Lonachan v Minister for Immigration

[2013] FCCA 1306

FEDERAL CIRCUIT COURT OF AUSTRALIA

LONACHAN v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1306

Catchwords:
MIGRATION – Student (Temporary) (class TU) visa – Migration Review Tribunal – failure by the applicant to comply with visa requirements due to illness – whether the Tribunal had jurisdiction – jurisdiction was proper – no appearance by applicant – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.347

Applicant: ARUN CHELLAKUDAM LONACHAN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 985 of 2012

Judgment of: Judge Burnett

Hearing date: 11 July 2013

Date of Last Submission: 11 July 2013

Delivered at: Brisbane

Delivered on: 8 August 2013

REPRESENTATION

Applicant appeared on his own behalf

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application filed on 7 November 2012 be dismissed.

2. That the Applicant pay the Respondents’ costs fixed in the sum of $6646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 985 of 2012

ARUN CHELLAKUDAM LONACHAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Ex Tempore Reasons)

1. In this application, the applicant applies for review of a decision made by the Migration Review Tribunal refusing his application for the grant of a visa, being a Student (Temporary) (class TU) visa. He had applied for the visa on 18 October 2011, but the delegate had refused the application on 15 December that year. The refusal had been on the basis of his non-compliance with the English proficiency criteria provided for in the regulations. The applicant filed his application for review of the delegate’s decision on 10 January 2012. That is to say, well outside of the 21 days provided for in s.347, and r.4.10.

2. The Tribunal upon receiving the application concluded that it had no jurisdiction, and because the application had not been commenced as required by the Act and thus, it determined that the jurisdiction was not enlivened. Accordingly, on that basis, it dismissed the application. The applicant contends that he was unable to comply with the requirements of the regulations and Act because he was ill. That may well be the case, but the legislation has been designed such that any failure to comply is fatal, and in this instance the failure to comply was fatal. There is no argument that the application was filed late, and it follows that it appears the Tribunal was correct in its determination that it had no jurisdiction. 

3. Accordingly, I determine that the application should be dismissed, and I will dismiss the application.

4. The applicant has not appeared, although the applicant was on notice that the matter was to proceed today to judgment. I am satisfied that he was aware that the matter was listed for judgment today, and his non-appearance is probably because he has either left the country, or is in the process of making arrangements to leave the country, and is now indifferent as to the outcome of the application.

5. I proceed pursuant to FCCA Rule 13.03C. However, notwithstanding that, the respondent claims full costs, and in my view is entitled to costs. The application was wholly unsuccessful; indeed it never had any prospects of success. 

6. The respondent will be awarded costs following its success in resisting the application.  I direct that the applicant pay the respondents costs fixed in the sum of $6646.00. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Burnett.

Date: 12 September 2013