Chowdhury v Minister for Immigration

[2016] FCCA 194

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOWDHURY v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 194

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Regional Employer Nomination (Permanent) visa – show cause – whether the Tribunal had jurisdiction to hear the application – no jurisdictional error – application dismissed. 

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.29

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958 (Cth), ss.328, 347, 411, 412, 476

Migration Regulations 1994, r.4.02(4)

Applicant: SHADMAN SAQIF CHOWDHURY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3008 of 2015

Judgment of: Judge Street

Hearing date: 5 February 2016

Date of Last Submission: 5 February 2016

Delivered at: Sydney

Delivered on: 5 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Maddocks
DLA Piper

ORDERS

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

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3008 of 2015

SHADMAN SAQIF CHOWDHURY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court's jurisdiction, under s.476 of the Migration Act 1958 (Cth), in respect of a decision of the Tribunal made on 8 October 2015, holding that it did not have a jurisdiction in respect of an application for review made on 5 June 2015 in respect of a refusal to grant a Regional Employer Nomination (Permanent) visa.

2. The applicant is a citizen of Bangladesh and applied for a Regional Employer Nomination (subclass 187) visa on 18 July 2014.  That application was refused on 16 May 2015.  The applicant filed an application for review on 5 June 2015.  Movement records before the Tribunal show that at the time of the lodgement, the applicant was offshore, having departed Australia on 16 May 2015.

3. The Tribunal identified that it had jurisdiction only if the application was properly made under s.347 or s.412 of the Act, or in limited circumstances not arising in relation to this application, under s.29 of the Administrative Appeals Tribunal Act 1975 (Cth).

4. The Tribunal identified that s.328 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that were reviewable.  The Tribunal identified that a decision to refuse the grant of a writ or Employer Nomination permanent visa is reviewable if the applicant made the visa application while in the migration zone and that the applicant was also in the migration zone at the time of lodgement of the MRT application.

5. The Tribunal was correct in identifying the requirements of s.347(3) of the Migration Act 1958. On 10 December 2015, a Registrar of the Court made orders fixing the matter for hearing today under r.44.12 of the Federal Circuit Court Rules 2001 and providing the applicant with an opportunity to file an amended application, affidavit evidence or submissions. No such documents were filed. At the commencement of the hearing, the Court explained to the applicant the nature of the r.44.12 show cause hearing, and the applicant confirmed that he understood what had been explained.

6. The grounds of the application are as follows:

   1. The tribunal failed to exercise its jurisdiction.

   2. The tribunal failed to consider the circumstances of which I had to be overseas when my application was lodged.

7. The grounds fail to identify any arguable jurisdictional error. There is no factual dispute that the applicant was overseas and that the requirements of s.347(3) of the Migration Act 1958 were not met.  In those circumstances, the Tribunal was correct to hold that it did not have jurisdiction in respect to the application.  The compassionate circumstances, which in substance related to the applicant’s family, for his overseas travel are not grounds that give rise to any jurisdictional error by the Tribunal.

8. Nothing said by the applicant identified any arguable jurisdictional error.  In the course of the hearing, the applicant indicated that he wished to obtain an adjournment in substance because he wanted to stay in Australia pending the determination of this application.  No earlier notice of any adjournment application had been given to the first respondent and the first respondent opposed the adjournment.  No proper ground for an adjournment was identified.  I am satisfied that an adjournment would be of no utility and that it would only unnecessarily add to the costs of the parties and utilise limited Court time.  For these reasons, the adjournment was refused. 

9. I am satisfied that the application fails to disclose any arguable case of jurisdictional error and I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 February 2016