Choi v Minister for Immigration - [2007] FMCA 841

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHOI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 841

MIGRATION – Review of Migration Review Tribunal decision – refusal of a Transitional (Permanent) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.359A, 476
Migration Regulations 1994 (Cth), reg. 812.723(6)

Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144
Ashok Kumar v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 441
Horvath v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 422
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 250
Minister for Immigration and Indigenous Affairs v Teo (1995) 57 FCR 194
NAIS v Minister for Immigration [2005] HCA 77
Palwinder Singh v Minister for Immigration and Ethnic Affairs and Migration Review Tribunal (unreported, von Doussa J, 31 January 1996)

First Applicant:

CHANG YOUNG CHOI

Second Applicant:

JA HYUN PARK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG2737 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

5 April 2007

Delivered at:

Sydney

Delivered on:

1 June 2007

REPRESENTATION

Counsel for the Applicants:

Mr J R Young

Solicitors for the Applicants:

Simon Diab & Associates

Solicitors for the First Respondent:

Ms D Watson of Australian Government Solicitor

ORDERS

The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 27 September 2006 is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2737 of 2006

CHANG YOUNG CHOI & JA HYUN PARK

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 27 September 2006 for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal decision was made on 8 August 2006, affirming a decision of the delegate of the first respondent made on 9 October 1995, refusing to grant the applicants a Transitional (Permanent) visa. The applicants seek relief in the form of constitutional writs against the decision of the Tribunal.
A Court Book (“CB”) prepared by the first respondent’s solicitors was filed on 6 November 2006 and is marked Exhibit “A”. The contents were read into evidence.

Background

The Tribunal decision of M Northcott, reference N05/05312, contains the following background information which I adopt for the purposes of this judgment:
1.…Mr Chang Young Choi (the visa applicant), who is a national of Republic of Korea…applied, together with his wife, Ja Hyun Park, and daughter, Jennifer, for Transitional Permanent Visas on 13 December 1993. The delegate refused to grant the visas on 9 October 1995. The applicants did not receive a copy of the delegate’s decision until 9 September 2005.
2.The visa applicant and his wife lodged applications for review with the Tribunal on 5 October 2005. The decisions are reviewable by the Tribunal and the applications for review were properly made, and combined at lodgement, by persons with standing to apply for review. The daughter, Jennifer, did not seek a review of the delegate’s decision. The daughter became an Australian citizen on 19 July 2003. (CB 140)
13.The files reveal that the application was made on the basis that the visa applicant met subclause 812.723(6). In the application form the visa applicant named Ilona Spanic as the nominator. Ms Spanic is named as the Australian person who would suffer extreme hardship or irreparable prejudice if the visa were not granted. She nominated Chang Young Choi as the person who had compassionate ties with her. She gave her age as 73…She provided a copy of her Australian passport with the nomination. (CB 144)
16.On 14 September 1995 an officer of the Department contacted the nominator. The nominator advised the officer that she did not know where Ja Hyun Park lived. She also stated that Chang Young Choi no longer worked for her.
17.On 9 October 1995 the delegate determined that the applicant was not entitled to the grant of a Subclass 812 visa on the basis that certain information had not been provided to the Department.
As indicated above, the applicants did not receive a copy of the delegate’s decision until 9 September 2005 and they subsequently filed an application for review to the Tribunal on 5 October 2005. In respect of that application, the decision notes:
18.On 19 May 2006, the Tribunal wrote to the visa applicant and invited him to provide evidence that there was, on 30 October 1990, a compassionate ground for the grant of the visa, to the effect that the refusal to grant the visa could have caused extreme hardship or irreparable prejudice to Ilona Spanic, and that the compassionate ground continued as at 13 December 1993, and continues at the present time. The Tribunal also invited the visa applicant to comment on the information that on 14 September 1995 the nominator did not know where the visa applicant’s wife lived and that the visa applicant no longer worked for her. (CB 145)
The applicants’ representative responded with submissions on 29 June 2006.(CB 145) Attached to those submissions were a statutory declaration and other documents; however the documents relate to the applicants’ daughter and do not refer to the visa nominator nor their relationship with the nominator. The decision then records:
22.A hearing was held on 3 August 2006. The visa applicant gave evidence that as at 15 October 1990 Ms Spanyik had a kind of depression. Her son did not communicate with her or help her. His wife talked to Ms Spanyik nearly every day. His wife and Ms Spanyik went to the park together and they spent a lot of time together. Ms Spanyik had some food in the refrigerator which was old. She ate it. As a result she passed out and his wife gave Ms Spanyik some medicine and helped her. The medicine she gave Ms Spanyik was paandeine. As of 13 December 1993 Ms Spanyik was getting better. She waited for them to visit her. She was brighter. Ms Spanyik liked to see his daughter. He last saw Ms Spanyik in late 1994.(CB 146)
After considering the evidence under “Findings and Reasons”, the Tribunal concluded:
31.The Tribunal therefore finds that there was not, on 15 October 1990, any compassionate ground to the effect that refusal to grant the visa would have caused extreme hardship or irreparable prejudice to the Australian citizen. The visa applicant does not therefore meet subclause 812.723(6).
32.As the Tribunal has found that the visa applicant does not meet any of the subclauses contained in clause 812.723 the visa applicant failed to meet clause 812.723. The Tribunal therefore finds that the visa applicant is not entitled to the grant of a Class 812 Transitional (Permanent) visa. (CB 148)

Applicant for review of the Tribunal’s decision

On 27 September 2006, the applicants filed an application for review in this Court under s.39B of the Judiciary Act. The application was prepared by the applicant’s solicitors, Simon Diab & Associates, and the lawyer’s certification in the application was signed by Simon Diab. The grounds on the application are as follows:
1.The Second Respondent made a jurisdictional error by misdirecting itself as to the interpretation of the expression ‘irreparable prejudice’.
Particulars
(a)The Applicants claimed that the nominator (Ilona Spanyik) would suffer irreparable prejudice as at 15 October 1990 if they were not granted Transitional Permanent visas.
(b)The Applicants provided a statement from the nominator dated 25 November 1993 in support of their claim. In that statement, the nominator stated “maybe my life could be connected with deterioration, furthermore death due to the extremest (sic) grief arising from the nominee’s departure.”
(c)The Tribunal should have considered whether the harm which the nominator would suffer if the applicant’s departed Australia amounted to irreparable prejudice. The Tribunal failed to do so. Rather, the Tribunal considered whether the nominator would suffer death from grief if the Applicants departed Australia. The Tribunal was not satisfied that “this (death) in fact would happen, or that it was likely to happen, or that there was a risk that it would happen” and thus concluded that the nominator would not suffer irreparable prejudice as at 15 October 1990 if the Applicants were not granted visas. Although the Tribunal concluded that it was unlikely that the nominator would die if the Applicant’s departed Australia, the Tribunal failed to consider whether the nominator would suffer some harm other than death and if so, whether that harm would amount to irreparable prejudice.
2.The First Respondent made a jurisdictional error by the delay in notifying the Applicants of the decision to refuse to grant Transitional Permanent Visas.
Particulars
(a)The Applicants applied for Transitional Permanent Visas on 13 December 1993. A delegate of the First Respondent refused to grant the visas on 9 October 1995. The Applicants were notified of the decision by a letter dated 5 September 2005.
(b)The Applicants were prejudiced by the long delay in notification including.
(i) The Applicants claimed that the nominator was suffering from medical difficulties. The nominator also submitted that she was suffering from medical difficulties. Due to the delay in notification, it would be very difficult to obtain medical evidence to verify that the nominator was indeed suffering from medical difficulties in 1990.
(ii) The nominator claimed that she would suffer extreme hardship and irreparable prejudice if the Applicants departed Australia. She provided a written statement which detailed her claims. Due to the delay in notification, the Applicants are unable to obtain additional evidence from the nominator in regards to her claims.

Submissions and reasons

Clause 812.723 in Schedule 2 of the Migration Regulations 1993 (Cth) (“the Regulations”) sets out the criteria that need to be satisfied at the time of the visa application:
PART 812 – CLASS 812 (DECEMBER 1989 (PERMANENT)) ENTRY PERMIT (PRIMARY PERSON)
812.1 INTRODUCTION
812.11 Group: 1.2 (permanent resident (after entry)).
812.12 Purpose of grant to primary persons: To enable the grant of permanent residence to certain persons illegally in Australia on or before 18 December 1989
812.723(1) The applicant satisfies the requirements of subclause (2), (3), (4), (5), (6).
(6) An applicant satisfies the requirements of this subclause if, subject to subclause (7):
(a) there was, on 16 October 1990, any compassionate ground (other than the ground mentioned in subclauses (1) to (5)) for the grant to the applicant of an entry permit, to the effect that refusal to grant the entry permit would have caused extreme hardship or irreparable prejudice to an Australian citizen or an Australian permanent resident; and
(b) the compassionate ground continues to exist.
(7) For the purposes of subclause (6), “compassionate ground” does not include a circumstance that results directly from an event of a political nature only that occurred in the applicant’s country of citizenship or of usual residence.
The applicant satisfies 812.723(6) if there was, on 15 October 1990, any compassionate ground to the effect that refusal to grant the entry permit would have caused “extreme hardships” or “irreparable prejudice” to an Australian citizen or an Australian permanent resident. The Tribunal had to consider whether a compassionate ground for the grant of the visa existed as at 15 October 1990 and continued to exist as at the time of the application on 13 December 1993.
As there was no statutory definition of “compassionate ground” in the Act or Regulations, the Tribunal made the following observations:
8.The terms ‘compassionate’, ‘extreme hardship’ and ‘irreparable prejudice’ are not defined in the Act or Regulations in force at the time of application. The Tribunal has therefore considered their ordinary dictionary meanings. The Compact Oxford English Dictionary defines ‘compassionate’ as ‘showing or feeling sympathetic pity and concern for the sufferings or misfortunes of others’. It defines ‘hardship’ as ‘severe suffering or privation’, and ‘extreme’ as ‘to the highest degree; very great; very severe or serious’. It defines ‘prejudice’ as ‘preconceived opinion that is not based on reason or experience; unjust behaviour formed on such a basis; harm that may result from some action or judgement’, and ’irreparable’ as ‘impossible to rectify or repair’.
9.The Federal Court has on a number of occasions considered the nature of compassionate grounds and the meaning of the words ‘extreme hardship or irreparable prejudice’. See for example: Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144; Choi v Minister for Immigration, Local Government and Ethnic Affairs (Full Court of the Federal Court, 20 August 1993, unreported); Prasad v Minister for Immigration, Local Government and Ethnic Affairs (Federal Court, Jenkinosn J, 22 March 1993, unreported); Fuduche v Minister for Immigration, Local Government and Ethnic Affairs, (1993) 117 ALR 418 and Minister for Immigration & Ethnic Affairs v Teo (Full Court of the Federal Court, 13 April 1995, unreported), Singh v Minister for Immigration and Ethnic Affairs (Federal Court, Von Doussa J, 31 January 1996, unreported), McCarthy v Minister for Immigration and Ethnic Affairs (Federal Court, Olney J, 18 March 1996).
Mr Young, in his written submissions, submits that in the nominator’s statement of 25 November 2003, she states that her husband and her first son had died and that the applicant’s family filled a gap in her life. They helped with housekeeping, shopping, attending to food, sight-seeing and changed “the grief in her life to joy by her interaction with the child of the Visa Applicant and his wife”. She then stated that if the applicants’ family were to leave, her life would be jeopardised. She further said that she was anxious and unable to sleep as a result of the uncertainty surrounding the application. She concluded:
Please consider my dire circumstances, especially emotional way, not to go through such an unfortunate life attain. It not, maybe my life would be connected with deterioration, furthermore death due to extremist grief arising from the nominees departure.(Copied without alteration or correction)
Mr Young submits that the applicant husband met the nominator in October 1989. Therefore, it is consistent with the applicants’ claims that the nominator was optimistic on 15 October 1990. The question is what effect it would have had on her if the applicants departed Australia at that point. The Tribunal stated that the nominator thought that death from grief could occur if the applicants left Australia. It did not, however, accept that this would or could happen.
Mr Young submits that, in the circumstances, the Tribunal was not entitled to take a literal interpretation of the nominator’s evidence and view it only from the most extreme perspective. What the nominator meant, was that her ability to continue normally would be significantly impaired, and that even death could occur from the strength of her grief. Mr Young argues that the Tribunal erred by finding that it was not satisfied that death could occur. Mr Young then referred to the following passage which he claims the Tribunal did not deal with at all:
If the visa applicant and his wife were to leave then my future life would be jeopardised because she would have no alternative to fill out the gaps in her life. She is anxious about the departure of the visa applicant and his wife her life could deteriorate if they left. Death could occur from grief if the visa applicant and his wife departed. (CB 147)
Mr Young submits that the discussion by the Tribunal of “irreparable prejudice” was erroneous and amounted to jurisdictional error:
30.The dictionary definition of ‘prejudice’ is relevantly ‘harm that may result from some action or judgement’, and ‘irreparable’ as ‘impossible to rectify or repair’. The Tribunal is not satisfied that the nominator would suffer harm that would be impossible to repair or rectify if the visa applicant and his wife were not in Australia. The nominator was already feeling more optimistic on 15 October 1990. The nominator stated that she thought that death from grief could occur if the visa applicant and his wife departed. The Tribunal accepts that the nominator thought that this could occur. However the nominator’s thought that she might suffer death from grief if the visa applicant and his wife departed does not satisfy the Tribunal that this in fact would happen, or that it was likely to happen, or that there was a risk that it would happen. It is only a thought that it could possibly happen. There is no medical evidence available to the Tribunal to suggest that the nominator was suffering from any medical difficulties. The Tribunal finds that the nominator would not suffer irreparable prejudice as at 15 October 1990 if the visa applicant and his wife were not granted visas.(CB 148)
Ms Watson, for the first respondent, contends in respect of the first ground that the Tribunal correctly identified the appropriate statutory criteria for consideration.(CB 140-141) In its decision, the Tribunal noted that the applicant husband stated that the Tribunal accepted his relationship with the nominator existed as at 15 October 1990. It further accepted that he performed domestic chores for the nominator and had formed a close relationship with her. It summarised the nature of the relationship in the decision.(CB 147-8) However, it was not satisfied that by refusing to grant the applicants’ visas, the nominator would suffer extreme hardship or irreparable prejudice. Ms Watson submits that this was essentially a finding of fact for the Tribunal which was open to it on the material before it.
Ms Watson further submits that Mr Young’s contention – that the Tribunal asked itself whether the nominator would die if the visa application was refused – is too restrictive a reading of the Tribunal’s reasons. In support, Ms Watson referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 250 at 272 which said that the reasons of an administrative tribunal are not to be scrutinised overzealously. She submits that there is no substance in this ground and the Tribunal correctly weighed the evidence against the legislative mandate and did not limit its analysis in the manner suggested.
Ms Watson submits that as the Tribunal found that the applicant did not satisfy clause 812.723, in particular clause 812.723(6)(a) (a time of application criterion), it did not need to consider the time of the decision criterion set out in clause 812.723(6)(b). Ms Watson acknowledges that the issue of whether there was a continued relationship between nominator and applicant husband was ultimately irrelevant because the threshold question of whether the applicant husband satisfied clause 812.723(6)(a) was answered in the negative.
I agree with the submissions made by Ms Watson that clause 812.723(6)(a) must first be satisfied prior to considering 812.723(6)(b), and a failure to satisfy the former negates consideration of the latter. What constitutes “extreme hardship” or “irreparable prejudice” have been designated as two distinct test each of which involved a separate assessment of the facts of the case: Minister for Immigration and Indigenous Affairs v Teo (1995) 57 FCR 194; Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144 at 148. In Ashok Kumar v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 441 at 446, Tamberlin J said that direct adoption of the dictionary definitions of these two terms may lead to a “paraphrasing exercise”:
The paraphrasing exercise undertaken by the tribunal in relation to the relatively simple question of whether hardship can be classed as “extreme” serves to illustrate the problems inherit in the use of a dictionary definition in a place of the statutory language.

However, in Horvath v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 422, Lockhart J found that the Tribunal correctly applied the terms “compassionate ground”, “extreme hardship” and “irreparable prejudice”
In Palwinder Singh v Minister for Immigration and Ethnic Affairs and Migration Review Tribunal (unreported, von Doussa J, 31 January 1996), his Honour discussed the criteria of the tests at [34]:
34.The expression in the regulation is not simply “prejudice” but “irreparable prejudice”, that is prejudice that is “not reparable, incapable of being rectified, remedied or made good” (the MCD). If the compassionate ground claim is based on the likelihood of emotional feelings that would not amount to actual personal injury, an enquiry whether those emotional feelings would constitute “extreme hardship” is a meaningful one; but an enquiry which requires a decision-maker to decide whether such emotional feelings would be reparable or could be remedied, in my opinion, is not. If an emotional effect of that kind constituted “prejudice”, how could a decision-maker in a case of a nominator who claimed that the refusal of a grant of an entry permit would leave the nominator “broken-hearted” (e.g. re Jackson, IRT decision Q90/00124, 17 December 1990) be expected to decide whether those emotional feelings would be capable of being remedied or made good? Not only would an attempt to make this decision be at best speculative, but an adverse decision could well be insulting and offensive to the nominator. If “prejudice” is interpreted to mean actual injury, loss of damage, then it is meaningful to enquire whether the prejudice is capable of being remedied or made good. For example if the emotional feelings would involve distress that could be sufficiently severe to precipitate a depressive illness, it would be meaningful to enquire whether the illness could be averted, for example, by support from the family members, friends and other carers.
The Tribunal evaluated the criteria by considering the evidence before it and made a factual finding. It established which criteria it intended to apply as follows:
This evidence does not establish that the nominator would suffer extreme hardship or irreparable prejudice if the visa applicant and his wife were not granted visas. The dictionary definition of ‘hardship’ is ‘severe suffering or privation’, and ‘extreme’ as ‘to the highest degree; very great; very severe or serious’.(CB 148)
The Tribunal then made its finding:
The Tribunal is not satisfied that the absence of the visa applicant and his wife would result in the nominator suffering to the highest degree, or very great, or very severe, or serious suffering or privation. She would experience some suffering and privation but it would not be of the level required by the legislation.(CB 148)
I am not satisfied that the Tribunal misdirected itself in its interpretation of the term “irreparable prejudice”. I believe that the passage relied upon by Mr Young at [13] above only indicates that the legislation requires the threshold to be set at a high level. However, there is no suggestion that the threshold can only be reached by circumstances as serious as death, as suggested by the nominator and the applicants. I am satisfied that the Tribunal interpreted the provisions as intended and that no jurisdictional error has occurred.
The s.359A letter sent to the applicants’ representative on 19 May 2006 invited them to provide the following additional information:
Evidence that there was, on 15 October 1990, a compassionate ground for the grant to you of the visa to the effect that refusal to grant you the visa could have caused extreme hardship or irreparable prejudice Ilona Spanic, and that the compassionate ground continued as at 13 December 1993, and continues at the present time.(CB 67.6)
The letter also invited comment on the following information:
·    You applied for a Subclass 812 visa on 13 December 1993. The criteria relevant to your application are set out in subclauses 812.723(6) and 812.732 (copy attached).
·    You named Ilona Spanic as the person who would suffer hardship or irreparable prejudice in the application for the visa, if the visas were not granted.
·    On 14 September 1995 the Department contacted Ilona Spanic who advised the Department that she did know where your wife lived. She also stated that you no longer cleaned for her. (CB 67-8)
Mr Young contends that the issues raised in that letter were completely irrelevant to the matter before the Tribunal. Further, that the Tribunal made no reference to the 11 year gap between the date of the delegate’s decision and the notification letter.
Ms Watson submits that the Tribunal was required to establish a threshold as to whether at the date of the application and as at 15 October 1990, compassionate grounds existed. Ms Watson argues that the Tribunal did not specifically refer to the delay because the criterion which needed to be established was whether compassionate grounds existed at the date of the application and before.
The initial response to that inquiry was a letter from the applicant’s representative:
We refer to your letter of 19 May 2006 in the above matter requesting further documentation.
We are instructed to request your assistance in granting a two week extension (until 11 July 2006) to provide all of the requested documents. As you would be aware, this application for review concerns an application made by Mr Chang Young Choi and Mrs Ja Hyun Park on 13/12/1993 to remain permanently in Australia for a December 1989 (permanent) entry permit. Due to a length of time which has elapsed since between the application was initially lodged (30/12/1993), the applicant’s have not been able to gather all of the requested documents within the time allowed. (CB 71)
The request for a two week extension was subsequently granted. Yet the substantial submission did not state that there may have been medical evidence available but for the delay. Rather, and as I have said above, the applicants’ submission only focused on the applicants’ daughter as the basis upon which the time of the decision criterion would be satisfied.
Ms Watson submits that this argument is misconceived and one cannot substitute one Australian citizen for another. This is made clear by the fact by the person who is the nominator is an Australian citizen who would suffer the irreparable hardship a consequence of the visa refusal. Ms Watson also submits that it is quite clear that there was no continuing relationship between the applicants and the nominator by 1995.
Ms Watson acknowledges that if there were any evidence which could have assisted the applicants, the Tribunal was entitled to assume that it would have been supplied at the time that the application was lodged. Ms Watson contends that in the absence of any indication otherwise, the Tribunal could do nothing more than deal with the material before it.
I am satisfied that the Tribunal followed the correct procedure in issuing the s.359A letter, however, no evidence from the applicants or their agent was significant to their case. Mr Young contends that the issuing of the letter was completely irrelevant to the matter before the Tribunal. However, I accept the proposition put forward by Ms Watson that the Tribunal correctly inquired whether further information, relevant to the issues, was available.
The second ground in the application claims that the first respondent fell into jurisdictional error by its delay in notifying the applicants of the refusal to grant the visas. Mr Young submits that the Tribunal did not deal with this, which it was bound to: NAIS v Minister for Immigration [2005] HCA 77.
Mr Young contends that the issue of delay is one of fairness. A failure to have proper regard to the fact that an inordinate and regrettable delay has occurred, is unfair. The Tribunal relied in part on the unavailability of medical evidence about the nominator.(CB 148) Mr Young argued that this was fundamentally unfair in circumstances where the Tribunal paid no regard to the Department’s decade-long delay in notifying the applicants.
Ms Watson submits that a significant cause of the delay was the applicants’ failure to keep the Department notified of their residential address. In the original visa application, the applicants recorded a Cammeray address.(CB 1-19) A change of address form was lodged with the Tribunal on 30 November 1995.(CB 53) Prior to that notification, correspondence forwarded to the applicants at the Cammeray address returned unclaimed.(CB 52) The applicants had failed to comply with the requirements for notification of change of their address.
Ms Watson submits that NAIS discussed the issue of whether it was procedurally unfair for the Tribunal to determine a matter after a significant delay between the handing down of the decision and the presentation of evidence. Ms Watson submits that in the present case there has been no delay in the Tribunal daeling with this matter. It is acknowledged that the application for review was not lodged with the Tribunal until 10 years after the decision was made. The reason why this occurred is referred to at [31] above. However, there was nothing procedurally unfair in the way the Tribunal dealt with the application before it.
Ms Watson also submits that the applicants did not submit to the Tirubnal anything in relation to disadvantage caused because inability to obtain evidence. The generic submission in the letter from their representative states:
We request that you take into consideration the current circumstances of the applicant. His application for a 00-Transitional Permanent Visa was lodged almost 13 years ago. Due to an error on the part of DIMIA, he was not correctly notified of the decision to refuse him the entry permit. We urge your compassionate consideration of the applicant’s current circumstances (particularly the effect of refusal on his Australian citizen daughter)(CB 75)
The delay issue relates not to a delay in decision-making but a delay in notification. However, there was some concern about the address that was provided as the address for service as the person nominated was not a registered migration agent.(CB 44) A requirement of the visa application process is that an applicant continue to provide an up to date residential address to the Department. This did not occur here.
It also appears that there was later contact with the Department about the appointment of a new migration agent and a new address for service provided.(CB 54) Eventually, a notification was issued which was compliant with the Act.(CB 55) I accept that the notification of the delegate’s decision occurred a considerable period of time after that decision was made, however, I am satisfied that there is no procedural irregularity in the way the Tribunal dealt with the matter.
Despite that delay, a person is entitled to make an application to this Court which otherwise would not have been available to them because of time limitations. I accept the submission that there can be no criticism of the Tribunal’s processes, which dealt expeditiously with the matter upon receipt of essential contact details. The complaint that the Tribunal failed to acknowledge the approximate 10 year delay between the delegate’s decision and the Tribunal application can only be characterised as unfortunate. The Tribunal’s focus was on its decision-making process, which required it to ensure that essential criteria was satisfied at the date of the application, and, critically, at a date three years before the application, being 15 October 1990.

Conclusion

I am satisfied that neither of the grounds contained in the amended application can be sustained and consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.

I order that the applicant pay the first respondents costs and disbursements of and incidental to this application.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 1 June 2007