Arkaah v Minister for Immigration

[2013] FCCA 1661

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARKAAH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1661

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: KWAMENA NKENSEN ARKAAH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1442 of 2013

Judgment of: Judge Driver

Hearing date: 18 October 2013

Delivered at: Sydney

Delivered on: 18 October 2013

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondents:

Ms L Buchanan

Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The name of the first respondent is amended to “Minister for Immigration and Border Protection”.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1442 of 2013

KWAMENA NKENSEN ARKAAH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application filed on 26 June 2013.  The application seeks review of a decision of the Migration Review Tribunal (Tribunal) made on 29 May 2013.  The Tribunal affirmed a decision of the delegate of the Minister not to grant Mr Arkaah a Resolution of Status Resident (Class BL) visa. 

2. Mr Arkaah’s migration history in this country is both lengthy and rather convoluted.  He is a national of Ghana, born in 1969.  He arrived in Australia in February 1992.  He tells me that he first applied for a visa in Australia on 12 March 1992.  However, for present purposes, I note that he applied for a Resolution of Status Resident (Class BL) visa on 18 March 1998.  Initially, it appears that he applied for both a temporary and permanent visa.  The first was a precondition for the second.  It appears that he was denied the temporary visa on the basis that his visa application was invalid.  That occurred in 1998.  However, it was not until 2011 that the Department and ultimately the Tribunal dealt with the application for the final visa. 

3. It is from that decision of the Tribunal that Mr Arkaah now appeals.  I have before me, in addition to his application, an affidavit in support filed with it.  The body of that affidavit I received as a submission, although the documents attached to it are material, in some respects, as evidence.  I received as evidence the affidavit of Dale Jennifer Watson, made on 9 October 2013. 

4. The affidavit of Ms Watson discloses that Mr Arkaah sought the resolution of status visa in March 1998.  It appears that the Department wrote to Mr Arkaah on 20 March 1998 to tell him that his application for the temporary visa was invalid, because he did not come from a prescribed country and he had not arrived by a prescribed date.  I would have thought that his application for the permanent visa could have been dealt with at the same time, but it appears that, for some reason, it was not.  Mr Arkaah and his solicitor were informed in 2011 by the Department that the permanent visa application remained outstanding. 

5. It was ultimately dealt with and Mr Arkaah sought review before the Tribunal.  The Tribunal’s decision is a simple one.  The Tribunal noted that in order to qualify for the permanent visa, it was necessary that Mr Arkaah hold a temporary visa of the same class, namely a resolution of status class.  Mr Arkaah did not hold a subclass 850 visa, which meant that he could not obtain a subclass 851 visa.  I see no error in the reasoning of the Tribunal on that issue. 

6. In his oral submissions, Mr Arkaah told me that he was concerned not so much with the outcome before the Tribunal, but with what he sees as maladministration in the handling of his visa applications by the Minister’s Department.  I note from his affidavit that he has on at least one occasion made a complaint to the Ombudsman and has also made Freedom of Information requests.  It appears that the Department has had some difficulty at times locating certain documentation. 

7. While there may have been maladministration in the handling of Mr Arkaah’s visa applications, there is, in my view, no arguable case of jurisdictional error in the decision ultimately made by the Tribunal. 

8. I will accordingly dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

9. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Arkaah did not oppose an order for costs, but indicated that he would require time to pay.  I will not require payment of the costs within any particular time. 

10. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  23 October 2013