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

5. The applicant initially identified that there were answers to which she had listened which were not properly interpreted.  When this matter was pressed in relation to what was it that was not the subject of correct interpretation, the applicant said that she had not yet listened to the tape and that she wanted to get it transcribed.  The applicant did not identify any subject matter that was the subject of alleged failure to provide a correct interpretation.

6. The applicant sought an adjournment in order to obtain a transcript of the hearing.  The Court identified that there is no utility in granting an adjournment if the proceedings, seeking a Constitutional writ, are doomed to failure as to do so only unnecessarily increases the cost to the parties and utilises limited Court time.  The applicant sought to contend that there clearly were exceptional reasons, and that the Tribunal’s decision was wrong. Nothing said by the applicant identified any arguable jurisdictional error. 

7. It is clear that the Tribunal properly understood the task it was embarked upon and that there is no substance in relation to ground 1.  In relation to ground 2, these were issues upon which it was open to the Tribunal to make adverse findings of fact, and nothing in ground 2 identifies any arguable jurisdictional error. 

8. Ground 3 does not identify any arguable jurisdictional error.  Ground 4 acknowledges that the Tribunal considered the applicant’s submissions but contends the Tribunal did not give proper weight to those submissions and that if the Tribunal was going to reject it, it should have given the applicant an opportunity to advance further material.  It is not the case that issues of weight give rise to any jurisdictional error.  It was a matter for the Tribunal to weigh the evidence and make findings of fact.  Nor is it the case that the Tribunal is required to identify its conclusions in respect of credibility, and provide a further opportunity to respond to the same.  There is no substance to ground 4.

9. Ground 5 is also an impermissible challenge to the findings of fact made by the Tribunal that were open.  Ground 6 does not identify any arguable jurisdictional error, and nor does ground 7.  

10. The delegate refused to grant the applicant a Student (Temporary) (Class TU) subclass 572 visa on 2 December 2014.  The applicant arrived in Australia on 14 September 2007 as the holder of a temporary work skilled visa which ceased on 31 August 2011.  On 22 February 2012 the applicant was granted a second temporary work visa which ceased on 30 October 2014.  On 28 October 2014 the applicant applied for the student visa.  That was rejected by the delegate on the basis that the applicant did not satisfy cl.572.227 regarding the exceptional reasons criteria.

11. The Tribunal conducted a hearing on 4 March 2015 at which the applicant attended to give evidence and present arguments, and was assisted with an interpreter.  The Tribunal also identified the submissions that had been made on 24 November 2014.  The Tribunal explained to the applicant the content of exceptional reasons in para.8.

12. The applicant produced an attendance letter from an education provider, dated 16 February 2015.  The Tribunal explained that it had considered the submissions made by the applicant in this regard but concluded that these matters did not give rise to exceptional reasons.   The applicant indicated she wanted to pursue her career goals.

13. The Tribunal made the following adverse findings:

    12. The issue in the present case is whether the applicant satisfies cl.572.227 regarding the exceptional reasons criteria. That is, for the applicant to apply for a Student Visa whilst the holder of a Temporary Work visa, she must establish exceptional reasons.

    13. The Tribunal has taken into account the submissions made by the applicant both prior to and during the hearing. The Tribunal has also noted that it has nearly unconfined discretion to address the particular circumstances of each case. Having considered the evidence before it the Tribunal finds the applicant’s circumstances are not such that it can find exceptional reasons have been established.

    14. In making this finding the Tribunal has considered the submissions made by the applicant, including the benefit that it will have to her own future and career prospects, the benefit that will have to Australian employers and businesses in the future, the benefit to the applicant’s children of studying in Australia, and the benefit to other children of the applicant and her family being in Australia. The Tribunal has also considered the difficulties that the applicant has raised if she was forced to go offshore and apply, including the difficulties that it would cause to her and her family, the financial consequences of having to travel overseas, and possibly of continuing to pay rent in Australia while not living here, the delay and uncertainty that the applicant may experience and the consequences for her family. The Tribunal has also considered the Attendance Letter provided by the applicant’s education provider recording that she was currently enrolled as a full-time international student.

    15. However, the Tribunal does not consider these circumstances, consequences or possible consequences, to be exceptional reasons. That is, the Tribunal finds that many applicants who apply for a Student Visa whilst the holder of a different visa, who are required to travel overseas and reapply, would face similar circumstances. The Tribunal also noted that it is required to assume that the applicant should not be granted the visa unless some reasons can be positively identified which justify the grant the visa, and that these reasons have not been identified in the current matter. As a result the Tribunal finds the applicant does not satisfy clause 572.227.

14. The findings by the Tribunal were clearly open and cannot be said to lack an evident and intelligible justification.  There is no utility in granting an adjournment as the proceedings are clearly deemed to failure. The applicant had a genuine hearing by the Tribunal and that the review was conducted in accordance with the statutory regime.

15. I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street.

Associate: 

Date:  17 April 2015