Z v Minister for Immigration - [2008] FMCA 606

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Z v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 606

MIGRATION – Review of Migration Review Tribunal decision – cancellation of a student visa – Tribunal finding that it lacked jurisdiction as the Tribunal had reviewed the decision previously – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.48, 91X, 137J, 359A, 417

Applicant:

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 655 of 2008

Judgment of:

Driver FM

Hearing date:

12 May 2008

Delivered at:

Sydney

Delivered on:

12 May 2008

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms A Crittenden
Clayton Utz

INTERLOCUTORY ORDERS

The Court directs that the transcript of today’s hearing is to be obtained and placed on the court file.
The Court directs that the applicant’s name is not to appear on the transcript of proceedings.
The Court directs that the applicant’s name be anonymised in accordance with s.91X of the Migration Act 1958 (Cth).
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 655 of 2008

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Migration Review Tribunal (“the MRT”). The decision was made on 21 February 2008 and communicated to the applicant by letter of the same date. The Tribunal found that it lacked jurisdiction in the matter.
The applicant had applied to the MRT on 7 November 2007. The background to that application is that the applicant applied for a student visa on 7 March 2002 and the visa was granted on 29 May 2002. The applicant was notified that the delegate of the Minister was considering cancelling his visa and a cancellation decision was made on 9 September 2003. The applicant sought review of the delegate's decision before the MRT on 17 September 2003 and that decision was affirmed by the MRT on 19 December 2003. There is no evidence of any appeal to a court against that decision of the MRT.
On 9 July 2004 the applicant applied to the Minister's Department for a protection visa. A delegate of the Minister refused that application on 19 July 2004. The applicant sought review of that decision before the Refugee Review Tribunal (“the RRT”) on 18 August 2004 and on 9 December 2004 the RRT affirmed that decision. The applicant unsuccessfully appealed to this Court and the Federal Court against that decision of the RRT. He also unsuccessfully sought ministerial intervention under s.417 of the Migration Act 1958 (Cth) (“the Migration Act”).
The MRT decision also records that on 22 June 2007 the applicant lodged an application for a skilled independent migrant (class BN) visa. The MRT records that the Department found that application invalid pursuant to s.48 of the Migration Act. The applicant then sought review before the MRT.
The present proceedings began with a show cause application filed on 18 March 2008. That application is supported by an affidavit which simply annexes the decision of the MRT and some other documents relating to the applicant's academic record. The applicant continues to rely upon that show cause application. I gave the applicant the opportunity to file and serve an amended application and additional affidavit evidence, but he did not take up that opportunity. The only evidence I have before me, apart from his original affidavit, is the court book filed on 21 April 2008.
The show cause application discusses court decisions and refers to s.137J of the Migration Act. The applicant appears to be contending that his student visa should not have been cancelled and that the MRT was wrong in not giving him a further opportunity to argue that the cancellation decision was wrong. It might have been thought that the review application made on 7 November 2007 was an attempt to review the most recent decision of the Department apparently made on 22 June 2007 on the applicant's application for a skilled independent migrant (class BN) visa. The review application appears in the court book commencing at page 104. That is a confusing document. On page 109 of the court book the applicant has ticked the box stating that he has attached a copy of the relevant departmental decision, but the document apparently attached appearing on pages 120 and 121 of the court book is a letter relating to his protection visa application. The applicant has also ticked the box saying that he was seeking review of a decision to refuse to grant a visa.
Apart from the protection visa decision, the only other decision to refuse to grant a visa was the decision made on 22 June 2007. However, on page 109 of the court book, in his review application, the applicant identified the visa class that he was refused as TU student subclass 573P740. The MRT took that to mean that the applicant was attempting for a second time to have the MRT review the student visa cancellation decision. The MRT discussed the law relating to that issue and found that the MRT had no jurisdiction to review the cancellation decision a second time. To the extent that the review application was an attempt to have the cancellation decision further reviewed, the MRT was undoubtedly correct. The MRT had already discharged its functions in relation to that cancellation decision in 2003 and there was no court challenge to that MRT decision. Obviously, the MRT had no jurisdiction to review the protection visa refusal that had already been dealt with by the RRT, this Court and the Federal Court.
It is unfortunate that the MRT did not consider the possibility that the applicant was seeking in the review application to review the refusal to grant him a skilled independent migrant visa pursuant to s.48. It may have been the case that that was not an MRT reviewable decision pursuant to Migration regulation 4.02(4), but the issue ought properly to have been considered if it had been raised by the applicant. The fact is that his review application was ambiguous.
I pressed the applicant during oral argument to tell me what he was seeking review of before the MRT in his most recent application. I made clear to him what the issue was that I was interested in. He was adamant that he was seeking to have the MRT review the student visa cancellation decision. On that basis there was no jurisdictional error by the Tribunal.
I have also considered whether the applicant was in some way intending to ask this Court to review the departmental decision to refuse to grant the skilled independent migrant visa. However, the show cause application is entirely silent on that issue and the applicant confirmed in oral argument that what he is seeking is fresh consideration of the cancellation of his student visa.
The applicant did raise in legal argument the proposition that he had been misled by his migration agent. He said that he had been misled by his migration agent leading to him missing a hearing opportunity before the MRT. There was no hearing opportunity in relation to the MRT decision made on 21 February 2008. Neither was there any hearing opportunity in relation to the first MRT decision made in 2003. That was because the applicant had failed to respond to an invitation to comment on information apparently issued pursuant to s.359A of the Migration Act (see court book, page 15).
The applicant then asserted that his agent had also misled him in relation to that request. However, when I asked him to expand on that assertion he said that he had been encouraged to make various visa applications because this would enable him to stay in Australia. He said that his agent told him that he (the agent) would complete the necessary forms. To that extent, the agent appears to have done what was expected of him. The applicant has been in Australia since 1999 and has made various applications that have permitted him to remain here for that period. There is no evidence before me of fraud on the part of the applicant's migration agent, if indeed he had one.
There is, in my view, no arguable case of jurisdictional error in relation to the MRT decision that it had no jurisdiction to review a second time the delegate's decision to cancel the applicant's student visa.
I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules2001 (Cth).
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $1,600. Scale costs in this instance would be $2,500. The applicant did not wish to be heard on costs. 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 $1,600.
I will direct that the transcript of today’s hearing is to be obtained and placed on the court file. I will also direct that that the applicant’s name is not to appear on the transcript of proceedings and that the applicant’s name be anonymised in accordance with s.91X of the Migration Act.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 14 May 2008