Maruyama v Minister for Immigration

[2014] FCCA 993

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARUYAMA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 993

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

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.351

Applicant: AKIKO MARUYAMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2856 of 2013

Judgment of: Judge Driver

Hearing date: 15 May 2014

Delivered at: Sydney

Delivered on: 15 May 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms N Blake

Clayton Utz

INTERLOCUTORY 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 in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2856 of 2013

AKIKO MARUYAMA

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 a show cause application filed on 19 November 2013 seeking review of a decision of the Migration Review Tribunal (Tribunal) made on 24 October 2013 orally and reflected in a written statement prepared on 28 October 2103.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant (Ms Maruyama) a student visa. 

2. Ms Maruyama came to Australia in September 1997 and has been pursuing studies here ever since on a series of student and bridging visas.  At no stage has she become an unlawful non-citizen.  Unfortunately, her studies were interrupted by bouts of illness from which the applicant recovered approximately a year ago.  She sought to continue her studies with a view to ultimately undertaking degree level studies. 

3. When the matter came before the Tribunal, it wrote to Ms Maruyama on 3 September 2013 inviting her to comment or respond in writing to information the Tribunal considered would be a reason or a part of the reason for affirming the delegate’s decision.  The information related to Ms Maruyama’s immigration history and the history of her studies in Australia since first being granted a student visa in 1997.  Ms Maruyama provided a written response in which she outlined the medical problems she had experienced in the past, that she now felt recovered and wished to finish the course she was currently doing.  She said that she had always complied with Australia’s immigration laws and would not remain in Australia indefinitely, as she planned, in any case, to move to the USA the following year. 

4. The Tribunal was unable to make a favourable decision on the papers and invited Ms Maruyama to a hearing which she attended.  At the hearing Ms Maruyama confirmed that she was currently undertaking an advanced diploma of business and expected to finish it in around March 2014.  She referred to a plan to undertake further studies in the United States.  Ms Maruyama confirmed that she was financially secure and did not need to work.  She stated that she loves to study and would look at her options in the future.  Her planning had been disrupted by her illness but she now felt that she had a clear plan and wanted to pursue it to completion. 

5. The Tribunal found that Ms Maruyama had maintained residence in Australia over approximately 16 years through holding a significant number of student visas and associated bridging visas since she first arrived in this country.  There was no evidence to suggest that she had been an unlawful non-citizen at any time during the period she has spent in Australia.  However, the Tribunal formed the view that such a significant period of residence on these visas indicated that Ms Maruyama was maintaining de facto permanent or indefinite residence in Australia.  The Tribunal considered that the significant period of residence in Australia Ms Maruyama had enjoyed was not consistent with circumstances of a person who intends, genuinely, to stay in Australia temporarily.  As the student visa was only available for the purposes of supporting such a temporary stay, the Tribunal decided to affirm the delegate’s decision. 

6. Ms Maruyama’s show cause application is defective in that it does not assert any jurisdictional error.  When the matter came before me for first court date directions on 12 December 2013, I gave Ms Maruyama the opportunity to file and serve an amended application and any supporting evidence.  The applicant filed an affidavit on 9 December 2013 which attaches a statement, which I received as a submission.

7. That submission traverses the issues that Ms Maruyama raised before the Tribunal with the addition that since the Tribunal decision, Ms Maruyama has abandoned her plan to pursue studies in the United States and proposes instead to undertake a degree course in Australia, if and when she is able to complete her graduate diploma.  Although, before the Tribunal she had anticipated that she would complete her graduate diploma in March this year, she told me today that her plans had been disrupted by the Tribunal decision because she needed the Department’s permission to continue her studies on her bridging visa. 

8. I have before me as evidence, the court book filed on 20 January 2014. 

9. I have sympathy for Ms Maruyama’s position.  She came to this country with the intention of bettering herself and is distraught at the prospect of having to return to Japan without, in her mind, having achieved anything substantive.  She is financially secure and has not been a burden on the Australian community.  She has, at all times, complied with migration law.  As I conceded in discussion with her today, she has not been causing anyone any harm by pursuing her studies in Australia.  However, the Tribunal was correct in identifying that the student visa was only available for persons intending genuinely to stay in Australia temporarily.

10. It is unfortunate that over 16 years, Ms Maruyama’s studies have been disrupted, but the Tribunal was correct to conclude that at some point continuing studies in this country on a temporary basis must come to an end. I cannot see any arguable case of legal error by the Tribunal in the matter before it. As I explained to the applicant, if the Tribunal decision is a lawful one, which it appears to be, only the Minister can change it. She is free, if she wishes, to explain her present circumstances more thoroughly to the Minister’s department with a view to possible Ministerial intervention pursuant to s.351 of the Migration Act 1958 (Cth). That is a matter for her and the Court, of course, has no influence over any decision the Minister may care to make.

11. The applicant has failed to demonstrate any arguable case of jurisdictional error by the Tribunal. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

12. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

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

Associate: 

Date:  16 May 2014