SINGH v Minister for Immigration and Anor (No.2)

[2014] FCCA 1284

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR (No.2) [2014] FCCA 1284

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – temporary partner visa – whether application raises arguable case for relief.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Migration Act 1958 (Cth), ss.474, 476

Migration Regulations 1994 (Cth), Schedule 2, cl.820.211(2)(c)

Minister for Immigration & Multicultural Affairs v Yusuf & Anor (2001) 206 CLR 323; [2001] HCA 30
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
WZANI v Minister for Immigration & Citizenship [2009] FCA 526

Applicant: ISHWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 188 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 20 June 2014 (by video-link to Melbourne)

Date of Last Submission: 20 June 2014

Delivered at: Perth

Delivered on: 20 June 2014 (by video-link to Melbourne)

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: Mr J Hutton

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application be dismissed under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. That the applicant pay the first respondent’s costs in the sum of $2900 by 30 September 2014.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

MLG 188 of 2014

ISHWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited extempore reasons)

Application

1. The applicant in these proceedings applies for an order that the respondents, the Minister for Immigration & Border Protection (“Minister”), and the Migration Review Tribunal (“Tribunal”), show cause as to why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) in respect of a decision of the Tribunal (“Tribunal Decision”) of 8 January 2014 affirming a decision of a delegate of the Minister (“Delegate’s Decision” and “Delegate” respectively) not to grant the applicant a Partner (Temporary) (Class UK) visa (“Temporary Partner Visa”).

Grounds of application

1. The sole ground of the application is as follows:

   I am not satisfied with MRT Decision on my application and therefore I want to appeal against the Decision In the Federal Court

2. The application seeks a final order that the Tribunal Decision be quashed.

Response

1. The Minister responded by filing a response on 14 February 2014 asserting that the Delegate’s Decision was not affected by jurisdictional error, and seeking an order for dismissal of the application with costs.

2. The Tribunal filed a Notice of Address for Service on 14 February 2014 submitting to any order of the Court, save as to costs.

Amended response

1. The Minister filed an amended response on 2 May 2014 opposing the application for an order to show cause on the basis that the application did not raise an arguable case for relief.

Registrar’s orders

1. On 7 May 2014 a Registrar of the this Court made orders, by consent, as follows:

   1.Pursuant to r 44.11(c) of the Rules, the matter be listed for a ‘show cause’ hearing under r 44.12 of the Rules, on 20 June 2014 at 10:00am before Judge Riley.

   2.On or before 23 May 2014, the applicant file and serve written submissions.

   3.On or before 6 June 2014, the first respondent file and serve written submissions.

   4.Costs be reserved.

2. Due to Judge Riley’s indisposition the matter is being heard by the Court differently constituted.

3. The applicant has not filed or served any written submissions.

4. On 5 June 2014 the Minister filed contentions of fact and law in which the Minister simply says that the application fails to raise an arguable case and should be dismissed under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”).

Provisions of the FCC Rules

1. Rules 44.12 and 44.13 of the FCC Rules provide as follows:

   44.12     (1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed--dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed--adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

   44.13    (1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.

   (2)  At a final hearing following a hearing under rule 44.12, the applicant is confined to the grounds specified in the Court's order to show cause.

Consideration

1. The sole ground of the application does not identify any error capable of review by this Court. This Court can only review the Tribunal Decision if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2. No jurisdictional error is either alleged or identified in the sole ground of the application for judicial review.

2. An error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material;

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf & Anor (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ (“Yusuf”); WZANI v Minister for Immigration & Citizenship [2009] FCA 526 at paras.19-21 per Barker J.

3. The sole ground of the application does not allege an error in the Tribunal Decision of the type identified in Yusuf, and the application therefore cannot succeed.

4. Furthermore, in submissions today the applicant took the matter no further than indicating dissatisfaction, save to the extent that he arguably raised, in a very general way, his lack of English as the cause of his inability to succeed before the Tribunal. That, however, cannot be a reason for any alleged error by the Tribunal because the applicant did not appear at the Tribunal hearing.

5. In the circumstances, it is unnecessary to have regard to the Tribunal’s Decision record, although, without making a final finding as to whether or not it is affected by jurisdictional error, a perusal of the Tribunal’s Decision record reveals no jurisdictional error apparent on the face of the Tribunal Decision. The applicant’s sponsor having withdrawn sponsorship of the applicant there was seemingly no other decision for the Tribunal to make other than the one that it made: Migration Regulations1994 (Cth), Schedule 2, cl.820.211(2)(c).

6. In the circumstances, the Court is satisfied that the application raises no arguable case for the relief claimed.

Conclusion and order

1. As indicated above, the Court is satisfied that the application raises no arguable case for the relief claimed. It follows that there will be an order that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules.

2. The Court will follow the usual rule as to costs, and therefore orders that the applicant pay the first respondent’s costs in the sum sought of $2900, with extended time to pay, to 30 September 2014, having regard to the applicant’s circumstances.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  20 June 2014