Avneesh v Minister for Immigration & Anor - [2006] FMCA 1681

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AVNEESH v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1681

MIGRATION – Application for judicial review – no Migration Review Tribunal reviewable decision –no jurisdictional error – application dismissed.

Migration Act 1958, ss.338, 348, 360, 476, 425(1)

Federal Magistrates Court Rules 2001 Sch.1, Part 2, item.1

Applicant:

AVNEESH AVNEESH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1970 of 2006

Judgment of:

O'Sullivan FM

Hearing date:

30 October 2006

Date of Last Submission:

30 October 2006

Delivered at:

Sydney

Delivered on:

30 October 2006

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondents:

Ms McDonald

Solicitors for the Respondents:

Phillips Fox

ORDERS

The application filed 17 July 2006 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $3000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1970 of 2006

AVNEESH AVNEESH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The proceedings

This is an application filed on 17 July 2006. The applicant seeks orders that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Act”) in relation to a decision of the Migration Review Tribunal (“the Tribunal”) dated 26 June 2006.
In that decision the Tribunal decided it did not have jurisdiction as there was not an MRT reviewable decision under s.338 of the Act.
On 3 August 2006, directions were made by consent that provided for the applicant to file and serve any affidavit containing additional evidence relied upon and any amended application giving complete particulars of each ground of review, by 26 September 2006.
The matter was listed for a final hearing today, 30 October 2006.
The applicant filed an affidavit on 17 July 2006 which annexed the Tribunal’s decision. The first respondent has filed a response, dated

27 July 2006, a case book which has been taken into evidence and an outline of submissions on 23 October 2006.
The grounds of the application filed on 17 July 2006 were:
“Migration Act 1958 was not observed properly. The Tribunal Member did not invite me to appear before MRT to give oral evidence and present argument relating to my issue, which is breach of section 425(1) of the Migration Act 1958.”
The application filed 17 July 2006 sought:
“1.An order to redirect the MRT decision and order the tribunal to take this matter for further consideration.
2.An order that the decision of the Tribunal is invalid, null and void.
3.An order not to remove me from Australia while the decision is pending.
4.Any further order that the Honourable Court may deems appropriate.”
The applicant also filed a one page document on 17 October 2006 titled “Applicant’s Written Case.” It said:
“the tribunal member did not invite me to appear before the tribunal to give oral evidence and present argument relating to my issue, which is breach of s425(1) of the Migration Act 1958.”

Background

I accept that the background to this application is accurately set out in paragraphs 2 to 7 of the respondent's outline of submissions filed on

23 October 2006. I adopt that background for the purposes of these reasons:
“The applicant is a male citizen of India born on 26 December 1984. He applied for a Student (Temporary) (Class TU) subclass 573 (Higher Education) Visa on 2 January 2003 and was granted the visa on the same day. His visa expired on 15 March 2006.
The applicant was also granted a one day Bridging E (Class WE) Subclass 050 Visa on 30 April 2006.
On 10 May 2006, while in detention, the applicant applied to the MRT for review of a decision to cancel a visa.
On 14 June 2006, the MRT wrote to the applicant to inform him that its initial assessment was that his application was ineligible because there was no identifiable decision and to invite him to comment within two days. The applicant did not respond to this letter.
The MRT sent a letter to the applicant notifying him of the outcome of its decision on 27 June 2006.
The applicant’s claims
The applicant made no claims. On his review application form he indicated that he wished the MRT to review the decision to cancel a bridging visa, but specified the class visa as ‘student visa’.
The Decision of the MRT.
The MRT found that there was no relevant decision to refuse or cancel a visa that would enliven its jurisdiction. The applicant had not specified a decision for review and the MRT was unable to find a reviewable decision on inspection of DIMA’s files.

Consideration of application

At CB 36 the Tribunal's reasons provided:
“The Tribunal has had regard to the Department’s files and the information on the Departmental records. These show that the last visa held by the applicant was a Bridging E (class WE) visa, granted on 30 April 2006 for one day. As indicated earlier, no decision was made to cancel the applicant’s student visa, or his bridging visa. A Departmental officer also confirmed that the applicant has made no further visa applications. Therefore, there appears to have been nothing to cancel, and northing to refuse.
The applicant did not provide sufficient detail to identify a relevant decision, and the Tribunal has been unable to identify any decision made by the Department in respect of the applicant to refuse or cancel a visa. Accordingly, there appears to be no MRT – reviewable decision to review.”
The applicant said that the Tribunal deprived him of natural justice, because the Act was not observed properly by the Tribunal.

The applicant said the Tribunal Member did not give him an opportunity to appear in the Tribunal before mtaking the decision.

The application for review was received by the Tribunal on 10 May 2006. Receipt of the application was acknowledged by the Tribunal by letter of the same date, directed to the applicant at the Villawood Immigration Detention Centre (Case Book 7 “CB”).
The Tribunal wrote to the applicant on 14 June 2006, seeking that the applicant comment and provide further information on “eligibility issues.” The applicant was invited to comment, in writing, on the following information ([CB32]:]:
“Section 338 of the Act defines the type of decisions that the Tribunal has the power to review. These decisions are called MRT reviewable decisions.
An eligible, valid application for review must relate to an MRT reviewable decision, because the Tribunal does not have power to review other types of decisions.”
“You applied for review of decision to refuse a student temporary visa, however records from the Department of Immigration and Multicultural Affairs show your student visa ceased on 15 March 2006. The records also show that you were granted a bridging E-visa on 30 April 2006, but this visa ceased that same day. There is no record of you having applied for any further visas and no record of a decision made by DIMIA to refuse or cancel a visa. As a decision to refuse or cancel a visa has not been made, there appears to be no MRT reviewable decision.”
“Your application for review may not be eligible because the Tribunal does not have the power to review the relevant decision.”
No response was received to this letter (CB 36). Today the applicant was asked whether he had received the letter of 14 June 2006 and he acknowledged he had. It was not in issue that the applicant received notice of the Tribunal's decision dated 26 June 2006. The nub of the issue in the Tribunal's decision at least so far as the disposition of this application is concerned ~~for the applicant~~ is that there was no MRT reviewable decision.
When the applicant was asked this morning whether there were any other matters that he wished to rely on, he made reference to a further application he said he had made for a student visa. However there has been no evidence of any such application. The applicant simply said it was a matter that his “case officer” was aware of.
The applicant acknowledged this matter was about his application to the Tribunal dated 10 May 2006 (CB 1-6). There was no evidence of any other application, refusal or decision of the ‘department’ or the Tribunal. The Tribunal’s reasons show it “had regard to the Department’s files and the information on the Department’s records.”
The applicant acknowledged this morning each of the visa’s he had held had expired. In particular the applicant did not dispute that the bridging visa had been granted for one day only. Finally the applicant made no attempt to explain the reference to the ‘bridging visa’ in his review application (CB 4)
~~In relation to the applicant’s claim that the Act was breached the respondent’s submissions~~ The respondent submits ~~note~~ that the application filed on 17 July 2006 in so far as it claims that the Tribunal breached s.425 of the Act is misconceived. As was explained to the applicant this morning, and as the applicant accepted, the relevant section ~~were it to be relevant,~~ in relation to the requirement to invite an the applicant to a hearing were the Tribunal to have had jurisdiction to review a decision, is s.360 not s.425 of the Act.
There is however a more fundamental problem confronting this application. As noted earlier s.338 of the Act defines a MRT reviewable decision.
“(1) A decision is an MRT reviewable decision if this section so provides, unless:
(a) the Minister has issued a conclusive certificate under section 339 in relation to the decision; or
(b) the decision is an RRT reviewable decision; or
(c) the decision is to refuse to grant, or to cancel, a temporary safe haven visa.
(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non citizen a visa is an MRT-reviewable decision if:
(a) the visa could be granted while the non citizen is in the migration zone; and
(b) the non citizen made the application for the visa while in the migration zone; and
(c) the decision was not made when the non citizen:
(i) was in immigration clearance; or
(ii) had been refused immigration clearance and had not subsequently been immigration cleared; and
(d) where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
(3) A decision to cancel a visa held by a non citizen who is in the migration zone at the time of the cancellation is an MRT reviewable decision unless the decision:
(a) is covered by subsection (4); or
(b) is made at a time when the non citizen was in immigration clearance; or
(c) was made under subsection 134(1), (3A) or (4) or section 501.
(3A) A decision under section 137L not to revoke the cancellation of a non citizen's visa is an MRT reviewable decision if the non citizen was in the migration zone when the decision was made.
(4) The following decisions are MRT reviewable decisions :
(a) a decision to refuse to grant a bridging visa to a non citizen who is in immigration detention because of that refusal;
(b) a decision to cancel a bridging visa held by a non citizen who is in immigration detention because of that cancellation.
(5) A decision to refuse to grant a non citizen a visa is an MRT reviewable decision if:
(a) the visa is a visa that could not be granted while the non citizen is in the migration zone; and
(b) the non citizen, as required by a criterion for the grant of the 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.
(6) A decision to refuse to grant a non-citizen a visa is an MRT reviewable decision if:
(a) the visa is a visa that could not be granted while the non citizen is in the migration zone; and
(b) a criterion for the grant of the visa is that the non citizen has been an Australian permanent resident; and
(c) a parent, spouse, child, brother or sister of the non citizen is an Australian citizen or an Australian permanent resident.
(7) A decision to refuse to grant a non citizen a visa is an MRT reviewable decision if:
(a) the visa is a visa that could not be granted while the non citizen is in the migration zone; and
(b) a criterion for the grant of the visa is that the non-citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, child, brother or sister of the non citizen; and
(c) particulars of the relative concerned are included in the application.
(7A) A decision to refuse to grant a non-citizen a permanent visa is an MRT 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; and
(b) the visa is a visa that could be granted while the non citizen is either in or outside the migration zone.
(8) A decision, under section 93, as to the assessed score of an applicant for a visa is an MRT reviewable decision if:
(a) the visa is a visa that could not be granted while the applicant is in the migration zone; and
(b) the applicant, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i) an Australian citizen; or
(ii) the holder of a permanent visa; or
(iii) a New Zealand citizen who holds a special category visa; and
(c) the Minister has not refused to grant the visa.
(9) A decision that is prescribed for the purposes of this subsection is an MRT reviewable decision .”
In this case the Tribunal had been “unable to identify any decision made by the Department in respect of the applicant to refuse or cancel a visa. Accordingly, there appears to be no MRT –reviewable decision to review.” (CB 36)).
The Tribunal’s findings, which is the best evidence I have; (at CB 36)
“Show that the last visa held by the applicant was a bridging E (Class WE) visa, granted on 30 April 2006 for one day. As mentioned earlier, no decision was made to cancel the applicant’s student visa or his bridging visa. A Departmental officer also confirmed that he applicant has made no further visa applications. Therefore, there appears to have been nothing to cancel and nothing to refuse.”

Findings

The evidence such as it is shows that the applicant had been the holder of two visas. The first visa which was a student visa granted on

2 January 2003, expired by effluxion of time on 15 March 2006.

The second, which was a one-day bridging visa, expired on the day that it was granted, which was 30 April 2006.
On the applicant’s own evidence there appears to be no MRT reviewable decision. In the absence of there being an MRT reviewable decision it would appear that the Tribunal lacked jurisdiction to review any decision.
Given this, in relation to the applicant’s claims I agree with and adopt, for the purposes of these reasons, paragraphs 10 through to 12 of the first respondent’s outline of submissions filed on 23 October 2006:
10.…The MRT correctly found that it did not have jurisdiction as there was no MRT reviewable decision.
10.1Section 338 sets out the criteria for an MRT reviewable decision and includes a decision to refuse to grant or cancel a visa or a non citizen in the migration zone. (see s338 (2) and (3)).
10.2An MRT reviewable decision also includes a decision to refuse or cancel a bridging visa to a non-citizen who is in detention because of the refusal or cancellation (see s338 (5)).
11.The MRT’s jurisdiction arises when an application is properly made for review of an MRT reviewable decision pursuant to s 348 of the Act.
11.1The applicant in his review application stated that the decision he sought review of was a decision to cancel his bridging visa. However, DIMA records show that the applicant was granted a bridging visa for one day and that visa was not cancelled. In addition, there was no refusal of any further application for a bridging visa.
11.2The MRT found that it did not have jurisdiction review the matter because the applicant did not provide sufficient detail to identify a decision to refuse or cancel any of the visas he had held.
11.3In addition, information from DIMA indicated that although cancellation of the applicant’s student visa was considered, DIMA decided not to pursue the cancellation and there were no visa applications which had been refused.

~~1.Breach of s 425~~
1.12. Section 425 of the Migration Act relates to RRT review applications however, the equivalent section for MRT review applications is s 360. In any case, it is the first respondent’s submission that there was no obligation for the MRT to invite the applicant to a hearing as the MRT did not have jurisdiction.

Having regard to the evidence in this matter, including the submissions made this morning by the applicant, I am satisfied that there was no jurisdictional error by the Tribunal.
Accordingly, I dismiss the application filed 17 July 2006.
On a question of costs, the application having been dismissed, I accept that costs should follow the event. The applicant has not wished to say anything in relation to costs. The solicitors for the first respondent have properly sought costs less than the costs that would normally apply in relation to these proceedings under Schedule 1, Part 2, Item 1(c) of the Federal Magistrates Court Rules 2001. Ms MacDonald, on behalf of the first respondent, has sought costs fixed in the amount of $3000.
In the circumstances, I find it appropriate to award costs on that basis, which I fix in the sum of $3000.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM

Associate: James Naughton

Date: 3 November 2006