KUMAR v Minister for Immigration

[2015] FCCA 728

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 728

Catchwords:
MIGRATION – Migration Review Tribunal – subclass 573 Higher Educational Sector visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, s.476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: SANDEEP KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 505 of 2015

Judgment of: Judge Street

Hearing date: 26 March 2015

Date of Last Submission: 26 March 2015

Delivered at: Sydney

Delivered on: 26 March 2015

REPRESENTATION

Solicitors for the Applicant: Mr A. Manning
Manning Lawyers

Solicitors for the Respondent: Mr Alderton
Mills Oakley

ORDERS

1. Proceedings be summarily dismissed.

2. Applicant pay First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 505 of 2015

SANDEEP KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a matter within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of which the applicant seeks a Constitutional writ in respect of a decision of the Tribunal made on 4 February 2015 affirming the decision of the delegate to cancel the applicant’s subclass 573 Higher Educational Sector visa.  The application identifies the following grounds: 

   1. The tribunal applied the wrong test.

   Particulars

   (a) The Tribunal, in considering condition 8516 of Schedule 8 to the Migration Regulations, failed to recognise that the definition of “continue” includes “to go on after an interruption”

   (b) By failing to incorporate this definition in its consideration of condition 8516, the Tribunal applied the wrong test.

2. The application identifies:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

3. The Court raised with the solicitor for the applicant as, having looked at the application and the decision, the proceedings are ones in respect of which the Court was minded to consider exercising its powers of summary disposal.  In considering exercising the summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.10 (Federal Circuit Court Rules 2001),  I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010]HCA 28.

4. The solicitor for the applicant skilfully and crisply took the Court to the kernel of the argument which the applicant was seeking to advance as to the meaning of continue and, in essence, sought to adopt the relation to condition 8516 which provides as follows a meaning to the term continue to go on after an interruption:

   8516  The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

5. That was a meaning upon which the solicitor for the applicant took the Court to the Macquarie Dictionary definition of continue:

   Continue: 1. To go forward; keep on. 2. To go on after an interruption. 3. To last; endure. 4. To remain in a place condition; abide; stay He’ll continue in his ignorance. 5. To go on with:  to continue action. 6. To extend from one point to another; prolong. 7. To carry on; keep going to continue a narrative.

6. The solicitor for the applicant properly took the Court to para.10 of the Tribunal decision which makes clear that the Tribunal gave condition 8516 a meaning in relation to the condition of a temporal requirement which required a continuous state of affairs.  In that regard the words “continue to be” give meaning to the context of the condition that makes clear that the provision not have a meaning of the kind advanced by the applicant.

7. In those circumstances there is clearly no jurisdictional error as identified in the grounds of the application.  I am satisfied it was clearly open to the Tribunal to come to the findings it did in terms of the noncompliance with condition 8516 by the applicant and these proceedings are clearly doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  31 March 2015