Cahyadi v Minister for Immigration and Border Protection

[2018] FCA 671

FEDERAL COURT OF AUSTRALIA

Cahyadi v Minister for Immigration and Border Protection [2018] FCA 671

File number(s):

NSD 236 of 2018
NSD 237 of 2018

Judge(s):

JAGOT J

Date of judgment:

15 August 2018

Legislation:

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Migration Act1958 (Cth) s 47(3)

Migration Regulations 1994 (Cth)

Date of hearing:

15 August 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

7

Counsel for the Applicant in NSD 236 of 2018:

The applicant appeared in person

Counsel for the Applicant in NSD 237 of 2018:

The applicant appeared in person aided by an interpreter

Solicitor for the Respondent:

H Dejean of Australian Government Solicitor

ORDERS

NSD 236 of 2018

BETWEEN:

TJOA ROBERT CAHYADI

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	15 AUGUST 2018

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the respondent’s costs of the application for leave to appeal as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

NSD 237 of 2018

BETWEEN:

LINDA HARIADY

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	15 AUGUST 2018

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the respondent’s costs of the application for leave to appeal as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1. The applicants in these proceedings, which were heard together, each sought leave to appeal from orders of the Federal Circuit Court: see Cahyadi v Minister for Immigration [2018] FCCA 406 and Hariady v Minister for Immigration [2018] FCCA 407. Those orders dismissed the applicants’ claims for judicial review of decisions made by a delegate of the Minister that their applications for a Subclass 600 (Visitor) visa in the Sponsored Family stream were invalid.

2. The Federal Circuit Court’s reasons were in effectively the same terms as the visa applications were made by the applicants as husband and wife in identical circumstances.  The orders must be taken to be interlocutory, having been made pursuant to the Federal Circuit Court Rules 2001 r 13.10(a). Interlocutory orders cannot be appealed from without this Court first granting leave to appeal: Federal Court of Australia Act 1976 (Cth) s 24(1A). In order to grant leave I must be satisfied that the orders are attended with sufficient doubt to justify their reconsideration on appeal.

3. Having regard to the reasons for judgment of the Federal Circuit Court and the written submissions of the Minister filed in these proceedings, I cannot conclude that the orders are attended with sufficient doubt to justify a grant of leave to appeal or, indeed, any doubt whatsoever. 

4. A Subclass 600 (Visitor) visa in the Sponsored Family stream could only be validly applied for outside Australia, according to the Migration Regulations 1994 (Cth).  In particular, subitem 4(2) of item 1236 of Sch 1 of the Regulations states that an applicant seeking to satisfy the primary criteria for a Subclass 600 (Visitor) visa in the Sponsored Family stream “must be outside Australia” when the application is made.  It is not in dispute that the applicants were within Australia when they made the visa applications.  Accordingly, and as the Federal Circuit Court concluded, the Minister’s delegate correctly decided the visa applications were invalid.  An invalid application cannot be considered by the Minister: Migration Act1958 (Cth) s 47(3).

5. Each applicant identified two grounds in support of their application for leave to appeal, neither of which were or could have been meaningfully advanced. Ground 1 referred to the Federal Circuit Court having dismissed the case without evidence about the behaviour of the Minister’s department.  This seemed to relate to a grievance dealt with by the Federal Circuit Court that the applicants were advised, after making one invalid application, to make an application in Adelaide as opposed to Sydney.  There is no evidence of that fact, and, in any event, the applicants were within Australia at the time they made their visa applications.  Ground 2 referred to a refusal to adjourn the matter and a denial of natural justice by the Federal Circuit Court.  There is no suggestion that the applicants applied for an adjournment of the hearing before the Federal Circuit Court.  It is also apparent that they appeared and made submissions in the Federal Circuit Court.

6. In oral submissions the applicants said that they had lived in Australia for 20 years and could not feasibly return to their country of origin.  This Court has no jurisdiction to act on those matters.  They can only be raised with the Minister through the Minister’s department.

7. In these circumstances, there is no option other than to make orders in each matter that the application for leave to appeal be dismissed and the applicant pay the respondent’s costs of the application for leave to appeal as agreed or taxed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:       15 August 2018