KISHORE v Minister for Immigration

[2017] FCCA 808

FEDERAL CIRCUIT COURT OF AUSTRALIA

KISHORE v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 808

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: KAMAL KISHORE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2586 of 2015

Judgment of: Judge Riethmuller

Hearing date: 10 April 2017

Date of Last Submission: 10 April 2017

Delivered at: Melbourne

Delivered on: 10 April 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2586 of 2015

KAMAL KISHORE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for a judicial review of a decision of the Administrative Appeals Tribunal (“the “Tribunal”) made on

   
   

   17 November 2015.  The applicant had come to Australia on a student visa in July 2009. 

2. The applicant applied for the student visa the subject of these proceedings on 1 May 2013.  Information was requested from him with respect to financing his studies and living expenses whilst in Australia.  On 17 May 2013, various banking documents were sent.  It transpires that those documents were bogus. 

3. The applicant explains that the documents were provided by his grandfather and an agent engaged by his grandfather, and he was unaware that the documents were bogus documents.  As a result, the applicant maintained to the Minister that he believed that they were genuine documents.  The delegate undertook inquiries through the Australian High Commission in New Delhi, and ultimately it was established that they were, in fact, bogus documents.  The applicant now accepts that the documents were bogus.

4. As the documents were not genuine documents, PIC 4020 is engaged.  The result of this instrument is that if bogus documents, or information, are given, then the visa cannot be issued (or if it has been issued it must be cancelled).  There is an exception if there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident, or an eligible New Zealand citizen.

5. The difficulty that confronts the applicant is that he is not an Australian citizen, resident, or New Zealand citizen, and therefore he cannot come within the exceptions under PIC 4020 for compassionate or compelling circumstances, nor is there anything in this case that affects the interests of Australia.  In these circumstances, the applicant is not in a position where he can succeed in his case before the Tribunal. 

6. The Tribunal member in this case identified the key issues in their decision before making a finding that the documents were not genuine, and therefore that PIC 4020 was engaged (see paragraph [15]).

7. The Tribunal identified the circumstances where the operation of the instrument could be waived, and that the applicant had no circumstances that fell within those exceptions (see paragraph [16] of the decision.)  The Tribunal member therefore affirmed the decision of the delegate. 

8. There is nothing that the applicant raises before me that would indicate a ground of judicial review, nor circumstances which would enable him to show a compassionate or compelling circumstance for PIC 4020 to be waived.  At best, the applicant relies upon the fact that he has completed his studies, paid all of his fees, and otherwise complied with his visa conditions.  These are not matters that enable PIC 4020 to be waived. 

9. In these circumstances, I must therefore refuse the applicant’s application for judicial review. I therefore dismiss the current application.

   [Further argument ensued]

10. The applicant has been unsuccessful.  Costs ordinarily follow the event.  The scale fee for costs is over $7,000.  The Minister seeks costs in the sum of $5,000 and this appears to me to be a reasonable fee.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  24 April 2017