Dorji v Minister for Immigration
[2018] FCCA 1531
•31 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DORJI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1531 |
| Catchwords: PRACTICE AND PROCEDURE – Show cause hearing – applicants’ grounds of review lacked merit – failed to raise an arguable case for relief sought – failed to identify jurisdictional error – no particulars – application summarily dismissed. |
| Legislation: Migration Regulations 1994, Sch.2, cls.572.223, 573.223 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 Attorney-General (NSW) v Quin (1990) 170 CLR 1 BHK15 v Minister for Immigration and Border Protection [2016] FCA 569 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Siddique v Minister for Immigration and Border Protection [2014] FCA 1352 |
| First Applicant: | YUTHRA YANGDRON DORJI |
| Second Applicant: | NIDUP TSHERING |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 406 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 31 May 2018 |
| Date of Last Submission: | 31 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 31 May 2018 |
REPRESENTATION
| First Applicant: | In person |
| Second Applicant: | In person |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The proceeding commenced by the application filed on 27 July 2017 is dismissed.
The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 406 of 2017
| YUTHRA YANGDRON DORJI |
First Applicant
| NIDUP TSHERING |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
By application for judicial review filed 27 July 2017, the applicant sought orders for the issue of constitutional writs in respect of a decision of the Administrative Appeals Tribunal made on 4 July 2017, the written record of which was provided on 21 August 2017.
Pursuant to the tribunal’s decision, it affirmed the decision of the minister’s delegate to refuse to grant the applicant a student (temporary) (class TU) (subclass 573) visa.
In bringing this application for judicial review the applicant relied on three grounds of review. They were as follows –
1.The grounds of application for the Federal Court are mainly based on the refusal of my student TU visa. The refusal was based on the genuineness of the application and whether I, along with my husband, would return after pursuing the then mentioned courses.
2.However, I would like to mention that I have completed all my qualifications as stated and mentioned along with Bachelors to start with next month. Although I did change the course as I did not feel connected with my choice, I did started with Certificate III in Commercial Cookery until Diploma of Hospitality on the way to Bachelor Degree.
3.Hence it is my humble request to consider my application for the same and do the needful.
(errors in original)
In essence, the tribunal was not satisfied that the visa applicant was a genuine student intending to stay temporarily in Australia. In reaching that conclusion, the tribunal considered the matters raised in ministerial direction 53 as well as the matters identified in cls.572.223(1)(a) and 573.223(1)(a) of Sch.2 of the Migration Regulations (“Regulations”).
For the reasons that follow, in my judgment this proceeding must be dismissed.
Procedural history
Pursuant to orders made by Registrar Stanley on 18 August 2017, this case was fixed for hearing on that day, such hearing date being 24 February 2021, almost four years after the first return of the case. At the request of the chief judge of this court, the Honourable Justice Alstergren, on 8 February 2018 while sitting in Perth I called over this case, mentioning to the parties that such a long time before the February 2021 hearing orchestrated hardship on the parties as it left the applicant’s legal position on her visa application in a state of unacceptable uncertainty. I offered the parties an earlier determination of this case by video link between Melbourne and Perth. In the upshot I vacated the hearing date of 24 February 2021 and ordered this case to go forward under the show cause procedure prescribed by r.44.12 of the Federal Circuit Court Rules on a date to be fixed. Today was the hearing of the show cause application.
Under the show cause procedure, the judge hearing the case possesses an array of powers including the power to summarily dismiss the proceeding if satisfied that the case does not raise an arguable case for the relief claimed. However, in the High Court decision of Spencer v Commonwealth of Australia[1] and in the Full Court of the Federal Court decision in AMF15 v Minister for Immigration and Border Protection,[2] both courts held that the power to summarily dismiss a proceeding is not to be exercised lightly. In this case I have proceeded with that instruction uppermost in mind.
[1] (2010) 241 CLR 118
[2] [2016] FCAFC 68
It is also relevant to point out that even if I take the view that an arguable case for the relief sought had not been raised in this proceeding, by reason of the Federal Court decisions in Siddique v Minister for Immigration and Border Protection[3] and in SZTTW v Minister for Immigration and Border Protection[4] I still possess a residual discretion to refuse to order the summary dismissal of this proceeding. I have applied the reasoning in those two cases in my consideration of this case.
[3] [2014] FCA 1352
[4] [2014] FCA 837
A factual overview
The first applicant in this case applied for the visa on 24 July 2015. The second applicant (who is the first applicant’s husband) applied for the visa as a member of the first applicant’s family unit.
On 26 August 2016 the delegate refused the visa on the basis that the first applicant did not meet the requirements of cl.573.223(1)(a) of the Regulations.
On 31 August 2015 the applicants sought merits review of the delegate’s decision.
On 14 June 2017 the tribunal invited the applicants to attend a hearing scheduled for 4 July 2017. The agent for the applicants was also notified of that hearing. The tribunal requested the first applicant to bring to the hearing a copy of her then current certificate of enrolment, documents that demonstrated she was enrolled in a course or had a current offer of enrolment in a registered course, documentation that demonstrated her past studies in Australia and any explanation for gaps in enrolments. Specifically, in the hearing invitation notification the tribunal alerted the applicant to the fact that the tribunal would assess whether the applicants intended genuinely to stay in Australia temporarily.[5]
[5] See court book filed on 26 September 2017, 81
The tribunal held the hearing on 4 July 2017 (as scheduled) and heard from the first applicant along with her migration agent. As mentioned above, the tribunal gave its decision on 4 July 2017 then reduced its reasons to written form on 21 August 2017. The following matters of relevance emerged from the tribunal’s reasoning –
a)ministerial direction 53, applicable to this visa application required a consideration of the first applicant’s circumstances, the value of the first applicant’s course or courses to her future, her immigration history, her incentive to stay in Australia or to return to her home, whether she was using the student visa program to maintain ongoing residence in Australia and any other relevant matters;
b)the first applicant’s migration agent’s response to the hearing invitation did not address the issue of whether the applicant met the genuine temporary entrant requirement that was of interest to the tribunal;
c)the first applicant came to Australia in October 2012 as the holder of a subclass 573 student visa current to August 2015;
d)the first applicant was first enrolled in a diploma of business at MIT after which the first applicant indicated she intended to study a bachelor of business at Murdoch University;
e)the first applicant held a certificate III and certificate IV in commercial cookery courses and she produced an academic transcript showing studies for semester 2 in 2014 and semester 1 in 2015 revealing enrolment in six units but a pass in one only of 51 per cent and failures in all other units with scores of 9%, 10% and 14% and non-submissions in two units;
f)in 2013 the applicant went home;
g)the first applicant had been enrolled in nine courses, some of which had been cancelled, and others that were repeat enrolments;
h)at the time of the tribunal decision the applicant had been in Australia for almost five years during which time she had completed approximately two years of study, that not being the progress of a genuine student;
i)having completed two courses in commercial cookery, the first applicant was undertaking a diploma of hospitality and she asserted her desire to study a bachelor of business management, those being contradictory to the first applicant’s previous statement that she wanted to return home to work as a chef;
j)the tribunal was not satisfied that the bachelor of business qualification would assist her in gaining employment or to improve her employment prospects;
k)the tribunal stated the applicant did not have any legitimate plans to open a restaurant and that she was not studying to satisfy any real business plan;
l)the tribunal stated that the first applicant and her husband had spent many years in Australia and that the first applicant’s husband had been with the same company for three years; and
m)having addressed ministerial direction 53, the tribunal was not satisfied the applicant was a genuine student who intended to stay temporarily in Australia.
The tribunal found the applicant did not meet cls.572.223(1)(a) or 573.223(1)(a) of the Regulations.
Grounds of review
The minister contended that in reality the applicants invited me to undertake a merits review, a task forbidden in a judicial review application. The minister relied on the High Court’s decisions in that regard in Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[6] Of course, there are many other authorities on that point including Australian Broadcasting Corporation v Bond,[7] Attorney-General (NSW) v Quin,[8] and Chan v Minister for Immigration and Ethnic Affairs.[9]
[6] (1996) 185 CLR 259
[7] (1990) 170 CLR 321
[8] (1990) 170 CLR 1
[9] (1989) 169 CLR 379
It is necessary to go to the grounds themselves. The first was not a proper ground of review as it did not set out any propositions of fact or law by which it was possible to assess whether the tribunal fell into jurisdictional error. Instead, it recited the main basis on which the tribunal affirmed the decision under review. As it happened, under ground 1 the applicant correctly recorded why the tribunal found that the applicant was not entitled to the visa she sought. But ground 1 said nothing of the facts and circumstances by which it would be possible for me to assess whether the tribunal fell into jurisdictional error. Ordinarily an applicant seeking to demonstrate the existence of jurisdictional error points to one of the circumstances identified in such leading cases as Craig v State of South Australia[10] and Minister for Immigration and Multicultural Affairs v Yusuf.[11] There the High Court held that an administrative tribunal falls into jurisdictional error with the effect of invalidating any order or decision of the tribunal if the tribunal –
a)identifies a wrong issue;
b)asks itself a wrong question;
c)ignores relevant material;
d)relies on irrelevant material, and;
e)in some instances, makes an erroneous finding or reaches a mistaken conclusion.
[10] (1995) 184 CLR 163
[11] (2001) 2006 CLR 323
Those are illustrations only of the ambit of jurisdictional error as the High Court held in Kirk v Industrial Courtof New South Wales[12] that it was neither necessary or possible to attempt to mark the metes and bounds of jurisdictional error as the reasoning in Craig v State of South Australia does not provide a rigid taxonomy of the matter.[13]
[12] (2010) 239 CLR 531
[13] (1995) 184 CLR 163
Ground 2 seemed to amount to a concession that the applicant changed her course. She said she did that because she did not feel connected with her course. That proposition neither demonstrated the existence of jurisdictional error in the tribunal’s decision nor did it show any flaw in the reasoning of the tribunal. It must not be overlooked that the applicant was required to show that she satisfied the elements of ministerial direction 53 as well as the elements of cl.573.223(1)(a) of the Regulations. She failed to demonstrate those matters. When undertaking the merits review, the tribunal correctly applied the relevant legal test and it came to a conclusion that was open to it. It made no error in undertaking that reasoning process. It seemed to me to be entirely beside the point whether the first applicant felt connected with her chosen course (whatever that may have meant). In my view, ground 2 was devoid of merit.
Ground 3 was not a proper ground of review. It was an implore for me to undertake a merits review.
None of the grounds or review had merit.
It was readily apparent that none of the grounds of review were the subject of particulars. A strong line of cases in the Federal Court of Australia has held that grounds of review that are bereft of particulars are meaningless in that they do not identify the factual or legal basis for the assertion of the existence of jurisdictional error and in such circumstances the proceeding is amendable to dismissal on that basis alone. Cases that have so held include WZATH v Minister for Immigration and Border Protection,[14] BHK15 v Minister for Immigration and Border Protection,[15] AQN15 v Minister for Immigration and Border Protection,[16] and WZAVW v Minister for Immigration and Border Protection.[17]
[14] [2014] FCA 969
[15] [2016] FCA 569
[16] [2016] FCA 571
[17] [2016] FCA 760
Applying the reasoning of those four last mentioned authorities to the facts of this case it seemed to me that this case should suffer the same fate on account of the absence of particulars.
The foregoing demonstrates that in my view the applicant did not raise an arguable case for the relief she sought.
Today I asked the first applicant to tell me in her own words what she said she thought the tribunal did wrong. She said she thought she was a genuine student because she was studying and wanting the opportunity to continue with her studies. To my mind, that missed the point and it failed to identify the existence of jurisdictional error. I asked the second applicant who appeared in Perth by video link and sat at the Bar table what he said the tribunal did wrong when undertaking its examination of this case. He said he wanted the court to give the first applicant her visa as it would be really helpful. Neither of those statements from the applicants indicated the existence of jurisdictional error, nor did they point to any basis upon which this case should be permitted to go forward.
But that was not the end of the matter because in Siddique v Minister for Immigration and Border Protection[18] and in SZTTW v Minister for Immigration and Border Protection[19] it was held that even if I took the view that no arguable case was raised in this application about the existence of jurisdictional error, nevertheless I possess a residual discretion to refuse to summarily dismiss this application for judicial review. In my view, having considered the exercise of the residual discretion, I should not refrain from summarily dismissing this case. None of the grounds of which the applicant relied had merit. No point was served in keeping this proceeding on foot. In my view the tribunal quite properly took the view that the first applicant did not genuinely intend to stay temporarily in Australia.
[18] [2014] FCA 1352
[19] [2014] FCA 837
Conclusion
I dismiss the proceeding and order the applicant to pay the minister’s costs of $3,606.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Associate:
Date: 13 June 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Summary Judgment
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Intention
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