Assi v Minister for Immigration
[2005] FMCA 260
•25 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ASSI v MINISTER FOR IMMIGRATION | [2005] FMCA 260 |
| ADMINISTRATIVE LAW – Appeal of AAT decision that it did not have jurisdiction to consider an application made pursuant to s.500 Migration Act refusing applicant a Subclass 119 Sponsored Migration Permanent Residence Visa. |
| Administrative Appeals Tribunal Act 1975 s.30(1A) Migration Act 1958 (Cth) ss.27; 338; 347; 353; 500; 501; 501G |
| Basbas v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1602 Fernandez v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 324 H v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 126 Handa v Minister for Immigration and Multicultural and indigenous Affairs [2000] FCA 1030 Murray v King (1984) 58 ALR 559 Re Minister for Immigration and Multicultural and Indigenous Affairs ex parte Miah (2001) HCA 22 W157/00A v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1536 Wickremasinge v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 324 |
| Applicant: | MICHAEL ASSI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 339 of 2003 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 October 2003 |
| Date of Last Submission: | 17 October 2003 |
| Delivered at: | Sydney |
| Delivered on: | 25 February 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Morfuni SC (appeared pro bono) |
| Counsel for the Respondent: | Mr Horan |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the amount of $5,000.00.
Time for appeal is not to run until the publication of written reasons.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
MLG 339 of 2003
| MICHAEL ASSI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision by the Administrative Appeals Tribunal.
The complaint of the applicant is that the Administrative Appeal Tribunal ruled on 5 February 2003 that it did not have jurisdiction to consider his application made pursuant to s.500 of the Migration Act on 21 November 2002, refusing him a Subclass 119 Sponsored Migration Permanent Residence Visa. The applicant submits that this ruling amounted to reviewable conduct.
He says that the Tribunal failed to decide that his application was valid and that he had standing to pursue it or alternatively, if he did not have standing, that the application was nevertheless a valid application to which a new applicant with standing could be joined.
The questions of law, he submits to the Court are:
i)Whether he had standing; and
ii)Whether the application was valid irrespective of whether he did have standing.
The background to this matter is that the applicant is a citizen of Lebanon. He is married and they have three children. On
3 December 2000 he and his family arrived in Australia on a Tourist Visa. On 8 February 2001 his prospective employer, Ruffell Family Jewellers, applied for approval to be a nominated employer in respect of the applicant.
On 26 February 2001 the Department of Immigration and Multicultural and Indigenous Affairs advised Ruffell Family Jewellers that it was approved as a sponsor of the applicant.
On 3 March the applicant travelled to New Zealand and on 5 March he filed his application for Employer Sponsored Migration to Australia. He filed that application at the Australian High Commission and documents were sent to the Australian Embassy in Lebanon.
He was advised on 7 March that his application for a grant of visa had been received. He was informed that his application had been transferred to the office in Beirut for assessment.
On 19 March 2001 a letter was sent to the Beirut office of the Minister making accusations of a criminal nature against the applicant.
On 12 June a further letter was sent to the Beirut office, enclosing verdicts against the applicant of a Lebanese Court. The applicant made inquiries on 26 June 2001 seeking information and was informed that his case was still under consideration.
Nothing further seems to have happened until November 2002, at which stage the applicant’s solicitors, at the time, Fernandez Canda Gerkens, received a copy of a decision from a delegate of the Minister, a Mr Davis. That decision was to refuse the grant of a visa to the applicant on character grounds.
On 21 November 2002 the applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision.
That decision came before the Administrative Appeals Tribunal and on 5 February 2003 the Tribunal constituted by the Deputy President,
Ms Forgey, decided that the Tribunal did not have jurisdiction to consider the applicant’s application. At page 103 of the Court Book there appears a summary of the initial issue upon which the matter was decided and I quote:
Before the substantive hearing began there was an initial question as to whether Mr Assi was entitled to lodge his application under the Act. Resolution of that issue turned on whether Mr Assi was a person entitled to seek review of the decision under either part 5 or part 7 of the Act if the decision had been made on another ground within the meaning of s 500 (3). At the hearing I made a decision that Mr Assi was not such a person and was not entitled to lodge an application for review of a decision of the Delegate under s 501. Consequently, I found that I did not have jurisdiction to review the decision. The section 500(6)(b) of the Act provides that s 29(7) of the Administrative Appeals Tribunal Act (1975), the Administrative Appeals Tribunal Act does not apply where a person is in the Migration zone, it must be lodged within nine days after the day on which Mr Assi was notified in accordance with s 501(g)(1) and I am unable to extend that nine day time limit.
The Tribunal, in its final paragraph on page 115 of the Court Book says:
As Mr Assi was not a person who was entitled to make an application under s 500 sub-s (3) I decided that the Tribunal did not have jurisdiction to consider Mr Assi’s application.
On 17 March 2003 Ruffell Family Jewellers applied for an extension of time in which to file an application for review.
On 17 April 2003 the Administrative Appeals Tribunal handed down its decision on that application and held that it lacked the power to extend the time pursuant to which to lodge an application for review and indicating that had such jurisdiction existed the discretion would have been exercised in favour of Ruffell to allow Ruffell to bring the application.
The orders that the applicant seeks are these:
i)A declaration that he has standing to make the application;
ii)A declaration that the application is valid irrespective of whether he has standing;
iii)A declaration that the Tribunal has jurisdiction to consider the application;
iv)A declaration that it is open to the Tribunal to entertain an application by the sponsor in writing under s.30(1A) of the Administrative Appeals Tribunal Act 1975 to be made a party to the application;
v)An order that the decision or conduct of 5 February 2003 be set aside and the matter be remitted to the Tribunal for reconsideration in accordance with law;
vi)Writ of Prohibition prohibiting the first respondent Minister and his servant or agents from removing the applicant from Australia pending the determination of these proceedings or further order;
vii)A Writ of Certiorari quashing the decision or conduct in the Tribunal of 5 February 2003 and remitting the matter to the Tribunal for reconsideration in accordance with the law.
The applicant provided a written submission. Counsel for the applicant, Mr Morfuni, senior counsel, referred the Court to s.500 of the Migration Act which provides:
An application may be made to the Administrative Appeals Tribunal for review of decisions of a Delegate of the Minister.
A person is not entitled to make an application under sub-s 1 for review of a decision referred to in paragraph 1(b) or (c) unless the person would be entitled to seek review of decision under part 5 or 7 if decision had been made on another ground. Sub-s 6 (b) of the Act provides that if the decision under s 501 of the Act relates to a person in the migration zone, an application for review of the decision must be lodged within 9 days after the date on which the person was notified of the decision in accordance with sub-s 501G(1). S 501 of the Act enables the Minister or his/her delegate to refuse a visa to an applicant on the grounds he fails to pass the character test. S 501G of the Act provides that if a decision is made under s 501 to refuse to grant a visa to a person, the Minister must give the written notice:
(c) sets out the decision.
(d) specifies the provision under which the decision was made, sets out the effect of that decision.
(e) sets out the reasons other than non-disclosable information for decision.
(f) if the decision was made by a delegate of the Minister, the person has a right to have the decision reviewed by the Administrative Appeals Tribunal.
(i) States that the decision can be reviewed by the Tribunal
(ii)States the time in which the application for review may be made.
(iii)States who can apply to have the decision reviewed.
(iv) States where the application for review can be made.
(v)In a case where the decision relates to a person in the Migration zone, sets out the effect of sub-s 500(6)A-(6)L inclusive.
(vi) Sets out such additional information, if any, as is prescribed.
Part 5 of the Act deals with reviewable decisions. Division 2 deals with those decisions that are reviewable by a Migration Review Tribunal. Section 338(5) provides:
That a decision to refuse to grant a non-citizen visa is an Migration Review Tribunal Reviewable Decision if:
(a) The visa is a visa that could not be granted while the
non-citizen is in the Migration Zone.
(b) The non-citizen is required by a criteria for the grant of visa was sponsored or nominated by:
(i) An Australian Citizen or
(ii) A company that operates in the Migration zone or
(iii) A partnership that operates in the Migration zone or
(iv) The holder of a permanent visa or
(v) A New Zealand citizen who holds a special category visa.
Section 338(7A)provides:
That a decision to refuse to grant a non-citizen a permanent visa is an Migration Review Tribunal Reviewable Decision if:
(a)The non-citizen made the application for the visa at a time when the non-citizen was outside the Migration zone.
(b)The visa is a visa that could be granted while the non-citizen is either in or outside the Migration zone.
Section 347 of the Act provides:
That an application for review may only be made if the Migration Review Tribunal reviewable decision is covered by sub-s 338(5) or (8), the sponsor or nominator referred to in the sub-s concerned.
Before the Administrative Appeals Tribunal the respondent submitted that the applicant did not have standing to bring the application. The Administrative Appeals Tribunal found that only the nominator was entitled to apply for a review pursuant to s.347(2)(b).
The notice given to the applicant with the decision of the delegate, it is submitted, clearly raised by the applicant an expectation that he had a right to apply for a review of the decision. Further, counsel submitted that there was an expectation that the sponsor who had originally sponsored the applicant for migration would be given notice of the decision and informed of his rights to apply for review of the decision if he so desired.
Mr Morfuni submitted to the Court that the Tribunal did have jurisdiction. He said that although s.347(2) stated that Mr Assi did not have standing to bring an application on his own behalf, insofar as he relied on s.338(5), the conduct of the delegate gave rise to a legitimate expectation that Mr Assi could seek a review of the decision if he was within the Migration zone. He was induced in this belief by the statements contained in the Notice of Review Rights. In acting upon the legitimate expectation, Mr Assi, on the respondent’s argument, has lost any right to have the decision reviewed. In those circumstances Mr Assi would have been denied procedural fairness.
The combined effect of s.353 of the Migration Act and s.27 of the Administrative Appeals Tribunal Act was that the Tribunal should have proceeded to hear the merits by joining Ruffell Family Jewellers as a party or treating the application as an application brought on behalf of Ruffell.
The Migration Act, it is submitted, does not exclude s.27 or modify its effect in relation to the present application. It is significant that
s.500(6)A, (6)L which exclude other provisions of the Administrative Appeals Tribunal Act does not exclude s.27. Accordingly, the application can be made on behalf of another person. There is no requirement that the applicant be an agent per se.
Section 27 permits an application to be brought on behalf of another person. Those words do not have any strict legal meaning but simply means that legally the actions of one person can be seen to have been carried out on behalf of another. And I was referred to a number of cases.
Thus, it is submitted, a receiver who sells the property of a partnership does so on behalf of the partners, although he may sign the contracts in his own name. See for example Murray v King (1984) 58 ALR pp 559, per Morling J at 570 and 571, Spender at 577.
Here the Migration Act provides for review by the sponsor. Accordingly, it is submitted that the application can be made on behalf of the sponsor. The respondent’s argument in this case, he submits, means that in law the applicant had no standing to apply for review. Because the sponsor had standing and because the sponsor had not been notified of the decision, Mr Assi could only be making the application on behalf of Ruffell and the Tribunal accordingly had jurisdiction to hear the merits of the case.
It was submitted on behalf of the applicant before the Administrative Appeals Tribunal that the application should proceed on the basis that the nominator was the applicant. If the Tribunal was of the view that
s.347(2)(b) prevented Mr Assi from bringing an application in his own name, that submission is rejected by the Tribunal. The fact that there was no formal application to join the sponsor as a party is irrelevant it is submitted. The duty of the Tribunal, pursuant to s.353 of the Migration Act was to conduct the hearing so as to achieve substantial justice according to the merits of the case and not to be distracted by mere matters of the technicalities and/or legal forms.
This is especially so when the Tribunal was aware that the sponsor was present at the hearing and any requisite instructions could have been obtained from the sponsor. Mr Morfuni submitted that it would be perverse if a mistake in use by the representations of the delegate could result in denial of review rights which are provided for in the Act. Furthermore, Ruffell Family Jewellers or their representatives were present at the hearing.
Counsel for Mr Assi submitted to the Tribunal that he, Mr Assi, should be treated as the agent of Ruffell but the Tribunal found that there was no evidence of agency. It was submitted that that evidence was readily available by calling Mr Ruffell. Alternatively, he submits, Mr Ruffell should have been joined as a party.
Section 30(1)A of the Administrative Appeals Tribunal Act (1975) provides:
That when an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply in writing to the Tribunal to be made a party to the proceeding and the Tribunal may, in its discretion, by order, make that further person a party.
Joinder of parties is permissible. See Basbas v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1602, Wickremasinge v Minister for Immigration and Multicultural Affairs [1998] FCA 324.
In s.353 it was submitted that the Migration Act gave the Tribunal power to substitute a party in order to achieve justice.
Mr Morfuni of senior counsel went on to submit that the decision made by the delegate could not stand because of the failure of the delegate to comply with the requirements of s.501(G). He said that the applicant had a legitimate expectation based upon the information supplied to him by the delegate of the Minister and notice of his rights that he could lodge an application for review in his own name if he was in the Migration zone. This is because the decision made under s.501 must be notified to the effect of the party. Section 506(b) provides:
That any application to the Tribunal for a review of a decision must be lodged within nine days after the day on which the person was notified of the decision in accordance with sub-s 501(G)(i).
There cannot be effective notification until such time as there is compliance with the provisions of s.501(G). The purpose of that section, he submitted, is to inform the affected party of a decision that has been made and the reasons why that decision was made and to inform him of his review rights so that he can make an informed decision as to whether to pursue his rights of review. If a delegate is wrong in his understanding of the law, then there has not been any proper notification according to that section.
Here, on the delegate’s argument, the applicant never had an entitlement to apply for review of that decision. Provision of s 347(2) excluded the applicant from such a right. Thus, although the service of the notice of the decision can be said to have occurred upon receipt of the fax dated 19 November 2002, it has no effect because of the failure of the delegate to supply the correct information. See H v Minister for Immigration and Multicultural Affairs [2002] FCA 126, W157-00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1536, Lee J, Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281.
Counsel for the applicant submitted that the duty of the delegate to provide the information required by s.501(G) carries with it an implication that the information thus supplied is in fact correct. Accordingly, giving incorrect information cannot constitute the giving of a valid notice under that section. See also in re Minister for Immigration and Multicultural Affairs ex parte Miah (2001) HCA 22 at pp 104 per Gaudron J.
Although the Full Court on appeal in W157 held that the failure to give the required notice did not constitute a ground for review, the Court said nothing in relation to the issue of whether the failure to give the requisite accurate information pursuant to sub-s.501(G)(f) constituted a notification. The duty imposed upon the Minister is to notify the applicant, not only of the decision made in respect of his application for a visa but also of his rights of review. If the Minister failed in his duty to comply with the provisions of s.501(G) and the fax dated
19 November did not constitute a valid notification, then time did not begin to run and does not run until such time as the Minister rectifies that error.
Accordingly, at the time in which the sponsor had lodged his application for review of the decision had not expired:
a)At the time that Mr Assi lodged the application for review with the Administrative Appeals Tribunal; and
b)At the date on which Mr Ruffell lodged his application for a review of the decision.
In the Tribunal’s decision, rejecting the application by Mr Ruffell for an extension of time on which to bring his application, the Tribunal acted on the premise that the time had already expired.
The applicant had a legitimate expectation, it is submitted, that his sponsor would be given notice of the decision, thereby enabling the sponsor to exercise his right of review.
There does not appear to be any provision in the Migration Act which requires the Minister to notify the sponsor of the outcome of the applicant’s visa application. In the absence of specific provision,
Mr Morfuni submitted, that on the proper construction of the legislation there should be an implied duty upon the Minister to notify the sponsor of the outcome of the applicant’s visa application. In the absence of specific provision, Mr Morfuni submitted that on the proper construction of the legislation, there should be an implied duty on the part of the Minister to notify the sponsor of the outcome of the application. Refer the Court to Handa v Minister for Immigration and Multicultural Affairs [2000] FCA 1030.
In the case before me it was submitted that the obvious legislative attempt was to give sponsors the right of review in relation to applicant’s visa application if rejected by the Minister. The right could only be exercised if the sponsor were to be notified of the fact that the decision had been made. This is especially so having regard to the very rigid time limits imposed upon an applicant for review of a decision of this type.
It is submitted that the Act must be interpreted in a way that requires the Minister to give notification of the decision to the sponsor. If that is so it follows that the sponsor was not out of time at the date he filed his application.
On its proper construction s.338(7A) applies to the applicant. That section relevantly provides:
That a decision to refuse to grant a non-citizen a permanent visa is a reviewable decision if:
(a)Non-citizen made the application for visa at a time when the non-citizen was outside the Migration zone.
The visa is a visa that could not be granted while the non-citizen resided in or outside the Migration zone.
Mr Morfuni submitted that, construed literally, the section would have the effect that in relation to a non-citizen who made the application for the visa outside the Migration zone, a right of review would exist, provided a visa could be granted to a non-citizen either whilst he was in the Migration zone or when he was outside the Migration zone. He submitted that in this case the applicant would have had a right of review because the visa was one which could be granted when he was outside the Migration zone.
On behalf of the respondent Minister, Mr Horan, Counsel, submitted that the delegate’s decision to refuse to grant a Class AN Visa to the applicant would have been an Migration Review Tribunal reviewable decision under s.338(5) of the Act:
i)The visa could not be granted while the non-citizen was in the Migration zone. Clause 119.411 of schedule 2 of the regulations provided that:
The applicant must be outside Australia when the visa was granted.
ii)Accordingly, a subclass 119 Visa could not be granted while the applicant was in the Migration zone.
Further, clause 119.211 required the non-citizen to be nominated by the employer.
In the case before me the applicant was nominated by Ruffell Jewellers.
Mr Horan submitted that an application for review of a Migration Review Tribunal reviewable decision, falling within sub-s.338(5) may only be made by the nominator, sub-s.347(2)(b). Accordingly, only the nominator was entitled to apply for review of the delegate’s decision under s.500 sub-s.(3). The applicant had applied to the Tribunal in his own name. Even if it were relevant, there was nothing to suggest that he was an agent acting for the actual or implied authority of Ruffell Family Jewellers and bringing the application on its behalf. I would comment at this stage that I agree with that point.
The Tribunal rejected an argument by the applicant of the decisions and Migration Review Tribunal review of the decision within s.338, paragraphs, sub-s.(7)(a) in which case the applicant would have had standing under ss.347(2)(a) and 503 to bring an application for review. Sub-s.338(7)(a) applied where the non-citizen made a visa application from outside the Migration zone and where the visa was one that:
Could be granted while a non-citizen is either in or outside the Migration zone.
Because clause 119.411 required the applicant to be outside Australia when the visa was granted, it was clearly not a visa which could be granted while the applicant was in the Migration zone or outside it. The Tribunal concluded that the Parliament intended s.500(3) to limit those who can apply for review. Unless an application were made by a person prescribed by s.500(3) the Tribunal did not have jurisdiction to consider it.
Mr Horan submitted that in his application for review the applicant alleged that the Tribunal erred in finding that it did not have jurisdiction to consider the application based on the two grounds set out. He said that s.25, sub-s.(1) of the Act provides:
That an enactment may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment.
Section 25(3) provides:
That where an enactment makes such provision it may specify conditions subject to which applications may be made.
Section 25(6)(b) provides:
That where an enactment provides for applications to the Tribunal, it may also include provisions adding to, excluding or modifying the operation of s 21, 21(a), 22, 27, 29, 32 and 33, 35, 41(1), 43(1) or 43(2) of the Administrative Appeals Tribunal Act in relation to such application
Section 500(3) of the Migration Act is a provision which excludes or modifies s.27 of the Administrative Appeals Tribunal Act. Section 500(3) specifically restricts the persons who may make an application for review of a decision under s.501 of the Act. Moreover, it does say, not by describing the persons who may bring an application for review but by disentitling a person from making an application for review unless that person satisfies the requirements set out in s.500(3) which in turn required that the person would have been entitled to apply for review to the Migration Review Tribunal under part 5 of the Migration Act. See s.347.
There is no room for the application of s.20 or s.30 of the Administrative Appeals Tribunal Act which general provisions giving standing to any person whose interests are affected by a decision and which are inconsistent with the specific provisions contained in ss.500(3) and 347(2) of the Migration Act. In any event, it was submitted, that in referring to applications made on behalf of certain persons, s.27 of the Administrative Appeals Tribunal Act does not contemplate a named applicant bringing an application as the undisclosed agent of another person who is entitled to make an application.
Like s.342 in relation to the Migration Review Tribunal, s.500(3) operates as a condition on the jurisdiction of the Tribunal to review a decision made by a delegate of the Minister. The obligation of the Migration Review Tribunal to review a decision under s.348 arises only if an application for review is properly made under s.347. It has been held that the Migration Review Tribunal has no jurisdiction to entertain an application for review which is not made within the prescribed period and there is no power to extend the time within which an application for review may be lodged. See generally Fernandez v Minister for Immigration and Multicultural Affairs [2000] FCA 324.
Similarly, the clear legislative intention revealed by s.503 is that an application by a person who is not entitled to make an application can never be entertained by the Tribunal. The decision in Basbas v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1602 does not suggest anything to the contrary. In Basbas, Gray J held that the Federal Court had power under order 13, rule 2 of the Federal Court Rules to amend the title to proceedings in circumstances where the proceedings had been incorrectly commenced in the name of a person other than the visa applicant.
The decision in Basbas does not address the position where an applicant to the Tribunal is made by an incorrect applicant. Indeed, it was accepted by Gray J that by a combination of s.347(2)(a) and s.338(2) only Mr Basbas, the visa applicant, could apply to the Tribunal in respect of a decision refusing him a visa of the kind that he sought. Nothing in the decision suggested that the Tribunal had had any power to amend an application made to the Tribunal by someone other than the person entitled to make an application under the Act.
The decision in Basbas turned on the Court’s general discretionary powers to control its procedures in the light of which ss.478 (indistinct) 479 and 46(c) of the Migration Act were construed as not imposing limits on the jurisdiction of the Court. In contrast, ss.503 and 347 (2) clearly manifest a legislative intention to limit the jurisdiction of the Tribunal and are not simply procedural in nature.
In any event, he submitted that the question whether the Tribunal had any power to hear any defect in the proceedings does not arise. No application was made to the Tribunal for any order substituting the nominator as the named applicant or otherwise amending the title of the proceedings. Rather, when the objection to the validity and competence of the application was raised by the respondent, the applicant elected to argue that he was in fact entitled to make the application. This is s.500(1) of the Act. The only question raised for determination by the Tribunal was whether the Act was entitled to make such an application.
Similarly, because no application was made to the Tribunal for an order joining the nominator as a party to proceedings before the Tribunal, it is unnecessary to consider whether the Tribunal would have had any power to grant such an application or whether such joinder would cure any defect in the proceedings. In any event, however, the Tribunal would not have had power to join the nominator at the time because the applicant was not entitled to make an application to the Tribunal and there were therefore no proceedings validly before the Tribunal. With respect, I agree with that submission.
The Tribunal correctly rejected the applicant’s argument that he was entitled to make the application on the basis that the delegate’s decision was covered by s.338(7)(a). This sub-s applies to a decision to refuse the visa that could be granted while the non-citizen:
Is either in or outside the Migration zone.
This is clearly intended to refer to those kinds of visa which can be granted whether or not the applicant is inside the Migration zone. The applicant contends that the sub-s refers to any visa which can be granted while the non-citizen is outside the Migration zone.
Mr Horans submission is that that construction was nonsensical and that it would cover all kinds of visas and is contrary also to the grammatical structure of the sub-s. A Class AN Sub-Class 119 Visa can only be granted to an applicant who is outside Australia at the time of grant. Therefore, it cannot be granted to a non-citizen who is in a Migration zone and does not fall within s.338(7A)(b).
I am certainly of the view that it would be nonsensical to hold that any visa which can be granted, whether the non-citizen is inside the Migration zone or outside the Migration zone should be so privileged in this way. In my view, the meaning of the legislation makes it clear that as the applicant was not inside the Migration zone he was not entitled to make an application to the Tribunal.
It is also, in my opinion, a correct understanding of the application that there was nothing to show that the applicant was acting on behalf of the nominator and that it is not up to the Administrative Appeals Tribunal to have to ascertain that.
In my view, the submissions by Mr Horan of counsel on behalf of the respondent, lead to the conclusion that the Administrative Appeals Tribunal was correct when it decided that it had no jurisdiction to entertain the applicant’s application. Accordingly, the application is dismissed.
In my view, costs follow the event and I do propose to order that the applicant is to pay the respondent’s costs. I would have to say that this was a matter of some complexity. It was extremely well argued by counsel on both sides and I note that Mr Morfuni, to his credit, appeared pro-bono. To my mind it is appropriate to make an order for costs in the sum of $5000 as sought. I do believe that that accurately reflects the complexity of the work and the standard of preparation of it. And it is appropriate of course for the Federal Magistrates Court to make an order for costs in a fixed sum.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 8 March 2005
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