Ali v Minister for Immigration
[2014] FCCA 1630
•22 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALI v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1630 |
| Catchwords: MIGRATION – Application for protection visa – no error disclosed in tribunal’s reasons – impermissible merits review – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001, r.44.12 |
| Craig v State of South Australia (1995) 184 CLR 163 Hatcher v Cohn (2004) 139 FCR 425 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 |
| Applicant: | MOHAMMAD SHABBIR ALI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 2291 of 2013 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 22 July 2014 |
| Date of Last Submission: | 22 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 22 July 2014 |
REPRESENTATION
| The Applicant appeared on his own behalf |
| Solicitor for the Respondent: | Mr Sutton |
| Solicitors for the Respondent: | Australia Government Solicitor |
ORDERS
The application filed 20 December 2013 be dismissed.
The applicant pay the first respondent’s costs of and incidental to this application fixed in the sum of $3700.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2291 of 2013
| MOHAMMAD SHABBIR ALI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex tempore
This is an application for judicial review of a decision of a migration review tribunal that was delivered in writing on 9 December, 2013. That decision affirmed a decision of a delegate of the first respondent not to grant to the applicant a Student (Class TU) Subclass 572 Vocational Education and Training Sector visa.
The applicant filed this application for judicial review on 20 December, 2013. It was fixed for today for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001.
The issue for determination by the Court is whether the applicant has raised an arguable case for the relief claimed by him.
In his application filed on 20 December, 2013 the applicant sets out his grounds as follows:
(1) S.477, Migration Act 1958, Judicial review can be lodged in 35 days’ time frame after tribunal review has been finalised
(2) I am not happy with tribunal decision, applying for judicial review for legitimate decision
(3) I do have exceptional circumstances beyond the application lodgement previously.
There are no other grounds.
The material before the Court reveals that the applicant applied for a class 572 visa as the holder of a Temporary Business Entry (Class VC) visa. Clause 572 of schedule 1 of the Migration Regulations 1994 sets out the criteria relevant to the grant of a subclass 572 visa. At the time of the decision on the visa application, the applicant must have satisfied clause 572.227. Relevantly that clause provides:
572.227
If:
(a) the application was made in Australia; and
(b) subject to clause 572.227A, the applicant is subject to the highest assessment level for the relevant course of study; and
(c) at the time of application, the applicant met the requirements of clause 572.211:
(i) as the holder of a visa of one of the following classes or subclasses:
…
(N) Temporary Business Entry (Class UC);
…; or
(ii) as the holder of a special purpose visa; or
(iii) as the holder of a visa of one of the following subclasses:
…; or
(iv) as a person:
(A) who was not the holder of a substantive visa; and
(B) 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.
Thus, the applicant had to establish for the purposes of clause 572.227 that there were exceptional reasons for the grant of a subclass 572 visa as at the date of the decision to grant or refuse the visa. The tribunal determined that the applicant did not establish that there were exceptional reasons primarily because the tribunal formed the view that he was a “completely unreliable witness”.
What amounts to exceptional circumstances for the purposes of other visa criterion is the subject of some authority. In Gurung v The Minister (2013) FCCA 2009 at [9] Raphael FCCJ said, by reference to Hatcher & Cohn (2004) 139 FCR 425:
At [17] the tribunal had cited with approval the views expressed by Kiefel J in Hatcher v Cohn (2004) 139 FCR 425 at 49 to 50 as follows:
[49] “Exceptional” circumstances, in general terms, are those circumstances which are unusual or out of the ordinary, but the term is also one which may have a wide operation. Factors affecting a person which set them apart from other persons in a comparable situation may amount to exceptional circumstances. Speaking in the context of extradition, Gleeson CJ and McHugh and Gummow JJ have held that “special circumstances” need to be “extraordinary and not factors applicable to all defendants facing extradition”. It was not necessary that any particular circumstance be regarded as special. Several factors in combination could constitute special circumstances. See United Mexican States & Cabal. And in Baker & R (2004) 78 ALJR 1483, Gleeson CJ considered the use of “special circumstances” to condition the exercise of judicial discretion. His Honour said:
This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition or where the circumstances of potential relevance are so various as to defy a precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality and from a combination of factors.
[50] Although his Honour was speaking of judicial decision-making, the observations are apposite here. The words “exceptional circumstances” may apply to a variety of circumstances and no definition which limits their application should be adopted unless the limitation appears from the words of the relevant statutory provisions. That is a question which arises here.
Those remarks are apposite to the phrase exceptional circumstances, and the emphasis on exceptional and what that means is relevant to the present matter.
The tribunal’s decision set out at length the evidence and claims made by the applicant at the hearing that the tribunal conducted on 5 December, 2013. The tribunal, after considering all of the matters of which the applicant informed the tribunal, concluded that the applicant’s claims and evidence were not credible. In fact, according to the tribunal’s decision, the applicant himself accepted that some of the things that he had provided to the tribunal were untrue and designed to mislead.
Ground 1 of the applicant’s application merely restates the statutory provision. It provides no ground of review.
Ground 2 demonstrates that the applicant is not happy with the tribunal’s decision. That is to say, he takes issue with the merits of the decision. This is not a merits‑based review process. The application can only succeed if the applicant establish that the tribunal’s decision is affected by jurisdictional error as that phrase has been described in many of the authorities such as Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
The applicant’s claims here do not establish that the tribunal’s decision is affected by jurisdictional error. The tribunal, whilst alive to the issue that it needed to determine, that is, whether the applicant established exceptional reasons for the purposes of cl.572.227 of the Regulations, found that in the circumstances it was unable to be satisfied about that because of the lack of creditworthiness of the applicant. Findings of credit are findings of fact par excellence and are for the tribunal to make: Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 74 ALJR 405.
The final ground of review is that the applicant does have exceptional circumstances beyond the application lodgement previously. That too is not a ground of review. The jurisdiction exercised by this Court is a very circumscribed jurisdiction. This Court cannot substitute its own view for that of the migration review tribunal, even if it thought it should do so. This Court’s power is only to review the process adopted by the tribunal and to ensure that no jurisdictional error has occurred which would vitiate that decision. No such error is identified by the applicant in this case.
The application must be refused. The applicant does not raise an arguable case for the relief claimed by him in his application.
RECORDED : NOT TRANSCRIBED
Costs should follow the event. No circumstances have been demonstrated to suggest that the usual rule does not apply.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 22 July 2014.
Associate:
Date: 5 August 2014
2
6
3