Benissa v Minister for Immigration

[2010] FMCA 657

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BENISSA v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 657

MIGRATION – Migration Review Tribunal – Cultural/Social (Temporary) subclass 428 visa – applicant had no sponsor – 12 year delay in applicant being validly notified of delegate’s decision – procedural fairness.

Migration Act 1958 (Cth), ss.351, 353, 359, 359A, 66(2)(d)(ii)
Migration Regulations 1994, reg.5.03

Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308; [2003] FCA 1292
Minister for Immigration and Multicultural Affairs v Singh & Ors (2000) 98 FCR 77; [2000] FCA 377
NAIS & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 171
SZOFE v Minister for Immigration and Citizenship [2010] FCFCA 79

Applicant: EMMANUEL GBIKPI BENISSA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1460 of 2009

Judgment of: Riley FM

Hearing date: 3 August 2010

Date of Last Submission: 3 August 2010

Delivered at: Melbourne

Delivered on: 3 August 2010

REPRESENTATION

Counsel for the Applicant: Mr Fernandez

Solicitors for the Applicant: T A Fernandez

Counsel for the First Respondent: Mr Knowles

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 16 November 2009 and amended on 23 June 2010 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1460 of 2009

EMMANUEL GBIKPI BENISSA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Background

1. This is an application for a review of a decision of the Migration Review Tribunal.  The applicant is a national of Ghana who applied for a Cultural/Social (Temporary) subclass 428 visa on 11 August 1997.  The delegate refused that application on 15 September 1997.  Notice of the decision was sent to the applicant on 16 September 1997. 

2. However, some years later the Full Federal Court held in the matter of Minister for Immigration and Multicultural Affairs v Singh & Ors (2000) 98 FCR 77; [2000] FCA 377 that reg.5.03 of the Migration Regulations 1994 was invalid.  Gray J in the case of Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308; [2003] FCA 1292 subsequently held that:

   a notification letter that appeared to include the deemed receipt period in apparent reliance on the invalid r.5.03 did not amount to an accurate statement of the time period in which an application for review could be made as required by s.66(2)(d)(ii) of the Act[1]. 

   [1] Tribunal’s decision [3]

3. Consequently, it was determined that the notification that had been given to the applicant was ineffective and the time for review could not have been considered to have commenced.

4. Against that background, the department sent the applicant another notification of the primary decision on 19 May 2009.  That was nearly 12 years after the original decision had been made by the delegate.  The applicant received that notice and applied to the Tribunal on 27 May 2009. 

5. The Tribunal wrote to the applicant a s.359A letter dated 1 September 2009 saying that the applicant had applied for a sub-class 428 religious worker visa. The Tribunal noted in its letter that clause 428.222 required that at the time of decision:

   a)the applicant is sponsored by religious organisation in Australia to undertake work in Australia that directly serves the religious objectives of the organisation;

   b)the sponsorship has been approved by the Minister; and

   c)the sponsorship fee prescribed in reg.5.38 of the Migration Regulations1994 has been paid. 

6. The Tribunal went on to say

   This information is relevant to the review because if the Tribunal finds that, at the time of its decision you do not have an approved sponsorship from a religious organisation it will have no option but to affirm the decision under review.

7. The applicant responded to the s.359A letter by letter dated 7 September 2009. He said that he had lived in Australia for a very long time and had worked here, paid taxes and generally contributed well to the community in Australia. The applicant concluded:

   After all these years in Australia I do not need to have a sponsor any longer to become a permanent Australian resident.

8. The Tribunal conducted a hearing on 13 October 2009.  The applicant has provided a transcript of the hearing to the court.  Various passages have been highlighted for the court’s attention.  The Tribunal noted to the applicant that all that it could do was make a decision in relation to the application for the religious worker visa.  The Tribunal indicated that it could not take into account the general situation of the applicant, and in particular, could not take into account his contribution to the Australian community over the last 12 years.  The Tribunal in its findings and reasons noted that the only subclass that was before the Tribunal and against which any claims could be assessed was subclass 428.

9. The criteria for the grant of that visa included the criterion at 428.222 that, at the time of decision, the applicant was sponsored by a religious organisation in Australia.  The applicant conceded at the hearing that he had never had such a sponsorship.  There was no evidence of any such sponsorship before the Tribunal at the time of the decision.

10. There had been before the delegate an indication from a pastor of the Seventh-day Adventist Church in Brisbane, Mr John Brereton, that he was sympathetic to the visa applicant but that his church had never had any intention of sponsoring the applicant or supporting him in obtaining a visa.

11. Given that the applicant did not have any sponsorship from a religious organisation, the Tribunal found that the applicant did not satisfy the requirements of subclause 428.222.  The Tribunal went on to note that the role of the Tribunal was confined to ascertaining whether the visa applicant satisfied the criteria for the grant of the visa.

12. The Tribunal noted that the visa applicant had asked the Tribunal to have regard to his personal circumstances over the last 12 years. However, the Tribunal said in its reasons for decision that it was unable to take account of such matters and they were solely within the purview of the Minister for Immigration within s.351 of the Migration Act 1958.  Consequently, the Tribunal affirmed the decision under review. 

13. The applicant was represented by a solicitor before this court.  An amended application was filed on 23 June 2010.

Ground 1

1. The first ground in the amended application is that:

   The Tribunal has erred jurisdictionally by denying the applicant procedural fairness & natural justice by its failure to acknowledge how the decisions in MIMA v SINGH [2000] FCA 377 and CHAN TA SREY v MIMA (2003) FCA 1292 and particularly the decision in “SREY” (according to the Tribunal) impacted on a decision alleged to have been made on 15/09/1997 that caused the respondent to notify the applicant more than 12 years later.

2. The Tribunal did not err jurisdictionally by not advising the applicant how those decisions impacted on a decision alleged to have been made 12 years earlier.  The facts have been set out.  Notification was given to the applicant in 1997 of the adverse decision.  That notification was invalid.  The department gave another notification in 2009.  There was no impact on the decision of the Tribunal as a result of those decisions.  The Tribunal’s decision is contained within itself and the lapse of time did not impact on the Tribunal’s decision.

Ground 2

1. The second ground in the amended application is that:

   The Tribunal erred jurisdictionally by denying the applicant procedural fairness and natural justice by its failure to acknowledge the delay of more than 12 years since the lodgment of the application on 11^th August 1997 and its notification on 19^th May 2009, and its effect on denying the applicant a fair hearing and in relation to the relevant criteria applicable to that subclass of visa that was applied for.

2. The Tribunal did not make an error of jurisdiction for the reason alleged.  The delay in the notification of the decision did not in any sense impact on the fairness of the hearing conducted by the Tribunal.

3. The applicant argued before the court today that there was a denial of procedural fairness for the reasons discussed in the High Court’s decision in NAIS & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 171, particularly in the judgment of Kirby J.

4. However, that case concerned a very different set of circumstances.  It concerned a case where there had been an extraordinarily long delay in the Tribunal’s own conduct of a matter.  There was a passage of several years between the Tribunal’s initial hearing, a second hearing and the Tribunal’s ultimate decision.

5. The circumstances in NAIS included the circumstance that the Tribunal relied on issues about the applicant’s credibility in giving evidence before the Tribunal.  It was considered that the extraordinarily long passage of time between the original hearing and the handing down of the decision made it unsafe for the Tribunal to have relied on credibility findings in that case.

6. The circumstances of the present case are completely different.  In this case, the application to the Tribunal was lodged in May 2009.  The Tribunal conducted a hearing on 13 October 2009, and handed down its decision on 16 October 2009.  There was no delay within the Tribunal’s own functions. 

7. The applicant also argued today that s.359 of the Act should have been used by the Tribunal to obtain information. It is well established that s.359 does not impose any duty on the Tribunal to elicit information except in quite exceptional circumstances. It was not suggested that such circumstances applied in the present case.

8. The applicant also relied in reply on s.353 of the Act. That section requires the Tribunal, in carrying out its functions, to provide a mechanism of review that is fair, just, economical, informal and quick. There is no doubt that the Tribunal in this case was quick. The complaint was that the Tribunal had not been fair because of the lapse of 12 years. However, the 12 years did not go the Tribunal’s functions. The Tribunal was simply presented with a case that had languished for 12 years before it came to the Tribunal. I do not consider that there is any substance in the point about s.353 of the Act.

9. The complaint under s.359 really seems to be not so much that the Tribunal should have got some information but that the Tribunal should have advised the applicant that he ought to get a sponsor. The Tribunal did not give the applicant that advice in terms. Of course, the Tribunal should not have told the applicant how to run his case. There is certainly no obligation on the Tribunal to do so. The s.359A letter, in any event, made it very clear that the consequence of the applicant not having a sponsor was that the Tribunal would be obliged to affirm the decision under review.

10. The Tribunal was as clear as it could have been of the consequence of the applicant not taking whatever steps he saw fit to obtain a sponsor.  The Tribunal said that the applicant needed to have a sponsor at the time of decision.  The applicant responded to that letter, saying, quite baldly, that he did not need to have a sponsor.  It was clearly his choice to not pursue that avenue. 

11. The applicant also said in this regard that there were various passages in the transcript of the hearing before the Tribunal that showed that the Tribunal had denied the applicant natural justice. In particular, the applicant referred to page 5 of the transcript at lines 19 to 22 where the Tribunal said:

    But I think it’s really important that you understand that the only issue I’m looking at is in relation to the refusal of that visa 12 years ago, I can’t look at anything else.

12. The Tribunal was saying that all it could deal with was the religious worker visa that had been applied for and the Tribunal was not able to look at the things that the applicant had done for the Australian community since his arrival here 12 or 13 years ago. 

13. The applicant also relied on page 6 of the transcript at lines 18 to 20 and 25 to 27.  The Tribunal there said:

    I can’t take anything else into account.  I have the law, the law about what you need to have a Religious Worker visa.

    …

    Unfortunately I can’t take any of that into account because the only decision I can make is about your Religious Worker visa. 

14. The applicant’s other activities in Australia were not relevant.  The applicant also relied on page 9, lines 16 to 18 of the transcript where the Tribunal said:

    OK?  But unfortunately, as I’ve pointed out to you, I can’t take any of that into consideration.

15. The same comment applies in relation to that.  Finally, the applicant referred to page 13, lines 8 and 9 of the transcript of the Tribunal’s decision.  At that point, the applicant said:

    I have actually taking everything into - what you’ve told me right now into account.

16. The applicant’s solicitor seemed to think that that was something that the Tribunal had said.  In fact, it was the applicant who said those words.  It seems that the applicant was taking into account what the Tribunal had said. 

17. In any event, none of the passages that I have been taken to in the transcript of the Tribunal’s hearing seem to me to indicate that there was any denial of natural justice in this case.  The fundamental point is that the Tribunal could only deal with the application that was before it.  That was an application for a religious worker visa.  That visa had certain criteria attached to it and the applicant did not meet those criteria.  Specifically, the applicant did not have a sponsor which was a religious organisation at the time of the decision.  It seems to me that there was nothing procedurally unfair in the Tribunal’s handling of that issue. 

Ground 3

1. The next ground set out in the amended application is that:

   The Tribunal has erred jurisdictionally by acting on the notification dated 19^th May 2009 which was an invalid notification for the following, among other reasons. 

2. Paragraph 3(a) of the amended application is:

   There is no record of the date of the dispatch of that notification in the Court Book. 

3. The notification is dated 19 May 2009.  In the absence of any evidence to the contrary, the statutory provisions take effect and there is no need for any particular evidence about the actual date of dispatch.

4. Paragraph 3(b) of the amended application is:

   Assuming it was dispatched on 19^th May 2009, the calculation of the number of days before which an application for review can be made is incorrect (22 days). Section 66(2)(d)(ii) of the Migration Act.

5. I have been given a calendar by the applicant’s solicitor today.  He says that the calculation was one day over, that is, the notification said that an application had to be made by 19 June 2009 when in fact it had to be made by 18 June 2009.  The Minister conceded that error, but said that it was not material, in view of the recent Full Federal Court decision in SZOFE v Minister for Immigration and Citizenship [2010] FCFCA 79. In that decision, at paragraph 30, Emmett J said:

   …While the Parliament may be taken to have intended that compliance with the requirements of s.66(2) would discharge the Minister’s obligation with respect to the giving of timely and effective notice of a decision, it does not follow that it was the intention that any departure from those steps would result in invalidity, without consideration of the extent and consequences of the departure (see Minster for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at [35]).

6. The applicant relied on the aspect of that sentence which referred to the Minister’s obligation to give timely and effective notice of a decision.  However, the applicant gave no credence to the import of the sentence, which is that it does not follow that the Parliament intended that any departure from the relevant steps would result in invalidity.  The applicant also referred to paragraph 32 of Emmett J’s decision, where his Honour said:

   On the other hand, there may be circumstances where it would be unfair or inappropriate not to inform an applicant who resides in, say, Perth, that an application for review could be lodged at the registry of the Administrative Appeals Tribunal in Perth.  To tell such an applicant only that an application can be lodged in Sydney, may, in particular circumstances, constitute a failure to comply with s.66(2)(d)(iv).  That is not this case.

7. The decision of Emmett J is essentially saying that the court, on review, must look at the consequences of the decision or the error in the notification procedure.  If those consequences lead to some unfairness, it may be that the notification would be held to be insufficient.  If the consequences are not adverse to an applicant, it would be anticipated that the notification would be held to be adequate.

8. The first respondent relied on a paragraph in the joint judgment of Buchanan and Nicholas JJ at paragraph 67, which is as follows:

   However, in our view there cannot be an adequate assessment of whether the requirements of s.66 of the Act have been breached, or of whether the jurisdiction of the RRT was not engaged, without some examination of the consequences of the alleged non-compliance.  The judgment of the High Court in SZIZO has expressly drawn attention to the need to evaluate the practical consequences of failure to comply with procedural obligations under the Act.  It is no longer possible, if it ever was, to speak of “imperative obligations” under the Act without specific attention to the purposes they are intended to serve.  If the asserted failure to comply with s.66 is tested in that manner, then the proposition that in all cases potential applicants for review must be advised of all places at which an application might be lodged, or to which it might be sent, cannot be sustained.  The consequences of an alleged lack of information need to be assessed in a particular case.

9. Section 66 provides as follows:

   (1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

   (2) Notification of a decision to refuse an application for a visa must:

   (a)     if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and

   (b)    if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and

   (c)     unless subsection (3) applies to the application-give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

   (d)    if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 – state:

   (i)  that the decision can be reviewed; and

   (ii)the time in which the application for review may be made; and

   (iii)who can apply for the review; and

   (iv) where the application for review can be made.

   (3)  This subsection applies to an application for a visa if:

   (a)     the visa is a visa that cannot be granted while the applicant is in the migration zone; and

   (b)    this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.

   (4) Failure to give notification of a decision does not affect the validity of the decision.

   (5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.

1. The fact is, in this case, the notification was dated 19 May 2009. The applicant lodged his application well within time on 27 May 2009.  Nothing turned on any possible error of one day in the period specified in the notification. 

2. That is particularly so in relation to an application for review to the Migration Review Tribunal, where there does not need to be any detailed explanation of any alleged error in the delegate’s decision.  The application is simply a form that needs to be filed in with particulars of the applicant.  The applicant in this case does not appear to have lodged any documents with the application itself, but does seem to have lodged some further material sometime later in June 2009.

3. Once the application was before the Tribunal and within time, the applicant could lodge any further information at any time that he wished.  It seems to me that there was absolutely no consequence whatsoever of the error, if there was one, in the period specified in the notification of when the application to the Tribunal had to be lodged.

4. Accordingly, on the basis of the decision in SZOFE, I am not persuaded that the error in the date resulted in an error that would in any way vitiate the Tribunal’s decision in this case.

5. Paragraph (c) of ground 3 in the amended application is:

   The notification fails to specify the reasons as to why the applicant is notified 12 years later (please see paragraph 4 of the Tribunal’s decision at page 109 CB which says “The department determined that the notification of the primary decision maker was ‘SREY’ affected”.  The Tribunal has not disclosed this information to the self represented applicant.

6. It seems to me that it really does not go to the Tribunal’s decision that there may have been a very lengthy delay in the department notifying the applicant of the decision made by the delegate.  The Tribunal did say in its reasons for decision that the original notification was Srey affected.  However, it does not seem to me to be a matter for the Tribunal to give the applicant notice of that issue.  If anything, it was a matter for the department to explain why it had taken 12 years to send out the notification, and how Chan Ta Srey might have impacted on that.

7. However, this is not a case where the activities of the department have been called into question by an application for a writ of mandamus against them.  It seems to me that the issue that is being raised in paragraph (c) of the amended application is not relevant.

8. Paragraph 3(d) of the amended application is:

   No decision record accompanies the notification, as seen from the CB, a clear breach of section 62(2)(C) of the Migration Act.

9. The notification, in fact, says on the first page:

   I hereby notify you under section 66 of the Migration Act 1958 of the decision of 15 September 1997 to refuse to grant you a visa.

   I have attached reasons for that decision in the attached Visa Decision Record.

10. The notification at the conclusion has, in bold, the word, “Attachments,” followed under that by the words, “Decision Record,” and, under that, by the words, “MRT Brochure.”  I take that to be an indication that the notification decision did, in fact, have an attachment consisting of the decision record. 

11. The applicant said that there was no evidence of that provided by the Minister in this court.  However, it seems to me that if the applicant wishes to raise this issue, it was incumbent upon him to give evidence that the notification that he received, dated 19 May 2009, did not include the requisite material, including a copy of the decision record of the delegate.  As I have said, there was no such evidence.  I conclude that there is no substance in that point.

12. Paragraph 3(e) of the amended application is:

    No MRT brochure accompanies the notification, also seen from the CB, a clear breach of section 66(2)(d) of the Migration Act as to who can apply for review.

13. Again, the decision record does show at the end that there was an attachment consisting of the MRT brochure.  The applicant has not adduced any evidence to suggest that the notification was inadequate by not including the MRT brochure.  I consider that there is no substance to this claim.

14. I would also note, in relation to this point, that the applicant does not appear to have been hindered in his application for review by what he says was the department’s failure to include either the MRT brochure or the decision record.

15. Paragraph 3(f) of the amended application is: 

    The notification has not specified the refusal criteria, a breach of section 66(2)(a) of the Migration Act.

16. The applicant said in oral submissions that even if the visa decision record had been attached to the notification letter dated 19 May 2009, that would not suffice.  The applicant argued that it was not sufficient to attach the decision record setting out the relevant matters.  All those matters had to be in the notification itself.

17. I reject that argument.  It is clear from the terms of s.66 that the relevant matters do not have to be all stated in the letter that accompanies the decision record.  Those two documents, the covering letter and the decision record, are to be read as one.

18. Paragraph 3(g) of the amended application is:

    The day when the notification says that the applicant’s bridging visa will expire has been incorrectly calculated as the 29^th day.  (please see page 24 of the CB).

19. This error, if it is one, is in the same category as the error mentioned earlier under paragraph 3(b).  It seems to me that if there was an error, it had no adverse consequences for the applicant, and accordingly, I reject it as a ground of review.

Conclusion

1. As none of the applicant’s grounds has been made out, the application must be dismissed.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate: 

Date:  31 August 2010