Ali v Minister for Immigration

[2015] FCCA 369

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 369

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – whether correct form used for application for review by Migration Review Tribunal – whether jurisdiction of Migration Review Tribunal invoked – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5, 347, 348, 474, 476, 495

Hassan v Minister for Immigration & Border Protection & Anor [2013] FCCA 1917
Kirk v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 99
Minister for Immigration & Multicultural Affairsv Yusuf & Anor (2001) 206 CLR 323; [2001] HCA 30
MZZCU v Minister for Immigration & Anor [2013] FCCA 1060
Pheng v Minister for Immigration & Multicultural Affairs (2000) 102 FCR 283
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515; [2009] FCAFC 42
SZJDS v Minister for Immigration & Citizenship & Anor (2012) 201 FCR 1; [2012] FCAFC 27

Applicant: MOHAMMED HAMED ALI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 97 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 23 February 2015

Date of Last Submission: 23 February 2015

Delivered at: Perth

Delivered on: 23 February 2015

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: Mr A Gerrard

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 97 of 2014

MOHAMMED HAMED ALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited extempore reasons)

Introduction

1. The Court has before it this morning an application by the applicant, Mohammed Hamed Ali, seeking review under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the Migration Review Tribunal (“Tribunal” and “Tribunal Decision” respectively. The Tribunal Decision is at Court Book (“CB”) 151-155) dated 11 March 2014. The Tribunal decided that it did not have jurisdiction in relation to the applicant’s application for review lodged with the Tribunal on 2 January 2014.

Background

1. The background to the application is set out hereunder.

2. On 10 December 2013 the Delegate refused the applicant’s application for a Student (Temporary) (Class TU) visa (“Delegate” and “Delegate’s Decision” respectively. The Delegate’s Decision is at CB 97-103). The evidence before the Tribunal was that the applicant was notified of the Delegate’s Decision the same day: CB 92-95. Consequently, the prescribed period for making an application for review of the Delegate’s Decision ended on 31 December 2013: Migration Act 1958, s.347(1)(b)(iii); CB 93. Because the Tribunal’s offices were closed on 31 December 2013, the prescribed period ended on 2 January 2014 being the day that the Tribunal opened again.

3. The applicant lodged an application for review of the Delegate’s Decision on 2 January 2014 on an invalid form ‘M1’ being Form M1 (Design Date 01/12). The correct form at the time of application was Form M1 (Design Date 07/13): CB 143 and CB 153-154. The Court notes that the form of, and timing of, the implementation of the new Form M1 (Design Date 07/13) is not in dispute.

4. On 31 January 2014 the Tribunal wrote to the applicant advising that the Tribunal had formed the preliminary view that it did not have jurisdiction because the application was not a valid application as it had been submitted on an invalid ‘Application for Review’ Form M1: CB 143.

5. On 24 February 2014 the applicant’s migration agent wrote to the Tribunal advising he had overlooked the new notice and that the failure to use the correct notice was his and not the applicant’s. The applicant’s migration agent submitted that the application should be accepted on compassionate grounds: CB 144-145.

6. On 11 March 2014 the Tribunal determined it did not have jurisdiction to review the application: CB 154, paras.11-12.

Tribunal Decision

1. Relevantly, the Tribunal Decision provides (at CB 153-154) as follows:

   7. Section 347(l)(a) of the Act requires that an application for review·of an MRT-reviewable decision must be in the approved form. The expression " approved form"  is defined in s.5 of the Act as a form approved by the Minister in writing. Under s.495 of the Act, the Minister may, in writing, approve a form for the purposes of a provision in the Act in which the expression "approved form" is used. The power to approve forms has been delegated to the Principal Member of the Tribunal in accordance with s.496 of the Act. The most recent instrument of delegation is dated 25 February 2005.

   8. On 14 June 2013 the Principal Member of the Tribunal approved new versions of form M1. On 20 November 2013, the Principal Member determined that the only approved form for applications to the Tribunal made on or after I December 2013 is Form M1, version July 2013.

   9. The Tribunal finds that the applicant applied for review to the Tribunal on 2 January 2014 using an invalid form, being Form 1 (Design Date 01/12). As at the date of application, the approved form was Form M1 (Design Date 07/13).

   10. There is no scope for partial or substantial compliance with the requirement to use the approved form (see SZJDS v MIAC [2012] FCAFC 27 (Rares, Cowdroy & Jessup JJ, l3 March 2012) per Rares & Cowdroy JJ at [26]-[28].) If the approved form is not used, there is no valid application (SZJDS at [34] and [63]).

   11. Notwithstanding the subsequent provision of the correct Form M1 on 24 February 2014, the Tribunal finds that in accordance with s.347 of the Act, the applicant is taken to have been notified of the decision on 10 December 2013. Therefore the prescribed period within which the review application could be made ended on 31 December 2013 which was a day on which the Tribunal was closed. The Tribunal reopened for business on 2 January 2014 which was the date of receipt of the application using the invalid Form M1. If the valid form had been used, by operation of s.36 of the Acts Interpretation Act 1901 the application would have been made in time. However, as the application for review using the approved form was not received by the Tribunal until 24 February 2014 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

   12. The Tribunal does not have jurisdiction in this matter.

Grounds of Application and Applicant’s Affidavits

1. The exact grounds of an amended application filed on 8 July 2014 are literally as follows :

   The only difference between old and new version of MRT form is of passport numbers column.

   As new application of MRT contains a extra column of passport number on 2 pages. Otherwise they look alike in all other aspects.

   As it was un-noticed by my migration agent and I would like Federal Circuit Court to consider the matter. As to my knowledge their is not much difference between the old and new version of MRT application.

2. The applicant also filed an affidavit affirmed 17 April 2014 which attaches the Tribunal Decision, and a further affidavit affirmed 8 July 2014 which repeats the grounds and attaches a copy of the two versions of the relevant Application for review to the Tribunal (Form M1).

3. The applicant filed a further affidavit affirmed on 20 February 2015. Essentially that affidavit asserts that it would be reasonable for the Tribunal to adopt the apparent practice of the Department of Immigration & Border Protection in relation to visa applications, whereby old forms are never revoked, and a visa application may be made on an old or superseded form.

Consideration

1. A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error: Migration Act 1958, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by an administrative tribunal such as the Tribunal, will constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks a wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairsv Yusuf & Anor (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.

2. In this case, the Tribunal correctly set out the statutory scheme as follows:

   a)under 347(1)(a) of the Migration Act  an application for review in the Tribunal must be in the approved form;

   b)“approved form” is defined in s.5 of the Migration Act as a form approved by the Minister in writing;

   c)under s.495 of the Migration Act the Minister may, in writing, approve a form for the purposes of a provision in the Migration Act in which the expression “approved form” is used;

   d)the power to approve forms has been delegated to the Principal Member of the Tribunal; and

   e)on 20 November 2013 the Principal Member determined that the only approved form for applications to the Tribunal made on or after 1 December 2013 is Form M1, version July 2013: CB 153-154 at paras.7-8, and the Court notes that there is no dispute as to the relevant delegation.

3. The Tribunal accordingly, and correctly in the Court’s view, found that the approved form as at the date of application was Form M1 (Design Date 07/13), and that the applicant had used an invalid form, being Form M1 (Design Date 01/12): CB 154, para.9.

4. The Full Court of the Federal Court has found that where a specific form is required to be used to make an application to a Tribunal, if the applicant does not use the correct form, the attempt to make an application using the wrong form will be invalid: SZJDS v Minister for Immigration & Citizenship & Anor (2012) 201 FCR 1 at 8 per Rares and Cowdroy JJ; [2012] FCAFC 27 at paras.26-28 per Rares and Cowdroy JJ (“SZJDS”).

5. A failure to use the approved form is a failure to properly make an application to the Tribunal within the meaning of ss.347(1)(a) and 348(1) of the Migration Act, s.348(1) of the Migration Act requiring the application to be “properly made”, and results in the Tribunal’s jurisdiction not being invoked: SZJDS FCR at 10 per Rares and Cowdroy JJ; FCAFC at para.34 per Rares and Cowdroy JJ. This includes a situation where an applicant attempts to lodge an application with an outdated, and hence invalid, application form: Hassan v Minister for Immigration & Border Protection & Anor [2013] FCCA 1917 (“Hassan”); MZZCU v Minister for Immigration & Anor [2013] FCCA 1060 (“MZZCU”).

6. The Form M1 which was submitted by the applicant was not the proper form. The Tribunal’s jurisdiction was, therefore, not invoked. Strict compliance with the conditions imposed by s.347 of the Migration Act is necessary even though this may operate harshly in particular cases: SZJDS FCR at 10 per Rares and Cowdroy JJ; FCAFC at para.33 per Rares and Cowdroy JJ, following Kirk v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 99 at 102 per Lehane J and Pheng v Minister for Immigration & Multicultural Affairs (2000) 102 FCR 283 at 288 per Marshall J. The applicant’s complaint that the two versions of the Form M1 were identical save for one feature is not to the point. Likewise, the applicant’s contentions concerning the practice of the Department with respect to visa application forms is not to the point.

7. There is no doubt that the application of the law and the principles which have been established by the cases cited operate harshly against applicants, as is the case here. Principles of precedent and judicial comity, however, require this Court to follow the reasoning in SZJDS, Hassan and MZZCU, unless it is plainly wrong, which it is plainly not: see Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515 at 522 per Spender, Buchanan and Perram JJ; [2009] FCAFC 42 at para.29 per Spender, Buchanan and Perram JJ.

8. On the proper construction of the statutory scheme and the authorities, the applicant’s failure to file an application for review on the correct version of the prescribed form means that the Tribunal’s jurisdiction was not invoked and consequently the Tribunal did not have the power to review the application. The Tribunal Decision was, therefore, correct, and did not, therefore involve jurisdictional error.

Conclusion and orders

1. The Tribunal Decision does not involve jurisdictional error. The application must therefore be dismissed. There will be an order accordingly.

2. The Court will hear the parties as to costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  23 February 2015