Butt v Minister for Immigration

[2015] FCCA 1236

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUTT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1236

Catchwords:
MIGRATION – Student via cancelled due to non-compliance – jurisdictional review – Tribunal determined it had no jurisdiction – Tribunals decision is upheld.

Legislation:

Migration Act 1958 (Cth), ss.52, 127, 147, 338, 347, 348

Migration Regulations 1994 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Minister for Immigration v Singh (2000) 98 FLR 77
Nemusesco v Minister for Immigration & Anor [2010] FMCA 957

Applicant: TOUSEEF ASIF BUTT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1198 of 2014

Judgment of: Judge Harland

Hearing date: 1 April 2015

Date of Last Submission: 1 April 2015

Delivered at: Melbourne

Delivered on: 14 May 2015

REPRESENTATION

The Applicant appeared in person with the assistance of an interpreter

Counsel for the Respondents: Mr McDermott

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application be dismissed pursuant to rule 16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant shall pay the costs of the first respondent fixed at $6,646.00 in accordance with Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1198 of 2014

TOUSEEF ASIF BUTT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant was granted a student visa on 19 March 2012. On 20 September 2013 the Delegate of the Minister cancelled the applicant’s student visa after it became apparent that the applicant had never started his course and had not complied with the conditions of his visa.

2. The applicant filed an application to review the Delegate’s decision on 11 April 2014. The Tribunal determined that it did not have jurisdiction to determine the applicant’s review which was out of time.

3. The gravamen of the applicant’s complaint is that he never received the notice about the cancellation of his visa. He says he found out accidentally some months later. The issue turns on the legislative provisions with respect to notice.

4. The solicitor advocate for the Minister helpfully outlined the relevant provisions in the Migration Act and Regulations at the hearing. The applicant appeared for himself at the hearing with the assistance of an interpreter.

5. The time limits in the legislation are strict. Neither the Tribunal nor this Court has power to enlarge the time to make an application for review. The Court must decide whether or not the tribunal was correct in law to find that it had no jurisdiction to determine the applicant’s review application.

6. On his visa application the applicant gave his address as 7 Baker Street, Sunshine VIC 3020. This appears at page 4 of the court book. Page 7 of the court book is the declaration which forms part of the visa application where the applicant acknowledges that he must immediately advise the Department if he becomes aware of any change in circumstances. As matter…