Dashti v Minister for Immigration & Multicultural Affairs

[2000] FCA 1631

FEDERAL COURT OF AUSTRALIA

Dashti v Minister for Immigration & Multicultural Affairs [2000] FCA 1631

Migration Act 1958 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules O 32 r 2(1)(c), O 54B r 2

NADI ALI DASHTI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 987 of 2000

BRANSON J
SYDNEY
9 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 987 of 2000

BETWEEN:	NADI ALI DASHTI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	9 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicant pay the costs of the respondent but not including the costs of briefing counsel to appear today.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 987 of 2000

BETWEEN:	NADI ALI DASHTI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	9 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an “application” for the judicial review of the decision of the Migration Review Tribunal whereby the Tribunal affirmed a decision that the applicant is not entitled to the grant of a Student (Temporary) (Class TU) visa.  The basis of the decision of the Tribunal was that the applicant, who was invited to a review hearing before the Tribunal but did not attend the hearing, had failed to provide, either to the original decision-maker or to the Tribunal, evidence of his ability to satisfy a criterion for the grant of the visa which he sought; namely, that the Minister is satisfied as to the applicant’s financial ability to undertake the applicant’s proposed course of study without contravening any condition of a visa relating to work.

2. Section 476(1) of the Migration Act 1958 (Cth) (“the Act”) authorises a person in the position of the applicant to make an application for review by this Court of a decision such as that made in this case by the Tribunal on one or more of the grounds specified by the subsection. Section 478 of the Act provides that an application under s 476 must be made in such a manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976 (Cth), and must be lodged with a Registry of the Court within 28 days of the applicant being notified of the decision. The Federal Court may not make an order which allows or has the effect of allowing an applicant to lodge an application outside the 28 day period specified by s 478(1) (see s 478(2)).

3. Order 54B rule 2 of the Federal Court Rules provides that an application under s 476 of the Act must be in accordance with Form 56. Form 56 and O 54B r 2(3) both indicate that the application must specify the grounds on which the application for an order of review is made. The “application” lodged in this case by a migration agent on behalf of the applicant does not specify any grounds upon which the application is made. In the space provided on the form for the grounds to be specified the words “documents to be submitted later” appear. No document specifying grounds of review have been submitted by the applicant either within 28 days from the date when he was notified of the decision of the Tribunal or at all.

4. As I have indicated on earlier occasions, I entertain serious doubts as to whether an application for review of a judicially reviewable decision which does not specify any grounds upon which the application is made is a valid application under the Act. In view of the concerns publicly expressed by Australian authorities about abuses of the system of review established by the Act, including concerns that applications are made to this Court for the sole purpose of delaying departure from Australia, it is surprising that in this as in other similar cases the respondent has not objected to the competence of the application (O 54B r 3). However, as no such objection has been taken, I consider it necessary to act on the basis that the respondent concedes that there is a valid application before this Court in this case.

5. The applicant has not appeared today.  A letter dated 22 September 2000 addressed to him at the address for service given on his application advised him of today’s hearing.  I note that he also failed to attend the directions hearing before a Registrar in this matter, although on that occasion a migration agent from the same firm that lodged the application attended on his behalf.

6. At the directions hearing held on 20 September 2000, the Registrar ordered by consent that the applicant file and serve an amended application including particulars and the evidence upon which he proposed to rely on or before 3 November 2000.  No amended application has been filed on behalf of the applicant nor has he filed any evidence.  I have already noted that the applicant failed to attend before the Tribunal or to provide it with any documentation in support of his then application for review.

7. I am satisfied in all of the circumstances that the applicant is not genuinely seeking judicial review by this Court of the decision of the Tribunal.  In reliance on O 32 r 2(1)(c), I dismiss the application.

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

Associate:

Dated:   15 November 2000

Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 November 2000
Date of Judgment:	9 November 2000