Seeburrun v Minister for Immigration
[2015] FCCA 748
•13 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEEBURRUN v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 748 |
| Catchwords: MIGRATION – Application for review of decision of the Refugee Review Tribunal – no arguable case raised – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.353, 357A, 476 Migration Regulations 1994 (Cth), Schedule 2 |
| SZTBV v Minister for Immigration & Anor [2014] FCCA 2106 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219 Xie v The Immigration Department [1999] FCA 365 Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 |
| Applicant: | DHEEMA SEEBURRUN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1212 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 13 March 2015 |
| Date of Last Submission: | 13 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2015 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondents: | Ms C Hillary of DLA Piper Australia |
ORDERS
The application made on 6 May 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $4,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1212 of 2014
| DHEEMA SEEBURRUN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 6 May 2015 seeking review of a decision of the Migration Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister to refuse a Temporary Business Entry (Class UC) visa (“the visa”) to Ms Dheema Seeburrun (“the applicant”).
Background
The Minister has filed a bundle of relevant documents which is in evidence before the Court (“the Court Book” – “CB”). The following background can be ascertained from these documents.
The applicant is a citizen of Mauritius. She applied for the visa on 15 July 2013, with the assistance of a registered migration agent (CB 1 to CB 11). Given the legal requirements for the grant of the visa, it is important to note that her previous substantive visa ceased on 26 June 2013. That is, the applicant’s previous visa ceased to have effect before the application was made for the visa which was the subject of the Tribunal’s consideration.
Further documents were provided to the Minister’s Department after the application was lodged, including an offer of employment from “SIRAAT PTY LTD” (CB 25 to CB 43).
The delegate refused the visa application on 7 January 2014.
The Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 17 January 2014 (CB 53 to CB 72). She was assisted by the same registered migration agent. The applicant attended a hearing before the Tribunal on 14 April 2014.
The Tribunal found that as the applicant’s previous substantive visa had ceased prior to the making of the visa application, she was required to meet cl.457.211(b)(ii) of the Migration Regulations 1994 (Cth) (“the Regulations”). To meet cl.457.211(b)(ii) of the Regulations, the applicant was required to satisfy criteria 3003, 3004 and 3005 of Schedule 3 to the Regulations.
In essence, the Tribunal was not satisfied that the factors that caused the visa applicant to become a person without a substantive visa at the time of lodgement were beyond the applicant’s control. The Tribunal found ([18] and [20] at CB 97):
“[18] The Tribunal has carefully considered the applicant’s claims. The applicant claims she wants another chance to have her application considered as she lodged the application within 28 days of her visa ceasing and her employer did not have all the documents ready. The Tribunal does not accept that this is a compelling reason for granting the visa, as the Schedule 3 criteria would apply even if the applicant was one day late in lodging the application. Nor does the Tribunal accept that not having the required documents ready is a compelling reason for the grant of the visa, particularly when the applicant did not have the required IELTS test score.
…
[20] The Tribunal has considered the evidence from the applicant’s employer that the applicant has high level and special skills as a cook and has made an important contribution to the company. The Tribunal accepts that the applicant is a skilled worker who has contributed to the business, but the Tribunal does not accept that this is a compelling reason for the grant of the visa. This argument could apply to almost all Subclass 457 visa holders and the Tribunal does not accept that it constitutes compelling reasons for granting the visa in this particular case. In addition, the Tribunal considers that the cost of recruiting, training and replacing staff members is an ordinary aspect of the operation of almost all businesses, which occurs on an ongoing basis, and does not constitute compelling reasons. There is no other evidence before the Tribunal that the applicant has strong ties to Australia.”
The applicant was required to satisfy all of the criteria, and as the applicant did not meet criterion 3004(d) of the Regulations she failed to meet the entirety of criterion 3004 of the Regulations. The Tribunal found that it was unnecessary for it to consider the other elements of criterion 3004. Therefore, the applicant did not meet cl.457.211(b)(ii) of the Regulations, and could not be granted the visa.
Application Before the Court
The application before the Court is contained in a “statement” attached to the initiating application. The applicant’s “grounds for review” are as follows:
“…My review grounds
As my current employer intend to sponsor me to work for the them, but my sponsor did not have all the documents ready to submit the sponsorship application until 28 June 2013. The department requires the business plan and financial report. My sponsor are good provide food services, but not good at paper work. My sponsor are also very busy, I really appreciate that my sponsor offering the four years job offer, and feel very sorry to ask for so many documents to be prepared for me. My previous visa was expired on 26 June 2013, which is two days after. I understand it is beyond my sponsor’s control, which is also beyond my control. I lodged my visa on 15 July 2013 due to the new changes for 457 application. As after 1 July 2013, 457 visa application only can be lodged on online and I have to be accepted by the department to be available to lodge online due to my visa just expired.
- the compelling reasons that exist to grant you a visa; and
It is the first time I lodged my visa without a substantive visa and I did lodged within 28 days after my previous visa was expired. I hope the department my apply the 3005 to my application. I have devoted myself to work for the company. I love this job and I hope your honour may grant me the visa and allow me to work in Australia.
- that you have substantially complied with the conditions on your previous visa;
I have substantially complied with the conditions on my previous student visa.
- that you intend to comply with the conditions on this visa, should it be granted.
I will comply with all the visa conditions if my 457 visa granted.
As stated from the sponsor’s letter and the regulation of 457 visa, my visa application could not lodge before the sponsor’s nomination, which is beyond my control. I am not the applicant of sponsorship nomination. I could not control the lodgement. The tribunal member suggested that I could flight back to my country and apply my 457 visa overseas, and also mention that I earning $55,000 per annual for full time, but before my 457 visa lodgement, I only can work as part time as required by my student visa. I can only work for full time after 21 Feb 2014. $55,000 per annual is my hourly rate. The tribunal member mis-understood that I worked full time before my 457 visa lodgement. As I could not and did not work full time, I have substantially complied with the conditions on my previous student visa. In Australia especially Sydney all the living expenses are very high and I also need to pay tuition fee. It is too costly that I fly back to apply the 457 visa. I also don’t know how long it will take the department to process my visa. From my case, the department took more than 4 months to process my visa. If I fly back to my home, I would have no income during the four months. That would be too costly for me.
There are compelling reasons for granting the visa as the sponsor found that I have high interpersonal communication and coordination skills, planning and implementation capacity, a sense of responsibility. I have made great contributions to the company and I am very important for the company.
Please also find the Letter from sponsor as attachment.
Conclusion
I submit that as there are some judicial errors in fair, just, economical, informal and quick of MRT way of operating. This is the first time I lodged my new application within 28 days of last substantive visa expired. I hope the Criteria 3005 would apply to my application.”
[Errors in the original.]
The applicant also drew the Court’s attention to s.353 and s.357A of the Act:
“353 Tribunal’s way of operating
(1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits of the case.
…
357A Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.”
Relevant Legislation
Clause 457.211(b)(ii) of the Regulations relevantly states:
“457.211
If the applicant is in Australia at the time of application:
…
(b) if the applicant does not hold a substantive visa at the time of application:
…
(ii) the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.”
The relevant criteria (3003, 3004 and 3005 of Schedule 3 to the Regulations), at the relevant time, were as follows:
“3003 If:
(a) the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and
(b) on 31 August 1994, the applicant was either:
(i) an illegal entrant; or
(ii) the holder of an entry permit that was not valid beyond 31 August 1994;
the Minister is satisfied that:
(c) the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant’s control; and
(d) there are compelling reasons for granting the visa; and
(e) the applicant has complied substantially with the conditions that apply or applied to:
(i) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(ii) any subsequent bridging visa; and
(f) the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and
(g) the applicant intends to comply with any conditions subject to which the visa is granted; and
(h) the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
3004 If the applicant:
(a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and
(d) there are compelling reasons for granting the visa; and
(e) the applicant has complied substantially with:
(i) the conditions that apply or applied to:
(A) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B) any subsequent bridging visa; or
(ii) the conditions that apply or applied to:
(A) the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B) any subsequent bridging visa; and
(f) either:
(i) in the case of an applicant referred to in paragraph (a)—the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii) in the case of an applicant referred to in paragraph (b)—the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g) the applicant intends to comply with any conditions subject to which the visa is granted; and
(h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
3005 A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:
(a) this Schedule; or
(b) Schedule 6 of the Migration (1993) Regulations; or
(c) regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.”
Before the Court
The applicant appeared in person before the Court. She was assisted by an interpreter in the French language. [I note that previously the applicant, in her initiating application, requested an interpreter in the “Mauritius Creole/French” languages. At the last Court event on 8 October 2014, the applicant was asked if a French interpreter could be used. She confirmed that she understood and could communicate with the French interpreter. I was satisfied that the applicant could understand and communicate with the French interpreter at the hearing.]
In Orders made on 2 July 2014 and 8 October 2014, the applicant was given the opportunity to file any amended application or evidence by way of affidavit in support of her application. Nothing further has been filed by the applicant.
At the last Court event, on 8 October 2014, on what was before the Court at the time, the Minister, through his representative, asked the Court to proceed to an immediate show cause hearing pursuant to Part 44 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”). Given what was set out in the application to the Court, it was appropriate to proceed, in the circumstances, in this fashion. However, the applicant was given yet another opportunity to seek legal advice, and therefore the matter was set down for a show cause hearing pursuant to r.44.12 of the FCC Rules today.
The Issue
The issue before the Court is whether the grounds of the application raise a arguable case for the relief sought. I note in this regard that the applicant seeks orders that the Tribunal’s decision be quashed and returned to it for reconsideration.
If the Court cannot be satisfied that an arguable case is raised against the respondent, the application will be dismissed. As I said in SZTBV v Minister for Immigration & Anor [2014] FCCA 2106, I note that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal, the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).
I note that in this case the Minister has filed written submissions. Nothing further has been filed by the applicant. Before the Court today the applicant stated that she did find a lawyer to speak to, but could not afford to pay for legal representation, and therefore came here today to represent herself. I should note that there is no legal entitlement to legal representation before this Court in matters of this type (Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 and SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702). The applicant also told the Court that she wanted the Court to give her a “chance”, and to accept her visa application. In effect, to grant her the visa.
As I sought to explain to the applicant today, the Court has no power to intervene to grant her the visa. The Court’s role is to ensure that the Tribunal’s decision is lawful. As I told the applicant, if there was some legal error in the Tribunal’s decision the Court could, in those circumstances, consider whether to send her matter back to the Tribunal for reconsideration. Noting of course, that the immediate issue in this case is whether the application before the Court raises any arguable case, that is, a legally arguable case for the relief sought.
Consideration
The applicant’s written statement, titled “My review grounds”, seeks to repeat the reasons that she gave to the Tribunal as to why she did not hold a substantive visa when she applied for the visa, and why she claimed that there were compelling reasons for granting the visa. Plainly, the applicant has proceeded on the mistaken assumption that her application to the Court could be made to give her another opportunity for her claims to be reassessed against the visa criteria.
The applicant’s focus on s.353 and s.357A of the Act remained unexplained. In essence, if the applicant was seeking to complain that the Tribunal breached those sections of the Act, then, with respect, this represents a misunderstanding of the functioning of the Tribunal in applying the law, as compared to the manner in which it conducts its hearings and the review generally. In any event, as the Minister submits in written submissions, even if there were some breach of these sections, it would not amount to jurisdictional error on the part of the Tribunal (Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83).
Having regard to the material before the Court, I cannot see that the Tribunal failed to operate consistently with what is set out at s.353 of the Act or that the Tribunal breached any procedural fairness obligation to the applicant. Nor can I see that the Tribunal failed to provide procedural fairness to the applicant in the conduct of the review. In this regard, I note s.357A of the Act, and how that section is to be understood in the way that the High Court explained in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252.
The only allegation of error was in relation to the Tribunal’s finding that she earned $55,000 a year and, therefore, could afford to travel overseas to lodge another visa application ([19] at CB 97). The relevance here is that the Tribunal, in making that finding, was concerned with the question of whether there were compelling reasons to grant the visa in Australia as opposed to the applicant being able to travel overseas and apply for the visa from there. The applicant complained that the Tribunal made an error as she was only working part time, therefore, she was not earning this amount.
It is the case, however, as the Minister submitted, that the Tribunal’s decision was made on the evidence before it, including the evidence given by the applicant before it. Its relevant finding, based on the applicant’s own evidence, was reasonably open to it on what was before it, and it gave cogent reasons for this finding, that was part of the set of findings that informed its ultimate decision.
What also must be noted here is that the applicant has not provided any evidence to challenge the Tribunal’s report of what it said occurred at the hearing. That is, the applicant has not provided any evidence to challenge the Tribunal’s report that the applicant gave evidence that she works full-time and earned $55,000 a year. In that light, it was open to the Tribunal to proceed on, what it said, was the evidence that had been given to it. No arguable case is raised for the relief the applicant seeks in this regard.
The applicant may be seeking to complain, as the Minister submitted, that her evidence was “inaccurate” before the Tribunal and that, by implication, the Tribunal should have relied on, and accepted, her representative’s submissions. However, this does not establish any jurisdictional error on the part of the Tribunal. The Tribunal’s relevant finding and associated findings were based on the applicant’s own evidence.
It must also be noted that the Tribunal had specific regard to the representative’s submissions that were made on this point. That is, as to why she could not travel overseas. It is the case that the Tribunal, in the proper exercise of its jurisdiction, is entitled to weigh, and to prefer, one piece of evidence over any submission that may be made to the contrary. Further, there is no legal error in the Tribunal’s finding that it could not accept what was said in the submissions as amounting to a compelling reason for the grant of the visa. Again, this finding was reasonably open to the Tribunal to make.
The remainder of the “review ground”, as stated above, is a restatement of her claims before the Tribunal. It can be seen as being no more than the applicant’s attempt to ask this Court to engage in impermissible merits review. No arguable case is raised for the relief sought.
Conclusion
In all, the grounds of the application do not raise an arguable case for the relief sought. It is the case that the rules of this Court provide that at a hearing of an application to show cause (with reference to r.44.12 of the FCC Rules), the applicant is confined to the grounds mentioned in the application to the Court (r.44.13(1) of the FCC Rules). The applicant did not raise anything today that would have made it appropriate to dispense with this rule pursuant to r.1.06 of the FCC Rules.
In the circumstances, it is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make an order accordingly.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 31 March 2015
0
13
4