Chand v Minister for Immigration

[2007] FMCA 1781

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHAND & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1781

MIGRATION – Review of Migration Review Tribunal decision – Tribunal functus officio – no arguable case.

Migration Act 1958, s.474
Federal Magistrates Court Rules 2001, rr.13.10, 44.12

Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

First Applicant: SANJEEV KANT CHAND

Second Applicant: PRATIKA KANT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2285 of 2007

Judgment of: Cameron FM

Hearing date: 11 October 2007

Date of Last Submission: 11 October 2007

Delivered at: Sydney

Delivered on: 11 October 2007

REPRESENTATION

Applicants appeared in person.

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Pursuant to r.44.12(1)(a) of the Rules of Court the application be dismissed.

2. The applicants pay the first respondent's costs fixed in the amount of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2285 of 2007

SANJEEV KANT CHAND

First Applicant

PRATIKA KANT

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants seek review of a decision of the Migration Review Tribunal (“Tribunal”) signed on 25 June 2007.  The Tribunal concluded that it did not have jurisdiction to entertain the applicants' application for review.  The application to this Court also makes reference under the heading “Decision Details” to a decision by the Departmental Manager of the Ministerial Interventions Unit, the date of the decision being given as 5 January 2007. It appeared to me that that reference was a mistake and the applicants have advised the Court that they only seek review of the decision of the Tribunal and not of the departmental decision which is referred to there.

2. The matter is before the Court today on the applicants' application for the respondents to show cause why relief should not be granted to them.  In their application the following grounds are pleaded:

   1. The decision that the Tribunal made at Sydney affirming the decision in respect of Sanjeev Kant Chand was not a "privative clause decision" within the meaning of s.474 of the Migration Act 1958.

   2.  The Tribunal decision was infected with jurisdictional error and procedural error and this was detrimental to the applicant getting a fair hearing because the Tribunal would have had perceived bias against the applicant.

   3. When the matter was reconstituted by the RRT [sic] the Member did not direct the question on the basis of the claims made by the applicant.  The question was irrelevant as the applicant needed more time to obtain the services.

   4.  The applicant meets the Schedule 2 Sub-class 832 Close Ties Visa special eligibility visa and has demonstrated long residence and has tied with cultural and personal aspects and have maintained these links since. n [sic] Documentary  evidence pertaining to the personal ties have been forwarded to the Department of Immigration & Multicultural Affairs from time to time.

3. The first respondent submits that the pleaded grounds lack merit but, in any event, the applicants have no arguable case and no reasonable prospects of success. 

4. An order to show cause will not be made if the applicants do not have an arguable case. The authorities show that an application should not be dismissed under r.44.12 unless the lack of a cause of action is clearly demonstrated, the claim is groundless or there is a high degree of certainty about the outcome. The proceedings may also be dismissed under r.13.10 if they have no reasonable prospects of success.

5. In consideration of these matters the chronology of the applicants’ claim for visas should be noted and it is this:

   a)on 27 May 2005 the Minister's delegate made a decision refusing the applicants’ requests for visas;

   b)on 24 July 2006 the Tribunal handed down its first decision;

   c)the applicants appealed the Tribunal decision to this Court and on 24 October 2006 that application was dismissed by Scarlett FM as the applicants were not present in court when the matter was called;

   d)on 5 December 2006 Scarlett FM dismissed an application to set aside his earlier dismissal of the applicants' application for judicial review;

   e)on 19 February 2007 the applicants lodged a further application for review with the Tribunal;

   f)on 25 June 2007 the Tribunal signed its decision in which it held that it had no jurisdiction to entertain that application for review;

   g)on 24 July 2007 the application commencing these proceedings was filed in this Court;

6. The basis of the Tribunal's decision that it had no jurisdiction was that it had already discharged its function when it made its original decision which it handed down on 24 July 2006.  In relation to the Tribunal's conclusion that it was functus officio it is important to keep in mind that the delegate's decision was dated 27 May 2005 and the Tribunal made its original decision on 24 July 2006.  There has been no new decision of the delegate.

7. The Tribunal does not have power to review the delegated decision a second time: Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301.

8. The decision of the Tribunal is a decision to which s.474 of the Migration Act 1958 (“Act”) applies. As a privative clause decision it may not be called into question because the section provides that it is to be final and conclusive and it must not be challenged, appealed against, review, quashed or called into question in any court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

9. However, the High Court has held that s.474 will not have the operation it purports to have if the decision of the Tribunal is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In this case it is clear that the applicants' claim for judicial review on the basis of jurisdictional error is bound to fail because the Tribunal was correct to conclude that it did not have jurisdiction and could not undertake a second review of the delegate's decision. On that basis I am satisfied that the applicants' claim for judicial review is not arguable and therefore it must be dismissed pursuant to r.44.12(1)(a).

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date:  29 October 2007