Damore v Minister for Immigration

[2015] FCCA 1289

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAMORE & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1289

Catchwords:
MIGRATION – Migration Review Tribunal – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958, s.476

Cases cited: 

Minister for Immigration v Lee & Ors [2014] FCCA 2881

First Applicant: APEXA MANOJKUMAR DAMORE

Second Applicant: AIM AJAY CHRISTI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 991 of 2015

Judgment of: Judge Street

Hearing date: 14 May 2015

Date of Last Submission: 14 May 2015

Delivered at: Sydney

Delivered on: 14 May 2015

REPRESENTATION

The applicants appeared in person

Solicitors for the First Respondent: Ms B. Rayment
Mills Oakley Lawyers

ORDERS

1. The first application is appointed litigation guardian of the second applicant.

2. The need of filing of further confirmation in respect of that appointment be dispensed.

3. The application be dismissed under R.44.12 of the Federal Circuit Court Rules 2001.

4. The first applicant pay the first respondent’s costs fixed in the sum of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 991 of 2015

APEXA MANOJKUMAR DAMORE

First Applicant

AIM AJAY CHRISTI

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a constitutional writ in respect of a decision within the Court’s jurisdiction under s.476 in respect of a decision of the Tribunal made on 13 March 2015 holding that it did not have any jurisdiction in respect of an application for review. The application identified the following grounds:

   1. Jurisdictional error & Lacked jurisdiction

   2. Error in interpretation of legislation

   3. Natural Justice

2. The first respondent has moved for immediate show cause hearing, having served the Court book.

3. The first respondent has submitted that ground 1 fails to identify any jurisdictional error by the Tribunal in concluding that it had no jurisdiction.  I accept the first respondent’s submission.  It is clear that, for the reasons identified by the Tribunal, it did not have jurisdiction.  I also accept the submission of the first respondent that this is a matter in respect of which the approach adopted by the Tribunal was consistent with the approach of this Court in the Minister for Immigration v Lee & Ors [2014] FCCA 2881 at [44]-[46]. I regard that decision as correct, and the Tribunal was correct to follow that decision. There is no substance in relation to ground 1.

4. In relation to ground 2, there is no substance in the assertion of an error in the interpretation of the legislation.  In relation to ground 3, it is clear from the decision of the Tribunal that the Tribunal wrote to the applicants informing them of the concern as to a want of jurisdiction by a letter dated 4 February 2015 inviting a response.  A response to the letter was received but failed to address the issue of the want of jurisdiction.  This is not a case where there has been any denial of procedural fairness by the Tribunal.  There is no substance in relation to the third ground. 

5. The applicant sought an adjournment on the basis that she wished to obtain a lawyer but could not afford to pay for the lawyer at this stage, and so that the case could be presented more fully. The applicant identified her limited understanding in relation to the issues that were raised in the application. I am clearly satisfied that the proceedings are doomed to failure. There is no utility in granting an adjournment in respect of proceedings that are doomed to failure, as to do so will only unnecessarily increase the cost to the parties and utilise limited Court time. The application fails to disclose any arguable jurisdictional error. I am clearly satisfied that this is a matter in which it is appropriate to dismiss the application under r.44.12. I dismiss the application under r.44.12.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  18 May 2015