Ali v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 147

FEDERAL COURT OF AUSTRALIA

Ali v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 147

MOHAMMED ALI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1572 OF 2004

MADGWICK J
7 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1572 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	MOHAMMED ALI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	7 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs assessed in the sum of $3,700.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1572 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	MOHAMMED ALI APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	7 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1. This is an appeal from a judgment of the Federal Magistrates Court given by Smith FM on 11 October 2004.  The application sought judicial review of a decision made on 28 May 1997 by the then existing, but since abolished, Immigration Review Tribunal (‘the Tribunal’).  The Tribunal’s decision had affirmed a decision of the respondent’s delegate given on 7 September 1995 to refuse the appellant’s application for a Class 816 entry permit.  Such a permission to remain in Australia was, as his Honour described it, ‘a special “one-off” class of on-shore visa which is no longer found in the Migration Regulations’.

2. The application to the Federal Magistrate’s Court was not made until 17 June 2003, that is to say, over six years after the impugned administrative decision. 

3. The respondent Minister conceded in the Court at first instance that there had indeed been a jurisdictional error tainting the Tribunal’s decision.  This came about because the Regulations required that an applicant for a Class 816 entry permit undergo certain English language tests.  There had been a procedural irregularity, however, and there was no lawfully nominated English as a second language test to be undertaken by the appellant.

4. The case before the learned Magistrate concerned entirely whether the Court should exercise its discretion to refuse any relief by reason of the long delay which had occurred in bringing the matter before the Court.  The learned Magistrate noted that other persons in the position of the appellant, by reason of the procedural irregularity to which I have referred, had been given appropriate relief by Wilcox J in 1998.  See Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673 and Din v Minister for Immigration and Multicultural Affairs (No. 2) [1998] FCA 961.

5. The learned Magistrate gave the appellant, who was initially unrepresented before him, every opportunity to explain the delay.  The appellant has been in Australia continuously since 15 January 1993.  His presence here has been either lawful or tolerated.  That is a long time and a refusal of relief to him on discretionary grounds would involve a degree of hardship to him, no doubt;  a matter not specifically adverted to by his Honour.

6. However, it appears that with the benefit of specialist legal advice the appellant had opted to pursue other means whereby his continued presence in Australia and intended future presence in Australia might be rendered as lawful.  He did not join in the class action heard by Wilcox J.  In any case the learned Magistrate inferred that his solicitor had decided:

   ‘… presumably on instructions, that no fresh application should be made to the Federal Court by the applicant, and that it was hoped that any success by the “class” could flow through to the applicant by way of an application to the Minister to exercise his personal discretion under section 351 of the Migration Act.’

7. However, that request was refused by the Minister.  Thereupon, his Honour said:

   ‘Instead of commencing judicial review proceedings to keep alive his class 816 application, [his solicitors] suggested to the applicant that he should follow a different path to obtaining permanent residency which had opened up following an announcement by the Minister on 13 June 1997 of further “one off” visa classes.  These were class 850 and 851 visas which allowed on-shore applications by persons from [particular countries which did not include the appellants country of nationality, namely Bangladesh].’

8. The appellant joined in a class action (Macabenta v Minister for Immigration & Multicultural Affairs heard by Tamberlin J on 19 March 1998) wherein the applicant submitted that persons of other than the specified nationalities should also be entitled to qualify for the visas by invoking the Racial Discrimination Act 1975 (Cth). His Honour dismissed the application on 21 April 1998: Macabenta v Minister for Immigration & Multicultural Affairs (1998) 154 ALR 591, and an appeal from that decision was dismissed at the end of 1998; Macabenta v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 202. Finally, application for special leave to appeal to the High Court was refused on 18 June 1999.

9. It appears that the appellant joined another class action which resulted in the well-known decision in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) ALJR 966. The appellant, it seems, was a represented party mentioned in the schedule of represented parties apparently filed in one of the cases that led to that decision.

10. The learned Magistrate found that, by at least the end of 1999, the appellant was aware that he was not then, and had never been, involved in any court proceeding which challenged the Tribunal decision the present litigation seeks to quash.  The conclusion was that he had ‘thereafter consciously sat on his hands for more than three years’ before commencing the present proceedings. 

11. The learned Federal Magistrate seems to have given appropriate consideration to all relevant issues of principle except for the matter of hardship to which I have referred.  The fact of that hardship, in my view, cannot outweigh the matters persuasively referred to by his Honour.  After reference to the well-known remarks of McHugh J in Re Commonwealth;  Ex parte Marks (2000) 177 ALR 491 (at 495 – 496) and Gaudron J’s observations in Re Minister for Immigration and Multicultural Affairs;  Ex parte Miah (2001) 206 CLR 57 (at [106]) his Honour said:

    ‘In my view, there are significant points of distinction between the present case and Miah.  In particular, the applicant in that case established that he had always actively sought to pursue rights to residence as a refugee.  The actions of the present applicant are in clear contrast with this, since, in effect, the applicant abandoned the pursuit of a class 816 visa in favour of pursuing quite differently based rights of residence.  I cannot be persuaded that it is in the interests of the proper administration of justice or of good public administration to allow an applicant to hold in suspense over many years an allegation that an Immigration Tribunal has invalidly decided an entitlement under a particular visa application and then to seek to justify his delay in seeking judicial intervention by pointing to the unsuccessful pursuit of other visa applications.’

12. The appellant is unrepresented having decided, he says, at 9.00 am today, not to have his Hurstville solicitors represent him.  He said he is unprepared and was unable to say anything to assist the Court.  While this is unfortunate for him, the fact is that there is nothing put before me seeking to disturb the learned Magistrate’s findings of fact. 

13. As counsel for the Minister puts, the grounds in the notice of appeal plainly do not address the real issue on the appeal.  It may be said, putting the matter at its highest, that in not referring to hardship, the learned Magistrate did not take into account a material consideration but, as I have indicated, the circumstances overall are such that, in my view, they cannot have affected the proper outcome.  In fairness to the learned Magistrate, it is likely, of course, that he did take hardship into account, that being so obvious, but simply failed to refer to it.  Nevertheless, I think the matter should be approached, as I have, on the basis that it is not clear that the learned Magistrate actually did take that matter into account. 

14. Thus, there is no error in the Magistrate having come to the decision ultimately that he did.  In my view, it should stand and it will. 

15. The appeal is dismissed with costs.  The appellant is to pay the respondent's costs assessed in the sum of $3,700.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             25 February 2005

Solicitor for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 February 2005
Date of Judgment:	7 February 2005