ALI v Minister for Immigration

[2017] FCCA 2967

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2967

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – Student Subclass 572 visa – where Applicant’s grounds of application are meaningless – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a).

Migration Regulations 1994 (Cth), cl.572.211.

Migration Act 1958 (Cth), s.476.

Applicant: BILAL ALI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2223 of 2016

Judgment of: Judge Hartnett

Hearing date: 10 November 2017

Delivered at: Melbourne

Delivered on: 10 November 2017

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Ms Nyabally

Solicitors for the First Respondent: Mills Oakley

ORDERS

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

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2223 of 2016

BILAL ALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. By application filed by the Applicant on 12 October 2016, the Applicant sought an order to show cause pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’), seeking review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 22 September 2016, in which the Tribunal affirmed the decision of the delegate of the First Respondent dated 5 May 2016 to refuse to grant the Applicant a Student Subclass 572 visa (‘the visa’).

2. Orders were made by consent on 12 April 2017 listing the matter for a show cause hearing.  The orders made also gave the Applicant leave to file any amended application and written submissions. No further documents have been filed by or on behalf of the Applicant. 

3. The First Respondent has filed a response dated 17 October 2016, wherein the First Respondent submits that the application fails to raise an arguable case for the relief claimed and accordingly should be dismissed, with costs following that event.  The response noted that the application for judicial review did not contain any proper grounds of review.

4. Before the Court is the evidence that is contained in the Court Book, the First Respondent’s submissions dated 5 June 2017 and an affidavit sworn by Ada Oi-Yee Wong on 6 June 2017, which is filed on behalf of the First Respondent. That affidavit went to a futility submission being that even if the Court determined there was jurisdictional error, it would be futile to remit the matter given the Applicant’s last held substantive visa was a Subclass 485 visa which ceased on 11 March 2016. 

5. The grounds of application are as follows:-

   “1. The decision of the second respondent “AAT” member was affected by legal error.

   2. More details will be provided by me / my legal representative.”

6. These grounds are meaningless.  Ground 2, in fact, is not a ground of judicial review. 

7. With respect to ground 1, the Applicant merely asserts that the decision of the Tribunal was affected by legal error. No particulars are provided, and the ground does not address the basis of the Tribunal’s decision that the Applicant did not satisfy the requirements of cl.572.211 of the Migration Regulations 1994 (Cth) (‘the Regulations’), which was a primary criteria for the grant of a Subclass 572 visa.

8. The Applicant is a citizen of Lebanon who applied for a Student Subclass 572 visa on 24 March 2016. At the time he made that application, he was not the holder of a substantive visa. His last-held substantive visa (a Temporary Graduate (Subclass 485) visa) had ceased on 11 March 2016. That visa was one of those listed in cl.572.211(3)(b). The Tribunal correctly found this to be so in its Statement of Decision and Reasons (‘the Decision Record’). The Tribunal relevantly said:-

   “5. At the time of lodgement you were not holding a substantive visa and your last substantive visa was a subclass 485 Temporary Graduate visa, which ceased on 11 March 2016.

   6. As you were not the holder of a substantive visa at the time, you need to satisfy 572.211(3).

   7. As a subclass 485 visa is not one of the acceptable visa classes listed, you do not satisfy that clause 572.211.

   8. You are therefore ineligible for the grant of a student visa.

   9. This is not a matter in which the Tribunal has discretion.”

9. The Tribunal was not required to consider whether the Applicant’s visa application was lodged within 28 days after the expiry of his previous visa, as submitted by the Applicant and as required by cl.572.211(3)(c), because the requirements in cl.572.211(3) are cumulative. As the Applicant’s last substantive visa was not one of those listed in cl.572.211(3)(b), it could not have assisted the Applicant that his application for the visa was made within 28 days after the day when the Applicant’s last substantive visa ceased to be in effect.[1] This ground must fail.

   [1] Migration Regulations 1994 (Cth) cl. 572.211(3)(c)(i).

10. No arguable case is raised by the Applicant.  The application must be dismissed and costs follow that event.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 30 November 2017