Maharjan v Minister for Immigration

[2014] FCCA 2617

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAHARJAN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2617

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.359AA
Migration Regulations 1994 (Cth)

Baidakova v Minister for Immigration (1998) FCA 1436

Applicant: RIBEK MAHARJAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 740 of 2014

Judgment of: Judge Driver

Hearing date: 13 November 2014

Delivered at: Sydney

Delivered on: 13 November 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms A Wong of DLA Piper

ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 740 of 2014

RIBEK MAHARJAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 21 March 2014 seeking review of a decision of the Migration Review Tribunal.  The Tribunal affirmed a decision of a delegate not to grant the applicant, Mr Maharjan, a temporary student visa.  Mr Maharjan applied for the visa in Australia on 28 September 2012.  There were a number of subclasses to the class of visa applied for which depended upon the type of course in which Mr Maharjan is enrolled. 

2. Mr Maharjan’s last substantive visa was a subclass 572 visa, which was granted on 20 May 2009, and ceased on 30 September 2012.  That visa was subject to condition 8516, which required the applicant to continue to be a person who would satisfy the relevant criteria for the grant of the visa.  Information was available to the Minister’s delegate and the Tribunal concerning Mr Maharjan’s course enrolment history.  That information is detailed in [4] of the Tribunal’s decision[1].  Suffice to say that that information indicated gaps in Mr Maharjan’s course enrolments. 

   [1] court book (CB) 116

3. The delegate refused the application on 30 November 2012.  She found that Mr Maharjan had breached condition 8516 and, therefore, did not satisfy clause 572.235 of schedule 2 to the Migration Regulations 1994 (Cth).  Mr Maharjan sought review before the Tribunal, and attended a hearing on 14 February 2014.  The Tribunal identified the issue to be resolved as whether Mr Maharjan had complied substantially with condition 8516, which was attached to the previous student visa he held.  The Tribunal was unable to be so satisfied, given the gaps in his enrolments. 

4. The Tribunal had regard to the decision of the Federal Court in Baidakova v Minister for Immigration[2], which set out a non-exhaustive list of relevant considerations.  The Tribunal noted at [13][3] that the evidence before it indicated that during the relevant period of Mr Maharjan’s last substantive visa, he did not maintain his enrolment in a relevant registered course of study, and did not, in fact, study between 1 October 2010 and 21 March 2011, and between 2 September 2011 and 30 September 2012. 

   [2] (1998) FCA 1436

   [3] CB 117

5. Mr Maharjan was invited to explain these gaps at the hearing, pursuant to s.359AA of the Migration Act 1958 (Cth). Mr Maharjan sought to explain the gaps by reference to summer breaks, which he said had been approved, and by reference to asserted payments for further courses. The Tribunal found his explanations unsatisfactory and unpersuasive. The Tribunal was not persuaded that Mr Maharjan had explained the gaps in his enrolment. The Tribunal thus affirmed the decision of the Minister’s delegate.

6. These proceedings began with the show cause application filed on 21 March 2014.  Mr Maharjan continues to rely upon that application.  There is one ground in the application:

   I realise that I haven’t commenced the course during the required time.  I was unable to keep myself up for study because I was homesick, stressed and lacked emotional support, as I recently travelled to see my family.  However, I realised my mistake and the pressure I will have from my parents to waste time and not completing my study I have re enrolled in the course that I left incomplete and would like to request to provide me time to finish my study before I could leave.

7. The application is supported by a short affidavit which I received. 

8. I also have before me as evidence the court book filed on 15 April 2014. 

9. In his oral submissions Mr Maharjan put to me that the records of his enrolment maintained by his former education institution, Holmes Institute, may not be accurate, and that when he sought to recover fees for courses which he was told he was not enrolled in, he was refused a refund on the basis that he was enrolled.  I do not rule out the possibility that there may be some defect in administration at the institution.  However, the conclusions reached by the Tribunal were open to it on the material before it. 

10. Mr Maharjan’s show cause application is simply an appeal to the exercise of a discretion which this Court does not have.  There is no arguable case that the Tribunal has committed any jurisdictional error. 

11. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

12. In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the sum of $2,400.  Mr Maharjan did not wish to be heard on costs.  I will order that the applicant pay the first respondent’s costs and disbursement of and incidental to the application, fixed in the sum of $2,400. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  18 November 2014