DUGINI v Minister for Immigration

[2014] FCCA 538

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUGINI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 538

Catchwords:
MIGRATION – Application to show cause – whether application shows an arguable case for the relief claimed – no arguable case shown – application dismissed.

Legislation:

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

Migration Act 1958 (Cth), ss.362B, 360A

Migrations Regulations 1994 (Cth), cl.572.223(1)

Applicant: MANOJ DUGINI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2801 of 2013

Judgment of: Judge Manousaridis

Hearing date: 28 February 2014

Delivered at: Sydney

Delivered on: 19 March 2014

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr O'Donnell

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2801 of 2013

MANOJ DUGINI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. There came before me on 28 February 2014 an application by the first respondent (Minister) under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) for an order that the application for review filed in these proceedings be dismissed on the ground that it raises no arguable case for the relief it claims.

The application for review and course of proceedings

1. The application for review seeks constitutional writs against a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) visa. The ground on which the Tribunal affirmed the delegate’s decision is that he did not satisfy the criteria prescribed by cl.572.223(1) of Schedule 2 to the Migrations Regulations 1994 (Cth) (Regulations). That requires the Minister to be satisfied that an applicant is a genuine applicant for entry and stay for the reasons set out in cl.572.223(1).

2. The applicant did not take up the Tribunal’s invitation made by letter dated 27 August 2013 that he attend before the Tribunal on 24 October 2013 to give evidence. The Tribunal, as it was entitled to do, determined the application for review without taking any further action to allow or enable the applicant to appear before it. The Tribunal was not satisfied the applicant intended genuinely to stay in Australia temporarily.

3. The only ground for review stated in the application to this Court was that the Tribunal “did not consider evidence produced to Immigration department and so made a juridical [sic] error under the Migration Act 1958”. The application, however, was supported by an affidavit made by the applicant on 12 November 2013 which is referred to in the section of the application setting out the orders which the applicant seeks. From this I understand that the affidavit also contains grounds on which the applicant relies for claiming the Tribunal’s decision should be set aside. The affidavit states as follows:

   1.I am an International student residing at above mentioned address from India.

   2.Department of Immigration refused my student visa application on 27 May 2013 mentioning that “I am not genuine applicant for entry and stay as a student in Australia temporarily having regard to my circumstances and immigration history and other relevant matters”. Unfortunately Immigration department did not consider my personal adverse circumstances. Attached herewith is a refusal decision from immigration department marked as “Annexure A”.

   3.I applied to Migration Review Tribunal to seek a review of department of immigration’s decision to refuse my student visa.

   4.Unfortunately Migration Review Tribunal also refused my application without considering evidence I produced to Immigration department. Attached herewith is Migration Review Tribunal’s decision and marked as “Annexure B”.

   5.I strongly believe that Migration Review Tribunal has made a jurisdictional error while making a decision under the Migration Act.

4. From this material, it is clear that the ground on which the applicant claims the Tribunal made a jurisdictional error is the assertion the Tribunal did not consider evidence the applicant says he produced to what was then known as the Department of Immigration and Citizenship (Department). The applicant does not identify the evidence he claims the Tribunal did not consider.

5. At the hearing before me, the applicant applied for an adjournment. After hearing evidence on that application, I decided not to grant the adjournment, and I gave my reasons for so deciding. After I delivered my reasons, I invited the applicant to make submissions why the application should not be dismissed on the ground that it does not disclose an arguable ground for the relief it seeks. In answer to my question whether he had anything to say to the Court, the applicant replied: “No”.

6. The Minister then addressed the Court. His only submission was that when, as was the case here, an applicant does not appear before the Tribunal after having been invited to do so in the manner provided by s.360A of the Migration Act 1958 (Cth) (Act), s.362B of the Act entitles the Tribunal to proceed without taking any further steps to notify the applicant.

Does the application raise an arguable case for relief?

1. The ground on which the applicant relies, if made good, does raise a ground for relief. The ground, however, cannot be made good. The Tribunal in its reasons says that in its letter dated 27 April 2013 to the applicant, the Tribunal informed the applicant that the Tribunal had “considered the material before it but is unable to make a favourable finding on the information alone”. The applicant has pointed to nothing, and there is nothing in the material which suggests, that the material which the Tribunal considered did not include evidence the applicant provided to the Department.

2. For these reasons, I am not satisfied the application raises an arguable case for the relief it seeks. I will therefore order that the application be dismissed and that the applicant pay the Minister’s costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 19 March 2014