Sallam v Minister for Immigration
[2012] FMCA 1020
•5 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SALLAM v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1020 |
| MIGRATION – Review of Migration Review Tribunal decision to affirm delegate’s refusal of a student visa – non-attendance at Review hearing – adjournment promoted in correspondence to Court – refusal of adjournment – dismissal of application. |
| Migration Act 1958 s.476 Commonwealth Constitution s.75(v) |
| Plaintiff S157/2002 v Commonwealth [2003] HCA 2 Craig v The State of South Australia [1995] HCA 58 |
| Applicant: | MOUSTAFA ABDALLA ABDELFATTAH SALLAM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 67 of 2012 |
| Judgment of: | Lindsay FM |
| Hearing date: | 5 November 2012 |
| Date of Last Submission: | 5 November 2012 |
| Delivered at: | Perth |
| Delivered on: | 5 November 2012 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitors for the First Respondent: | Mr L. Nguyen |
ORDERS
The applicant’s application for adjournment of the hearing is refused.
The Application for Review filed on 19 March 2012 be dismissed.
The applicant pay the respondent's costs of and incidental to these proceedings fixed in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 67 of 2012
| MOUSTAFA ABDALLA ABDELFATTAH SALLAM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is the hearing scheduled for an application filed by the applicant, Mr Sallam, for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) of 28 February 2012. The application was filed on 19 March 2012, and it seeks orders quashing the decision of the Tribunal and asks for the issue of a writ of mandamus directing the Tribunal and the Minister to determine the applicant's application according to law. The grounds of application say simply this:
(1)I have stress and psychological issues due to cancellation or refusal of my application by MRT;
(2)I came back to Australia from Egypt from visiting my family who have medical issues, not enough time to prepare myself;
(3) I understand I need to continue my education commitments.
The orders that were made by Lucev FM on 7 May 2012 setting this matter down for hearing today provided the applicant with an opportunity to file and serve an amended application by 16 July 2012 – he did not do that – and directed him to file and serve an outline of submissions not less than 14 days before the hearing. He did not do that. So the matter is before me today on the basis that no grounds for judicial review have been identified. Mr Nguyen, in his outline of submissions, has done his best to attempt to identify in the statements that the applicant puts under that heading of grounds something resembling a ground, but manifestly the applicant has not even purported to identify in his applications the reasons why he is entitled to judicial review.
This Court's jurisdiction under s.476 of the Migration Act 1958 is the same jurisdiction as is exercised by the High Court under s.75(v) of the Commonwealth Constitution, but it is only the same jurisdiction in relation to “migration decisions”. “Migration decisions” is a term that is defined in the Act, and with very few exceptions not material to this case, a migration decision is essentially a privative clause decision or a purported privative clause decision. Those expressions are defined as well. The decision of the Tribunal is a purported private clause decision, and so it follows that to be able to succeed on the review, the applicant would have to identify a jurisdictional error associated with the way in which the Tribunal went about its task. There is ample High Court authority for that, most notably, of course, Plaintiff S157/2002 v Commonwealth [2003] HCA 2 in relation to the operation of s.476 of the Act in relation to migration decisions. But in relation to jurisdictional error generally, as to what needs to be identified, there is also ample High Court authority, most helpfully, perhaps, Craig v The State of South Australia [1995] HCA 58.
The decision of the Tribunal would only be set aside and a rehearing before the Tribunal would only be ordered if I was able to be satisfied that the decision was vitiated by jurisdictional error.
When the applicant had his visa cancelled by the delegate, it was on the basis of non-compliance with that part of the Migration Act Regulations which related to his failure to satisfy the delegate as to his English language proficiency. He was after a Student (Temporary) (Class TU) visa. The delegate was not satisfied that he had adduced appropriate evidence of his English language proficiency. Before the Tribunal, the applicant failed for an even more fundamental reason, and that was that the Tribunal was not satisfied that at the time of decision the applicant was enrolled in or the subject of a current offer of enrolment in an acceptable course of study.
The extraordinary history of the applicant's experience with study in Australia is summarised in the 357A letter that the Tribunal sent to the applicant on 21 December 2011, and that is to be found at paragraph 19 of the Tribunal's reasons:
Prisms records held by the department indicate that you finished a general English course on 1 February 2008. Your enrolment in a Diploma of Business Management cancelled 28 April 2009 because the provider ceased operation. Your enrolment in an Advanced Diploma in Management (Marketing) was cancelled on 27 January 2009 because you transferred to another education provider. Your enrolment in an advanced English for academic study course was cancelled on 10 December 2009 because you did not commence the course. Your enrolment in a certificate IV in information technology was cancelled on 15 February 2010 because you did not commence the course. Your enrolment in a Diploma of Information Technology was cancelled on 15 February 2010 because you did not commence the course.
The material that was elicited from the applicant in response to that letter which is summarised at paragraphs 20 to 22 did not purport to answer what the Tribunal was raising as to the non-compliance with the essential requirements of schedule 2 for the various visa subclasses pertinent to the applicant's application. At paragraph 25, the Tribunal notes:
The applicant has responded to the Tribunal's invitation by providing copies of certificate of enrolments he previously held, and he has submitted that he was enrolled at the time he lodged the visa application. However, it is a time of decision requirement that the applicant be enrolled in an acceptable course. None of the certificates of enrolment that the applicant has provided are current, and the applicant's evidence is that he is not currently enrolled in an acceptable course. The Tribunal is not satisfied that the applicant is enrolled in an acceptable course. The Tribunal finds that the applicant does not meet the requirements of clause 572.222.
Not only is there no jurisdictional error associated with the way in which the Tribunal dealt with the claims and the evidence before it, there is no error whatsoever and, indeed, the decision of the Tribunal was mandated by the information before it in relation to the history of the applicant's enrolment in educational courses and, in particular, his non-enrolment in an acceptable course at the time that the Tribunal made its decision.
The review will be dismissed.
I should say something at this point as to why I refused the applicant's request for a telephone hearing, and, secondly, why I refused the request for an adjournment today. As I indicated at the outset of this morning's proceedings, on 29 October 2012 the applicant sent a fax to the Perth Registry of this Court which was sent on to my associate and was answered on 31 October 2012 by her. Notwithstanding that the matter had been listed for hearing almost six months ago, he left it until 29 October 2012 to make a request to reschedule the hearing so it could take place by telephone link up.
He said he was now in Karratha in north-western Western Australia. There was no explanation given as to why it is that he was still living in Karratha at the time of the hearing, and, in particular, as to what educational courses he was pursuing in that area. There was no indication given as to why he had left the request for telephone attendance so late. There was no explanation given as to why he had not taken the opportunity of filing and serving an amended application or complying with the order in relation to the filing of a written argument. In those circumstances, it seemed to me appropriate to insist on the applicant's personal attendance so as those matters could be cleared up. The response to that was, it looks like, an email sent to my associate over the weekend on 2 November 2012 at about half past 7 in the evening, and I have read the email on to the transcript this morning. Essentially what the applicant is representing in that email is that he had an expectation that his late request for a telephone link up (made in the circumstances I have just outlined) would be accepted. The fact that it was not accepted meant that he was not able to purchase a ticket at short notice to enable him to travel to Perth.
Of course, his costs associated with travel are a function of his living in Karratha which itself is entirely unexplained. So he then purports to use the late decision in relation to the refusal of the request to attend by telephone, the lateness, of course, being a function of his late request, as a reason for his being unable to arrange a flight to Perth and accommodation in Perth. Then there is a generalised assertion that he has been trying to get a migration lawyer, but, as he says, due to the remoteness of the location he has not found one. Again, these are all functions of his own wholly unexplained decision to live in Karratha. In those circumstances, I considered it inappropriate to adjourn the proceedings. Not only was there no adequate explanation as to why he was not physically present, but there was no real attempt to provide such an explanation.
Having decided himself to relocate to Karratha, and it looks as if that was something that was achieved some time during the course of last year, and provided no explanation in relation to that, he then purports to use his unexplained presence in Karratha to inveigle the Court into granting, firstly, a telephone link, and then when that is refused an adjournment at very late notice. In those circumstances, I thought it appropriate to refuse the application for the adjournment.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 7 November 2012
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