KHADRI v Minister for Immigration

[2013] FCCA 1633

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHADRI v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1633

Catchwords:
MIGRATION – Judicial review of Migration Review Tribunal decision – application for a Student (Temporary) (Class TU) visa – Notice of Discontinuance filed by Applicant – Applicant seeks to set aside – no basis to set aside – substantive application unmeritorious – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 13.03

SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137

Applicant: SHAHID KHADRI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 571 of 2013

Judgment of: Judge Hartnett

Hearing date: 15 October 2013

Delivered at: Melbourne

Delivered on: 15 October 2013

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Whittemore

Solicitors for the First Respondent: Sparke Helmore Lawyers

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to ‘Minister for Immigration and Border Protection’.

2. The Application in a Case filed 26 July 2013 be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $1,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 571 of 2013

SHAHID KHADRI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced with the Applicant filing an Application in a Case on 26 July 2013.  That Application sought an order “that the Tribunal or Minister’s decision be quashed.”  In support of that Application, the Applicant filed an Affidavit on 26 July 2013.  He said, in that Affidavit, the following:-

   “I came to Australia on a student visa and at the time of my extension the officer refused to grant me a visa on the grounds of a short study gap where I was in a lot of dippression (sic) and stress because of my father’s health back in India and I was unable to concentrate on anything. And now before my first hearing date I was confused by some by bad advices (sic) from the agents so I discontinued my case but now I want to reinstate it and want to be a part of Australia and become a good student and a resident if I successfully go through my case.

   When my student visa was rejected then I went to the MRT, where I was refused because of the CoE, where I failed to submit as I was always confused and depressed because of my status since the visa was refused but I honestly want to be a good part of the Australia as to serve something my best to this country.”

2. These proceedings were preceded by an Application filed by the Applicant on 29 April 2013, being an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 26 March 2013 wherein the Tribunal affirmed the decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicant a Student (Temporary) (Class TU) visa.  That decision was made orally on 26 March 2013 and written on 27 March 2013.  Notification of it was provided to the Applicant in accordance with the statutory requirements as set out in the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth).

3. The application for judicial review sought an order that the decision of the Tribunal or Minister be quashed.  There were, however, no grounds to the Application filed 29 April 2013.  There was an Affidavit filed 29 April 2013 in support of the Application, sworn by the Applicant wherein he said:-

   “I came to Australia on a student visa and extension for visa was rejected on bas (sic) of study gap as I was very much depressed and unable to focus on anything as concerning my father’s health. 

   As I had successfully completed my first study course in Australia on 21 March 2010 in Diploma of Management Business Certificate IV.  But since February 2010 when my fathers (sic) health was becoming seriously ill I was unable to focus or concentrate on any thing (sic).  I was in a lot of depression since then and made so many mistakes and spoiled my status and health. 

   When my visa for study was refused I made my way to MRT and now my MRT have refused to grant visa as I had no CoE at the time of my hearing. 

   But I promise that I would become a good student when I am granted a student visa.  My dream is to become a part of Australia being a good citizen here.”

4. Annexed to that Affidavit filed 29 April 2013 was correspondence from the Australian Institute of Entrepreneurship dated 5 April 2011 confirming the Applicant’s completion of a Certificate IV course in Small Business Management and a Diploma of Management.  These courses were successfully completed on 21 March 2010.  The Tribunal noted the completion of those courses in its Statement of Decision and Reasons dated 26 March 2013 (“Decision Record’), and noted further that the Applicant had done no study in Australia since March 2010.  The Tribunal in its Decision Record referred to the relevant law, the Applicant’s claims and evidence provided to the Tribunal in respect of the Applicant himself and his father, and affirmed the decision under review on the basis that the Applicant had not produced a current certificate of enrolment or an offer of enrolment in a registered course of study.  The Tribunal found the Applicant did not meet an essential requirement of Schedule 2 of the Regulations for visa subclasses 570, 571, 572, 573, 574 and 575, and as no evidence had been provided on which the Tribunal could be satisfied the Applicant met the criteria for the Remaining Student (Temporary) (Class TU) visa subclasses, determined the decision under review must be affirmed.

5. The First Respondent filed a Response on 10 May 2013 to the earlier Application filed 29 April 2013, noting that the application for judicial review did not provide any particulars or any legal grounds of review; that it did not establish any jurisdictional error of the decision of the Tribunal dated 26 March 2013; and that it did not raise an arguable case for the relief claim pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’). Accordingly, the First Respondent sought the application be dismissed. The Response further stated that the Applicant invited the Court to undertake a review of the merits of the Tribunal’s decision, which was not a part of the function of this Court. Such an invitation, if it existed, could be said to be raised in the Applicant’s accompanying Affidavit filed 29 April 2013.

6. The Applicant himself filed a Notice of Discontinuance on 2 July 2013 (‘Notice of Discontinuance’) in respect of the earlier proceedings commenced on 29 April 2013.  It was signed by the Applicant and dated 2 July 2013.  It was a voluntarily filed notice of discontinuance of the proceedings.  The proceedings before me this day arise out of the Application in a Case filed by the Applicant on 26 July 2013, after the Applicant had thought about the matter and felt hopeful of a positive outcome, as essentially submitted by him.  Counsel for the First Respondent referred the Court to the decision in SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137, being a decision of Ryan J on appeal from this Court. In that decision, His Honour referred to the relevant provisions of the Federal Magistrates Court Rules 2001 (Cth) (as they then were) which empower the Court to set aside a notice of discontinuance or to reinstate proceedings which have been regularly discontinued in accordance with r.13.03 of the Rules. He went on to say in paragraph 18 of those Reasons that:-

   “Rarely, the discontinuance may involve an abuse of process. In those cases, the Court may accede to a request by a party affected by the abuse to have the discontinuance set aside…”

7. That is not the case here.  The present Applicant has knowingly and voluntarily filed the Notice of Discontinuance of the earlier proceedings.  He cannot assert that his own act should be set aside as an abuse of process.  There is no evidence that such Notice of Discontinuance was procured by fraud or duress or that it was done without the Applicant’s knowledge or consent.  Any discretionary exercise of the Court’s inherent power to prevent injustice, as referred to by Ryan J in paragraph 19 of his decision in SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137, is not required to be exercised here on the facts of this case. The proceedings were earlier at an end.

8. The Applicant had, in any event, no reasonable prospects of success on that application. The bringing of this application is entirely unmeritorious. It will be dismissed with costs, as sought by counsel for the First Respondent, in the sum of $1,000.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  23 October 2013