Chaudhary v Minister for Immigration
[2018] FCCA 1095
•20 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHAUDHARY v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1095 |
| Catchwords: SHOW CAUSE – First three grounds of review were not proper grounds – no particulars given – fourth ground that applicant was a “remaining relative” of an Australian relative considered – no arguable case – application summarily dismissed. |
| Legislation: Migration Regulations 1994, Sch 2, reg.1.15, cls.835.212, 835.221 Federal Circuit Court Rules 2001, r.44.12 |
| Cases cited: Spencer v Commonwealth (2010) 241 CLR 118 WZATH v Minister for Immigration & Border Protection [2014] FCA 969 |
| Applicant: | BIJESH CHAND CHAUDHARY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 744 of 2016 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 20 April 2018 |
| Date of Last Submission: | 20 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 20 April 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: | Mr L T Brown |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The proceeding commenced by the application filed 13 April 2016 is dismissed.
The applicant pay the minister’s costs fixed in the amount of $5,865.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 744 of 2016
| BIJESH CHAND CHAUDHARY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(EX TEMPORE)
Introduction
This show cause hearing was originally listed for hearing before me on 26 October 2016 at which time it was adjourned for hearing on 19 February 2018 then to today.
On the return of a show cause hearing, a judge in my shoes has power under r.44.12 of the Federal Circuit Court Rules to make any number of orders including an order dismissing the whole case. However, statements of principle from the High Court of Australia in Spencer v the Commonwealth[1] and from the Full Court of the Federal Court of Australia in AMF15 v Minister for Immigration and Border Protection[2] have held that an order for the summary dismissal of a proceeding should not lightly be made. I have proceeded in my task today with that instruction uppermost in mind.
[1] (2010) 241 CLR 118
[2] (2016) 241 FCR 30
The applicant, a Fijian citizen, sought another family (residence) (class BU) visa by application filed with the Department of Immigration & Border Protection on 7 November 2014. In his visa application the applicant relied on sub-class 835, the remaining relative sub-class. On 20 November 2014, the minister’s delegate refused the visa application on the basis that the applicant did not satisfy reg.1.15(1)(c) of the Migration Regulations with the consequence that he did not satisfy the compulsory criteria in cl.835.212 of Sch 2 to the regulations. Specifically, the delegate found that the applicant had near relatives, being his brother and children, residing in the United States of America yet no evidence was adduced that they were Australian citizens.
On 25 November 2014 the applicant applied for a merits review before the Administrative Appeals Tribunal (“tribunal”). On 10 March 2016 the applicant attended a hearing before the tribunal accompanied by the applicant’s sponsor (who was the applicant’s brother) along with the applicant’s father. The applicant gave evidence and presented argument to the tribunal.
On 11 March 2016 the tribunal affirmed the delegate’s decision to refuse the visa that the applicant sought, largely for the same reasons as did the delegate.
The applicant applied to this court for judicial review of the tribunal’s decision by application filed 13 April 2016. His grounds of review were in four numbered paragraphs. Reproduced precisely with errors in the original, they were as follows –
(1)Human rights under international obligations of Australia.
(2)Migration laws of Australia.
(3)Due process of law (The Rule of Law).
(4)Part 835 of Schedule 2 to the Migration Regulation 1994 is fulfilled. Therefore a judicial hearing is sought. He is only one son in Fiji residing. He is the last remaining family. Bijesh & all family do not know about Vishal for last 30years.
The question for me in this show cause hearing is whether the applicant’s grounds of review raised an arguable case that the tribunal fell into jurisdictional error within the meaning of that phrase as explained in such High Court cases as Craig v State of South Australia,[3] Minister for Immigration & Multicultural Affairs v Yusuf[4] and Kirk v Industrial Court (NSW).[5]
[3] (1995) 184 CLR 163
[4] (2001) 206 CLR 323
[5] (2010) 239 CLR 531
Synopsis
For the reasons that follow in my judgment the tribunal did not fall into jurisdictional error in this case. The applicant did not make out an arguable case that it did. In reality the applicant was inviting me to undertake an impermissible merits review of his tribunal hearing. This application must be dismissed and the applicant must pay the minister’s costs.
In greater detail
As this is a judicial review application, it is necessary for me to go to the reasons of the tribunal to ascertain whether the tribunal fell into error on any of the conventional grounds, namely, by assessing whether the tribunal –
a)asked itself a wrong question;
b)took into account irrelevant considerations;
c)failed to have regard to relevant considerations;
d)identified a wrong issue; or
e)made an erroneous finding or reached a mistaken conclusion.
Of course, those elements are not a rigid list of factors demonstrating jurisdictional error, but if any evidence of any one or more of them in the tribunal’s reasons existed, then it was my duty to detect and correct that fallacious reasoning as was held in Kirk’s case, mentioned above.
In this case the tribunal correctly identified the applicable sub-class as being sub-class 835 and that the applicable clauses of the regulations were cl.835.212 and cl.835.221. It did so in paragraph 10 of its reasons. The tribunal addressed the requirement in reg.1.15(1)(c) of the regulations that the applicant had no “near relatives” as defined, except those usually resident in Australia and who were, among other things, Australian citizens.[6] In paragraph 17 the tribunal recorded that the applicant told the tribunal he had not seen nor communicated with his children since 1989. The tribunal stated in paragraph 19 of its reasons that the issue was whether the applicant had a near relative other than those permitted by the regulations. The tribunal recorded that the applicant had a brother, Ajay who, with his children lived in the United States. The tribunal recorded that the applicant had a daughter, Pooja, and a son, Vishal, both residents of the United States, with whom the applicant had no contact since 1989, as the applicant was divorced a long time earlier. The tribunal found that there was no evidence that Ajay, Pooja or Vishal were citizens of Australia, permanent residents or eligible New Zealand citizens. At paragraph 21 of its reasons the tribunal found it was not satisfied that cl.1.15(1)(c) had been met. The tribunal affirmed the delegate’s decision not to grant the visa.
[6] AAT decision record dated 11 March 2016 (at [21])
In this court
The applicant’s grounds of review have already been recorded. Several things must be said about them.
First, the first three were not proper grounds. They were three separate phrases, without particulars. It was not possible by a plain reading of them to tell what matters of fact or law were raised by them. Without particulars it has been held that grounds of review are vulnerable to dismissal, for example, in the cases of WZATH v Minister for Immigration and Border Protection,[7] AQN v Minister for Immigration and Border Protection,[8] BHK15 v Minister for Immigration and Border Protection,[9] and WZAVW v Minister for Immigration and Border Protection.[10] On that basis alone, the first three grounds should be dismissed.
[7] [2014] FCA 969
[8] [2016] FCA 571
[9] [2016] FCA 569
[10] [2016] FCA 760
The fourth ground was a mixed assertion of fact and of legal proposition. To the extent that it contained the applicant’s contention that he satisfied cl.835.212 of Sch 2 to the regulations, that was a matter of construction of the relevant clause against the facts of the case. Construed most charitably, it was an assertion that the tribunal erred in law. For the benefit of the applicant I have proceeded on that basis for my consideration of ground 4.
For the purposes of cl.835.212 and cl.835.221, at the time of application the applicant had to be a “remaining relative”, as defined, of an Australian relative and at the time of the decision, the applicant had to continue to satisfy the terms of cl.835.212, according to cl.835.221. In reg.1.15 of the regulations the definition of “remaining relative” is set out. In this case the applicant said he had a brother, Ajay, who lived in the United States with that brother’s children, Pooja and Vishal. Regulation 1.15(1) was made up of four sub-paragraphs, all cumulative, connected in all instances by the conjunction “and”. When properly construed, reg.1.15(1)(a) required the applicant to be a “remaining relative” of another person who was, among other things, an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen. On the facts of this case, in paragraph 20 of its reasons the tribunal found that no evidence was before the tribunal that Ajay, Pooja, or Vishal were Australian citizens, permanent residents, or eligible New Zealand citizens who were ordinarily resident in Australia.
While the definition in reg.1.15 of “remaining relative” and “near relative” is complicated, it seemed to me that the tribunal correctly found that the other person – here Ajay – being the applicant’s brother, was not ordinarily resident in Australia. Ajay lived in the United States, as the tribunal found in paragraphs 15 and 17 of its reasons.
Returning to ground 4, I disagree with the applicant’s contentions that he satisfied cl.835.212 as the applicant asserted in the first sentence of ground 4. The balance of ground 4 was surplusage.
In my view the tribunal made no error in this case. It correctly identified the applicable clause as being cl.835.212. It correctly applied reg.1.15, especially the definition of “remaining relative”. In my view, the tribunal made no error.
Under the show cause procedure set out in the rules of this court, where an applicant is unable to demonstrate that he has an arguable case for the relief he seeks, it is permissible for this court to summarily dismiss his case. It seemed to me that that outcome was appropriate in this case. No arguable case has been shown for the issuing of constitutional writs. It seemed to me that counsel for the minister was correct in his submissions in paragraph 18 of the minister’s written submissions. There, Mr Brown wrote the following –
Once the applicant had given evidence that he had a brother and children in the USA (which was accepted by the Tribunal) he could not satisfy cll 835.212 and 835.221 of Sch 2 to the Regulations. That is, no part of the definitions of “remaining relative” or “near relative” depended on contact with those relatives. It was the very existence of the relevant relatives that cast the applicant out of the relevant statutory definition.
Today I asked the applicant to tell me in his own words what the tribunal did wrong in this case. He said he was not saying that the tribunal made any mistake. He told me that his real point was that no one was left to look after his parents. While I feel some sympathy for the applicant at a practical level, he failed to demonstrate the existence of jurisdictional error in this case.
I dismiss this proceeding and order the applicant to pay the minister’s costs in the sum of $5,865. While it is true that this case has been before me three times when it should only have been before me once and that there may have been an argument that problems with the interpreter were not those of the applicant’s making, nevertheless the applicant failed, and it is appropriate that he pays the minister’s costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 4 May 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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