Wong v Minister for Immigration

[2013] FCCA 983

FEDERAL CIRCUIT COURT OF AUSTRALIA

WONG v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 983

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – no arguable case for relief raised – impermissible merits review – application dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:  
Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001 (Cth), rr.44.11(a), 44.12(1)(a)

Attorney-General (NSW) v Quin (1990) 190 CLR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: NGAI CHUN WONG

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1455 of 2013

Judgment of: Judge Lloyd-Jones

Hearing date: 30 July 2013

Delivered at: Sydney

Delivered on: 30 July 2013

REPRESENTATION

The Applicant: The Applicant appeared in person with the assistance of a Mandarin interpreter

Solicitor for the First Respondent: A. Lal of Sparke Helmore

The Second Respondent: The Second Respondent filed a submitting notice of appearance

ORDERS

1. The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs & Citizenship”.

2. The application be set down for an immediate show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The application filed on 27 June 2013 is dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

4. The applicant is to pay the first respondent’s costs of and incidental to the application fixed in the sum of $1,331.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1455 of 2013

NGAI CHUN WONG

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 27 June 2013 by the applicant, Ngai Chun Wong, seeking review of a decision of the Migration Review Tribunal (the “Tribunal”) made on 30 May 2013, affirming the decision of a delegate of the first respondent, the Minister for Immigration, Multicultural Affairs and Citizenship (the “Minister”) not to grant the applicant a Tourist (Class TR) visa.

2. The Application sought an order quashing the decision of the Tribunal on the following grounds:

   1.  I am genuine visitor for the travelling in Australian then DIAC should grant my tourist visa which I applied for.

   2.  Base on this reason, MRT should remit my case to DIAC to grant my tourist visa.

3. The Minister, in its response filed on 10 July 2013, relies on the following grounds in its opposition to the application:

   1.  The application for judicial review does not establish any jurisdictional error in the decision of the Migration Review Tribunal dated 30 May 2013.

   2. The application for judicial review does not raise an arguable case for the relief claimed and should be dismissed pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001.

   3.  The application invites the Court to undertake a review of the merits of the Tribunal’s decision.  To engage in fact finding about the merits of the applicant’s case is no part of the function of the Court: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v MIMIA [2004] FCAFC at [10].

Consideration

1. The matter was set down for a First Court Date directions hearing on 30 July 2013.  I indicated that the grounds pleaded in the Application sought impermissible merits review.  Their Honours Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited with approval his Honour Brennan J in Attorney-General (NSW) v Quin (1990) 190 CLR 1 at 35-36 where his Honour stated:

   The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

   Accordingly, the two grounds pleaded in the Application cannot be sustained and should be dismissed. 

2. The Tribunal’s Decision Record at [3] states the following:

   3.  According to the [delegate’s decision], the delegate decided to refuse to grant the visa on 18 December 2012, on the basis that the visa applicant did not meet cl.676.221(2)(a).  The delegate recorded that when the visa applicant arrived in Australia on 6 October 2012, she declared at an airport interview that she intended to stay in Australia for only one week for a holiday, and that her family was in Hong Kong.  At the time of the delegate’s decision she had been in Australia for 10 weeks.  As the length [of] her stay had significantly exceeded her original declared period of stay, and no other intention in regard to her stay in Australia had been declared, the delegate was not satisfied her original declarations at the interview were correct …

   I note that the applicant has now been in Australia for a period exceeding 9 months. 

3. On a fair reading of the Tribunal’s Decision Record, there is no jurisdictional error apparent. 

4. Rule 44.11(a) of the Federal Circuit Court Rules 2001 (Cth) states:

   Without limiting rule 10.01, at the first court date for an application for an order to show cause, the Court or a Registrar may give orders or directions for any of the following:

   (a)     an immediate hearing under rule 44.12;

   …

5. Rule 44.12(2)(a) of the Federal Circuit Court Rules 2001 (Cth) states:

   (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

   …

6. Accordingly, the matter was set down for immediate hearing on 30 July 2013. As no arguable case for relief was made out the Application should be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules with costs awarded to the first respondent in the scale amount.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date:  30 July 2013