Islam v Minister for Immigration and Border Protection

[2016] FCA 1320

FEDERAL COURT OF AUSTRALIA

Islam v Minister for Immigration and Border Protection [2016] FCA 1320

Appeal from:	Islam & Ors v Minister for Immigration & Anor [2016] FCCA 1638
File number:	VID 879 of 2016
Judge:	JESSUP J
Date of judgment:	2 November 2016
Legislation:	Federal Court Rules 2011 (Cth) r 40.43
Date of hearing:	2 November 2016
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	4
Counsel for the Appellants:	The appellants appeared in person
Counsel for the Respondents:	Ms M Gangemi
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

VID 879 of 2016

BETWEEN:

TANIA ISLAM

First Appellant

FARIHA HOSSAIN

Second Appellant

KAZI FORHAD HOSSAIN

Third Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	2 NOVEMBER 2016

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The first and second appellants pay the costs, including disbursements, of the respondent Minister fixed in the sum of $2,500 conformably with order 40.43(3)(b) of the Federal Court Rules 2011 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JESSUP J:

1. This is an appeal from a judgment of the Federal Circuit Court of Australia given on 15 July 2016 dismissing an application for judicial review of a decision of the Migration Review Tribunal made on 21 October 2014.  There are three appellants:  Tania Islam, Kazi Forhad Hossain and Fariah Hossain.  The first appellant has the carriage of the case, as it were, as it was her application for a Student (Temporary) (Class TU) visa which was rejected by the Tribunal on 21 October 2014.  The second and third appellants are members of her immediate family, and their applications for visas were dependent on the success of hers, as were their applications for judicial review in the Federal Circuit Court and as are their appeals in this court.

2. In the reasons which accompanied the judgment of the Federal Circuit Court on 15 July 2016, the Judge of that court gave careful and detailed attention to the reasons for decision of the Tribunal.  In concluding those reasons, his Honour said:

   This is a matter in which the applicant as a self-represented litigant has necessarily found it difficult to clearly articulate any kind of discernable legal case.  In discussing the matter with her, I was careful to avoid use of the confusing phrase “jurisdictional error”, but ultimately that is what the applicant needs to show to succeed. 

   Her complaints really amount in substance to the fact that the Tribunal did not give the weight to her ill health in pregnancy and the ill health of her mother in law that she would have liked.  This is clearly merits review in its starkest form, and that is not a permissible exercise of the court’s function in a case such as this.  The Tribunal, in my view, upon reading the decision fairly and as a whole, clearly understood the nature of the test it was required to apply and formulated that test in terms that are entirely consistent with the relevant legislation. 

   The Tribunal not only understood the task before it, but applied itself to it in a fashion that seems to me straightforward.  As the first respondent’s written submissions submit, the Tribunal’s finding was clearly open to it on the evidence.  In the circumstance, the application cannot succeed. 

3. In making her own submissions before me today, the first appellant did not engage with the task which was required in an appeal from the Federal Circuit Court to this court, namely, the demonstration of error on the part of the former.  The first appellant had nothing of any present usefulness to say in the way of criticism of the reasoning or the judgment of the Federal Circuit Court.  From what appears from the papers in the case, including the brief outline filed on behalf of the respondent Minister, there is no basis for a conclusion that the Federal Circuit Court erred in the disposition of the appellants’ application which was before it. 

4. In the circumstances, the appeal must be dismissed. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:        16 November 2016