Li v Minister for Immigration and Border Protection

[2013] FCCA 1867

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2013] FCCA 1867

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to rule 44(12) of the Federal Circuit CourtRules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:

Federal Circuit CourtRules 2001 (Cth), r.44.12

Applicant: XIN BAI LI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1856 of 2013

Judgment of: Judge Emmett

Hearing date: 8 November 2013

Date of Last Submission: 8 November2013

Delivered at: Sydney

Delivered on: 8 November 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter in the Mandarin language

Solicitor for the Respondents: Mr Ruben Ray
(Clayton Utz)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1856 of 2013

XIN BAI LI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), that the proceeding before this Court, commenced by way of application filed on 8 August 2013, be dismissed on the basis that the application has not raised an arguable case for the relief claimed.

2. Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) provides as follows:

   (1)At a hearing of an application for an order to show cause, the Court may:

   (a)if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application.

3. The only ground referred to by the applicant in his application is as set out in his application at ground 1:

   “[The] member applied the law incorrectly.”

4. The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter. The applicant was invited to say whatever he wished in support of his application. The applicant did not say anything relevant to his application.

5. Following the submissions of the solicitor for the first respondent, the applicant provided an explanation as to why he may not have been certified by the education institution where he is studying as having ‘proceeded satisfactorily’. That reason being absence due to the death of a family member.

6. Unfortunately, there is no provision for any exceptional circumstances to be considered in the criterion that the applicant was required to satisfy for his visa.

7. Whilst, I make no final decision on whether or not the Migration Review Tribunal’s decision is affected by a jurisdictional error, none appears to be apparent on the face of the decision record. The Migration Review Tribunal correctly referred to the relevant law, and, having been faced with an adverse certificate by the applicant’s educational institution, affirmed the decision under review.  It would appear that the Migration Review Tribunal was required to do so on a proper application of the law.

8. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed, and the proceeding before this Court, commenced by way of application filed on 8 August 2013, should be dismissed. 

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

Associate: 

Date:  19 November 2013