Barkat v Minister for Immigration &Multicultural Affairs

[2000] FCA 510

FEDERAL COURT OF AUSTRALIA

Barkat v Minister for Immigration &Multicultural Affairs [2000] FCA 510

MIGRATION - error of law in Migration Review Tribunal's decision on facts as found by it - whether futile to grant relief in light of evidence before Court - decision set aside and visa application remitted for further consideration.

Migration Act 1958, s 481

GULFAM ANTHONY BARKAT v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1342 of 1999

WHITLAM J
18 APRIL 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1342 OF 1999

BETWEEN:	GULFAM ANTHONY BARKAT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WHITLAM
DATE OF ORDER:	18 APRIL 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The decision of the Migration Review Tribunal is set aside.

2.The matter is remitted for further consideration according to law by the Migration Review Tribunal to be differently constituted.

3.The respondent pay the applicant's costs.

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	N1342 OF 1999

BETWEEN:	GULFAM ANTHONY BARKAT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	18 APRIL 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under s 476 of the Migration Act 1958 ("the Act") to review a decision of the Migration Review Tribunal ("the Tribunal") made on 20 October 1999, by which it affirmed the decision of the respondent's delegate refusing to grant the applicant a Change in Circumstance (Residence) (Class AG) visa. The Tribunal was not satisfied that a prescribed criterion for a visa of that class had been satisfied.

2. The criterion in question was set out in clause 3002 of Schedule 3 to the Migration Regulations 1994, which required an application for the relevant subclass of visa to be "made within 12 months after the relevant day (within the meaning of subclause 3001(2))". The effect of subclause 3001(2) in relation to the applicant was that "the relevant day" was "the last day when [he] held a substantive … visa". A "substantive visa" is defined by s 5(1) of the Act as a visa other than a bridging visa or a criminal justice visa.

3. The applicant is a Pakistani national, who arrived in Australia on 13 May 1997. He lodged his application for a Class AG visa on 16 March 1999. On 26 May 1999 a delegate of the respondent refused to grant the visa, finding that the applicant did not meet Schedule 3 criterion 3002. She recorded her decision as follows:

   "According to the departmental records, the applicant's substantive visa ceased to be in effect on 13/8/1997.  The applicant fails to meet the above criterion as the current application was lodged on 16/3/1999 - more than 12 months after the substantive visa ceased."

4. On review the Tribunal also found that the applicant failed to satisfy that criterion.  It stated:

   "7. At a hearing on 27 August at which he was assisted by Mr. Chris Muthu and an interpreter, Mr Tariq Mohammed, the applicant stated that he had entered Australia on 13 May 1997 as a visitor.  His temporary entry visa expired on 13 August 1997.  Further bridging visas were issued to the Visa Applicant.

   8.At the hearing the Visa Applicant stated that he had lodged applications for permanent residence within the prescribed time and that the Department had made a mistake.  The hearing was adjourned and the Visa Applicant was given fourteen days in which to supply the Tribunal with documentation in support of his contentions.  The time allowed for further submissions expired on 11 September 1999.

   On 23 September 1999 Mr. Muthu sent a document to the Tribunal.  Further investigations were undertaken by the Tribunal.  It was finally determined that the last Tourist (long stay) TN 686 visa was issued to the Applicant on 13 February 1998.  This visa expired on 13 February 1999.

   9.The date on which the primary application for permanent residence was made was on [sic] 16 March 1999.  This application therefore was lodged outside the prescribed time limit.

   10.The evidence is that the Applicant either became an illegal entrant, or ceased to hold a substantive visa, more than 12 months prior to the lodgement of the primary application.  Accordingly, the primary application was not made within 12 months of the relevant day as defined in subclause 3001(2)."

5. The subclass of visa referred to in paragraph 8 of that statement is a substantive visa. If that visa expired (as the Tribunal states) on 13 February 1999, then the conclusion stated in the final sentence of paragraph 9 is plainly wrong, as appears from the Tribunal's paraphrasing of the requirements of clause 3002 in paragraph 10

6. The application for review was made on the grounds specified in pars (a) and (e) of s 476(1) of the Act. However, only the error of law ground in s 476(1)(e) is pressed. The applicant is entitled to assume that Tribunal's findings on what it regards as material questions of fact are set out in its statement. On the facts as found by the Tribunal and stated in paragraph 8 of its reasons, its decision plainly involved an error of law in the sense of the incorrect application of clause 3002 to those facts.

7. Counsel for the respondent submits, however, that it would be futile to exercise the powers under s 481 of the Act to set aside the Tribunal's decision because upon any further consideration it would inevitably be found that the relevant criterion was not met. In support of that submission, he has adduced, without objection, evidence supplementing the material before the Tribunal.

8. The inference that the applicant's visa was not issued on 13 February 1998, but expired on that date (not 13 February 1999) may be readily drawn from material that appears from the evidence to have been before the Tribunal.  I am told that such evidence includes all the relevant papers before the Tribunal.  However, I have looked at the letter received on     23 September 1999 from the applicant's migration agent, to which the Tribunal refers in paragraph 8, and am still left to guess at what were the "[f]urther investigations …  undertaken by the Tribunal", to which it also refers in that paragraph.

9. Counsel for the respondent correctly points out that the discretion under s 481 should be exercised bearing in mind the possibility of the futility of any further consideration of the visa application: X v Commonwealth (1999) 74 ALJR 176 at [112]. However, in the circumstances of this case, I accept the submission of the solicitor for the applicant that, in the light of what he describes as the lingering doubt about what the Tribunal had in mind by its cryptic reference to further investigations, the safest and fairest course is to set aside the Tribunal's decision and to remit the matter for further consideration by a tribunal differently constituted. The respondent should pay the applicant's costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:            18 April 2000

Mr MP Newman of Newman & Associates, solicitors, appeared for the applicant.

Tim Reilly of counsel, instructed by the Australian Government Solicitor, appeared for the respondent.

Date of hearing:         18 April 2000

Date of judgment:      18 April 2000