DESHAM v Minister for Immigration & Border Protection

[2014] FCCA 1117

FEDERAL CIRCUIT COURT OF AUSTRALIA

DESHAM  v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1117

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13
Migration Regulations 1994 (Cth) Sch.2

Applicant: SAI CHAND DESHAM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1065 of 2014

Judgment of: Judge Emmett

Hearing date: 29 May 2014

Date of Last Submission: 29 May 2014

Delivered at: Sydney

Delivered on: 29 May 2014

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms Burnette
(Clayton Utz Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1065 of 2014

SAI CHAND DESHAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicant seeks judicial review of a decision of the Migration Review Tribunal dated 24 March 2014 (“the MRT”).

2. The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commenced by way of application on 17 April 2014, be dismissed on the basis that the applicant has not raised an arguable case for the relief claimed.

3. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

4. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

5. The applicant was unrepresented before the Court this morning.

6. On 12 May 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the MRT, unless the Court is satisfied that the MRT’s decision is affected by a mistake going to the jurisdiction of the MRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

7. I also explained to the applicant that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of this Court.

8. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

9. The applicant confirmed that he wished to continue with the application for judicial review of the MRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 21 May 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 21 May 2014.

10. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services.

11. The matter was listed for today for a hearing pursuant to r.44.12 of the Rules and a copy of that rule was provided to the applicant.

12. The applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with my directions or otherwise. 

13. The applicant requested an extension of time to obtain some legal advice. However, to the extent that that request could be taken to be an application for an adjournment, that request was refused on the basis that the applicant has had since 24 March 2014, when the applicant received the MRT’s decision record, to obtain legal advice. The Court is not satisfied that the applicant’s substantive application has sufficient prosects of success such that it would be in the interests of justice that an adjournment be granted to the applicant.

14. The applicant’s application for judicial review, filed on 17 April 2014, stated the grounds of review as follows:

    “Grounds of the Application

    1. The Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claim that he is a genuine student and had provided a Confirmation of Enrolment.

    2. The Tribunal erred in finding that the applicant does not meet cl.572.223(2)(b).”

15. The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.

16. I accept as accurate the first respondent’s summary of the MRT’s decision, as follows:

    “11. As the applicant was enrolled in an Advanced Diploma of Tourism as his principle course of study, the relevant subclass applicable to the applicant’s student visa was Subclass 572. The criteria for the grant of a Subclass 572 visa is set out in Part 572 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).

    12. The issue in the present case was whether the applicant was a genuine applicant for entry and stay as a student having regard to the prescribed matters. That criteria is a requirement for all student visas. For subclass 572, the requirement is contained in clause 572.223(2) which relevantly provides:

    ‘(2)…

    (b). the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii) any other relevant matter’

    13. The Tribunal made the following findings:

    (a) although the applicant provided a Certificate of Enrolment, this did not outweigh his evidence at the hearing that he:

    (i) does not intend to continue to study;

    (ii) applied to the Tribunal for review of the Delegate’s decision so that he could then apply for a Subclass 457 visa in Australia.

    (b) whilst at the time the applicant lodged his student visa application, he genuinely intended to continue studies, at the hearing the applicant acknowledged he no longer intended to study in Australia.

    (c) clause 572.223(2)(b) of the Regulations is a criterion which is to be met at the time of the decision and it was not satisfied that the applicant was a genuine applicant for stay in Australia as a student and did not meet clause 572.223(2)(b) of the Regulations.” (emphasis added)

17. The applicant stated in relation to both grounds 1 and 2 that he had provided his certificate of enrolment to the MRT. The MRT decision makes clear that it was aware that the applicant held a certificate of enrolment for an Advanced Diploma of Tourism. However, the MRT noted the evidence before it given by the applicant that he did not intend to continue studying and that he was applying for review by the MRT so that he could apply for a subclass 457 visa.

18. The MRT accepted at the time the applicant lodged his application for a student visa that the applicant did genuinely intend to continue his studies. However, the MRT correctly noted that cl.572.223(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) is a criterion which is to be met at the time of decision. Relevantly, as stated above, the MRT must be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the applicant’s stated intention to comply with any condition subject to which the visa is granted.

19. In light of the applicant’s evidence that he did not intend to continue studying, the MRT was not satisfied that the applicant is a genuine applicant to stay in Australia as a student and therefore did not meet cl.572.223(2)(b) of Schedule 2 to the Regulations.

20. While I make no final decision as to whether or not the MRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The MRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the MRT on the evidence and material before it and for the reasons it gave.

21. The applicant has not identified any error on the part of the MRT that is capable of establishing jurisdictional error on the part of the MRT.

22. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.

23. Accordingly, the proceeding before this Court, commenced by way of application on 17 April 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:    6 June 2014