Judiciary Act 1903 (Cth), s.39B

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.16

Jankovic v Minister for Immigration [1994] FCA 1316; (1995) 56 FCR 474

Kumaraperu v Minister for Immigration 88 FCR 381

Nguyen v Minister for Immigration 88 FCR 206

Samad v District Court NSW [2002] HCA 24; (2000) 209 CLR 140

X v Commonwealth [1999] HCA 63; (1999) 200 CLR 177

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

(2) The applicants to pay the respondent's costs assessed in the sum of $5,100.

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

1. This is an application invoking the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth) which confers "the same jurisdiction as the Federal Court in relation to a matter arising under" the Migration Act. In effect, this gives the Court a judicial review jurisdiction over migration decisions under s.39B of the Judiciary Act 1903 (Cth).

2. Limitations on the jurisdiction arising under Part 8 of the Migration Act have been held by the High Court not to apply if the challenged decision of a Tribunal was made as a result of jurisdictional error. Only by making out such an error can an application such as the present succeed.

3. The present applicants seek review of a decision of the Migration Review Tribunal given on 17 November 2003 which affirmed a decision by a Delegate to refuse an application for a Special Eligibility (Residence) (Class AO), Subclass (Close Ties) 832 visa.

4. In its reasons the Tribunal sets out the background to the making of the visa application by the two applicants. They are elderly people who were born in Fiji and spent most of their life in Fiji. The first named applicant came to Australia on a one month tourist visa in 1991. She departed in 1991 and returned in 1995 with her spouse, the second named applicant, and has remained here ever since. They returned as the holders of visitor's visas which have expired.

5. As the Tribunal recounts, during their time in Australia the visa applicants have lodged numerous applications for permanent residency, including prospective spouse and aged parent visas on 19 June 1995, a protection visa on 31 July 1998, a family subclass 806 visa on

14 September 1998, and an application on remaining relative grounds on 18 February 2000. All these applications were unsuccessful. The applicants have also unsuccessfully appealed to the Minister for discretionary intervention on three occasions after failing before a Review Tribunal.

6. The present class AO visa application was lodged on 5 October 2001. It was refused on 24 April 2003. The matter then was appealed to the Migration Review Tribunal within the time specified, and the appeal to this Court was brought within a short time of the Tribunal decision.

7. The applicants filed their original application in the Court without legal assistance, although in their dealings with the Delegate and in the Tribunal they had been represented by a migration agent and had received the assistance of that agent. It also seems that in the past they have received advice and assistance from at least one migration lawyer.

8. While the proceedings were on foot in this Court the applicants also received legal assistance, and at one stage a formal appearance was filed by a solicitor who filed an amended application on 17 June 2003. This was competently drafted by a lawyer showing a proper understanding of the principles of judicial review - something that is rare in this jurisdiction. The solicitor later ceased to act for the applicants, and notice of this was filed on 16 September 2004 shortly before the hearing.

9. The applicants today have appeared and have been accompanied by their son, Arun Prasad, who speaks English. An interpreter was present to interpret the proceedings to the two applicants and they indicated that they wished their son to make submissions on their behalf, and he has done so. The Court also had a written submission which Mr Prasad prepared with the assistance of a friend, and I have taken into account the four letters contained within that submission. Several of its submissions do, however, go to humanitarian aspects of the case which have no bearing on the decision which I have to make.

10. On behalf of the applicants, Mr Prasad requested the Court to address the grounds for review set out in the amended application referred to above. I have done so, also forming the opinion that there was no other ground that could properly have been put forward on their behalf.

11. The pleaded grounds for judicial review focus on a procedure which was followed by the Migration Review Tribunal under Part 5 of the Migration Act. Under s.359A(1) the Tribunal was obliged to give to the applicant "particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review" and to invite the applicant to comment upon it.

12. Under s.359A(2) this information and invitation must be given by one of the methods specified in s.379A. Section 379A(4)(c) allows the Registrar of the Tribunal to adopt a method of dating the document and then dispatching it within three working days by prepaid post to "the last address for service provided to the Tribunal by the recipient in connection with the review" or to "the last residential or business address provided to the Tribunal by the recipient in connection with the review". If that method is followed, then s.379C(4) provides that: "The person is taken to have received the document ...7 working days (in the place of that address) after the date of the document."

13. In the present case, the Tribunal posted to the visa applicant an invitation to comment on information set out in the letter in three dot points. These posed three simple facts emerging from the visa application which prima facie rendered the application for visa hopeless. The letter invited the applicant to provide written comments within 28 calendar days of the date of notification of the invitation.

14. I am satisfied on the affidavit of the Acting District Registrar that the requisite procedure for the dispatch of the invitation was followed, and that it was sent appropriately addressed to the residential address of the applicant last provided to the Tribunal.

15. Mr Prasad gave evidence to the effect that the letter had not been received at that address (which was also his home), and was cross-examined on his evidence. I was left in some doubt about his responses, but in view of the decision I have reached in the matter I do not have to reach a final conclusion about whether the invitation was or was not actually received by his parents. It is enough for me to hold that the effect of the provisions of the Migration Act set out above is that the invitation was deemed to have been received by them.

16. In that circumstance, s.359C(2) provides:

(a) is invited under section 359A to comment on information; and

(b) does not give the comments before the time for giving them has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.

and s.360 provides:

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(c) subsection 359C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

17. In its reasons for decision the Tribunal states:

14. The primary visa applicant was sent a letter on 3 September 2003 inviting the visa applicants to provide comments on information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The visa applicants did not provide comments within the prescribed period or subsequently.

15. The Tribunal is satisfied that the visa applicant was sent to an invitation to comment on the information under section 359A of the Act. The invitation was dated 3 September 2003, was sent to the last address for service and the last residential address provided by the visa applicant in connection with her application for a review. The Tribunal is satisfied that the invitation was properly sent to the visa applicant by one of the methods specified by section 379A of the Act

16. Where an applicant is invited to comment on information under section 359A and fails to provide those comments within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information (subsection 359C(2)). In these circumstances, the applicant is not entitled to appear before the Tribunal (subsection 360(3) and section 363A). The visa applicant did not provide comments within the prescribed period. The Tribunal will therefore proceed to make a decision on the review without taking further action to obtain the comments from the visa applicant and without inviting the visa applicant to appear before the Tribunal.

18. The amended application before me pleads three grounds of review in the alternative. First, it is alleged that the Tribunal misconceived the discretion given to it under s.359C(2) by believing that it was obliged to make a decision without taking further action once no response was received to the invitation for comments.

19. If the Tribunal had acted under such a construction of the section then in my view it would have made an important error of law concerning its review procedures, since in my view the Tribunal is not so bound but is given a discretion whether to take further action or whether to proceed to make a decision without taking further action. If it makes the latter decision then the effect of s.360 is that s.360(2)(c) would "apply to the applicant" and under s.360(3) "the applicant is not entitled to appear before the Tribunal." However, it would be open to the Tribunal to decide not to cause these provisions to apply, by deciding to "take further action" notwithstanding the failure to give comments.

20. I did not understand Mr Reilly for the Minister to challenge the existence of a discretion in s.359C(2), but he submitted that I should not be persuaded that the Tribunal acted under a misconception of that matter.

21. This is not easy to decide, since the Tribunal's reasoning in relation to the procedures it followed are cryptic, and it does not discuss why it decided to proceed with the review without taking further action to obtain the applicants' views on the three points upon which it had invited comment. The use of the word "therefore" in [16] (see above) might suggest an opinion that a summary approach was required by the Act, but on the other hand in the first sentence of that paragraph the Tribunal uses the word "may" and there is no reason to believe that it was not aware that this word ordinarily confers a discretion. On balance, I am not persuaded that the Tribunal made the misconception that is the basis for the first ground pleaded in the amended application for review.

22. The applicants' second ground of review is pleaded in the alternative to the first ground. It submits that, if the Tribunal did understand that it had a discretion and did purport to exercise it, then it failed to take into account relevant considerations in the exercise of that discretion, namely:

(i) The fact that the applicant wife asserted in writing that she wished to make further submissions to the Tribunal in her letter to the Tribunal dated 20 June 2003, and

(ii) the letter and chronology provided by the applicants former solicitor Mr Noel Kneale dated 9 November 2000.

23. I am satisfied that both of these documents were on the Tribunal file before the Tribunal came to make the decision. In one, a statutory declaration by the applicant dated 20 June 2003, she said: "I have requested for a copy of my file under FOI and as soon as I receive this I intend to make more submission in support of my application for review to Migration Review Tribunal." I think this intimation was something that the Tribunal was obliged to address in the course of making procedural decisions affecting the progress of the appeal to the Tribunal. The second document was a 9 November 2000 submission in support of Ministerial intervention in relation a previous application for a visa of a different class.

24. The difficulty I have with the claim that these documents were ignored by the Tribunal is that, given the circumstances referred to below which show that the applications for subclass 832 visa and for review were obviously hopeless, it is understandable that a Tribunal would adopt a fairly summary approach to its procedural discretions, and would not feel obliged to provide an extended discussion in its reasons as to how it arrived at its procedural decisions. Moreover, the applicant's suggestion that further submissions might be provided was given in June 2003, but no submissions were in fact lodged before the Tribunal came to make its decision four months later. The letter from Mr Kneale concerned matters irrelevant to the criteria for visa under consideration by the Tribunal. In all these circumstances, I am not prepared to infer from the absence of discussion by the Tribunal about what it considered when exercising its procedural discretion under s.359C(2) that the Tribunal in fact failed to take into account the contents of these documents. I am therefore not satisfied that this ground is made out.

25. The third ground pleaded in the amended application was that the Tribunal failed to provide reasons for exercising the discretion to take no further action and to proceed to make a decision without inviting the applicant to appear. In my view, the short answer to this ground is that the Tribunal was under no obligation to provide reasons for a procedural decision, and in particular no such obligation arose under s.368 of the Migration Act which requires reasons only for "the decision of the Tribunal on the review".

26. For the above reasons, I do not accept that the three grounds pleaded in the amended application are made out. However, I note that the applicant, although receiving legal assistance to formulate these grounds, has not attended the Court with legal assistance to present them to the Court, so that they necessarily have not been elaborated and debated fully before me.

27. In this circumstance, I prefer to rest my judgment on what to me is a clearer response to the judicial review application. This is that remitter of the matter for re-hearing by the Migration Review Tribunal would be futile, and that the Court should not order a futile procedure.

28. The existence of a discretion to refuse relief on this ground is supported by many authorities. For example, in Samad v District Court NSW [2002] HCA 24; (2000) 209 CLR 140 at [46], the Court refers to a discretion to refuse relief in the nature of certiorari if "the decision of Judge Herron was virtually inevitable " or "there was only one possible outcome". A comparable discretion under s.16 of the ADJR Act is referred to in X v Commonwealth [1999] HCA 63; (1999) 200 CLR 177 by Gummow and Hayne JJ (Gleeson CJ agreeing) at [112]: "No doubt showing that setting aside the decision would be futile because no different decision could lawfully be made would be reason enough to exercise the discretion against granting relief" (citing authority). Mr Reilly for the Minister also referred me to Jankovic v Minister for Immigration [1994] FCA 1316; (1995) 56 FCR 474 at 477, and other authorities are cited by Merkel J in Nguyen v Minister for Immigration (1998) 88 FCR 206 at 213 and Weinberg J in Kumaraperu v Minister for Immigration (1998) 88 FCR 381 at 397.

29. In my view there is no doubt that on the incontestable circumstances of the applicants, their application for this visa is hopeless and always has been. The criteria for the visa were set out in Sch 2 cl 832.211:

(1) The applicant meets the requirements of subclause (2) or (3).

(2) An applicant meets the requirements of this subclause if the applicant:

(a) is the holder of a substantive visa, other than a Subclass 771 (Transit) visa; or

(b) is not the holder of a substantive visa, and immediately before ceasing to hold a substantive visa, was not the holder of a Subclass 771 (Transit) visa.

(3) An applicant meets the requirements of this subclause if:

(B) was, immediately before 1 September 1994, a person to whom section 37 of the Act as in force immediately before that date applied; and

(C) has not been granted a substantive visa on or after

(ii) is a person to whom section 48 of the Act applies; and

(b) the applicant has not been refused a visa or had a visa cancelled under section 501 of the Act; and

(ii) ceased to hold an entry permit or a substantive visa before turning 18, and

(iii) immediately before ceasing to hold a substantive visa did not hold a subclass 771 (Transit) visa; and

(iv) before turning 18, spent the greater part of the period that the Minister regards as the applicant's formative years in Australia.

(1) If the applicant meets the requirements in subclause 832.211(2), the applicant meets the requirements of subclause (2), (4) or (5)

(2) A person meets the requirements of this subclause if he or she last entered Australia before 1 January 1975.

[Subclause 832.212 (3) was omitted by SR 62 of 2000, with effect from 1 July 2000]

(4) An applicant meets the requirement of this subclause if the applicant:

(b) ceased to hold an entry permit or a substantive visa before turning 18; and

(c) before turning 18, spent the greater part of that period that the Minister regards as the applicant's formative years in Australia

(5) An applicant meets the requirement of this subclause if he or she satisfies:

30. The effect of the criteria in 832.211 is that an applicant had two pathways to satisfying the criteria: either under subclause (2) or subclause (3). Under subclause (2) an applicant also must satisfy one of the requirements in cl 832.212(2), (4) or (5). The applicants in the present case plainly cannot satisfy subclause 832.212(2) because they did not last enter Australia before 1 January 1975. They cannot satisfy subclause 832.212(4) because neither of them "ceased to hold an entry permit or a substantive visa before turning 18". They cannot satisfy subclause 832.212(5) because the Sch 3 criteria in 3002 cannot be satisfied since it requires the application to be made within 12 months of ceasing to hold a substantive visa. Nor can they meet any of the criteria set out in subdivision 151.21, which is plainly aimed at persons in very different circumstances than these two applicants.

31. In relation to the alternative pathway under subclause 832.211(3), this was addressed by the delegate, in my view correctly. The applicants cannot succeed because they did not "cease to hold an entry permit or a substantive visa before turning 18" as required by (3)(c)(i).

32. In short, this class of visa has no relevance to the circumstances of these applicants at all, and whatever the compassionate and humanitarian circumstances for their staying in Australia, neither the delegate nor the Tribunal had any power to respond to their case for staying in Australia by reference to this class of visa.

33. In my view such a conclusion is inevitable if the matter were remitted and I decline to allow the Court's processes to be used to achieve that futility.

35. I order that the applicant pay the costs of the respondent in the sum of $5100.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Smith FM