Murcia v Minister for Immigration
[2007] FMCA 899
•8 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MURCIA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 899 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a business visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.65, 360, 476 Migration Regulations 1994 |
| First Applicant: | LAUREANO GOMEZ MURCIA |
| Second Applicant: | LUZ MYRIAM CASTRO DIAZ |
| Third Applicant: | LAUREANO ANDRES GOMEZ CASTRO |
| Fourth Applicant | LUZ MYRIAM GOMEZ CASTRO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG880 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 8 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2007 |
REPRESENTATION
The First Applicant appeared in person, by telephone
| Solicitors for the Respondents: | Ms L Buchanan Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG880 of 2007
| LAUREANO GOMEZ MURCIA |
First Applicant
LUZ MYRIAM CASTRO DIAZ
Second Applicant
LAUREANO ANDRES GOMEZ CASTRO
Third Applicant
LUZ MYRIAM GOMEZ CASTRO
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was signed on 13 February 2007 and was handed down on 5 March 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants a temporary business entry visa. There are four applicants, a husband and wife and two children. The relevant claims were made by the applicant husband, the first applicant. He is the litigation guardian of the fourth applicant.
These proceedings began with a show cause application filed on 15 March 2007. That application asserted actual notification of the Tribunal decision on 12 March 2007. On that basis I find that the application was filed within time. The application is supported by a short affidavit annexing a copy of the Tribunal decision. In the affidavit, the first applicant declares that he met the visa criteria and believes the decision made by the Tribunal is wrong. I received that affidavit as a submission. I gave directions in this matter on 11 April 2007. I was concerned at the time that the application failed to engage properly the jurisdiction of the Court. That is because the only ground in the application is the assertion that the Tribunal decision is wrong. There is no assertion of jurisdictional error. I gave the applicants the opportunity to file and serve an amended application and additional affidavit evidence by 1 June 2007. They have not taken up that opportunity. I directed that the matter be listed for hearing today pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
Two days ago my associate was advised that the applicant was seeking an adjournment of today’s hearing due to illness. My associate received by facsimile a medical certificate signed by Dr Rosa Jimenez, dated 6 June 2007. Dr Jimenez, in the certificate, offers the opinion that the first applicant is suffering from recurrent dizziness and lower back pain after a fall and that he would be unfit for work between 6 and 9 June 2007. The certificate is silent as to the capacity of the first applicant to attend Court. I took the view that the applicant’s illness ought not to prevent him from attending by telephone. I gave the applicant leave to attend by telephone and declined to adjourn the hearing. The applicant told me today that he agreed to proceed in that manner although he would have preferred to attend in person.
I have before me as evidence a book of relevant documents filed on 26 April 2007. I also have before me an amended outline of written submissions filed on behalf of the Minister on 6 June 2007. The applicant confirmed that he had received both the book of relevant documents and the amended submissions.
I invited the applicant to make oral submissions. He was unable to raise any legal issue concerning the Tribunal decision. Indeed, he said that although mistakes were made, they were his fault. He appeared to be concerned that some humanitarian consideration might be given to the circumstances of him and his family given the length of time that they have been in this country. In the light of those submissions, I invited the applicant to consider whether he wished to withdraw his application and seek ministerial intervention under the Migration Act 1958 (Cth) (“the Migration Act”). He told me that he wanted me to make a decision on his application to the Court.
The background to the applicant’s visa application and the Tribunal decision on it are set out in the Minister’s amended outline of submissions. I adopt as background for the purposes of this judgment paragraphs 2 through to 13 of those submissions:
The first applicant (“the applicant”) was granted a Subclass 457 (Business Long Stay) Temporary visa on independent executive grounds on 12 January 2001. The secondary applicants were also granted visas as dependents of the applicant. On 11 January 2005, the applicant lodged onshore a further application for a Subclass 457 (Business Long Stay) Temporary visa on independent executive grounds, a day prior to the expiration of the original Subclass 457 visa on 12 January 2005.[1] The further visa application was refused by a delegate of the Minister on 9 January 2006.[2] The Tribunal affirmed the decision of the delegate to refuse the visa application in a decision signed on 13 February 2007 and handed down on 5 March 2007.[3]
[1] Relevant Documents (“RD”), p.1 ff
[2] RD, pp.303-313
[3] RD, pp. 333-342
These proceedings, seeking judicial review of the Tribunal’s decision pursuant to s.476 of the Migration Act, were commenced by application filed on 15 March 2007.
On 4 April 2007 a Response was filed by the first respondent opposing the application on the ground that the application had not raised an arguable case for the relief claimed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.
On 11 April 2007 the proceedings came before this Court and orders were made, inter alia, granting the applicant leave to file an amended application and any further affidavit evidence by 1 June 2007 and listing the proceedings for a hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules. No amended application or further evidence has been filed.
Tribunal’s decision
In order to be granted a Subclass 457 (Business Long Stay) Temporary visa the applicant was required to satisfy, inter alia, the requirements of clause 457.223 of Schedule 2, Migration Regulations 1994 (“Regulations”).
Various supporting documents were provided with the application lodged on 11 January 2005, including details of the applicant’s former business “Patti’s Fashions and Designers”. This business partnership had been dissolved in June 2004. The applicant provided no details of his current business operations.[4] He also provided no further supporting documentation with his application for review to the Tribunal.[5]
[4] See covering letter from applicant’s agent at RD, pp. 1-4
[5] RD, pp.314-321
The applicant did not respond to a letter from the Tribunal requesting that he provide additional information regarding his current business venture and evidence that he has net assets of not less that $250 000.[6]
[6] RD, pp. 324-5
The Tribunal received a response to a hearing invitation letter, signed by the applicant, declining to appear before the Tribunal.[7] The Tribunal proceeded to decide the review without the applicant appearing before it.[8]
In concluding that the applicant did not meet the requirements of clause 457 of Schedule 2 of the Regulations, the Tribunal found that it was not satisfied that:
a)the applicant was conducting a business in Australia at the time of decision as he had not submitted evidence to the Tribunal of his current business operations, if any;
b)the applicant has a genuine and realistic commitment to: maintain an ownership interest in the business; to maintain a direct and continuous involvement in the management of the business; and to make decisions that affect the overall direction and performance of the business from day to day (as required by clause 457.223(7A)(c)(ii) of Schedule 2, Regulations); and
c)the applicant had net assets of at least $250,000, or a lesser amount that is adequate, for the conduct of his business as the applicant had also not provided to the Tribunal evidence of the funds available for the business, (as required by clause 457.223(7A)(c)(iv) of Schedule 2, Regulations). [9]
The Tribunal therefore found that that applicant did not meet the criteria in clause 457.223(7A)(c) at the time of the Tribunal’s decision.
The Tribunal also considered whether there was evidence that the applicant met any other criteria in clause 457 (aside from the independent executive criteria). The Tribunal found that there was no evidence before it that the applicant met any other criteria in clause 457.223.[10]
As the applicant had failed to meet essential criteria for the grant of the visa, the Tribunal affirmed the decision to refuse to grant the visa. The Tribunal also found that there was no evidence that any of the secondary applicants could meet the primary criteria for a visa.
[7] RD, p. 329
[8] See section 360(2)(b) of the Migration Act 1958 (Cth)
[9] RD, pp. 340-1
[10] RD, p.341
The application before the Court can be dealt with shortly. I agree entirely with the Minister’s submissions in paragraphs 14 to 17 and adopt them with necessary amendments for the purposes of this judgment:
The amended application contains only one ground: “the decission [sic] is wrong”.
The applicant has not raised an arguable case for the relief claimed, and the proceedings should therefore be dismissed pursuant to rule 44.12.
The applicant’s only ground is not a valid ground of judicial review and seeks nothing more than merits review of the Tribunal decision.
The Tribunal provided the applicant with an opportunity to provide it with further information and to appear before it to present evidence. The applicant declined to appear before the Tribunal or provide further information. The applicant had not provided evidence that he satisfied the criteria in clause 457 of the Regulations. As such the Tribunal was required under s.65 of the Act to affirm the decision to refuse to grant the visa.
The applicant has failed completely to advance any arguable case of jurisdictional error. Neither is any arguable case of error apparent to me from my own reading of the material.
Accordingly, I order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.
The application having been dismissed, costs should follow the event. The Minister seeks scale costs of $2,500. The applicant sought and received an explanation of the costs rules of the Court but did not otherwise wish to be heard. I will order that the first applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 15 June 2007
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