GILL v Minister for Immigration

[2011] FMCA 366

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GILL v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 366

MIGRATION – Application to review decision of Migration Review Tribunal – total failure to articulate grounds – failure of applicant to attend – application dismissed.

Migration Act 1958 (Cth)

Applicant: KULJIT GILL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 104 of 2011

Judgment of: Burchardt FM

Hearing date: 12 May 2011

Date of Last Submission: 12 May 2011

Delivered at: Melbourne

Delivered on: 12 May 2011

REPRESENTATION

The Applicant: No appearance

Counsel for the Respondents: Ms E. Latif

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed 1 February 2011 be dismissed. 

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,865.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 104 of 2011

KULJIT GILL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter, the applicant filed an application on 1 February 2011.  In part, the application says under the heading Final Orders Sought as follows:

   “I want to appeal against the decision of MRT & DIAC. 

   Visa was cancelled due to over work.  I request the court to review my case as over work was due to my financial condition.”

2. There is nothing said in the application under the heading “Grounds”, save for the last sentence, namely “If my student visa stays cancelled it will be destructive and major disadvantage for my education career”.  Other than that, the applicant also filed on the same day an affidavit annexing a copy of the decision of the Migration Review Tribunal (“Tribunal”) dated 4 January 2011.  In due course, orders were made by Registrar Caporale on 2 March 2011 providing for the applicant to file and serve an amended application, if any, and any supplementary court book and written submissions. 

3. The applicant has done none of those things.  When the matter has been called, both at 9.30 am and at 10 o’clock, the applicant has not attended.  Counsel for the Minister has assured me, and I accept, that the first respondent has, through the relevant officers, taken the appropriate steps to ensure that the applicant has been made aware of this hearing.  In these circumstances, the Court necessarily is somewhat confined.

4. I accept, as it is submitted in the first respondent’s amended contentions of fact and law, that the application for review on its face simply does not identify any element of jurisdictional error, by which I mean there is no matter asserted that even might be said to constitute jurisdictional error, let alone to support the proposition as to why the jurisdictional error might be said to exist. 

5. I also note that in the materials filed with the Tribunal, including material filed by the applicant’s former employer, it is clear that the applicant has indeed worked in circumstances that contravene the conditions of the visa upon which she entered and remained in Australia.  I think in the circumstances it is sufficient for me to say that I have read not only the amended contentions of fact and law, but I have also read the decision of the Tribunal and I accept the submission at paragraph 22 of the first respondent’s submissions that:

   “The Tribunal’s reasons for decision demonstrate the Tribunal discharged its statutory obligations and arrived at a decision that was open on the material before it.”

6. I accept that the Tribunal correctly identified the legal framework within which the application fell for consideration.  I accept that the decision of the Tribunal gave proper consideration to the applicant’s evidence and I accept that the Tribunal discharged its obligations of procedural fairness.  Given that the applicant has not articulated, let alone established, any possible ground of jurisdictional error and given the findings I have just made, it follows that the application must be dismissed with costs. 

7. I will fix the first respondent’s costs at $5,865. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: 

Date:  12 May 2011