Elahinia v Minister for Immigration

[2015] FCCA 1463

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELAHINIA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1463

Catchwords:
MIGRATION – Migration Review Tribunal – Partner (Temporary) (class UK) visa – impermissible challenge to the adverse findings of fact – no jurisdictional error.

PRACTICE AND PROCEDURE – Show cause – proceedings dismissed.

Legislation:  
Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958, s.476

Applicant: MOHAMMAD HOSSEIN ELAHINIA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1116 of 2015

Judgment of: Judge Street

Hearing date: 28 May 2015

Date of Last Submission: 28 May 2015

Delivered at: Sydney

Delivered on: 28 May 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Ms A. Wong

Solicitors for the Respondent: DLA Piper

ORDERS

1. The application be dismissed under Rule 44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1116 of 2015

MOHAMMAD HOSSEIN ELAHINIA

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 within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 31 March 2015 affirming a decision not to grant the applicant a Partner (Temporary) (class UK) visa.  The application identifies, under First Court Date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

2. The application identified, in respect of the grounds, the following:

   1. The Tribunal did not duly assess all factors of my case.

   2. The Tribunal failed to provide additional time and give a fair due process for my request

3. The respondent moved for an immediate show cause hearing under r.44.12. The respondent submitted that the first ground was an impermissible challenge to the adverse findings of fact by the Tribunal in respect of the requirement of compelling circumstances that was applicable in the present case to the applicant. I accept the first respondent’s submission that there is no substance in relation to ground 1, that it fails to identify any arguable case.

4. Ground 2 asserts a failure by the Tribunal to provide additional time.  The applicant failed to appear before the Tribunal despite having received the notification consistent with the statutory obligations dated 19 January 2015 advising of a hearing date on 26 March 2015.  The applicant failed to attend that hearing and failed to contact the Tribunal to explain that failure.  It was in those circumstances that the Tribunal was entitled to decide to proceed with the statutory review and that decision was clearly open to the Tribunal and cannot be said to lack an evident and intelligible justification and was proportionate to the circumstances. There is no arguable jurisdictional error disclosed by ground 2.

5. The applicant’s migration history was addressed in para.8 of the Tribunal’s decision as well as at page 102 in the Court book, which identified that on 15 March 2013 the applicant became an unlawful non-citizen and thereafter received bridging visas. The applicant applied on 5 July 2013 for the visa, the subject of the decision by the Tribunal. 

6. The Tribunal relevantly found:

   17. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.  Specifically as granted a Student Visa which ceased on 15 March 2013.  The applicant applied for the visa under review on 5 July 2013.  Therefore it was more than 28 days since the applicant last held a substantive visa.

   18. As the visa application was not made within 28 days of the applicants last substantive visa on 15 March 2013 the “relevant day” the applicant does not satisfy criterion 3001.  

7. The Tribunal then turned to the issue of compelling reasons and relevantly found:

   21. The Tribunal must consider all of the circumstances as they applied at the time the visa application was made.

   22. On 15 November 2013 the Department requested, through his appointed migration agent, a request for evidence of cohabitation and for comment and information as to whether there were compelling reasons, in his case to waive the Schedule 3 Criteria.

   23. In his response of 17 January 2014 documentation was provided to support the spouse relationship and this is listed earlier in this decision.   However, no evidence was provided as to whether there were, compelling reasons for not applying the Schedule 3 Criteria.

8. The Tribunal addressed the applicant’s migration history and noted the absence of the applicant at the proposed hearing on 26 March 2015 and decided to proceed with the review and relevantly found:

   26. The Tribunal has considered all of the evidence.  The Tribunal is not satisfied, on the evidence, as to the applicant’s circumstances at time of application, that there are compelling reasons for not applying the Schedule 3 Criteria.

   27. The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

   28. Subclause 820.211(3) relates to applicants who are not the holder of a substantive visa at time of application, and who entered Australia before 19 December 1989 to marry an Australian citizen or an Australian permanent resident; and since married that Australian citizen or an Australian permanent resident.  As the applicant did not enter Australia before 19 December 1989 to marry Australian citizen or an Australian permanent resident, the applicant does not satisfy this subclause.

9. It was in those circumstances that the Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa. The application fails to disclose any arguable case. The application is dismissed under r.44.12

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

Associate: 

Date:  3 June 2015