Maru v Minister for Immigration

[2015] FCCA 1072

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1072

Catchwords:
MIGRATION – Migration Review Tribunal – Subclass 572 Vocational Education and Training 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, ss.116(1)(fa)(i), 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: SATISH KANUBHAI MARU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 835 of 2015

Judgment of: Judge Street

Hearing date: 23 April 2015

Date of Last Submission: 23 April 2015

Delivered at: Sydney

Delivered on: 23 April 2015

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondent: Ms Hare
Australian Government Solicitor

ORDERS

1. The proceedings be summarily dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 835 of 2015

SATISH KANUBHAI MARU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 10 March 2015 affirming a decision of the to cancel the applicants Subclass 572 Vocational Education and Training Sector visa.

2. The application identifies the following grounds:

   1. DIBP made error in making a decision:

   Case officer did not take my circumstances in to consideration while making decision.

   2. DIBP delegate overlooked health issues of my family, which compelled me to miss few classes.

   3. DIBP delegate did not took into consideration the depressive state of mind

   4.Migration review tribunal should have considered my compelling circumstances

   5. Migration Review Tribunal made an error by not providing opportunity to describe my depressive state of mind.

3. The application identifies on the First Court date that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings. 

4. The applicant has failed to attend Court today.  The matter was listed at 9:30am.  It is now 12:55pm.  The matter has been called outside.  The applicant has not appeared.  This is a case in which the first respondent has identified that the application fails to disclose any arguable jurisdictional error and is clearly appropriate for summary dismissal.

5. I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60].

6. I accept the first respondent’s contention that the application does not disclose any arguable jurisdictional error.  The matters identified in the grounds are clearly an impermissible challenge to findings of fact. 

7. The Tribunal identified that the delegate decided to cancel a visa under s.116(1)(fa)(i) on the basis that the first-named applicant was not, or was not likely to be, a genuine student. The Tribunal identified that the issue in the present case was whether the grounds for cancellation was made out and, if so, whether the visa should be cancelled. The Tribunal noted that the applicant appeared before the Tribunal on 6 January to give evidence and present arguments and was assisted by an interpreter and represented by a migration agent.

8. The Tribunal identified the issue that had to be decided in para.5 as follows:

   5. Under s.116(1) of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must provide to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

9. The Tribunal identified the applicant’s history and the applicant’s evidence and, relevantly, concluded:

   25. The Tribunal has reached the conclusion that, although he was a genuine student in the past, he is now enrolling in courses in order to prolong his stay in Australia. It is satisfied that he is not a genuine student now , and was not at the time of the delegate’s decision. It is satisfied he is likely to be a genuine student in the future.

   26. In reaching this conclusion, the Tribunal has considered the matters prescribed in r.2.43(1D) for the purposes of s.116(1A) of the Act as set out in the attachment to this decision. However, there is no evidence to suggest that the applicant’s participation in any course of study has been deferred or temporarily suspended by the provider of that course of study for one of the reasons mentioned in r.2.43(1D), or indeed for any other reason.

   27. For the above reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

10. The Tribunal then turned to the issue of consideration of its discretion and took into account its finding that it was of the view that the applicant is no longer a genuine student and is enrolling in courses merely to prolong his stay in Australia. 

11. The Tribunal took into account reasons for the cancellation and the alleged hardship and, relevantly, found:

    34. If the visa is cancelled, it is very likely that the applicant will have to return to his home country without achieving any further qualifications. However, as he will be returning with a number of qualifications already achieved the Tribunal does not accept that this will cause particular hardship. Moreover, the Tribunal notes that in his most recent response the applicant said that he wanted to defer his studies because he is currently suffering from financial hardship. The Tribunal is therefore of the opinion that cancellation of the visa will not cause him financial hardship.

    35. The Tribunal is not aware of any adverse conduct by the applicant in relation to the Department.

    36. There is no evidence that any other person’s visa would be cancelled under s.140.

    37. There is no evidence to suggest that the cancellation of the visa would result in the breach of any of Australia’s international obligations

    38. The delegate’s decision, as given to the Tribunal by the applicant, referred to a conversation between the applicant and an officer of the Department which suggested to the delegate that the applicant had little knowledge regarding the days when his classes were held and other between the applicant and an officer of the Department which suggested to the delegate that matters relating to his study. In his response is, the applicant explained the difficulties he had in responding to problems with the battery on his mobile phone. It is difficult for the Tribunal looking back to determine whether this is correct, but in all the circumstances the Tribunal has decided to give no weight to this issue, one way or the other.

    39. The applicant has also referred to his past good record as a student. However, as referred to in paragraph 25 above, while the Tribunal accepts that he was once a genuine student, with good results, it is of the view that he is now simply seeking to prolong his stay in Australia.

12. The conclusion made by the Tribunal that the visa should be cancelled was clearly open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.  The applicant clearly had a genuine hearing.  The application is clearly doomed to failure.  I am clearly satisfied that the proceedings had no reasonable of success.  The proceedings are summarily dismissed.

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

Associate: 

Date:  29 April 2015