Sharma v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for prerogative orders under s 39B of the Judiciary Act 1903 (Cth), principally to quash a decision of the Migration Review Tribunal (the Tribunal) made on 20 March 2003. The Tribunal affirmed a decision of a delegate of the respondent that the applicant was not entitled to a Temporary Business Entry (Class UC) Subclass 457 (Business (Long Stay)) visa (the visa) for which he had applied on 16 May 2002. Such an application can succeed only if jurisdictional error on the part of the Tribunal is established: see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 317 (Plaintiff S157/2002). 2 The respondent has applied for the application to be summarily dismissed under O 20.2 of the Federal Court Rules. That motion was listed for hearing on 18 December 2003. It was adjourned until today to give the applicant the opportunity to complete his instructions to his solicitor. He has not done so. The applicant is aware of the hearing of the notice of motion today. He has apparently chosen not to attend. In the circumstances, I propose to proceed to determine the motion for summary dismissal of the application in the absence of the applicant. 3 The application made on 28 April 2003 is in very general, and in part inappropriate, terms. It is inappropriate because it seeks a writ of certiorari directing the respondent to remove the decision of the Tribunal to this Court to be quashed. That is not a function or power of the respondent. It is inappropriate because it seeks a writ of mandamus directed to the respondent to direct the respondent to appoint a member of the Tribunal to re-hear and determine the application for the visa. Again it is not a function or power of the respondent to appoint members of the Tribunal to hear particular applications. The Tribunal is established under Pt 6 of the Migration Act 1958 (Cth) (the Act) and the way in which its powers are to be exercised is addressed in Pt 5 of the Act. It is no part of the power or function of the respondent to control the manner of exercise of the powers of the Tribunal. 4 The application, moreover, is very general in the expression of the alleged jurisdictional errors. The grounds specified in the application appear to reflect in part the grounds for review of decisions which are reviewable under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The grounds are in the following terms: '1. That a breach of the rules of natural justice occurred in connection with the making of the Decision. 2. That the Applicant was denied procedural fairness in connection with the making of the Decision. 3. That the Decision involved an error of law, whether or not the error appears on the record of the Decision. 4. That procedures that were required by law to be observed in connection with the making of the Decision were not observed. 5. That the making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made. 6. That there was no evidence or other material to justify the making of the Decision. 7. That the Decision was otherwise contrary to law.' No particularity at all is provided. Order 4 r 6 of the Federal Court Rules requires the application to be accompanied by an affidavit setting out the material facts upon which the application is based. No such affidavit was filed. The solicitor for the applicant filed an accompanying affidavit which simply annexed a copy of the decision of the Tribunal. 5 Under the Act, there are prescribed classes of visas, including the visa. Under the Migration Regulations 1994 (Cth), criteria may then be specified for the grant of a particular class of visa. If the decision-maker is satisfied as to the existence of those criteria, the application is to be granted; if the decision-maker is not satisfied as to the existence of those criteria, the application for the visa is to be refused (s 65 of the Act). 6 Relevantly for present purposes, cl 457.223(4) of Sch 2 to the Regulations sets out certain criteria to be satisfied for the grant of the visa. They are that the applicant is nominated by an employer who is an approved business sponsor under the Regulations. Apparently, at the time of his initial application for the visa, the applicant identified a proposed nominating sponsor who was then a business sponsor. On 30 July 2002, however, he wrote to the Department of the respondent indicating a change of circumstances as he was no longer employed by his proposed sponsor. He added: 'I am currently looking for another sponsor. As soon as I find another sponsor I will forward the required documentation. Kindly allow me some time to organise the above. If you require further information please don't hesitate to contact me directly.' 7 It was apparently in the light of that request for more time to secure a new nominating business sponsor that the delegate of the respondent made a decision refusing the application for the visa on 12 August 2002. 8 The applicant then sought review of the delegate's decision by the Tribunal by application made on 11 September 2002. The Tribunal scheduled a hearing of his application on 20 February 2003. There is nothing to indicate that the applicant was unaware of that hearing. However, he did not attend. Following the hearing, the Tribunal gave its decision on 20 March 2003. There had been no further communications from the applicant concerning any business sponsorship between his letter to the Department of 30 July 2002 and that time. He had apparently chosen not to attend the Tribunal's hearing. The Tribunal therefore concluded that there was no evidence of any proposed employer of the applicant who had been approved as a business sponsor. He did not therefore meet the criteria for the grant of the visa specified in cl 457.223(4) of Sch 2 to the Migration Regulations. Consequently, s 65 of the Act directed the Tribunal to affirm the decision. 9 As I have indicated, there is nothing in the application itself which in any specific way identifies any jurisdictional error on the part of the Tribunal. The solicitor for the applicant has been unable to obtain instructions. The motion of 24 October 2003 on the part of the respondent for the application to be summarily dismissed came on for directions first on 26 November 2003. As noted earlier in these reasons, the motion was then listed for hearing on 18 December 2003. Directions were given for the exchange of any submissions or other material. At the hearing on 18 December 2003, counsel for the applicant indicated that he had been unable to get instructions from the applicant. He was given a further period of time until today to see if the applicant was prepared to give him those instructions. They have not been forthcoming. Nothing has been put by or on behalf of the applicant to indicate jurisdictional error on the part of the Tribunal. 10 I have considered each of the general grounds of error expressed in the application. None seems to have any prospect of being made out. I think this is a case where summary judgment should be given. A necessary criterion for the grant of the visa was not made out, ad was acknowledged at an earlier point not to have been made out. In my view no arguable jurisdictional error on the part of the Tribunal is shown. The application must be dismissed. The applicant should pay the respondent her costs of the application. 11 The respondent seeks that the solicitor for the applicant pay her costs of the application in addition to those costs being ordered against the applicant. The foundation for the application is that the solicitor for the applicant committed a serious failure to give reasonable attention to the relevant law and facts either at the time the application was instituted or subsequently. In Kumar v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 18 (Kumar) I referred to the principles on the basis of whether such an application should be considered. It is not necessary to refer to them in detail on this application. I shall assume for the purpose of considering the application that such a failure, if made out, would be a sufficient foundation for the making of an order that the solicitor for the applicant pay the costs of the application. The solicitor for the applicant has indicated, and the respondent accepts, that he had instructions to institute the application at the time it was instituted. Since the notice of motion of 24 October 2003, he has been unable to complete getting instructions from the applicant. He has further indicated that the application was instituted with the general only allegations made in the application because of 'time limits prescribed under the Migration Regulations' and because the failure to have instituted the application within those time limits may have resulted in the applicant facing detention as an illegal non-citizen in Australia under s 189 of the Act and deportation under s 198 of the Act. I take the reference to time limits to be a reference to the 28 day period specified in s 477(2) of the Act. Consequently it was proposed that in due course when further documentation was obtained, leave would be sought to file an amended application for review. It is not necessary to consider in this matter whether that understanding of the applicability of s 477(2) is correct. It would not appear to be so if jurisdictional error on the part of the Tribunal is made out. 12 In this matter, the communications between the solicitor for the applicant and the applicant are not known. There has been no waiver of client legal privilege on the part of the applicant. I do not know what communications took place between the solicitor for the applicant and the applicant prior to the institution of proceedings. Consequently, I do not know what was conveyed to the solicitor for the applicant by the applicant when initial instructions were given and the decision taken to institute the proceedings. There appears to have been no basis whatsoever upon which the reasons for the Tribunal's decision could be attacked, as involving jurisdictional error, because it is plain that the criteria prescribed by cl 457.223(4) have not been satisfied. I suspect therefore that any consideration initially given to the prospects of success in the application concerned the process of the Tribunal's decision-making. A failure to accord procedural fairness to the applicant in the course of the review process may give rise to jurisdictional error: Plaintiff S157/2002. A cursory examination of the Tribunal's reasons, however, indicates that it arranged a hearing with the applicant, and that he did not attend. There is nothing to suggest that the Tribunal's recording of that fact is incorrect. There is nothing to suggest in any other way that the Tribunal failed to accord procedural fairness to the applicant. There is still nothing to indicate that the applicant had any reason for thinking that the Tribunal would not proceed to make a decision as and when it did, or to indicate that there was any communication from the applicant to the Tribunal which in any way indicated that it should not proceed to do so, or that his process of seeking a supporting business sponsor was ongoing. The last communication on the topic was made by the applicant to the Department on 30 July 2002. 13 In those circumstances, it is my view that the Tribunal's reasons for decision provide no basis upon which any arguable case for jurisdictional error on its part could have been discernible to the solicitor for the applicant, either in relation to the quality of its decision or in relation to the quality of its decision-making processes. All that can exist therefore is an instruction by the applicant to the solicitor for the applicant to have instituted the proceedings and there to have been no advice whatsoever as to the prospects of success. If there were such advice, that advice could only have been one way. 14 In Kumar at [14], I reached the view that the institution of proceedings on instruction, even in a case where there is little or no real prospect of success, should not of itself render the solicitor liable for the costs of the application. In this matter, whether there were any communications between the applicant and the solicitor for the applicant about the quality of the decision-making process of the Tribunal is not known. The Tribunal's reasons do not support any attack upon its decision for that reason. But, in the absence of any evidence about the pre-application instructions, it is no more than speculative to conclude that there were none. I should not speculate on such matters. The solicitor for the applicant is not in a position to inform the Court of any such communications. 15 Consequently, I am not able to be satisfied whether the application was instituted (albeit hurriedly) without any consideration of the chances of success, or whether the solicitor for the applicant was instructed to proceed notwithstanding his advice that there were negligible or no prospects of success. In those circumstances, I am not satisfied that the solicitor for the applicant was in dereliction of his duty as alleged. The application is refused. The applicant is to pay the respondent's costs of the application. I certify that the preceding (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.