Shrestha v Minister for Immigration

[2014] FCCA 2610

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2610

Catchwords:
MIGRATION – Review of Migration Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: SHANTI SHRESTHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2707 of 2014

Judgment of: Judge Driver

Hearing date: 13 November 2014

Delivered at: Sydney

Delivered on: 13 November 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Hillary of DLA Piper

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,700.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2707 of 2014

SHANTI SHRESTHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 29 September 2014 seeking review of a decision of the Migration Review Tribunal (Tribunal).  The Tribunal decision was made on 17 September 2014.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant, Ms Shrestha, a temporary partner visa. 

2. Ms Shrestha was born in 1976 in Nepal.  She arrived in Australia on a subclass 420 visa that ceased on 20 March 2010.  She subsequently applied for a protection visa, ministerial interventions and a medical treatment visa.  It appears that the process of dealing with those applications was protracted, but Ms Shrestha was ultimately unsuccessful.  Her last bridging visa ceased on 26 June 2014 after which Ms Shrestha became an unlawful non-citizen.  On 21 July 2014, Ms Shrestha was detained by an officer of the Minister’s Department and remains in detention at the Villawood Detention Centre. 

3. Ms Shrestha applied for the partner visa on 30 July 2014.  This visa was sought on the basis of an asserted de facto relationship with a gentleman called Manuel Bechara.  Mr Bechara was born in 1956 in Lebanon.  Ms Shrestha claimed that she and Mr Bechara met on 10 January 2013 and commenced a de facto relationship on 11 March 2013.

4. The Minister’s delegate refused to grant the visa on 14 August 2014.  The delegate’s decision was based on the finding that Ms Shrestha did not satisfy clause 820.221 of the visa criteria.  In particular, the delegate found that there was no compelling reason to not apply the criteria on the grant of the visa set out in schedule 3.  Ms Shrestha sought review by the Tribunal and was invited to attend a hearing, which she did attend on 17 September 2014.  Mr Bechara did not attend that hearing.  The Tribunal questioned Ms Shrestha about the asserted de facto relationship.  Ms Shrestha was frank in admitting the weaknesses in her claim.

5. Ms Shrestha and Mr Bechara have never lived together.  Indeed, it appears that at the time of the Tribunal hearing he was married and living with his wife and children.  There was no evidence of any sharing of financial resources between Ms Shrestha and Mr Bechara.  At the time of the Tribunal hearing, Mr Bechara had only visited Ms Shrestha once at the detention centre.  Ms Shrestha advanced reasons why the Tribunal should waive the schedule 3 requirements bearing upon the visa decision.  These included asserted medical conditions and her fear of the Maoists in Nepal.  The Tribunal found that Ms Shrestha and Mr Bechara were not in a de facto relationship.  The Tribunal found that she and Mr Bechara are simply friends.  In view of that finding, the Tribunal considered it unnecessary to go on to consider the schedule 3 criteria. 

6. In these proceedings, Ms Shrestha continues to rely upon her show cause application filed on 29 September 2014.  The grounds in that application are unhelpful.  The first ground asserts incorrectly that the Tribunal accepted the claimed de facto relationship.  That ground also asserts incorrectly that despite that supposed finding, the Tribunal failed to waive the schedule 3 criteria.  As I have already noted and as I explained to Ms Shrestha at today’s hearing, the Tribunal rejected the claimed relationship and did not consider it necessary to consider the schedule 3 criteria at all.

7. The second ground is simply a promise to provide a transcript of the Tribunal hearing, which promise has not been fulfilled. 

8. The application is supported by a short affidavit which I received. 

9. I also have before me as evidence the court book filed on 29 October 2014. 

10. In my opinion, the judicial review application before the Court is hopeless.  It appears to confuse the decision of the delegate with the decision of the Tribunal.  Even in relation to the delegate’s decision, it does not appear that the delegate made any positive finding that Ms Shrestha and Mr Bechara were in a de facto relationship.  On the material before the Tribunal, it would have been impossible for the Tribunal to make a positive finding.  To be frank, the visa application was doomed to fail on the basis of the material available.  Likewise, the judicial review application before me is doomed to fail. 

11. I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

12. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $2,700.  Ms Shrestha did not wish to be heard on costs. 

13. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,700.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  25 November 2014