Singh v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant is a citizen of India who was born on 10 November 1981. He arrived in Australia on 24 October 1996 by boat without a passport and without a visa or entry permit. The applicant was 14 years old when he arrived in Australia. 2 On 15 May 1997 the applicant lodged an application for a protection visa. The application disclosed that he was a citizen of India at birth and that he did not hold any other citizenship. The applicant was seeking protection in Australia so that he did not have to go back to India. The application also disclosed that the applicant had not applied for refugee status in any country other than Australia; that the applicant was not in contact with relatives in his home country or any other country; that the applicant had not returned to his home country since arriving in Australia; and that the applicant did not receive and was not entitled to a pension or any regular income from any country. The application for a protection visa was refused by the Minister's delegate on 27 June 1998 and that decision was affirmed by the Refugee Review Tribunal ("RRT") on 15 March 1999. 3 The applicant turned 18 on 10 November 1999. Thereafter the applicant lodged an application for a Change in Circumstance (Residence) (Class AG) visa. The application is stamped as having been lodged with the Department of Immigration & Multicultural Affairs ("DIMA") on 15 December 1999, but is referred to in various departmental documents as having been lodged on 21 December 1999. Nothing turns upon this discrepancy in the dates. The home address of the applicant, as stated in the application, was 1/29C Great Western Highway, Parramatta. The form also nominated the name and address of the migration agent who lodged the application on the applicant's behalf, and requested that correspondence be sent both to the applicant and to the migration agent, at the addresses provided. 4 By letter dated 10 March 2000 the applicant was notified by DIMA that his application had been refused. 5 On 6 April 2000 the Migration Review Tribunal ("MRT") received an application from the applicant for review of that decision. The application gave the applicant's residential address as 1/29C Great Western Highway, Parramatta. The form of application indicated that MRT correspondence would be sent to the residential address unless a different address for service was provided on the form. The question: "Why do you think the decision you are seeking to have reviewed was incorrect" was answered : "Submission will be sent on [sic] due course". 6 On 8 April 2000 MRT wrote to the applicant (and a copy of the letter was sent to his migration agent) advising that any documents or written arguments he wished MRT to consider, which had not already been given to DIMA or MRT, were to be sent to MRT within 21 days of the letter. 7 On 4 July 2001 MRT again wrote to the applicant at his residential address. A copy of the letter was again sent to the migration agent. The letter invited the applicant to provide the following information: · "Details of your family composition, including full names, dates of birth and current residential addresses. · Evidence of your connection with your home country. · Evidence of your employment history in Australia. · Evidence of ownership of any personal assets in Australia. · Evidence that you have close family members or close friends in the nature of family, who are permanent residents or citizens and who reside in Australia. · Any other information you feel may help the Tribunal to come to a decision in your case." The letter notified the applicant that he had "a total of 35 days from the date of this letter to respond". The letter also stated, in bold type: "If the Tribunal does not receive the requested information within the period allowed, it may, under s 359C of the Act, make a decision on the review without taking any further action to obtain the information. In addition, you will not be entitled to appear before the Tribunal." 8 As at 5 September 2001, the applicant had not provided any information in response to MRT's request. On 5 September 2001 MRT affirmed the decision under review, finding that the applicant was not entitled to the grant of a Change in Circumstance (Residence) (Class AG) visa. 9 In its decision, MRT noted that at the time when the visa application was lodged, Change in Circumstance (Residence) (Class AG) visas contained only one subclass: subclass 833 (Certain Unlawful Non-Citizens). One of the criteria to be satisfied at the time of application for a grant of a subclass 833 visa is clause 833.212 of Schedule 2 to the Migration Regulations 1994 (Cth), which reads as follows: "833.212 An applicant meets the requirements of this clause if he or she: (a) has turned 18; and (b) before turning 18, ceased to hold a substantive visa; and (c) immediately before ceasing to hold a substantive visa, did not hold a Subclass 771 (Transit) visa; and (d) before turning 18, spent the greater part of the period that the Minister regards as the applicant's formative years in Australia." 10 MRT found that the applicant met subclauses (a) and (c) of the criteria. MRT also found that the applicant would meet subclause (b), but only if the fact that the applicant had never held a visa was sufficient to establish that, before turning 18, the applicant "ceased to hold a substantive visa". On the assumption that subclause (b) should be so construed, MRT proceeded to consider the requirements of subclause (d). 11 MRT noted that the expression "formative years" is not defined in the legislation. However, the policy in PAM 3 provides decision-makers with guidelines as to the meaning and effect of that expression. MRT set out those guidelines, one of which is that officers should keep in mind that a person's "formative years" may be taken to mean those years in which they formed a sense of identity and their connection with a place in the world. 12 MRT then said: "20. The visa applicant arrived in Australia by boat in October 1996 when he was 14 years old. He does not appear to have departed Australia since then. The visa applicant stated that he arrived in Australia as an unaccompanied minor. He did not have anyone to return to as his parents were both missing. He did not have any relatives to support him. There is no information before the Tribunal in respect to the visa applicant's sense of identity or any ties with the Australian community. 21. As noted earlier, the Tribunal sought to obtain further information which the Tribunal considered to be such that might have assisted to ascertain whether the applicant satisfies the criteria for the grant of the visa. However, neither the visa applicant nor his agent replied to the Tribunal's request." Based on the evidence available to it, MRT was not satisfied that the requirements of subclause (d) were met. 13 On 3 October 2001 the applicant lodged with the Court an Application for an Order of Review of that decision. The application was on Form 56, which is the form prescribed for an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and under the Migration Act 1958 (Cth) ("Migration Act") (Orders 54 and 54B). Those Orders were noted on the application. The Federal Court Rules prescribe that an application under s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act") should be made substantially in the form numbered 5: Order 54A. 14 The application does not expressly state the legislative basis of the Court's jurisdiction to entertain it although the grounds specified in the application echo the grounds of review contained in the former s 476 of the Migration Act. 15 The grounds of the application are: "1. Procedure required by the Act are not observed. Particulars I was not notified of the Tribunal's Decision at my correct address despite Of change of address on the prescribed form which resulted me [sic] being deprived of my right to a hearing of the matter at the tribunal. The decision was handed down in my absence whitout [sic] notifying me therefore I believe that the tribunal did not fulfil it's [sic] obligation and made error on the decision. 2. The decision involved an error of Law being an error involving an interpretation of the Law or application of the Law to the facts. Particulars I have developed significant ties with Australia since arrival at the age of 14 And become a part of the Mainstream Australian Society, which I did not have before and I was not able to form a sense of identity that I have been able to form after arriving in Australia therefore I meet the criterion of the regulation and making a decision in my absence and in the absence of the evidence, unfairly refused my application without hearing what I had to say." 16 The relief sought in the application is an order that: "The decision of the Tribunal be set aside and remitted to the Tribunal and order of reconsideration according to Law (sic)." 17 If and insofar as the application is an attempt to invoke the provisions of the former s 476 of the Migration Act, the attempt is misconceived having regard to the introduction of the new Part 8 into the Migration Act with effect from 2 October 2001, even if the decision sought to be reviewed was made prior to that date. 18 In order to apply to the Federal Court for review of a decision of MRT, the application must now be brought pursuant to s 39B of the Judiciary Act, and within the period specified in s 477 of the Migration Act. That avenue of review is severely circumscribed by the operation of s 474(1) of the Migration Act, which is a privative clause provision which applies to privative clause decisions referred to in s 474(2). 19 On the morning of the hearing Mr Newman, the solicitor for the applicant, sought to file in Court an Amended Application for an Order of Review in which he claimed a writ of certiorari quashing the decision of MRT handed down on 5 September 2001; a writ of mandamus requiring MRT to determine the application for a visa made on 21 December 1999 according to law; and a writ of prohibition preventing the respondent from taking any action upon the decision of MRT handed down on 5 September 2001. The Amended Application is not substantially in accordance with Form 5 in the first schedule of the Federal Court Rules as is required by Order 54A, nor does the Amended Application specify the Judiciary Act as the legislative basis of the Court's jurisdiction to entertain the Amended Application. 20 Under the heading "Details of Claim" in the Amended Application, the following appears: "On the grounds that the Tribunal failed to consider the effect of the Domicile Act (Cth) 1892 (sic) and inferences which ought to have been drawn from his previous protection visa application, the applicant claims" the writs earlier referred to. 21 Counsel for the Minister opposed the application for leave to file the Amended Application upon the grounds that the period specified in s 477 of the Migration Act had expired, and the Federal Court is precluded by s 477(2) of the Migration Act from making an order allowing, or which has the effect of allowing, an applicant to lodge an application under s 39B of the Judiciary Act in respect of a privative clause decision outside the period specified in s 477(1). 22 With the concurrence of both parties, the hearing of the case proceeded upon the basis that the parties would, in their final submissions, address what might be called the "merits" of the Amended Application, as well as whether the applicant should have leave to file it. Ground 1 of the original application was abandoned, and as I understood it, ground 2 of the original application was persisted in only if leave to file the Amended Application was declined.