Maudhoo v Minister for Immigration & Anor
[2015] FCCA 1741
•24 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAUDHOO v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 1741 |
| Catchwords: 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: Migration Act 1958 (Cth), ss.360, 499 Migration Regulations1994 (Cth), Sch 2, cl.572.223 Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13 |
| Cases cited: Minister for Immigration and Citizenship v CZAY [2013] FCA 244 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 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 |
| Applicant: | GANESH MAUDHOO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3584 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 24 June 2015 |
| Date of Last Submission: | 24 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 June 2015 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitor for the Respondents: | Mr Liam Dennis (Sparke Helmore) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3584 of 2014
| GHANESH MAUDHOO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 22 December 2014, the applicant filed an application seeking judicial review of a decision of the Migration Review Tribunal, dated 12 December 2014 (“the MRT”).
On 19 March 2015, the applicant attended a directions hearing before a Registrar of the Court. The applicant confirmed that he wished to continue with his application for judicial review of the MRT’s decision.
The applicant was 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 17 June 2015. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 17 June 2015.
At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services.
The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was also given to the applicant, together with a copy of the costs schedule of the Court.
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.”
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 applicant was unrepresented before the Court this morning.
The applicant confirmed to the Court that he had not filed any further documents, either in accordance with my directions or otherwise.
The applicant’s application for judicial review, filed on 22 December 2014, stated the grounds of review as follows:
“Ground One
The Tribunal committed jurisdictional error when it denied the Applicant’s application for review. The Tribunal breached the procedural fairness, failing to allow the applicant an opportunity to continue subclass 572 visa and to set aside of the delegate's decision made on 21 March 2014 which was illegal and should be set aside according to law.
Particulars
The Tribunal stated (MRT decision, page 6 at [33]) “it accepts that the applicant has undertaken and completed successfully several courses in Australia from his arrival in 2008 to date. This includes the successful completion of Certificate II in Business from July 2010 and Certificate IV in Marketing from July 2013 to July 2014. It accepts he partly completed a Certificate III in Business in 2012 and in currently studying in Diploma of marketing”.
Ground Two
The Tribunal committed jurisdictional error when the Tribunal assumed that Applicant is not a genuine for entry and stay as a student (MRT decision, p 7 at [43]) was a determinative issue though the delegate's decision had turned solely on applicant's financial support thereby denying the Applicant procedural fairness and I or breached cl.572.223(1)(a).
Particulars
The Tribunal is therefore not satisfied that he is a genuine applicant for entry and stay as a student and is of the view that the student program is only being used to maintain ongoing residence and accordingly, the Tribunal finds that the applicant did not meet cl.572.223 (109A).
This finding is contradictory of the clause 33 where the Tribunal was satisfied to the progress of the applicant's study progression on the contrary the Tribunal was not satisfied on the study progress (clause 33) of the applicant. The tribunal incorrectly decided the review application when dismissed it. Thereof the Tribunal made the error of law and breached the procedural fairness.”
The first respondent, in written submissions, accurately summarised the background of this matter and the MRT’s decision as follows:
“Background
1. The applicant arrived in Australia in July 2008 travelling on a student visa and has held successive student visas since that time (Court Book (“CB”) 136 at [2]). On 25 November 2013, the applicant applied for a Student (Temporary) (class TU) (subclass 572) visa (CB 1 and 57). On 21 March 2014, a delegate of the Minister refused to grant the temporary student visa because the applicant did not satisfy the requirements of cl 572.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Regulations”) (CB 58; CB 137 at [7]). On 10 April 2014, the applicant applied to the Migration Review Tribunal (“Tribunal”) for review of the delegate’s decision (CB 62).
Tribunal proceedings
2. On 8 October 2014, the applicant appeared before the Tribunal, with his migration agent, to give evidence and present arguments (CB 103). On 12 December 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant a temporary student visa because the applicant did not meet the criterion in cl 572.223(1)(a) (CB 60).
3. Clause 572.223(1)(a) of Schedule 2 to the Regulations (“the genuine temporary entrant criterion”) required that the following criteria be satisfied at the time of the decision:
“(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter.”
4. In reaching a decision with respect to cl 573.223(1)(a), the Tribunal was required to have regard to the relevant Ministerial direction given in relation to that clause (Direction No 53).[1] Direction No 53 sets out a number of “factors,” relevant to cl 573.223(1)(a)(i)-(iv), which the Tribunal “must” have regard to. The Tribunal expressly stated that it had “regard to the factors specified in Direction No 53” in reaching the conclusion that the decision under review should be affirmed (CB 140 at [32]; CB 141 [42]).
[1] Direction 53 was given under s 499 of the Migration Act 1958 (Cth) and by operation of s 499(2A) the Tribunal was required to comply with it.
5. The Tribunal accepted that the applicant had undertaken, and successfully completed, several courses from his arrival in Australia in 2008 (CB 140 at [33]). However, the Tribunal said that the successful completion of courses is “but one” of many considerations relevant to the assessment of whether the applicant intends genuinely to stay in Australia temporarily (CB 140 at [34]).
6. The Tribunal found that the applicant had been in Australia since July 2008, was studying a Diploma of Marketing (CB 140 at [33]) and wished to continue studying for another 18 months (CB 140 at [35]). The Tribunal viewed as significant:
a. the applicant’s extended length of stay in Australia during which time he had only successfully completed two courses at the vocational level (CB 140 at [35]);
b. that from July 2010 to April 2011 and September 2011 to April 2012 the applicant was not enrolled in any courses (CB 140 at [36]); and
c. that the accounting course the applicant was enrolled in from April 2011 he withdrew from in September 2011 (CB 140 at [36]).
7. The Tribunal was of the view that if the applicant was a genuine student he would not have had extensive gaps and would have continued study (CB 140 at [37]).
8. The Tribunal also viewed as significant that when questioned as to why he wished to undertake the current courses and the relevance of these courses to his future career, the applicant’s responses were “general and lacking in detail” (CB 141 at [39]).
9. The Tribunal did not consider the applicant’s family or other ties in Mauritius “indicated a strong intention” on the part of the applicant to remain in Australia temporarily (CB 141 at [40]).
10. On the evidence before it, the Tribunal found that the applicant was undertaking study in Australia as a pathway to maintain residence in Australia (CB 141 at [41]).
11. Based on the evidence before it, taking into account the factors in Direction No 53, the Tribunal was not satisfied that the applicant intended to genuinely stay in Australia temporarily (CB 141 at [42]). Accordingly, the Tribunal found that the applicant did not meet the criterion in cl 572.223(1)(a) of Schedule 2 to the Regulations (CB 141 at [43]).”
The applicant was invited to make submissions in support of the grounds of his application.
The applicant’s key complaint appears to be a disagreement with the conclusion of the MRT’s decision that the applicant was not a genuine applicant for entry and stay as a student because the applicant did not genuinely intend to stay in Australia temporarily, as required by cl.572.223 of Schedule 2 to the Migration Regulation 1994 (Cth) (“the Regulations”).
Ground 1 asserts that the MRT breached procedural fairness by failing to set aside the decision of a delegate of the first respondent (“the Delegate”). Ground 1 was not supported by any relevant particulars or submissions by the applicant, other than a submission that he had not had a gap of absence of study of more than six months.
I explained to the applicant the role of the MRT and its distinction from that of this Court. The applicant conceded that Ground 1 is a disagreement with the MRT’s findings and conclusions.
In considering whether the applicant met the genuine temporary entrant criterion required in cl.572.223(1)(a) of Schedule 2 to the Regulations, the MRT had regard to Direction 53 as promulgated pursuant to s.499 of the Migration Act 1958 (Cth) (“the Act”). Direction 53 requires the decision maker, in this case the MRT, to be satisfied that the applicant genuinely intends to stay in Australia temporarily; having regard to the applicant’s circumstances, immigration history, and any other relevant matter.
The MRT set out in some detail a number of specified factors to be taken into account. It is well-established that in considering such factors the MRT is obliged to engage in an active intellectual process and give genuine consideration to the factors set out in Direction 53 (see: Minister for Immigration and Citizenship v CZAY [2013] FCA 244 at [57], per Nicholas J). A fair reading of the MRT’s decision record makes clear that it did have regard to particular factors, some in greater detail than others. For example:
“37. In particular, in summary, he claims it was due to a lack of knowledge that he had to enrol again, his visa was being reissued and he went straight from studying accounting to business. The Tribunal views that if he was a genuine student he would not have had extensive gaps and would have continued to study rather than wait. It does not accept if he was a genuine student that he would have rather studied English at Church or accounting in the Library. It is of the view that if he was a genuine student he would have sought information as to whether he needed to be enrolled from the Department or elsewhere. The Tribunal expects that a genuine student who is in Australia to study would find out whether he can continue to study.”
In the circumstances, there is nothing on the face of the MRT’s decision record to suggest that the MRT breached procedural fairness in failing to allow the applicant an opportunity to continue his subclass 572 visa.
The applicant had attended a hearing before the MRT with his migration agent at which he gave evidence and presented his arguments. The MRT’s findings and conclusions would appear to be open to it on the evidence and material before it and for the reasons it gave.
In the circumstances, Ground 1 does not identify any jurisdictional error on the part of the MRT and appears more to be a disagreement with the findings and conclusions of the MRT. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see: 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).
Accordingly, Ground 1 is not made out.
Ground 2 asserts that the MRT erred when it assumed that the applicant was not a genuine student, as the determinative issue before the Delegate was different from that before the MRT.
The applicant made no relevant submission in relation to this ground.
The MRT’s decision record makes clear that it specifically raised with the applicant the change in the law that took place between the making of the Delegate’s decision and the hearing before the MRT:
“12. The Tribunal raised with him that while the delegate made the decision on cl.572.235, this requirement no longer exists and a matter before the Tribunal is whether he meets the requirements of cl.572.223(1)(a). It outlined the section, the relevance of Direction 53 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as [a] student.”
The MRT identified the new and different issue for the applicant and afforded the applicant an opportunity to deal with that issue (see: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63).
In the circumstances, the MRT complied with s.360 of the Act in inviting the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Accordingly, Ground 2 would appear not to be made out.
While I make no final decision as to whether or not the MRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the MRT that is capable of establishing jurisdictional error, and none is apparent on the face of the decision record. The MRT referred to the relevant law in affirming the decision under review.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.
Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 22 December 2015, should be dismissed with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 20 July 2015
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