Park v Minister for Immigration

[2015] FCCA 891

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 891

Catchwords:
MIGRATION – Migration Review Tribunal – Student (Temporary) (Class TU) 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.426(3), 476
Migration Regulations, Schedule 2, cl.572.223(1)(a)

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: JUNG OK PARK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 632 of 2015

Judgment of: Judge Street

Hearing date: 9 April 2015

Date of Last Submission: 9 April 2015

Delivered at: Sydney

Delivered on: 9 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr K. Eskerie
Sparke Helmore

ORDERS

1. The proceedings be summarily dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 632 of 2015

JUNG OK PARK

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 the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 18 February 2015 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.  The application identifies the following grounds:

   1. The Tribunal made a jurisdictional error when it failed to consider the relevant issues and made decision without giving any importance of changed circumstances of the applicant.

   2. Particulars:

   3. The applicant has a legitimate expectation from the Tribunal that it will act and make decision according to the decision cretaria of cl 572.223 and Clause 572.223 (I) (a) the Migration Act. During hearing the Tribunal Member totally discounted and discredited the changed

   circumstances of the applicant and her intention to complete the study. The Tribunal member ignored the facts occurred during her study period ..

   4. The applicant claims that she was denied procedural fairness when the hearing was not conducted freely and fairly . She was denied natural justice and free and fair hearing according the s 424 of the Migration Act.

   5. Particulars:

   6. The applicant was a truthful witness. She told the Member that she has not done any study since April 2014 , because she thought she could not study as she did not have student visa and her educational provider was insisting to refund of money what she gave at the time of enrolment. Because of confused circumstances she did not attend. She has successfully completed Certificate IV in Business and wanted to complete further courses related to Business Management. The Tribunal member misunderstood or misconceived the facts . The hearing was conducted in a very tense situation . The applicant was nervious and confused. [sic]

2. The application identifies the first Court date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

3. The Court identified to the applicant that, having looked at the application and the reasons, the Court was not satisfied that there was disclosed any arguable jurisdictional error and that the Court was minded to consider whether it should exercise its summary dismissal powers in relation to s.17A and rule 13.10.  In considering exercise of the Court’s summary jurisdiction under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60]. It is clear that the applicant attended a hearing on 11 February 2015 to give evidence and present arguments and was assisted with the benefit of an interpreter.

4. The applicant was also represented by her registered migration agent. The delegate refused to grant the applicant the visa because the requirements of cl.572.223(1)(a) of Schedule 2 of the Migration Regulations 1994, because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student and he was not satisfied the applicant intends to genuinely stay in Australia temporarily.  It was in that regard that the Tribunal pointed out that the applicant had ceased to undertake any study in April 2014 and was offered a refund in relation to the course that did not attend.  

5. The Tribunal had concerns as to the applicant’s credibility and said that her explanation was one to which it gave little weight. This issue of credibility was a matter for the Tribunal. The applicant arrived in Australia in May 2010 and was granted a Subclass 573 Higher Education Sector student visa for a period from 3 June 2010 until April 2014.  The applicant submitted a number of certificates indicating the successful completion of certain language courses and that she had undertaken a business course certificate IV from 7 October 2013 to 6 April 2014. 

6. The applicant enrolled in a diploma of management from 14 May 2014 to 9 November 2014 and an advanced diploma of management and she cancelled these enrolments.  She had not undertaken any studies since April 2014 according to the findings of the Tribunal.  The Tribunal noted that the courses the applicant had undertaken were inexpensive courses and that she has been primarily using her student visa to maintain ongoing residence.  Materially, the applicant admitted that her academic performance to date had not been satisfactory. 

7. The Tribunal was concerned that the applicant had not left the country since 2010 and return home. The Tribunal did not consider the applicant’s explanation for not returning home to be convincing. The Tribunal made a finding that the applicant is using a student visa program to maintain ongoing residency. It was in those circumstances, the Tribunal made a finding that it was not satisfied the applicant intends genuinely to stay in Australia temporarily and, accordingly, that the applicant did not meet cl.572.223(1)(a).

8. Those findings of the Tribunal were clearly open to it.  The applicant clearly had a genuine hearing.  There is no substance in the assertion that the applicant was denied a fair hearing.  There is no substance in the proposition that the Tribunal failed to consider the relevant issues before it.  Equally, there is no substance in the assertion that the applicant was a truthful witness as this is an impermissible challenge to a finding of fact.  That was a matter for the Tribunal to determine and, on the material before the Tribunal, it was open to the Tribunal to come to an adverse view in respect to the applicant’s credit. 

9. The applicant indicated to the Court that she wanted to obtain the transcript and other documents. There’s no utility in granting an adjournment if the proceedings are doomed to failure.  For reasons, the proceedings are clearly doomed to failure. Further, granting an adjournment when the proceedings are doomed to failure would only unnecessarily incur further costs to the parties and utilise limited Court time.  In these circumstances, an adjournment is serves no utility and is not appropriate. I am clearly satisfied the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  13 April 2015