Rana v Minister for Immigration

[2013] FCCA 1736

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1736

Catchwords:
MIGRATION – Applicants applying for judicial review of Migration Review Tribunal decision – applicants seeking Residence visas – applicants required at time of application one of four classes of visa specified in clause 808.211 of the Migration Regulations 1994 – applicants not having such visas – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 701
Migration Regulations 1994 (Cth), sub-cl.808

First Applicant: NAGENDRA RANA

Second Applicant: NISHA RANA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 769 of 2013

Judgment of: Judge Burchardt

Hearing date: 13 September 2013

Date of Last Submission: 13 September 2013

Delivered at: Melbourne

Delivered on: 8 November 2013

REPRESENTATION

The Applicants: In person

Counsel for the First Respondent: Ms Briffa

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. Pursuant to r.701 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The Applicants pay the First Respondents’ costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 769 of 2013

NAGENDRA RANA

First Applicant

NISHA RANA
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants, who are husband and wife, applied for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 30 April 2013.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicants Confirmatory (Residence) (Class AK) Subclass 808 visas. 

2. The application filed 30 May 2013 listed no grounds of application other than the words “administrative grounds”. 

3. The first applicant’s affidavit sworn 30 May 2013, which annexed a copy of the decision of the Tribunal, relevantly stated “administrative error”.

4. The matter was the subject of orders by Registrar Allaway on 7 August 2013 when the Registrar ordered inter alia that the applicants file by 21 August 2013 any amended application and any affidavits.  The applicants have not filed any such materials nor any written submissions as the orders of the Registrar permitted.

5. When the matter was called before the Court Mr Rana, who was clearly fluent in English, indicated that he and his wife did not propose to make any submissions.

6. The Minister took the Court to various extracts from the Court Book (“CB”).  The application, at CB5, asserts “need to access ministerial unit”, as the ground for applying.

7. At CB1 it is confirmed that the visa sought was an application for a Confirmatory (Residence) visa.

8. This is a Subclass 808 visa provided in schedule 2 to the Migration Regulations 1994 (“the Regulations”).

9. There are four categories of visa, one of which an applicant must hold at the time of application in order to satisfy clause 808.211.

10. Counsel for the First Respondent correctly pointed out that the applicants did not hold any of those subclasses of visa at the time of their application.

11. On this footing, the delegate decided that the applicants could not be granted the visa that was sought (CB27).  At CB31 the application for review commences and at CB52 there is set out the letter from the Tribunal inviting the applicants to attend a hearing.  It is apparent from CB55, which is the response to hearing invitation, that the applicants elected not to attend the Tribunal hearing on 29 April 2013 and indicated their representative would also not be attending.

12. At CB59-61 the Tribunal’s decision is set out. The Tribunal recorded that the delegate had refused the applications because the applicants did not satisfy clause 808.211 of schedule 2 to the Regulations because they did not hold at the time of application any of the visas specified in the clause in order to satisfy eligibility for the grant of the visa they sought.

13. The Tribunal noted that the material on the Department’s file showed that the applicants first arrived in Australia on 26 March 2009 with student visas and while these visas had expired, the applicants had held bridging visas since 12 September 2012.  That, of course, was the date of their application that has given rise to this proceeding.

14. The Tribunal noted that the applicants did not hold any of the relevant four classes of visa at the time of their application and, accordingly, dismissed the application.

15. As counsel for the First Respondent submitted, the applicants’ case was always hopeless.  There are no administrative grounds or errors shown in the materials still less, as counsel for the First Respondent submitted, any jurisdictional error.

16. Counsel sought that the application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

17. I invited Mr Rana to make any submissions he might wish to make in reply but he declined to do so.  He indicated he left the matter in the Court’s hands.

18. In these circumstances, it is clear that the First Respondent’s submission is made out. To paraphrase the words of r.44.12, I am not satisfied that the application has raised an arguable case for the relief claimed. Indeed, in the circumstances, one has to put the matter rather more strongly than that. I am positively satisfied that, unfortunately for the Applicants, their case is and always has been hopeless.

19. In these circumstances, the application must be dismissed with costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  8 November 2013