Applicant S1494/2003 v Minister for Immigration
[2010] FMCA 834
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| APPLICANT S1494/2003 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 834 |
| MIGRATION – Child visa – review of Migration Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that Tribunal failed to recognise that the applicants were really seeking protection visas, failed to address the correct basis for the claim and failed to transfer review application to Refugee Review Tribunal – Tribunal can only review MRT-reviewable decisions – if a valid application is made to the Tribunal it must exercise its jurisdiction and make one of the orders in s.349(2) of the Migration Act 1958 – Tribunal has no jurisdiction to deal with refugee or protection applications other than to find that it has no jurisdiction. |
| Migration Act 1958, ss.338, 347, 348, 349, 359A, 411, 474 Migration Regulations 1994, regs.1.03, 1.05A, cls.802.212 & 802.221 of sch.2 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Shaddock & Associates Pty Ltd v Parramatta City Council (No.1) (1981) 150 CLR 225 |
| First Applicant: | APPLICANT S1494/2003 |
| Second Applicant: | APPLICANT S1494/2003(A) |
| Third Applicant: | APPLICANT S1494/2003(B) |
| Fourth Applicant: | APPLICANT S1494/2003(C) |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1459 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 1 October 2010 |
| Date of Last Submission: | 1 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Kumar |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1459 of 2010
| APPLICANT S1494/2003 |
First Applicant
| APPLICANT S1494/2003(A) |
Second Applicant
| APPLICANT S1494/2003(B) |
Third Applicant
| APPLICANT S1494/2003(C) |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of Fiji. The first and second applicants are husband and wife respectively. Their children are the third and fourth applicants in the proceedings.
In 2000 the first applicant sought a protection visa. This was refused and a subsequent review by the Refugee Review Tribunal (“RRT”) affirmed that refusal. Thereafter the first applicant made a second application to the RRT and in the years since 2000 initiated various proceedings associated with his protection visa application.
On 4 September 2009 the applicants lodged an application for Child (Residence) (Class BT) subclass 802 visas. The application was made on the basis that the first applicant was a “dependent child” of his Australian sponsor, identified in the application form as his brother. On 18 November 2009 a delegate of the first respondent (“Minister”) refused the applicants’ application. The applicants then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
The criteria for the grant of a subclass 802 visa are set out in pt.802 of sch.2 to the Migration Regulations 1994 (“Regulations”). Relevantly for this case, cl.802.212 provides:
802.21 Criteria to be satisfied at time of application
…
802.212 (1) The applicant:
(a) is a dependent child of a person who is an Australian citizen, holder of a permanent visa or eligible New Zealand citizen; and
(b) subject to subclause (2), has not turned 25.
(1A) If the applicant is a step-child of the person mentioned in paragraph (1) (a), the applicant is a step-child within the meaning of paragraph (b) of the definition of step-child.
(2) Paragraph (1) (b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b) (ii) of the definition of dependent child.
Clause 802.221 relevantly provides:
802.22 Criteria to be satisfied at time of decision
802.221 (1) …
(2) In the case of an applicant who had turned 18 at the time of application:
(a) the applicant:
(i) continues to satisfy the criterion in clause 802.212; or
(ii) does not continue to satisfy that criterion only because the applicant has turned 25; …
“Dependent child” is defined in reg.1.03 as follows:
dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:
(a) has not turned 18; or
(b) has turned 18 and:
(i) is dependent on that person; or
(ii) is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.
“Dependent” is defined in reg.1.05A as follows:
(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions. …
Background facts
On 15 December 2009 the applicants lodged with the Tribunal their application for review of the delegate’s decision.
On 18 February 2010 the Tribunal wrote to the applicants pursuant to s.359A inviting them to comment on the following information:
The grant of a subclass 802 Child (Residence) (Class BT) visa is contingent upon an applicant meeting key criteria relevant to the grant of the visa.
The evidence before the Tribunal indicates that the applicant is incapable of meeting criteria for the grant of a child visa.
The evidence indicates that he is not the dependent child of an Australian citizen, permanent resident or eligible New Zealand citizen (he has been sponsored by his brother). In addition to this he is over 25 years of age.
The delegate in her decision of 18 November 2009 has suggested that the applicant’s immigration history indicates that the application was made purely to create a pathway to the Minister.
In his response dated 21 March 2010, rather than addressing the particulars of the information contained in the Tribunal’s s.359A notice, the first applicant claimed that he had a well-founded fear of persecution in Fiji. He claimed that he and his family would be at risk of serious harm if they returned and, in support, enclosed information about the political situation in Fiji.
In further submissions received by the Tribunal on 29 March 2010, the first applicant expanded on his claims to fear persecution. He also alleged that his mental heath was deteriorating “due to stress and fear of safety if I returned to Fiji”.
The applicant appeared before the Tribunal on 24 May 2010 and in its decision record the Tribunal summarises the hearing which was subsequently held. During the course of the hearing the first applicant conceded that he did not meet the criteria for the grant of a dependent child visa. The Tribunal recorded that it became apparent during the course of the hearing that the first applicant might be considering the lodgment of a Ministerial Humanitarian Application or possibly a refugee application and it indicated to him that it was important for him to obtain independent advice about this. Then followed a discussion about the first applicant’s concern regarding his mental health and the Tribunal provided him with a list of places where he could obtain independent migration advice with regard to a prospective Ministerial Humanitarian Application or a prospective refugee application.
The Tribunal then asked the applicant whether there was anything further he wished to say and the Tribunal summarised his response in the following terms:
The applicant stated that his mental health was deteriorating and that his concentration and memory had been substantially affected. Once again the Tribunal reiterated the applicant should get some independent advice with regard to this situation, and that there were agencies listed in the information provided at the hearing where he could obtain some advice with regards to his mental health issues.
By decision dated 28 May 2010 the Tribunal found that the first applicant was incapable of meeting the criteria for the grant of a subclass 802 visa because, first, he was sponsored by his brother and therefore was not the dependent child of an Australian citizen, permanent resident or eligible New Zealand citizen and, secondly, he was over the age of 25, having been born in 1971. As the first applicant failed to satisfy cls.802.212 and 802.221, the Tribunal affirmed the decision of the delegate not to grant the applicants subclass 802 visas.
Proceedings in this Court
The amended application was pleaded as follows:
(1)The Tribunal committed jurisdictional error when it failed to address the correct basis of the claim in the circumstances where the Applicants advised the Tribunal that the Applicants were advancing a refugee claim. The Tribunal should have found that the First Respondent’s delegate breached common law duty by advising use of and giving incorrect form for application.
Particulars
The Applicants advised the Tribunal that the Applicants had applied for refugee claim but used the wrong form provided by the Department’s officer. The Tribunal should have found that the First Respondent breached common law in giving incorrect form and/or advice as to the form.
At the Tribunal hearing it had clearly emerged from communication (CB 61) and from the hearing that the Applicant was seeking to make a refugee claim. The Tribunal erred in not giving consideration to common law duty of government department to give correct form and/or advice as to the correct form and thereby committed jurisdictional error.
Evidence
In his affidavit affirmed 1 October 2010 the first applicant deposed that he
wanted the Department of Immigration and Citizenship principally as a refugee [sic]
and that when he attended the offices of the department in Sydney he said to the officer at the counter words to the effect of:
My visa is running out. I have been in Australia for a while. I need to lodge application for refugee visa. Please let me have the appropriate form.
He deposed that the counter officer handed him a form saying words to the effect of:
This is the form you have to use to renew your visa. Please complete this form and return it to us.
The first applicant deposed that he relied on the counter officer to provide him with the appropriate document as he was not familiar with the department’s forms. He said that he completed the form and lodged it. The first applicant also deposed that at the Tribunal hearing he advised the Tribunal of how he came into possession of the visa application form. In this regard, annexed to the first applicant’s affidavit was a transcript of the Tribunal hearing. The applicants said very little during the course of the hearing, the only thing of relevance to these proceedings being the following statement by the first applicant:
I went [sic] to immigration that I want to apply for the visa and they gave me the form and I filled out form and I applied for the visa.
This statement was in response to the Tribunal’s question:
Do you believe – sir, you’re the visa applicant; do you believe you meet the criteria for the grant of a dependent child visa? Yes, or no.
Earlier in the hearing the Tribunal had said that it seemed that the applicants were trying to “get to the Minister for Immigration to lodge a humanitarian application” and that an option available to them was to apply to the Minister “to consider your personal circumstances and decide whether there are any humanitarian grounds to give you a visa to stay in this country”. Subsequently the Tribunal suggested places where the applicants could get initial free migration advice because it appeared to the Tribunal that they needed “to get some independent advice as to whether you have the basis for lodging a refugee application in this country”. However, at no point before or after the above exchange did the applicants submit that the visa application was anything other than what it appeared to be, an application for child visas.
At the hearing in these proceedings the first applicant said that he had attended the department to seek bridging visas on possibly twenty occasions and was very familiar with attending the department’s office. The first applicant was challenged on his allegation that he had sought from the counter officer an application form suitable to use to apply for a protection visa but responded that he had wanted to apply for “refugee visa”. He said that he did not know whether he had already applied for a “refugee visa”.
The first applicant said that he filled out the form he was given and lodged it and thought that it was the right one. He said that he had filled in so many forms over the years that he was not aware that the one he was completing was not the right one. However, he also said:
[Applicant S1494/2003]: I thought the form – that was a form for a child visa and it seemed to be right.
Ms Rayment: So you thought it was a form for a child visa?
[Applicant S1494/2003]: I thought it was appropriate to fill out this form and give it back to them.
The first applicant confirmed that he can read, write and speak English. Although it was necessary for him to give his evidence with the assistance of an interpreter, it was apparent during the course of the hearing that he did not need the interpreter on all occasions and that he also appeared occasionally to lack fluency in his first language. At the hearing he read out in English the heading of the child visa application form which he had lodged on 4 September 2009.
The first applicant gave evidence of having made a protection visa application in the year 2000, shortly after he arrived in Australia from Fiji, and confirmed that when his visa application was refused he applied to the RRT for a review of that refusal. He agreed that he signed the protection visa application and the application to the RRT. He identified the Tribunal’s decision of 8 June 2001 affirming the delegate’s decision not to grant him a protection visa and confirmed that he subsequently applied to the High Court for a review of that decision. The affidavit of Katherine Whittemore which was read by the Minister indicated that the matter was remitted to the Federal Court where it was dismissed.
The first applicant agreed that he later sought to challenge the Tribunal’s decision for a second time by filing an application in this Court although he subsequently gave instructions to a solicitor to discontinue those proceedings. He confirmed that on 1 March 2007 he filed an application in the Federal Court seeking an extension of time to appeal from the outcome in this Court and, further, that that application to the Federal Court was unsuccessful.
The first applicant then agreed that he thereafter made a further application to the RRT for review of the delegate’s decision, saying that he did this because the situation in Fiji had worsened but the RRT found that it had no jurisdiction as it had already considered the case. The first applicant confirmed that he subsequently filed an application in this Court on 2 August 2007 and identified his affidavit filed on 2 August 2007 in support of that application. In that affidavit the applicant deposed that he had applied for a protection visa which had been refused by a delegate of the Minister and that the delegate’s decision had been affirmed upon review by the RRT. He confirmed that his application to this Court was dismissed by Barnes FM and that his subsequent appeal to the Federal Court was dismissed by Reeves J on 6 March 2008.
In cross-examination the first applicant was taken to the following passage in the transcript of the Tribunal hearing preceding the decision the subject of this review:
[Member]: … have you ever sought independent migration advice about your circumstances?
[Applicant S1494/2003]: No, sir.
The first applicant conceded that he did say this and that he did not answer the question properly but said that he was stressed and did not properly understand the Tribunal. He confirmed that, by 2008, he had been pursuing the issue of protection for eight years and had sought advice from numerous people. He also confirmed that he had been involved in proceedings in this Court, the Federal Court and the High Court in connection with his wish to be granted an Australian protection visa.
The affidavit of Ms Whittemore sworn on 20 September 2010 which was read by the Minister evidenced the first applicant’s extensive history of substantive visa applications and related RRT, Tribunal and court proceedings.
Submissions
The applicants submitted that the visa application form which was lodged on 4 September 2009 was, notwithstanding what it appeared to be, an application for protection visas and that the Tribunal was aware that the applicants were applying for “refugee visa”.
The applicants submitted that the nature of their claim was made clear by their response to the Tribunal’s.359A notice and by the contents of the written submissions lodged with the Tribunal on 29 March 2010. It was submitted that the use of an incorrect form was not an impediment to the applicants’ application being considered as a protection visa application. The applicants submitted that the Tribunal erred by conducting and deciding the review by reference to the sort of visa referred to in the visa application form lodged on 4 September 2009 rather than by reference to what they said was their claim for protection. They submitted that the Tribunal committed jurisdictional error because it failed to deal with a clearly articulated claim for protection. It was also submitted that the Tribunal had misconstrued the claim as a consequence of which there had been a constructive failure to exercise jurisdiction.
It was submitted that there was no strict form requirement for a refugee visa application notwithstanding that a particular form does exist and the Tribunal could have asked the applicants to lodge an application on the correct form.
It was submitted that once it became clear that the review before the Tribunal was a refugee application it “was incumbent upon the member to sit as Refugee Review Tribunal or transfer the matter to a member of that tribunal”.
The applicants also initially submitted that they had advised the Tribunal that they had applied for a refugee visa but had used the wrong form as a result of the actions of the department’s counter officer. The applicants relied on Shaddock & Associates Pty Ltd v Parramatta City Council (No.1) (1981) 150 CLR 225 and submitted that the Tribunal should have found that the counter officer whilst giving out the form was also giving advice. The applicants submitted that, in their particular circumstances, when the first applicant presented at the departmental counter he was not only seeking the correct form but he was also seeking advice as to the correct form to use. They submitted that, in the circumstances, the Minister had a duty to provide the correct form and the Tribunal should have found that the Minister “breached common law in giving incorrect form and/or advice as to the form” and erred in not giving consideration “to common law duty of government department to give correct form and/or advice as to the correct form”. These submissions were not pressed.
Consideration
Did the applicants intend to apply for protection visas?
The Minister submitted that the first applicant was not to be believed when he said that he relied on the department’s counter officer to provide him with the form necessary to lodge a protection visa application.
The first applicant’s pursuit of a protection visa in Australia has an extensive history. A chronology of his application and litigation history was annexed to Ms Whittemore’s affidavit and, with some amendments, includes the following:
03.06.2000
Applicant arrived in Australia
DIMIA 06.06.2000 Application for protection visa lodged 23.08.2000
Delegate’s decision
RRT 31.08.2000 Application for review lodged 27.04.2001 RRT hearing 08.06.2001
RRT decision handed down
High Court of Australia – S1494 of 2003 17.08.2001 Applicant joined Lie class action seeking order nisi (S89/1999) 25.11.2002
Order of Gaudron J remitting matter to FCA
Federal Court of Australia – N1785 of 2003
20.02.2004
Order of Emmett J refusing order nisi
Federal Magistrates Court – SZ2900 of 2004 22.09.2004 Application lodged 08.08.2005
Leave granted by Nicholls FM to file notice of discontinuance
Federal Court of Australia – NSD295 of 2007 01.03.2007 Application for an extension of time to file notice of appeal lodged 11.05.2007
Order of Spender J dismissing application
RRT 12.06.2007 Application for further review of delegate’s decision lodged 03.07.2007
RRT decision – no jurisdiction
Federal Magistrates Court – SYG2387 of 2007 02.08.2007 Application for judicial review 24.10.2007
Orders of Barnes FM dismissing application
Federal Court of Australia – NSD2257 of 2007 15.11.2007 Application for leave to appeal filed 15.11.2007 Affidavit of applicant filed 06.03.2008
Orders of Reeves J dismissing application for leave to appeal
DIAC 04.09.2009 Application for Child (Residence) (Class BT) visa 18.11.2009
Delegate’s decision
MRT 15.12.2009 Application for review 24.05.2010 MRT hearing 28.05.2010
MRT decision dated
Federal Magistrates Court – SYG1459 of 2010 01.07.2010 Application for judicial review lodged 01.07.2010
Affidavit of first applicant filed
During this period the first applicant retained at least one migration agent and two solicitors and, between his arrival in Australia and the hearing in these proceedings on 1 October 2010, had attended the department’s office on possibly twenty occasions to make bridging visa applications. I am satisfied that the first applicant was experienced in dealing with the Minister’s department and was also familiar with the issues which would be relevant for the grant of a protection visa. Significantly, there is nothing in the child visa application form lodged by the first applicant on 4 September 2009 which invites any submission from an applicant directed to the issue of whether he or she has a well-founded fear of persecution for one of the reasons set out in the United Nations Convention relating to the Status of Refugees 1951, as amended.
Accepting as I do that the first applicant is able to read English and was familiar with the criteria for the grant of protection visas, I conclude that he knew that the child visa application form was not one by which a claim for protection was or could be made. His statement in cross-examination that he thought the child visa form was the right form by which to apply for a protection visa is not credible. I conclude that the applicant knew, when completing the visa application form, that it was an application for child visas and not an application for protection visas and I reject his evidence to the contrary. Having rejected this evidence, I have no confidence that his evidence concerning his discussion with the counter officer is reliable and I do not accept it.
I conclude that, from the outset, the first applicant knew the form he was given was not the form he now says he sought. Consequently, the Tribunal did not err by conducting the review on the basis that it concerned an application for child visas.
Did the Tribunal err by failing to consider a protection visa claim?
Failure to deal with a clearly articulated claim for protection?
The visa application form which was lodged on 4 September 2009 plainly stated in the answer to its second question that it was an application for a child visa. Nothing on the form suggests a claim for a protection visa and no evidence was adduced to suggest that the form was accompanied by any statement or document which raised such an issue. Indeed, it is apparent from her decision record that the Ministerial delegate who considered the visa application did not perceive any claim for protection even though she was plainly aware of the first applicant’s visa application history. It was not until the applicants responded to the Tribunal’s s.359A notice that issues touching on alleged fears of persecution in Fiji were raised in the context of this application. However, at no point, whether before or during the Tribunal hearing, did the applicants clearly articulate a proposition that the visas they sought were protection visas. I do not accept that the exchange at the Tribunal hearing quoted above at [19] amounted to the first applicant flagging a claim for a protection visa. I find that no such claim was ever made to the Minister’s department or to the Tribunal in connection with this application and that, as a consequence, the Tribunal did not fail to identify or deal with a clearly articulated claim for protection.
However, even if a claim for protection was raised, whether in the visa application form or during the Tribunal review process, that is of no consequence as the Tribunal has no jurisdiction to consider applications for protection visas. The Tribunal’s power to review migration decisions is provided and circumscribed by s.338 of the Act. Relevantly for these proceedings, s.338(1)(b) provides that the Tribunal does not have power to review a decision which is “an RRT-reviewable decision”. Section 411 of the Act identifies decisions which are “RRT-reviewable decisions” and each class of decision referred to there is concerned with protection visas or refugee claims.
Had the Tribunal understood that the visa application before it was in reality a protection visa application, it would have had no alternative but to find that it had no jurisdiction to conduct the review sought. As a result, even if the Tribunal erred by undertaking its review on the basis that the application was one for child visas rather than protection visas, in the exercise of discretion I would not order the setting aside of the Tribunal’s decision and the remittal of the matter for determination according to law. Such orders would be futile because the Tribunal has no jurisdiction to review a decision on a protection visa application and could do no more than say as much.
The Tribunal’s constructive failure to exercise jurisdiction because it misconstrued the claim
For the reasons just given, I am not of the view that the Tribunal misconceived the claim but, even if it did, it would be futile to remit the matter because the Tribunal has no jurisdiction to conduct a review of a protection visa application.
The Tribunal could have asked the applicant to lodge an application on the correct form
This submission appears to be based on the assumption that the purported protection visa application was defeated because it was made on the wrong form. However, I have concluded that the first applicant always knew that the form he was given was not the form he now says he sought. That is to say, it was not the wrong form and the Tribunal did not err by considering the visa application according to the terms in which it was made.
However, even if the deciding factor in this matter had been the form, rather than the substance of the application (assuming that the substance had truly been a claim for protection visas), for the reasons already given, a characterisation of the application as one seeking protection visas would only lead to the Tribunal being unable to consider it. In such circumstances an order remitting the matter to the Tribunal would be futile and, in the exercise of discretion, I would not make one.
The member should have sat as the RRT or transferred the matter to that tribunal
The applicants submitted that the Tribunal should have terminated its hearing and transferred the review application to the RRT, but did not identify any power in the Tribunal to do this. The relevant powers of the Tribunal are found in s.349(2) which provides:
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision.
The Tribunal is not empowered to transfer matters to the RRT.
Moreover, s.348 requires that the Tribunal review an “MRT-reviewable decision” if a valid application is made to it. Section 347 sets out what amounts to a valid application to the Tribunal. One of its criteria is that the decision sought to be reviewed is an “MRT-reviewable decision”. In light of that criterion and assuming that all other criteria for a valid application were satisfied in this case, on the basis that the application to the department had been one for child visas the Tribunal had before it a valid application for review. In such circumstances, it had no option but to conduct a review of the application and to make one of the orders specified in s.349(2). It was obliged to exercise its jurisdiction. It could not pass the ball to the RRT.
For these reasons, this submission does not indicate jurisdictional error on the Tribunal’s part.
Alternatively, if the review application was not a valid application then the Tribunal had no jurisdiction or power to deal with it other than to state its lack of jurisdiction. Were that to be the case, for the reasons already given, I would not remit the matter to the Tribunal.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 2 November 2010
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