Brazier v Minister for Immigration

[2016] FCCA 2914

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRAZIER v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2914

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Partner (Residence) (Class BS) (Subclass 801) visa – application of s.351 – whether the Tribunal had jurisdiction to review the Minister’s decision – applicant failed to disclose any arguable case – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.351.

Federal Circuit Court Rules 2001, r.44.12.
Migration Regulations 1994, cl.801.221 of Sch.2.

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: CATHERINE ELSIE BRAZIER

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2581 of 2016

Judgment of: Judge Street

Hearing date: 11 November 2016

Date of Last Submission: 11 November 2016

Delivered at: Sydney

Delivered on: 11 November 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms H Dejean

Australian Government Solicitor

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant to pay the First Respondent’s costs fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2581 of 2016

CATHERINE ELSIE BRAZIER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant is a citizen of Ireland and applied for a Partner (Temporary ( Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa on 14 August 2008. That application was the subject of a grant of a Subclass 820 visa on 26 August 2008. The Partner (Residence) (Class BS) (Subclass 801) visa was later refused on 7 March 2012 on the grounds the applicant did not satisfy clause 801.221 of the Migration Regulations 1994 (Cth) (“the Regulations”).

Before the Migration Review Tribunal (“The Tribunal”) – 11 December 2013

1. The applicant sought a review of the refusal decision. The formerly constituted Tribunal found on 11 December 2013 that the applicant satisfied subclause 801.221(6)(c)(ii)(A) of Schedule 2 to the Regulations. The formerly constituted Tribunal found that the appropriate course was to remit the application for the visa to the Minister for the remaining criteria assessment for a Subclass 801 visa.

Before the Delegate – 15 April 2015

1. The initial request for information was sent to the applicant by email on 5 February 2014. There was no response by the applicant.  There were further attempts to contact the applicant.

2. On 15 April 2015, the delegate refused to grant the applicant a Partner (Residence) (Class BS) (Subclass 801) visa.

Before the Tribunal – 2 September 2016

1. The applicant applied on 15 July 2016 for a review of the Minister’s notification of Ministerial Intervention request dated 4 July 2016.

2. On 19 July 2016, the differently constituted Tribunal wrote to the applicant identifying that the application is one that appeared not to be valid as the outcome of the request for Ministerial Intervention under s.351 of the Migration Act 1958 (Cth) (“the Act”) is not a decision which can be reviewed by the Tribunal.

3. On 2 September 2016, the Tribunal noted that the applicant had sent a response making reference to applying for an extension of the Bridging visa and that the applicant was not seeking review of a Partnership visa and asking for rectification of an alleged mistake.

Consideration of jurisdiction

1. The Tribunal was entirely correct to hold that it had no jurisdiction in respect of the application and had no jurisdiction in respect of the refusal of the Minister to intervene.

2. The grounds of the application comprised an attachment to the application, none of which identified any basis upon which there could be said to be a jurisdictional error by the Tribunal. 

3. The applicant also relied upon an affidavit that annexed further submission material, none of which identified any basis upon which it could be said that the Tribunal was wrong in holding that it did not have jurisdiction.

Proceedings Before this Court

1. On 13 October 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. The applicant did file a further affidavit. 

2. At the commencement of the hearing, the Court explained to the applicant that this was a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001. 

3. The Court explained that the show cause hearing was to determine whether the applicant had an arguable case that the Tribunal’s decision was affected by a relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. 

4. The Court explained that if satisfied there is a reasonable argument that the Tribunal’s decision was unlawful or unfair, the proceedings would be fixed for another date. The Court explained that if not satisfied there is a reasonable argument that the Tribunal’s decision was unlawful or unfair, the application would be dismissed. 

5. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that she understood the nature of the hearing as explained by the Court. 

6. From the bar table, the applicant sought to advance her personal circumstances and hardship in relation to her continued stay in Australia. The applicant identified that she had been an unlawful person on her calculations, for approximately eleven months. 

Consideration and Conclusion

1. Nothing said by the applicant from the bar table identified any basis upon which there could be said to be an argument that the Tribunal’s decision in holding that it did not have jurisdiction was incorrect.

2. The Tribunal did provide the applicant with an opportunity to respond to the proposition that there was no jurisdiction. There was no relevant response by the applicant in that regard. The Tribunal complied with the requirements of procedural fairness in relation to the decision that it made that it had no jurisdiction. 

3. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I am satisfied that the application fails to disclose any arguable case.

4. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.   

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 December 2016