REN v Minister for Immigration - [2018] FCCA 3322

FEDERAL CIRCUIT COURT OF AUSTRALIA

REN v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3322

Catchwords:
MIGRATION – Student visa application – applicant sought and obtained adjournment and then notified Tribunal he would not attend hearing – Tribunal affirms decision to refuse visa application – application for judicial review – application dismissed for non-appearance – application reinstated by consent – show cause hearing – no reasonably arguable case – no factors warrant exercise of discretion to order application be listed for trial – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), Sch.2 cl.572.223

Federal Circuit Court Rules 2001 (Cth), r.44.12

Cases cited:

Morad v El-Ashey [2017] FCA 1136

MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593

Nichol v Discovery Africa Limited [2016] FCAFC 182

Siddique v Minister for Immigration and Border Protection [2014] FCA 1352

Spencer v The Commonwealth (2010) 241 CLR 118

SZTTW v Minister for Immigration and Border Protection [2014] FCA 837

SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6

Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158

Applicant:

ZHIJIA REN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1754 of 2017

Judgment of:

Judge A Kelly

Hearing date:

9 November 2018

Date of Last Submission:

9 November 2018

Delivered at:

Melbourne

Delivered on:

21 November 2018

REPRESENTATION

The Applicant:

In Person

Solicitor for the First Respondent:

Ms Ward

Solicitors for the First Respondent:

Sparke Helmore Lawyers

ORDERS

Pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application filed on 10 August 2017 be dismissed.
The applicant pay the costs of the first respondent fixed at $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1754 of 2017

ZHIJIA REN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 15 August 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 July 2017 affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) visa.
For the reasons which follow, the application should be dismissed. In substance, the applicant, who sought and obtained an adjournment of the hearing before the Tribunal, failed to appear at the re-scheduled hearing in circumstances where he informed the Tribunal that he would not so appear. The applicant also failed to appear at the directions hearing in this proceeding; however, the Minister consented to an application for reinstatement and the parties then agreed that the matter proceed as a show cause hearing. From my examination of the materials comprised in the court book and the Tribunal’s reasons, no arguable case is shown and no other reason is indicated why the court should exercise its discretion in favour of a conclusion not to dismiss the application.

Background

The applicant, a Chinese national aged 34…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read REN v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 3322
Decision Date: 21 November 2018

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Migration Review Tribunal (MRT) to affirm the refusal of the applicant's student visa application. The applicant had initially sought and obtained an adjournment of the MRT hearing, but subsequently notified the Tribunal that he would not attend. Following this non-attendance, the MRT affirmed the delegate's decision to refuse the visa. The applicant then sought judicial review of the MRT's decision.

The primary legal issue before the Federal Circuit Court was whether the applicant had demonstrated a reasonably arguable case for judicial review, and if so, whether there were any factors that warranted the exercise of the Court's discretion to list the application for trial. The Court was also required to consider the applicant's failure to appear at the initial hearing and the subsequent show cause process.

Judge A Kelly found that the applicant had not established a reasonably arguable case. The Court noted that the applicant had failed to attend the MRT hearing after seeking an adjournment, and had not provided any satisfactory explanation for his non-attendance or for his failure to present a case. In the absence of a reasonably arguable case, the Court concluded that there were no factors that would justify exercising its discretion to list the application for trial. Consequently, the application for judicial review was dismissed.

Orders