GAUCHAN v Minister for Immigration
[2013] FCCA 385
•3 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GAUCHAN v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 385 |
| Catchwords: MIGRATION – Application for judicial review of Migration Review Tribunal decision – no meaningful grounds expressed in application – applicant not filing any further materials – applicant not attending court – Migration Review Tribunal decision correct on its face and supported by matters set out in the Court Book – application dismissed. |
| Legislation: Migration Act 1958, ss.362B Migration Regulations 1994, rr.1.03, 1.05A, sch.2, cls.802.212(1)(a), 802.212(1)(b), 802.212(2), 802.212(5), 802.215 |
| Cases cited: Nadesan & Minister for Immigration & Anor [2013] FMCA 152 SZIMG & Minister for Immigration & Anor [2007] FMCA 1724 |
| Applicant: | BASANTA GAUCHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1422 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 22 March 2013 |
| Date of Last Submission: | 22 March 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 3 June 2013 |
REPRESENTATION
| The Applicant: | No appearance |
| Counsel for the First Respondent: | Ms Whittemore |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1422 of 2012
| BASANTA GAUCHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this matter the applicant’s application filed on 9 November 2012 seeks to review a decision of the Migration Review Tribunal dated 8 October 2012. The only grounds of the application are, and I quote, “administrative error.” No refinement is given to that assertion. In an affidavit filed contemporaneously with the application the affidavit, after giving the name of the applicant and an incomplete address and an occupation, simply says “administrative error.” The decision of the Tribunal is annexed.
The applicant attended a hearing before Registrar Allaway on 6 February 2013, as I was informed by counsel for the Minister today who was herself at that hearing, and orders were made for the applicant to file, inter alia, any amended application and any affidavits and written submissions. The applicant has not done any of those things, nor has he attended Court today, despite the fact the matter was called both at 2.15pm and at 2.30pm. The only material therefore, available to the Court is the decision of the Tribunal. The decision records that the applicant applied for a Child (Residence) (Class BT) visa on 19 September 2011.
The delegate refused that application on the basis that the review applicant did not satisfy clause 802.212 and 802.215 of Schedule 2 to the Migration Regulations 1994 because, at the time of application, the review applicant was 26 years old, did not provide any evidence that he was incapacitated for work due to the total or partial loss of his bodily or mental functions and made no claims that he was a dependent child of anyone. The Tribunal recorded the relevant law and went on to say at paragraph 9 (CB59):
In the case of a person whose application is not supported by a letter of support from a State or Territory government welfare authority, the primary criteria require that at the time of the application, the visa applicant must be a ‘dependent child’ (as defined in r.1.03 and r.1.05A) of an Australian citizen, the holder of a permanent visa, or an eligible New Zealand citizen: cl.802.212(1)(a). The visa applicant must not have turned 25, although this requirement does not apply to an applicant who is incapacitated for work due to the total or partial loss of his or her bodily or mental functions: cl.802.212(1)(b) and (2).
The Tribunal then went on to set out the definitions of “dependent child” and “dependent.” At paragraph 13 the Tribunal noted various further matters to do with a visa applicant who is over 18 at the time of application and at paragraph 14 dealt with the question of education and employment. The Tribunal went on to refer to the relevant regulations. At paragraph 25 (CB62-3) the Tribunal noted that the only information before it about the applicant’s parents was contained in his application for migration. That indicated that the applicant’s parents are residents of Nepal. The applicant did not provide any evidence that he was a dependent child of a person who was an Australian citizen, the holder of a permanent visa or eligible New Zealand citizen.
The Tribunal, scarcely surprisingly in the circumstances, found that (CB63, paragraph 25):
The Tribunal is not satisfied that the applicant is a dependent child of an Australian citizen, holder of a permanent visa or eligible New Zealand citizen as required by cl.802.212(1)(a).
The Tribunal went on to say (paragraph 26):
The Tribunal finds that the review applicant was 26 years of age at the time of application. The Tribunal accepts as evidence of this the copy of the review applicant’s passport photo page provided to the Department. The review applicant has not provided any evidence that he was incapacitated for work due to the total or partial loss of his bodily or mental functions as set out in cl.802.212(2). The Tribunal finds the review applicant had turned 25 years of age at the time of application. The Tribunal is not satisfied that the review applicant meets the requirement of cl.802.212(1)(b).
In the circumstances, that finding was completely inevitable. The Tribunal then went on finally to address the question of a letter of sponsorship and noted that (paragraph 29):
no letter in support was provided, nor was any sponsorship form completed or any other indication given as to any proposed sponsorship arrangements.
Once again, wholly unsurprisingly, the Tribunal found that the applicant did not satisfy the requirements of clause 802.212(5). The Tribunal went on to conclude accordingly that the application must be dismissed. In my view, on the materials as they stand, (and I note in passing that the Tribunal’s factual findings are confirmed by the contents of the Court Book), the Tribunal’s decision was not in any way affected by error, let alone jurisdictional error, and it follows that the application must be dismissed.
Counsel for the first respondent did however, very properly, bring to my attention the fact that there was an error in the Tribunal’s decision. The Tribunal referred at paragraph 23 to considering the matter pursuant to s.362B of the Migration Act. That, as counsel correctly pointed out, governs circumstances where parties fail to attend whereas here the applicant in fact declined to attend. For the reasons given by Whelan FM in Nadesan & Minister for Immigration & Anor [2013] FMCA 152 at [9]-[11] it is clear that any such error, if it was more than a typographical error, does not vitiate the decision of the Tribunal. I adopt and support her Honour’s observations about the decision of Nicholls FM in SZIMG & Minister for Immigration & Anor [2007] FMCA 1724 to which her Honour referred at [11] in Nadesan.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Date: 3 June 2013
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