GILL v Minister for Immigration

[2015] FCCA 3169

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3169

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Partner (Residence) (Class BS) visa – Show Cause Hearing – whether the Tribunal failed to conduct proper review – whether application identifies any arguable jurisdictional error – whether application identifies any arguable procedural unfairness – no jurisdictional error identified – application dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, r.44.12

Applicant: SIMRAN GILL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2447 of 2015

Judgment of: Judge Street

Hearing date: 27 November 2015

Date of Last Submission: 27 November 2015

Delivered at: Sydney

Delivered on: 27 November 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms N Johnson
Mills Oakley Lawyers

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2447 of 2015

SIMRAN GILL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS 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 (Cth) in respect of a decision made on 10 August 2015 by the Tribunal affirming the decision of the delegate not to grant the applicant a Partner (Residence) (Class BS) visa. The applicant is a national of India and made an application for a partner visa on 8 June 2012 on the basis of his relationship with his sponsor. In July 2013 the delegate decided to refuse to grant the visa to the applicant, and an MRT differently constituted affirmed the decision not to grant the applicant the class UK visa in February 2014.

2. In December 2014 the delegate renotified the applicant of the decision not to grant him the BS visa because the delegate formed the view that the original notification was invalid as it failed to comply with the statutory requirements and did not inform the applicant of the reasons why the application for the BS visa was refused.  The Tribunal found the applicant was validly renotified of the primary decision, and it was in those circumstances the applicant sought review.  By letter dated 10 July 2015 the applicant was invited to attend a hearing on 10 August 2015, at which the applicant appeared to give evidence and present arguments and was represented in relation to the review by his registered migration agent.

3. The grounds of the application are as follows: 

   1. The Tribunal made jurisdiction error.

   2. The Tribunal did not review the decision not to give me the temporary subclass 820 visa.

4. This is a matter in which a Registrar of the Court fixed the matter for a show cause hearing pursuant to orders made on 15 October 2015.  Those orders provided an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.

5. Relevantly, the Tribunal said:

   8. The Tribunal has considered whether the applicant meets the requirements of cl. 801.221. When making the application for review, the applicant provided to the Tribunal a copy of the primary decision. It indicates that the applicant’s application for the Class UK visa was unsuccessful. There is no evidence before the Tribunal to indicate that the applicant holds, or that he has ever held, the subclass 820 visa.

   9. As the applicant is not, and never was, a holder of a subclass 820 visa, the Tribunal is not satisfied that he meets cl. 801.221(2), (3), (4), (5), (6). As the applicant never held the subclass 820 visa, the Tribunal is not satisfied that such visa had ceased, so the applicant does not meet cl. 801.221(8).

   10. The Tribunal finds that the applicant does not meet any of the alternative criteria in cl. 801.221. The Tribunal is not satisfied that the applicant meets cl. 801.221.

   11.    The applicant provided to the Tribunal a number of employment and character references. The Tribunal acknowledges this evidence but considers it unhelpful in relation to the issues that fall for Tribunal’s determination. The applicant informed the Tribunal that he has been living in Australia for a long time and has been lawful and has been working in Australia. The Tribunal acknowledges that evidence but it does not justify the grant of a Partner visa. Having found that the applicant does not meet the requirements for the grant of the visa, the Tribunal must affirm the decision under review.

6. Ground 1 of the application fails to identify any arguable jurisdictional error.  The assertion of a jurisdictional error does not of itself identify an arguable issue.  The adverse findings of the Tribunal were open.  Ground 2 does not identify any arguable jurisdictional error. 

7. The subsequent matters the applicant refers to in relation to his wife’s health and looking after the children are not matters that give rise to any arguable issue about error of law by the Tribunal in determination of the matter as at the time of the application. 

8. The Court record indicates that a notice of intention to withdraw by the legal representative of the applicant was filed on 9 November 2015, and the actual notice of withdrawal was filed on 18 November 2015.  At the commencement of the show cause hearing today the applicant sought an adjournment in order to get legal advice.  The applicant indicated that he had approached lawyers but they were wanting to charge an excessive amount.  The applicant confirmed that he had not earlier notified any request for an adjournment to the first respondent.  The adjournment was opposed by the first respondent. 

9. I am not satisfied that granting an adjournment would be of any utility in the circumstances of the present case.  I take into account that the identified grounds fail to identify any arguable jurisdictional error and that an adjournment is only likely to unnecessarily increase the costs of the parties and utilise limited Court time.  It was for these reasons that the adjournment was refused. 

10. The application fails to disclose any arguable case of jurisdictional error. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 27 November 2015