Baloch v Minister for Immigration

[2013] FCCA 2223

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALOCH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2223

Catchwords:
MIGRATION – Applicant failed to attend Tribunal hearing – application for review dismissed – Tribunal acted under s.362B of the Migration Act 1958 (Cth) – ground alleges no error on part of Tribunal – dismissed under
Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

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

Migration Act 1958 (Cth), ss.360A, 360B

Applicant: KHAN ALI MARRI BALOCH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 847 of 2013

Judgment of: Judge Whelan

Hearing date: 10 December 2013

Date of Last Submission: 10 December 2013

Delivered at: Melbourne

Delivered on: 10 December 2013

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Ms Whittemore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.

2. Pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001,

   
   

   the Application filed 13 June 2013 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 847 of 2013

KHAN ALI MARRI BALOCH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. This is an application before the Court for the review of a decision by the Migration Review Tribunal (“the Tribunal”). The application concerns the decision made by the Tribunal on 14 May 2013. In that decision, the Tribunal determined to affirm the decision of the delegate of the Minister not to grant a student temporary (Class TU) visa to the Applicant. The only ground for review as set out in the application states as follows:

   As I missed my court hearing because of being sick the tribunal made the decission (sic) on behalf on what information they had. After enrolling in my first course I didnt (sic) find it good so thought to change it and study what I am interested. As my parents passed Away (sic) I couldnt (sic) study because I was 19 and my mother passed Away After (sic) 4 months of Arriving Australia (sic). Because of our financial situation my sponcer (sic) couldnt afford my tution (sic) fees.[1]

   [1] Application of Khan Ali Marri Baloch filed 13 June 2013, at p.3.

2. The Court, in dealing with such applications, can only deal with an error that has been made by the Tribunal and which goes to the jurisdiction of the Tribunal. In the ground, there is no error actually alleged by the Tribunal.

Background

1. The Applicant arrived in Australia on 27 June 2008 as the holder of a student visa, which was valid until 20 August 2009. On

   
   

   18 August 2009, the Applicant applied for a further student sub-class 572 visa. On 1 October 2010, the Department of Immigration

   
   

   (“the Department”) notified the Applicant that it had decided not to grant the visa. The Applicant then applied for a review of that decision on 22 December 2011.

The Tribunal’s decision

1. The Tribunal remitted the case to the Department and the delegate again refused to grant the Applicant a visa on 19 April 2012.

   
   

   The Applicant lodged an application for review of the delegate’s decision on 7 May 2012. The Applicant was invited by the Tribunal to attend a hearing on 14 May 2013 and to provide evidence of the following:

   ·His current enrolment in a course;

   ·His previous enrolment and the academic achievements that he had obtained;

   ·His arrangements for current health insurance; and

   ·That he satisfied the English language, financial capacity, and other requirements required for the granting of the visa.

2. The Applicant did not attend the hearing, nor did he provide the evidence that was requested by the Tribunal. The Tribunal found that the Applicant had been invited to appear before the Tribunal to give evidence and to present his arguments, and the Tribunal was satisfied that the notice of that invitation had met the requirements of s.360A of the Migration Act 1958 (Cth) (“the Act”). The Tribunal noted it was not required to reschedule the hearing. The Applicant had not contacted the Tribunal to explain why he could not attend at the scheduled time and place, and the Tribunal therefore proceeded to make a decision.

3. As the Applicant had not provided evidence that he met the requirements for the granting of the visa, the Tribunal affirmed the decision under review. The Tribunal, in determining to affirm the decision of the Department, indicated it was acting pursuant to s.360B of the Act.

Conclusions

1. The Tribunal was empowered to make the decision on review without taking any further action to enable the Applicant to appear, because it had invited him to do so in the appropriate form and he had not attended. Unfortunately for the Applicant, that meant that his application was dismissed without him being able to provide any additional information. It is not clear to the Court today that the Applicant could have met the requirements of the visa even had he been given the opportunity to do so.

2. On that basis, I am satisfied that the appropriate action for the Court to take in these proceedings is to dismiss the proceeding in accordance with r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  19 December 2013