Nadesan v Minister for Immigration and Anor

[2013] FMCA 152

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NADESAN v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 152

MIGRATION – Show cause hearing – no prospect of success – dismissal pursuant to Rule 44.12 of the Federal Magistrates Court Rules.

Federal Magistrates Court Rules 2001 Rule 44.12
Migration Act 1958 (Cth), ss.362B, 425(1), 426
Migration Regulations 1994 cl.802.215, Schedule 1, Schedule 2

SZIMG v Minister for Immigration & Anor [2007] FMCA 1724

Applicant: VEIRAVANATHAN NADESAN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1420 of 2012

Judgment of: Whelan FM

Hearing date: 19 February 2013

Date of Last Submission: 19 February 2013

Delivered at: Melbourne

Delivered on: 19 February 2013

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Ms Whitemore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the Application filed 9 November 2012 is dismissed pursuant to Rule 44.12 of the Federal Magistrates Court Rules.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $3,239.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1420 of 2012

VEIRAVANATHAN NADESAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from transcript)

1. This is an application before the Court for the review of a decision by the Migration Review Tribunal (“the Tribunal”). The application concerns a decision made by the Tribunal on 16 October 2012. In that decision the Tribunal determined to affirm the decision by the Delegate of the Minister not to grant a Child (Residence) (Class BT) visa to the Applicant, VEIRAVANATHAN NADESAN (“the Applicant”) in this matter.

2. The only ground for review alleged by the Applicant in this matter, in both the application and a document which is headed Affidavit, but which names no deponent, is the simple statement “administrative error”. When asked what the administrative error was and who was responsible for that administrative error, the Applicant has indicated that his migration agent was responsible for the error. That is not an error alleged to have been made by the Tribunal. 

3. The Court in dealing with these applications can only deal with an error of the Tribunal, which goes to the jurisdiction of the Tribunal. There is, in fact, no such error alleged in this matter.

The facts

1. The facts as they appear before the Court are that the Applicant made an application for migration to Australia by a child and that that application was made in February 2011. 

2. The application indicates that the Applicant is 49 years of age and that both his parents are deceased. The provisions of the Migration Regulations 1994 (“the Regulations”) which apply to such an application require that the Applicant is a dependent child of a person who is an Australian citizen, holder of a permanent visa or an eligible New Zealand citizen.

3. The Regulations further define a dependent child as someone who has not turned 18 or who has turned 18, but is incapacitated for work due to total or partial loss of the child’s bodily or mental functions.

4. The Applicant clearly is over the age of 18. There is no material before the Court to indicate that he is incapacitated for work due to the total or partial loss of his bodily or mental functions. 

5. Further, cl.802.215 of Schedule 2 of the Regulations requires that the person who is an applicant has a letter of support from a State or Territory Government or welfare agency or is sponsored by a person who has turned 18 and is an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen. The Applicant has produced neither evidence of a letter of support from a State or Territory government or welfare officer; or sponsorship by a person who meets the requirements of the Regulations.

The decision of the Tribunal

1. The above facts constitute the information that was before the Department when it considered the application and found that the Applicant did not meet the requirements of the Regulations. The same information was before the Tribunal, the Applicant having decided not to attend the hearing of his application. The Tribunal in determining to affirm the decision of the Department indicated that it was acting pursuant to s.362B of the Migration Act 1958 (“the Act”). In so doing, the Tribunal made an error by making reference to the wrong section of the Act.

2. In my view, however, that does not provide grounds for the Court to overturn the decision of the Tribunal.

3. I refer to the decision of Nichols FM in the matter of SZIMG v Minister of Immigration[1] where in similar circumstances the Tribunal had indicated it was relying on s.426A of the Act when the relevant provisions were contained in s.425(1) of the Act. In that case, the Court accepted that while the Tribunal may have made an error in referring to the relevant section of the Act, it nonetheless acted within jurisdiction because the Act provided the capacity for the Tribunal to do as it had done.

   [1] SZIMG v Minister for Immigration & Anor [2007] FMCA 1724.

4. Similarly, in this case the Tribunal was empowered to make the decision on review without taking any further action to enable the Applicant to appear because it had invited him to do so and he had expressly declined that invitation. 

5. On the facts before the Court and on the Applicant’s admission that the administrative error referred to was an error made by his migration agent and not by the Tribunal, I am satisfied that to proceed with this matter further would be futile and that the application has no prospect of success.

6. On that basis I am satisfied that the appropriate action for the Court to take in these proceedings is to dismiss the proceedings in accordance with the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Whelan FM

Associate: 

Date: 5 March 2013