Siddiqui v Minister for Immigration

[2014] FCCA 2411

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIDDIQUI v MINISTER FOR IMMIGRATION [2014] FCCA 2411

Catchwords:
MIGRATION – No arguable case – procedural fairness – costs ordered.

Applicant: MOHAMMAD WASIM SIDDIQUI

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: DNG 20 of 2014

Judgment of: Judge Harland

Hearing date: 17 September 2014

Date of Last Submission: 17 September 2014

Delivered at: Darwin

Delivered on: 17 September 2014

REPRESENTATION

The Applicant: In Person

Counsel for the Respondent: Ms Newman

Solicitors for the Respondent: Clayton Utz

ORDERS

1. (1) The application is dismissed pursuant to rule 16.01 of the Federal Circuit Court Rules 2001.

2. (2) The applicant pay the costs of the respondent fixed in the sum of $6646 in accordance with Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001.

(1)    FEDERAL CIRCUIT COURT OF AUSTRALIA

AT darwin

DNG 20 of 2014

MOHAMMAD WASIM SIDDIQUI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. 1.  These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. 2.  This is an application for judicial review of the respondent’s decision to refuse the applicant’s application for a student visa.  The applicant appeared for himself today.  He had not filed an amended application or affidavit or any written submissions in accordance with the interim consent orders entered into by him and the respondent on 18 June 2014.  His application for review does not disclose any basis for review and simply seeks that a student visa be granted.  It is clear that his documents do not reveal any arguable case.

2. 3.  The applicant referred to his personal circumstances being unable to obtain legal advice due to the costs of private lawyers and the unavailability of public assistance.  He also spoke about the hardships he had faced because of his father’s illness and subsequent death.  He conceded that the Tribunal had not made an error, but he in effect wants another chance.  As I explained to the applicant, the proceedings before me are for a judicial review and not a review on its merits.  So judicial reviews are quite limited in looking for some sort of legal error made by the Tribunal.  The typical arguments that are raised in judicial reviews relate to a lack of procedural fairness or that some relevant factor was not taken into account or that an irrelevant factor was taken into account by the Tribunal.

3. 4.  I have read the court book and I have read the applicant’s application and affidavit and the written submissions by the respondent.  The respondent sets out in detail in her written submissions the requirements for the granting of a student visa and the history of the proceeding, and in my view, sets those out helpfully and accurately. When the applicant appeared before the delegate, the delegate was not satisfied that the applicant met the criteria because he had been asked to provide documents and provide an explanation about his academic process and had not done so.  On 4 February 2014 the Tribunal invited the applicant to appear at the hearing and to produce documents including:

   1. 1) Certificate of enrolment as required by the regulations.

   2. 2) Statement that he was enrolled in a registered course from 6 December 2009 to 17 March 2011 and 16 July 2011 to 25 June 2012.

   3. 3) Evidence that he had satisfied the requirements set out in clause 572.223(2)(a) of the regulations.  The letter included an extract of the regulations.  The Tribunal sent a further request.

4. 5.  The applicant then filed an application for review, and on two occasions asked for an adjournment because his father was extremely ill and later died.  The applicant was granted the adjournments on two occasions.  The applicant then appeared by phone before the Tribunal for the hearing.  It is clear from the court book and the Tribunal’s decision that the applicant was given multiple written notices on multiple occasions that he had not supplied the required information and documents needed to assess his application.

5. 6.  It could not be said that the applicant was not on notice that he had not supplied the required information before the Tribunal, and it is of some significance that he has been in Australia for some years and been on student visas previously.  Therefore the process could not be new to him.  I am satisfied that the applicant was given procedural fairness and was given more than one opportunity to rectify the defects in his application and has not done so.  There is nothing in the decision of the Tribunal that reveals any error of law, and in my view, it was inevitable that the delegate and the Tribunal reached the decisions that they reached because without the applicant supplying the required documents and information, the delegate and the Tribunal could not be satisfied that the applicant met the legislative requirements for a student visa.

6. 7.  The outcome of the judicial review is also inevitable.  I dismiss the application with costs.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:       21 October 2014