SEKIGAWA v Minister for Immigration
[2015] FCCA 815
•2 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEKIGAWA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 815 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Migration Act 1958, s.476 |
| Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 SZRMQ v the Minister of Immigration and Border Protection [2013] FCAFC 142 |
| Applicant: | TAKESHI SEKIGAWA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 560 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 2 April 2015 |
| Date of Last Submission: | 2 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 2 April 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Geering |
| Solicitors for the Respondent: | Mr Alderton Mills Oakley |
ORDERS
The proceedings be summarily dismissed.
The Applicant pay costs fixed in the sum of $1367.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 560 of 2015
| TAKESHI SEKIGAWA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application in respect of a decision of the Tribunal on 9 February 2015 affirming the decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa. The grounds in the application are as follows:
1. That there was a lack of procedural fairness in the determination of my case with the Migration Review Tribunal at both the hearing dated the 9th of February 2015 and in the final decision that I was notified on the 10th of February 2015.
2. That Tribunal Member Gabrielle Cullen, at the hearing dated the 9th of February 2015, displayed a lack of procedural fairness. In particular, the Tribunal Member was presented with fact that I was extremely ill at the time of my application, and this presented me with circumstances out of my control.
3. That Tribunal Member Gabrielle Cullen, at the hearing dated the 9th of February 2015 and the final decision dated the 9th of February 2015, failed to take relevant consideration into account in the exercise of power. That the Tribunal Member failed to take into account my evidence provided at the hearing with regard my medical certificates. The Tribunal Member appeared to lack procedural fairness against me with this decision.
4.That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
5. That the Tribunal Member namely Gabrielle Cullen, came to the conclusion by inference, but a reasonable person would not have come to that conclusion.
The application identifies:
The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.
The Court identified to Mr Geering that, having looked at the grounds in the application and having looked at the decision, the Court was minded to consider exercising its summary jurisdiction. In considering exercising the summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.10 (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.
Mr Geering candidly conceded that the grounds in the application were not good and that they had no prospect of success. Mr Geering, however, sought to argue that there was something identified in the applicant’s affidavit in paragraphs 4-8:
4. The hearing and decision failed to take relevant consideration into account in the exercise of power.
5. That the making of decision was improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
6. That in the mentioned decision and hearing by the Migration Review Tribunal, the Tribunal Member, as the delegated decision maker for the Minister for Immigration and Border Protection, made the decision to affirm the decision to not grant me my Class TU visa before allowing me to present critical evidence in my defence. The conclusion of the decision was made by inference.
7. That the Tribunal Member failed to take into account critical information presented to the hearing.
8. That the Tribunal Member failed to take into account critical information that the Department of Immigration held.
There is no identifiable jurisdictional error that arises from the content in paragraphs 4–8 referable to the decision of the Tribunal in the finding of fact of non-compliance by the applicant in not satisfying cl.572.211(3) and not meeting the requirements of cl.572.211 of Schedule 2 of the Migration Regulations 1994. Mr Geering sought to advance that there was some issue concerning the interpreter that somehow gave rise to the issue of a kind raised in SZRMQ v the Minister of Immigration and Border Protection [2013] FCAFC 142, at [9]-[10].
It is clear from the Tribunal’s decision that the applicant appeared before the Tribunal on 9 February 2015 to give evidence and present arguments, and that hearing was conducted with the assistance for the applicant of an interpreter. There is no substance in the un-particularised matter in respect of which it was alleged there was some issue referable to the Japanese interpretation. There is no substance in the alleged failure by the Tribunal to properly exercise its powers in relation to the review. I am clearly satisfied that the Tribunal conducted a review that was fair and just and in compliance with the statutory scheme.
It was suggested that the Tribunal failed to take into account critical information, being a letter dated 11 July 2014, allegedly sent by AEC Education Migration Pty Limited. That proposition has no substance. That letter does not change the position in any respect in relation to the issue of non-compliance that was before the Tribunal. It is clear that that the letter was material to which the Tribunal had regard. The letter does not established that the applicant in fact was the holder of a visa within the 28 days or the making of a visa application within the 28 days of the last substantive visa expiring. That visa expired on 5 May 2014.
The letter dated 11 July 2014 cannot possibly explain the want of compliance prior to the expiry on 5 May 2014. Mr Geering was unable to advance any proposition that identified how that 28 day period was complied with. In this case, the Tribunal relevantly found:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 August 2014 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
…
3. The criteria for the grant of a Subclass 572 visa are set out in Part 572 of Schedule 2 the Regulations. Relevantly to this case they include cl.572.211. Broadly speaking, for visa applications made in Australia, it requires the applicant to be the holder of a substantive visa or to have made the visa application within 28 days of the last substantive visa ceasing.
4. The delegate refused the visa on the basis that the applicant did not satisfy the requirements of cl.572.211 because the applicant applied for a student visa on 14 July 2014, the previous visa he held was a UD-601 visa that ceased on 5 May 2014. As he was not the holder of a substantive visa at the time of application, and the last substantive visa held was not one of those listed in the regulations, he did not meet the requirements of 572.211.
5. The applicant appeared before the Tribunal on 9 February 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages.
…
7. At hearing the Tribunal described the requirements of cl.572.211, and that his previous visa, a UD-601 ceased on 5 May 2014 and he did not apply for a further visa until 14 July 2014. I noted that it did not appear he was on a substantive visa at the time of application, nor on a visa proscribed within 572.211(3)(b). nor was the application made within 28 days.
8. He said the reasons he did not apply is because he had a medical check and he did not receive his CoE until 20 May 2014. I noted that the applicant did not have a discretion in this matter
9. The issue in the present case is whether the applicant satisfies cl.572.211. That criterion requires that if the visa application is made in Australia, the applicant holds a specified substantive visa at that time, or alternatively, if not such a visa holder:
· the last substantive visa held was of a specified type, which relevantly includes a student visa: cl.572.211(3)(b); and
· the visa application was made within 28 days after the day when that last substantive visa ceased to be in effect; or if that last substantive visa was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation – the later of the day when that last substantive visa ceased to be in effect and the day when the applicant is taken to have been notified of the Tribunal’s decision: cl.572.211(3)(c); and
· the applicant satisfies Schedule 3 criterion 3005: cl.572.211(3)(d).
10. In this case, the visa application was made in Australia, and the evidence before the Tribunal is that the applicant did not hold a substantive visa of a type specified in the criteria. As such, the applicant must meet the requirements of subclause (3) set out above.
11. The last substantive visa held by the applicant was a UD-601 visa which does not meet the requirements of cl.572.211(3)(b) and in any event the application was not made within 28 days as required by cl.572.211(3)(c). In making this decision the Tribunal has considered the evidence of the applicant but has no discretion in this matter.
12. On the basis of the above, the Tribunal finds that the applicant does not satisfy cl.572.211(3), and therefore, does not meet the requirements of cl.572.211 of Schedule 2 to the Regulations.
13. For applicants in Australia who do not hold a substantive visa at the time of visa application, the other subclasses within the Class TU visa class have a requirement that is the same as cl.572.211(3). For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses.
I am clearly satisfied there is no jurisdictional error in respect of the decision of the Tribunal, nor was there any relevant adverse impact in relation to the assistance of the applicant by an interpreter, given the nature of the issues in this case. It is clear that in the present case, the decision-making process was fair and that the applicant had a genuine hearing. 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: 9 April 2015
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