Chundru v Minister for Immigration

[2016] FCCA 3301

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHUNDRU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3301

Catchwords:
MIGRATION – Show cause hearing – applicant an Indian national – student visa – visa applicant conceded to Tribunal he was not enrolled in any course nor did he have any offers of enrolment – application dismissed – no error.

Legislation:

Federal Circuit Court Rules 2001, r.44.12(1)(a)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cls.570.232, 571.232, 572.231, 573.111, 573.223(2)(a), 573.231, 574.111, 575.111, 575.231, 576, 580, sch.2, sch.5A

Cases cited:

AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68

Spencer v The Commonwealth (2010) 241 CLR 118

Applicant: SRI SATYA SEKHAR CHUNDRU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2487 of 2015

Judgment of: Judge Wilson

Hearing date: 17 November 2016

Date of Last Submission: 17 November 2016

Delivered at: Melbourne

Delivered on: 17 November 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the first respondent: Mr B Hornsby of Sparke Helmore

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application filed 9 November 2015 is dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2487 of 2015

SRI SATYA SEKHAR CHUNDRU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Introduction

1. On 13 April 2016, a registrar of this Court ordered this case to proceed as a show cause hearing. 

2. On a hearing such as that, the Court is empowered to dismiss the whole proceeding if satisfied that the application has not raised an arguable case. Such a conclusion is not to be lightly reached as the High Court of Australia has said in cases such as Spencer v The Commonwealth,[1] and as the Federal Court of Australia sitting as a Full Court has said in AMF15 v Minister for Immigration and Border Protection.[2] 

   [1] (2010) 241 CLR 118.

   [2] [2016] FCAFC 68.

3. The applicant was ordered to file written submissions two weeks ago. He failed to do so. The Minister complied. 

Synopsis

1. For the reasons that follow in my judgment, the applicant has not raised an arguable case in this judicial review application. He has not shown an arguable basis for relief on the ground that the Migration Review Tribunal now the Administrative Appeals Tribunal (“the Tribunal”) fell into jurisdictional error. 

A short factual excursus

1. The applicant, an Indian national, applied for a Student (Temporary) (Class TU) visa (“the visa”) on 30 August 2014. The Minister’s delegate refused the visa application on the basis that the applicant did not satisfy cl.573.223(2)(a) of the Migration Regulations 1994

   
   

   (“the Regulations”) in sch.2.[3] Specifically, the delegate found that the applicant had not satisfied the financial capacity requirements recorded in sch.5A of the Regulations. The applicant was represented by a migration agent during the hearing before the delegate. 

   [3] Court Book filed 19 April 2016 at pp.56-58.

2. The applicant applied to the Tribunal for a review of the delegate’s decision. The applicant appointed a different migration agent. On

   
   

   28 September 2015, the applicant informed the Tribunal that he no longer retained a migration agent and that he would attend a hearing scheduled for 21 October 2015. He did, in fact, attend on that date. 

3. The Tribunal decided to affirm the decision of the delegate.[4] In reaching that decision, the Tribunal made several key observations, including the following –

   a)first, the issue for the Tribunal was whether, at the date of its decision, the applicant met the enrolment criteria for a student visa;

   b)second, the Tribunal found that no evidence was before it to show the applicant satisfied cls.570.232, 571.232, 572.231, 573.111, 573.231, 574.111, 574.231, 575.111, and 575.231 of the Regulations; and

   c)the Tribunal found that no evidence was before it that the applicant met the criteria for visas under subclasses 576 or 580. 

   [4] Court Booked filed 19 April 2-16 at pp.87-89.

4. In the Tribunal, the applicant conceded he was not enrolled in any courses nor did he have any offers of enrolment. The Tribunal recorded in paragraph 8[5] of its reasons that the applicant had been depressed and that he had done nothing about his courses.

   [5] Court Book filed 19 April 2016 at p.88.

5. The Tribunal affirmed the delegate’s decision not to grant the applicant a visa. 

In this Court

1. On 9 November 2015, the applicant applied to this Court seeking judicial review of the Tribunal’s decision. His three grounds of review were generic, imprecise and pro forma. None had substance. None were particularised. None gave any facts to support the assertions that the Tribunal’s decision was affected by jurisdictional error. In my judgment, the Tribunal’s decision was not so affected. It was factually correct. 

2. The applicant gave no information to support his assertion that the Tribunal did not take into account relevant considerations nor did he say how he alleged the Tribunal’s decision was wrong in law. In my view, it was not. The Tribunal’s decision did not fail to take into account relevant considerations nor was the decision wrong in law. To the contrary, the Tribunal’s decision was wholly correct in law. For that matter, the Tribunal found precisely, as it should have found, in view of the concession recorded in paragraph 8 of its reasons that the applicant was not enrolled in any course nor did he have offers of enrolment, that he was depressed and he had done nothing about his courses. In the face of that concession, it was remarkable that he applied to this Court. His case was doomed. 

3. Finally, as to his third ground, it was hopeless. 

4. This was a glaring case where the applicant has not raised an arguable case before me. He said he had done a hospitality course but, otherwise, had done nothing to complete studies since coming to Australia. 

Conclusions

1. Under r.44.12(1)(a) of the Federal Circuit Court Rules 2001, I dismiss this proceeding.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Associate: 

Date:  20 December 2016