Hassan v Minister for Immigration & Border Protection
[2014] FCCA 1408
•2 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HASSAN v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 1408 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 |
| Applicant: | NAZMUL HASSAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1514 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 2 July 2014 |
| Date of Last Submission: | 2 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2014 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter |
| Solicitors for the Respondent: | Ms Louise Buchanan (Australian Government Solicitor) |
FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 1514 of 2014
| NAZMUL HASSAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court commenced by way of application filed on 4 June 2014 be dismissed on the basis that the application does not raise an arguable case for the relief claimed. The applicant was unrepresented before this Court this morning, although had the assistance of a Bengali interpreter by way of telephone.
On 25 June 2014, the applicant attended a directions hearing before me and, on that occasion, I explained to the applicant that this court has no power to interfere with a decision of the Migration Review Tribunal (“the MRT”) unless the Court is satisfied that the MRT’s decision is affected by a mistake going to its jurisdiction. I also explained to the applicant that in circumstances where the grounds of his application do not raise an arguable case for the relief claimed, his application may be dismissed pursuant to the rules of this court.
At the directions hearing the applicant was provided with a copy of the applicable costs schedule of this court and I explained to the applicant the consequences that may flow to him if a costs order was made against him. The applicant confirmed that he wished to continue with his application for judicial review of a decision of the MRT dated 30 April 2014 affirming a decision of a delegate of the first respondent to refuse the applicant a student visa.
The applicant was given leave to file and serve an amended application and further evidence and submissions in support of his application, and the matter was set down for hearing today pursuant to r.44.12 of the Rules. At the directions hearing the applicant was provided with the contact deals of legal services providers and interpreting and translation services in documents headed in his own language, together with a copy of r.44.12 of the Rules and a copy of the costs schedule.
The applicant’s application for judicial review, filed on 4 June 2014, stated the grounds of review as follows:
“1. The delegate to the Minister (DIBP) failed to understand that I am a genuine applicant for stay as a student visa holder.
2. The delegate to the Minister failed to understand that I have the adequate arrangements in Australia for health insurance during the period of my intended stay in Australia.
3. The delegate to the Minister failed to understand that I have the financial capacity to continue my study in Australia.”
The applicant confirmed that the grounds upon which he relied this morning are the grounds in his application filed on 4 June 2014. Those grounds were interpreted for the applicant and he was invited to say whatever he wished in support of those grounds and in support of his application generally.
The applicant referred to an affidavit filed by him on 30 June 2014 annexing a statutory declaration. That statutory declaration sought an adjournment of two weeks to provide evidence of financial documents, which were not provided to the MRT by the applicant. The first respondent objected to that evidence on the grounds of relevance in relation to the substantive grounds of the applicant’s application and the evidence was rejected on that basis. However, it was admitted as evidence in support of the applicant’s application for an adjournment.
The applicant’s application for an adjournment was refused on the basis that any adjournment for the reasons identified by the applicant would be of no utility, because such evidence was not capable of establishing jurisdictional error on the part of the MRT. The applicant’s grounds otherwise were based on the failure of the MRT to give him a further opportunity to provide such evidence.
The grounds of the applicant’s application refer to the delegate. However, I confirmed with the applicant that this reference to the delegate was intended to be a reference to the Migration Review Tribunal. The MRT’s decision record makes clear that the applicant was invited to appear before the MRT on 20 February 2014 and that a postponement was granted for a new hearing on 30 April 2014 at the request of the applicant.
The MRT notes that the applicant’s migration agent confirmed the hearing date by telephone on 24 April 2014. However, the applicant did not attend the hearing and did not approach the MRT to have the hearing date vacated or relisted. Accordingly, the MRT decided to proceed to make its decision without taking any further step to allow or enable the applicant to appear before it.
The MRT noted that the issues were whether the applicant satisfied cl.573.223(2)(a)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) and whether, at the time of decision, the applicant met the enrolment requirement for a student visa. Relevantly, cl.573.223(2)(a)(ii) required that the Minister be satisfied that the applicant is a genuine applicant for entry and stay as a student having regard to the stated intention of the applicant to comply with any visa conditions and any other relevant matter.
The MRT noted that in the two hearing invitations sent to the applicant, the applicant was specifically directed to provide evidence of present enrolment or an offer of enrolment in a course of study.
The MRT noted that, according to the confirmation of enrolment number that was provided, the applicant was enrolled in a Graduate Diploma of Information Technology with a course end date of 30 July 2014. However, as at the date of the MRT’s decision, that confirmation of enrolment was cancelled on 25 October 2013 and the applicant did not provide any other evidence of any subsequent enrolment.
The MRT found that there was no evidence before it that the applicant is now enrolled or has a current offer of enrolment in any applicable course of study. The MRT also noted that the applicant had not provided any evidence of financial capacity or overseas student health insurance, despite being specifically directed to provide such evidence prior to the hearing in the two hearing invitation letters.
In the circumstances, the MRT found that the criteria for the grant of the Subclass 573 visa are not met and accordingly affirmed the decision under review.
The applicant does not suggest that the MRT’s exercise of its discretion to proceed to make a decision without taking any further step of enabling the applicant to appear before it is affected by any error.
Further, there is nothing before me to suggest that the MRT’s findings and conclusions were not open to it on the evidence and material before it and for the reasons it gave. Whilst I make no final finding as to whether or not the decision is affected by a jurisdictional error, none is apparent on the face of the MRT’s decision record and none has been identified by the applicant.
In the circumstances, I am not satisfied that the applicant raises an arguable case for the relief claimed.
Accordingly, the proceeding before this Court, commenced by way of application filed on 4 June 2014, should be dismissed pursuant to r.44.12 of the Rules, with costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 9 July 2014
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