Lim & Anor v Minister For Immigration & Border Protection & Anor

[2014] FCCA 1578

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIM & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1578

Catchwords:
MIGRATION – Migration Review Tribunal – adverse credibility finding – whether Migration Review Tribunal decision affected by jurisdictional error – no jurisdictional error made out – application dismissed.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13
Migration Regulations 1994 cl.572.223

Cases Cited:
Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

First Applicant:

Second Applicant:

ZI LING LIM

CHEE WAI CHEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1266 of 2014

Judgment of: Judge Emmett

Hearing date: 21 July 2014

Date of Last Submission: 21 July 2014

Delivered at: Sydney

Delivered on: 21 July 2014

REPRESENTATION

The applicants appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Ms Michelle Stone
(DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1266 of 2014

ZI LING LIM

First Applicant

CHEE WAI CHEN
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the applicants pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), for an order requiring the respondent to show cause why the Court should not grant the relief sought in the application filed on 13 May 2014.

2. Rule 44.12 of the Rules 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; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

3. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

The proceeding before this Court

1. The first applicant was unrepresented before the Court this morning, but had the assistance of a Mandarin interpreter.  The second applicant is the first applicant’s husband and his claims are wholly dependent on those of the first applicant.

2. On 17 June 2014, the applicants attended a directions hearing before me. I explained to the applicants that this Court has no power to interfere with the decision of the Migration Review Tribunal (“the MRT”), unless the Court is satisfied that the MRT’s decision is affected by a mistake going to the jurisdiction of the MRT. I also explained to the applicants that the grounds of their application made bare assertions and did not by themselves disclose an error capable of review by this Court.

3. I further explained to the applicants that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of this Court.

4. At the directions hearing, the applicants were provided with a copy of the applicable costs schedule of the Court and I explained to the applicants the consequences that may flow to them if a costs order was made against them. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicants’ ability to obtain any other type of visa or re-enter Australia may be significantly affected.

5. The applicants confirmed that they wished to continue with the application for judicial review of the MRT’s decision. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 7 July 2014. The applicants were also directed to file and serve written submissions in support of the grounds of their application by 7 July 2014.

6. The applicant confirmed to the Court this morning that she had not filed any further documents, either in accordance with the directions made by the Court on 17 June 2014, or otherwise. 

7. On 17 June 2014, at the directions hearing before me, the applicants were provided with the contact details of legal services providers and interpreting and translation services in documents headed in their own language.

8. The matter was listed for today for a hearing pursuant to r.44.12 of the Rules, a copy of which was given to the applicants.

9. I accept as accurate the first respondent’s summary of the MRT’s decision, as follows:

   “7. The MRT was not satisfied that the applicant intended genuinely to stay in Australia temporarily, and that she therefore did not satisfy clause 572.223(1)(a).

   7.1    The MRT found that the applicant had not been forthright in her evidence as to why she came to Australia.  Both applicants arrived on Tourist visas and indicated on their incoming passenger cards an intention to stay for only 8 days, but the applicant then lodged the student visa application 10 days after arriving. The MRT found at [32] that although the applicant travelled to Australia on a Tourist visa it was clearly her intention to study.

   7.2    The applicant had a child in Malaysia, and the MRT found that it was unusual that she would leave a country with an intention of travelling for 8 days and then remain for many years without having made arrangements for the child.

   7.3    The applicant's evidence as to when she decided to study was inconsistent as between her Departmental interview and the MRT hearing.  The MRT did not accept the applicant's claim that the inconsistencies were due to her being ill at the hearing.”

10. The applicant’s application for judicial review, filed 13 May 2014, stated the ground of review as follows:

    “1. The MRT’s finding was affected by judicial error in that it applied a wrong ‘genuine student test’. In making the finding that I am not a ‘genuine student’, the MRT failed to consider the convincing facts and supporting evidence showing I have been a genuine student. The ‘genuine student test’ the MRT has applied is based on subjective opinions rather than on facts.”

11. The ground of the application was interpreted for the applicant and the applicant was invited to make submissions in support of the ground. The applicant had nothing to say in support of her ground of review.

12. On 13 May 2014, when the applicant filed her initiating application, she also filed an affidavit annexing a copy of the MRT’s decision record. The MRT’s decision record makes clear that the issue in this case is whether the applicant meets the time of decision criterion in cl.572.223 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”), which relevantly states that the first respondent be satisfied that the applicant is a genuine applicant for entry and stay as a student and that the applicant intends genuinely to stay in Australia temporarily.

13. The MRT made comprehensive adverse findings in respect of the applicant’s evidence before it and ultimately it was not satisfied that the applicant intends genuinely to stay in Australia temporarily and, therefore, found the applicant does not meet cl.572.223(1)(a) of the Regulations. The MRT’s findings would appear to be open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. The MRT’s credibility findings are a matter par excellence for the MRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

14. The complaints raised by the applicant in the grounds of her application are no more than disagreements with the findings and conclusions of the MRT. Such complaints invites merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

15. While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The RRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave.

16. The Applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error on the part of the RRT.

17. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commenced by way of application on 13 May 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  24 July 2014