Hussain v Minister for Immigration

[2013] FCCA 1339

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUSSAIN v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1339

Catchwords:
MIGRATION – Application for review of Migration Review Tribunal decision – grounds wholly unparticularised – applicant not attending Tribunal hearing or attending Court – decision not indicative of jurisdictional error – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001, r.701
Migration Act 1958, ss.467, 474, 477
Migration Regulations 1994, cls.572.211, 572.221, 572.222, 572.231, schs.2, 3

Applicant: MOHAMMED ASHWAQ HUSSAIN

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 407 of 2013

Judgment of: Judge Burchardt

Hearing date: 6 August 2013

Date of Last Submission: 6 August 2013

Delivered at: Melbourne

Delivered on: 6 August 2013

REPRESENTATION

The Applicant: No appearance

Counsel for the First Respondent: Ms Symons

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Pursuant to r.701 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

2. The application be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 407 of 2013

MOHAMMED ASHWAQ HUSSAIN

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. On 28 March 2013 the applicant lodged an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 25 February 2013.  The grounds set out in the application assert as follows:

   “1.Under the Migration Act S.477 A I am lodging judicial review with in 35 days time period

   2.S.467 A my case falls under the Federal Court Jurisdiction

   3.S.474 Migration Act I can seek the Judicial review as a MRT applicant”

2. The affidavit lodged the same day filed in support of the application relevantly asserts:

   “M.R.T has refused my application I didn’t got any confirmation”

3. A copy of the decision of the Tribunal is annexed to the affidavit. 

4. On 15 May 2013 Registrar Allaway made orders which relevantly provided that the applicant should serve 35 days prior to trial an amended application, if any, a supplementary court book,  if any, and written submissions.  The applicant has not done any of those things.  I say this not as a criticism, as he is clearly self-represented, but it merely highlights the fact that the Court has not had the benefit of the sort of insight that such documentation might have provided bearing in mind that the applicant has simply not articulated any ground asserting jurisdictional error at all, either in his application or his affidavit.

5. In the circumstances, the Court has the Court Book (“CB”) to go on and the Minister’s submissions.  Necessarily, what follows will follow closely what is written in the first respondent’s submissions.

6. On 23 October 2012 the applicant applied for a Student (Temporary) (Class TU) subclass 572 visa.  He attached to that application his previously held substantive visa which was a Student (Class TU) visa valid from 12 January 2012 until 21 October 2012 and a Certificate of Enrolment in respect of the course he had nominated.

7. On 1 November 2012 a delegate of the Minister refused to grant the visa application because the applicant was unable to satisfy the requirements in cl.572.211 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”). The reason given was that the applicant was not holding a substantive visa at the time of lodging his visa application and he had previously been granted a visa on the basis of satisfying Schedule 3 criteria on 12 January 2012.

8. The applicant applied for a review to the Tribunal on 19 November 2012.  The applicant was subsequently invited to a hearing and invited to provide a certificate of enrolment as required by cl.572.222 or evidence that he was enrolled in, or the subject of, the or a current of offer of enrolment in a registered course as set out in cl.572.231.  As is usually the case, the letter of invitation notified the applicant that if he failed to attend the scheduled hearing, a decision might be made without any further input from him.

9. The applicant failed to appear on the day of the scheduled hearing which was 21 February 2013 and had in fact not returned to the Tribunal a completed “Response to hearing invitation” form, although one had been provided to him.

10. It is fair to say, as the first respondent’s written submissions do, that the Tribunal set out the relevant law relating to the applicant’s review application (CB99-100).  The Tribunal then went on to record the claims and evidence (CB100-101).  I note that at paragraph 10 the Tribunal recorded that:

    “the applicant, who is a national of India, completed a Diploma of Hospitality at the Victorian Institute of Culinary Arts and Technology from August 2011 to September 2012.  He provided a COE, which indicates that he was enrolled to complete a Diploma of Management at the same institute from 22 October 2012 to 19 October 2013.  The application indicates that the applicant was previously granted a Student visa on 12 January 2012.  A copy of this visa, which accompanied the visa application, indicates that it ceased on 21 October 2012.” 

11. The Tribunal noted at paragraph 11 (CB100):

    “On 1 November 2012 the delegate decided to refuse to grant the visa.  The delegate noted that at the time of lodging the application the applicant was not holding a substantive visa.  As the applicant had previously been granted a visa on the basis of satisfying Schedule 3 criteria on 12 January 2012, the delegate found that the applicant did not meet cl.572.211(3)(d).” 

12. The Tribunal recapitulated the process whereby the applicant had been invited to attend the hearing and had not done so (paragraphs 12-16, CB100-101), and then went on to deal with the matter under its heading “Findings and Reasons”. 

13. At paragraph 17 (CB101) the Tribunal found that the visa application was made in Australia and accordingly the applicant was required to satisfy cl.572.211. The Tribunal further found that at the time of application, the applicant was not the holder of a substantive visa of the type described in cl.572.221(2), (4) or (6). The Tribunal found that accordingly, the applicant met the requirements of clause 572.211(3)(a) which require that an applicant is not the holder of a substantive visa. The issue, as the Tribunal pointed out, was whether the applicant met the remaining requirements of cl.572.211(3). As the Tribunal noted at paragraphs 19 and 20 (CB101):

    “To meet cl.572.211(3)(d), the applicant must satisfy Schedule 3 criterion 3005 which requires that a visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in Schedule 3 to the Regulations or Schedule 6 to the Migration (1993) Regulations; or r.35AA or r.42(1A) or (1C) of the Migration (1989) Regulations.

    The delegate’s decision, a copy of which was submitted to the Tribunal by the applicant, indicates that he was previously granted a visa on 12 January 2012 on the basis of Schedule 3 criteria and, specifically, criterion 3005.” 

    There then followed a brief reference to Movement Details database which is of no moment at the present time, and the Tribunal found at paragraph 22 (CB102):

    “As the applicant has previously been granted a visa on the basis of satisfying Schedule 3 criterion 3005, which requires that a visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction on any of the criteria set out in Schedule 3, the Tribunal finds that the applicant does not satisfy criterion 3005.  On that basis, he does not meet the requirements of cl.572.211(3)(d).”

14. The Tribunal went on as was inevitable in the circumstances to find that the applicant did not satisfy the visa criteria applicable to his application. 

15. Unfortunately and of course given the absence of any particularisation by the applicant of the substantive nature of his claim, I have to say that the Tribunal’s decision was inevitable and unavoidable and wholly free from any discernable jurisdictional error. It therefore follows that the application will be dismissed with costs. I will fix the first respondent’s costs at $6,646 and I will change the name of the minister.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  12 September 2013