SHRESTHA v Minister for Immigration

[2015] FCCA 868

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 868

Catchwords:
MIGRATION – Migration Review Tribunal – Visitor (Class FA) visa – bogus document – purposeful falsity – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, s.476

Migration Regulations 1994, Schedule 3, criterion 3004(c), cl.600.411

Spencer v the Commonwealth of Australia (2010) 241 CLR 118
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42

Applicant: RAJAB SHRESTHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 555 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

The Applicant appeared in person

Solicitors for the Respondent: Mr L. Dennis
Mills Oakley

ORDERS

1. Proceedings be summarily dismissed.

2. Applicant pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 555 of 2015

RAJAB SHRESTHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the course of jurisdiction under s.476 of the Migration Act 1958 in respect of a decision made on 11 February 2015 affirming a decision of the delegate not to grant the applicant a Visitor (Class FA) visa.  The application is identified by the following grounds:

   1. The Migration Review Tribunal acted contrary to the evidence before it and misapplied the law.

   2. The Tribunal had evidence that I complied with the visitor visa granted before yet failed to understand that my intention to extend my visitor visa is genuine and that I genuinely intend to extend my visa to support my wife and son.

   3. The Member of the Tribunal misunderstood my case.

2. Under the first Court date of the application, the last sentence states:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

3. The Court indicated to the applicant it was concerned that the application failed to disclose an arguable jurisdictional error and that the Court was minded to consider whether the matter should be the subject of summary disposal under the Court’s powers under s.17A(Federal Circuit Court Act 1999) and r.13.10(Federal Circuit Court Rules 2001).  I take into consideration in respect to the Court’s summary dismissal powers under s.17A and r.13.0, the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

4. The applicant identified that his wife had not been able to give evidence to the Tribunal and that she had future potential surgery and that he wished to obtain a lawyer and wished an adjournment so that he could identify grounds upon which he could challenge the decision.  The applicant maintained that the Tribunal had made errors of the kind identified in the application.

5. There is no substance in relation to ground 1 and the findings made by the Tribunal were clearly open.  Ground 2 is an impermissible challenge to the findings of fact made by the Tribunal which were open on the material before the Tribunal.  There is no substance in ground 3.

6. Relevantly in this case, the Tribunal identified that the delegate refused to grant the visa on the basis the applicant did not meet cl.600.223 because he did not satisfy Schedule 3, criterion 3004(c) of the Migration Regulations 1994 as he has applied for the visa after his last substantive visa had ceased.  The delegate was not satisfied that the applicant’s wife became a person in Australia without a substantive visa because of factors beyond his control. 

7. The issue before the Tribunal was whether the applicant meets cl.600.411 which requires the applicant to satisfy the Minister that the applicant generally intends to stay temporarily in Australia for the purpose for which the visa is granted.  The applicant appeared before Tribunal on 10 February 2015 to give evidence and present arguments.  The Tribunal identified that the applicant’s wife and son reside in Australia and that the applicant arrived most recently on the subclass visitor visa on 24 October 2013.

8. The Tribunal clearly put to the applicant that one of the relevant issues for the Tribunal to consider was whether the applicant generally intends to stay temporarily in Australia for the purpose for which the visa is granted and whether he meets cl.600.411.  The Tribunal referred to the relevant evidence:

   12. In relation to his immigration history, the applicant stated that he has already been to Australia 4 or 5 times on a tourist visa in the past 4 years to see his wife. He has only been granted a visa for about 3 months each time. He has twice applied to have condition 8503 (‘no further stay’) lifted. Once it was successful, but the second time he was unsuccessful and had to return to Nepal and reapply for another tourist visa. He has applied 3 times for a further visitor visa while onshore.

   13. The applicant advised that he has no immediate family in Nepal. He has one brother in Australia and a sister in the United States. He claimed that he operated his own website development business in Nepal. The business was still being run while he has been in Australia and is being operated by his business partner and staff. He owns two properties. One is rented out and the other is locked up.

   14. The Tribunal put to the applicant its concerns that given his history, personal circumstances, his evidence that he did not want to return to Nepal and the length of his proposed stay, it had concerns that the applicant did not intend to stay temporarily in Australia. The applicant stated that he was happy to go back to Nepal but his wife did not want to return.

9. The Tribunal then turned to consider the findings to be made on the material before it and relevantly found:

   15. In the present case, the applicant seeks the visa for a purpose that is not related to business or medical treatment. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

   16. In considering whether an applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)). The last substantive visa held by the applicant was a tourist visa. There is no evidence before the Tribunal that the applicant failed to comply with the conditions of his last held tourist visa or any subsequent bridging visa.

   …

   19. In this case, the Tribunal is not satisfied that the applicant genuinely intends to stay in Australia for tourism purposes having regard to the applicant’s intention to comply with visa conditions (in particular, condition 8503), and other relevant matters. The Tribunal makes this finding based on the applicant’s evidence at the hearing and the other evidence provided to the Tribunal. Based on this evidence, the Tribunal finds that the applicant has strong ties in Australia. His wife and son reside in Australia. His wife has lodged an application for permanent residency and has stated that she will not leave Australia at this time. His brother also lives in Australia.

   20. The applicant expressed a strong desire at the hearing to remain in Australia for an indefinite period to look after his wife and son. His wife is on a waitlist for surgery and will require pre and post-operative care. The Tribunal has concerns that the applicant’s proposed stay is 12 months when he has already been in Australia since October 2013. The Tribunal finds that the applicant’s proposed length of stay and the purpose of his stay is not consistent with a genuine intention to remain temporarily in Australia. It is consistent with a longer term stayto provide ongoing care and support to his wife and son.

   …

   22. The Tribunal finds that the applicant’s immigration history demonstrates that does not genuinely intend to stay temporarily in Australia for tourism purposes. He has already been to Australia 4 or 5 times on visitor visas. He has applied to have condition 8503 lifted twice. He has applied three times for a further tourist visa while onshore. This history demonstrates that the applicant is effectively attempting to establish residence in Australia.

   23. Given the applicant’s immigration history, his strong ties in Australia, his limited ties in Nepal and the purpose and duration of the proposed stay, the Tribunal does not accept that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. For the above reasons the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that he does not meet the requirements of cl.600.211.

10. It was for those reasons that the Tribunal affirmed the decision of the delegate.

11. The findings made by the Tribunal were open on the material before it and the review is not one in which there is any arguable jurisdictional error.  The applicant was afforded a genuine hearing.  The findings cannot be said to lack evident and intelligible justification.  I am clearly satisfied that the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  13 April 2015