Das v Minister for Immigration
[2009] FMCA 339
•27 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNPF v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 339 |
| MIGRATION – Visa Bridging A (Class WA) visa – application for review of a decision of the Migration Review Tribunal – where application for judicial review of a decision to refuse a protection visa was dismissed because of the applicant’s failure to attend Court – where applicant applied to the Court for reinstatement under Federal Magistrates Court Rules 2001 r.16.05 – where application for a Bridging A visa refused because the substantive application for the visa had been dismissed – no jurisdictional error. |
| Federal Magistrates Act 1999 (Cth), ss.14, 15 Migration Act 1958 (Cth), ss.65, 474, 476 Migration Regulations 1994 (Cth), Part 010 of Schedule 2, cl. 010.211 Federal Magistrates Court Rules 2001, rr.13.03A, 13.03C, 16.02, 16.05, 16.08 |
| SZGPK v Minister for Immigration & Anor [2008] FMCA 1054 SZDMD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 126 |
| Applicant: | SZNPF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG3335/2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 February 2009 |
| Date of Last Submission: | 18 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2009 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3335/2008
| SZNPF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant the applicant a Bridging A (Class WA) visa. The applicant asks the Court to make the following orders:
(1)a writ of certiorari quashing the decision by the Migration Review Tribunal;
(2)A writ of mandamus directed to the Tribunal directing it to rehear and redetermine the application for a visa according to law; and
(3)A writ of prohibition directed to the Minister preventing the Minister from acting upon or giving effect to or enforcing the decision.
The applicant claims that the Tribunal failed to exercise its jurisdiction under the Migration Act 1958 because:
The Migration Review Tribunal failed to take into account that I lodged an application to the Federal Magistrates Court for reinstatement of the matter within the statutory time limit.
The Minister’s lawyers have filed a response opposing the making of the orders sought.
Background
The applicant is a citizen of Bangladesh who arrived in Australia on 23rd June 2004. He applied for a protection visa on 2nd August 2004 and was granted a Bridging A visa.
After his application for a protection visa was refused on 29th November 2004, the applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal affirmed the delegate’s decision on 31st May 2005.
The applicant sought judicial review of that decision from the Federal Magistrates Court on 28th June 2005. He was granted a Bridging A visa on 1st July 2005 on judicial review grounds but it appears to have ceased on 7th July 2005.[1]
[1] Court Book 2005
On 12th October 2005 consent orders were made setting aside the Tribunal decision and remitting the application for a protection visa to the Tribunal. The Refugee Review Tribunal affirmed the delegate’s decision on 15th March 2007.
The applicant again applied to the Federal Magistrates Court, this time on 3rd April 2007. He was granted a Bridging A visa on judicial review grounds on 20th April 2007. That proceeding was finalised on 6th August 2007 when orders were made by consent, setting aside the decision and remitting the application for a protection visa to the Tribunal.
The Tribunal affirmed the delegate’s decision on 23rd October 2007.
On 19th November 2007 the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision. He was granted a Bridging visa A on judicial review grounds on 21st November 2007.
The application for judicial review was listed for final hearing on 19th June 2008. The applicant did not appear at the hearing and his application was consequently dismissed under the provisions of Rule 13.03A(c) of the Federal Magistrates Court Rules.
On 9th July 2008 the applicant applied to the Court to set aside its decision of 19th June 2008. In his affidavit in support he claimed that he had been unable to attend the hearing on 19th June. On 14th July 2008 he applied for the Bridging visa that is the subject of this proceeding. He attached to his application a copy of his Application in a Case and supporting affidavit relating to his application for reinstatement of his substantive application.
The application for reinstatement was heard and dismissed by Cameron FM on 18th July 2008 (SZGPK v Minister for Immigration & Anor[2]).
[2] [2008] FMCA 1054
The Department of Immigration and Citizenship wrote to the applicant on 22nd July 2008, refusing his application for a Bridging Visa A. The Department gave this reason:
The Federal Magistrates Court dismissed your application on 19 June 2008. There is no evidence before the Department that you have lodged a further application for judicial review of the decision to refuse you a Protection visa. Therefore, you do not meet the criterion at subclause 010.211(3)(b)(i) of the Migration Regulations. Accordingly, your application for a Bridging Visa has been refused.[3]
[3] Court Book 44
On 5th August 2008 the applicant filed a Notice of Appeal against the decision of the Federal Magistrates Court made on 18th July 2008. That appeal has not been finalised.
Application to the Migration Review Tribunal
On 11th August 2008 the applicant applied to the Migration Review Tribunal for review of the decision not to grant him a Bridging visa. The Tribunal wrote to the applicant on 3rd October 2008, inviting him to attend a hearing of the Tribunal on 18th November 2008.
The applicant made a written submission to the Tribunal dated 24th October 2008. He set out a chronology of events and submitted:
I submit that within the statutory time limitation I lodged every application either to the DIAC for visa or to the court. I submit that the statutory time limit to lodge an appeal to the Federal Court against the decision of the Federal Magistrates Court is 21 days. Within this period of time I lodged an appeal to the Federal Court. Accordingly I submit to the Tribunal that the gap between the decision of the Federal Magistrates Court and an appeal to the Federal Court I was under the judicial review proceeding. And my judicial review proceeding has not been completed as yet. I submit that at present my case is before the Federal Court as a part of the appeal proceeding…
I submit that both at the date of the primary application and at the date of decision, I met the criterion in subclass 010.211(3) (b) (i). I submit that at the time of the primary application of my bridging visa to DIAC on 14 July 2008, my application was in the Federal Magistrates Court under judicial review. At the time of DIAC decision on 22 July 2008 I was in the statutory time limit of 21 days to lodge an appeal to the Federal Court.[4]
[4] Court Book 30
The applicant attended the hearing on 18th November 2008 and gave evidence with the assistance of an interpreter in the Bengali language.
The Tribunal made and handed down its decision on 24th November 2008, affirming the decision not to grant the applicant a Bridging A (Class WA) visa.
The MRT decision
In its Decision Record, the Tribunal sets out;
(a)a summary of the relevant provisions of Clause 010.211 of Part 010 of Schedule 2 of the Migration Regulations;
(b)a chronology of the applicant’s relevant immigration history;
(c)a summary of the applicant’s statement to the Tribunal and supporting documents; and
(d)a brief summary of the applicant’s evidence to the Tribunal.
The applicant told the Tribunal that he had attempted to lodge an appeal to the Federal Court against the decision of the Federal Magistrates Court dismissing his application for non-attendance at the hearing on 19th June 2008. The Tribunal records:
However, the Federal Court refused to take his application and told him that he should seek to have the matter reinstated by the Federal Magistrates Court. The applicant believes that he was given incorrect advice.[5]
[5] Court Book 64
The Tribunal notes that it advised the applicant his application for reinstatement of his application did not meet the requirements of the legislation and that he did not meet the primary criteria for the grant of a Bridging A visa. The applicant was offered another opportunity to comment but said that he had already done so and felt aggrieved by the process.
The Tribunal, in its findings and Reasons, stated that Clause 010.211(2) related to applicants who applied for a substantive visa and whose application had not been finally determined within the meaning of subsection 5(9) of the Migration Act. The Tribunal noted that on 19th June 2008 the Court had dismissed the application for review of the Tribunal decision. The Tribunal found:
35. Accordingly, the Tribunal is satisfied that when the applicant applied for the Bridging A visa on 14 July 2008, his application for a substantive visa (that is, a Protection visa) had been finally determined. Therefore the applicant does not meet the requirements of cl. 010.211(2)(b).
36. Clause 010.211(3) relates to applicants where an application for judicial review has been made. An application for a reinstatement of a matter to the Federal Magistrates Court does not meet this criterion. As indicated above, when the applicant applied for the Bridging A visa on 14 July 2008, his judicial review proceedings at the Federal Magistrates Court had been completed and he had filed an application to the Federal Magistrates Court seeking reinstatement of the application to appeal the decision of the RRT affirming the Department’s decision not to grant him a Protection visa. Therefore the applicant does not meet the requirements of cl. 010.211(3)(d).[6]
[6] Court Book 65
The Tribunal went on to consider cl. 010.211(4)(b), cl. 010.211(5) and cl. 010.211(6) and found that the applicant did not meet any of their requirements, as they did not apply to his situation.
The Tribunal found that the applicant did not satisfy the requirements of cl. 010.211 and affirmed the decision not to grant him a Bridging A (Class WA) visa.
Application to the Federal Magistrates Court
The applicant commenced proceedings in this Court on 17th December 2008. He filed an amended application on 4th February 2009. In that amended application he claims that the Tribunal failed to exercise its jurisdiction by failing to take into account that he lodged an application to the Federal Magistrates Court for reinstatement of the matter within the statutory time limit.
Submissions
The applicant filed a written outline of submissions in which he set out a chronology of the events. He submitted that within the statutory time limitation he had lodged every application either to the Department of Immigration and Citizenship for a visa or to the Court. The statutory time limit to lodge an appeal to the Federal Court against the decision of the Federal Magistrates Court is 21 days. He lodged an appeal to the Federal Court against the decision of Cameron FM to refuse his application for reinstatement within that time limit. Thus, he submitted, judicial review proceedings were still on foot, as his appeal had not been determined. Thus, he submits, he meets the criterion in cl. 010.211 (3)(b)(i).
The applicant went on to submit that after his application for review had been dismissed under Rule 13.03A he had applied for reinstatement “again within the statutory time limit”. He submitted that at the time he applied for a Bridging visa on 14th July and the time it was refused on 22nd July his application was in the Federal Magistrates Court under judicial review and, further, that on 22nd July he was within the statutory time limit of 21 days to lodge an appeal to the Federal Court.
Accordingly, the applicant’s submission is that the Migration Review Tribunal failed to take into account that he had filed an application to the Federal Magistrates Court for reinstatement of his application within the statutory time limit.
The applicant told the Court that he was unable to attend the hearing of the Federal Magistrates Court as he had a pain in his leg and he had a doctor’s certificate. He said that he provided that document to the Court.
Counsel for the Minister, Mr Reilly, submitted that the Tribunal had, contrary to the applicant’s contention, taken into account the fact that he had applied to the Federal Magistrates Court for reinstatement of his application for review[7]. However, the Tribunal had considered that the application for reinstatement did not mean that the judicial review proceedings brought by the applicant were not completed, as required by cl. 010.211(3)(d).
[7] Court Book 63 at paragraph [21]
As at the 14th July 2008 the applicant’s application for review of the decision of the Refugee Review Tribunal had been dismissed and no notice of appeal had been filed. The fact that the applicant had filed an application in a case seeking reinstatement on 9th July 2008 did not mean that as at 14th July[8] the judicial review proceedings were other than completed, because they had been dismissed.
[8] The submission says “15 July” but this appears to be a clerical error.
Mr Reilly submitted that the applicant’s case would mean that either the orders of the Court on 19th June 2008 dismissing the application for non-attendance or the fact that the applicant had filed an application to have the orders set aside meant that the application for review of the decision on the protection visa was not completed. Rule 16.02 provides that unless the Court otherwise orders, a judgment or order takes effect on the day when it is given or made.
In reply, the applicant submitted that, as he had been unable to attend the hearing of the Court, he was confused as to whether it (the hearing) had or had not stopped. He said that he went to the Court Registry to inquire as to the outcome of his case. He claimed to have attempted to make inquiries of the Minister’s lawyers. He went back to the Registry and submitted his application to set aside the decision of the Court.
Conclusions
The requirements for a Subclass 010 Bridging A visa are set out in Part 010 of Schedule 2 of the Migration Regulations. The primary criteria must be satisfied both at the time of application (010.21) and at the time of decision (010.22) and they are set out in clause 010.211.
The only two subclauses that could apply to the applicant are 010.211(2) and 010.211(3). The Migration Review Tribunal correctly found that subclauses (4), (5) and (6) did not apply to a person in the position of the applicant. Subclause (4) specifically relates to an applicant who has not applied for a protection visa and subclauses (5) and (6) relate to an applicant who has applied for particular classes of visa (of which a protection visa) is not one).
Subclause 010.211(2) provides:
An applicant meets the requirements of this subclause if:
(a)the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and
(b)that application has not been finally determined; and
(c)he or she held a substantive visa at the time that application was made; and
(d)either:
(i)he or she had applied for a bridging visa in respect of that application; or
(ii)a bridging visa can be granted in respect of that application under regulation 2.21B.
This subclause would have applied to the applicant when he arrived in Australia in 2004 on a Subclass 456 (Short Stay Business) visa and applied for a protection visa on 2nd August 2004. He was then granted a Bridging A visa.[9]
[9] Court Book 62
Subclause 010.211(3) provides:
An applicant meets the requirements of this subclause if:
(a)the applicant:
(i)has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and
(ii)held a substantive visa when he or she made the application; and
(aa) that application was refused; and
(b)either:
(i)the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant’s substantive visa application; or
(ii)the applicant:
(A) is a member of the family unit of a person whose substantive visa application is the subject of judicial review proceedings mentioned in subparagraph (i); and
(B) made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i); and
(c)at the time of that application, he or she held a Bridging A (Class WA) or Bridging B (Class WB) visa; and
(d)the judicial review proceedings (including on appeal, if any) are not completed.
This subclause would have applied to the applicant when his protection visa application was refused on 29th November 2004 and he applied to the Refugee Review Tribunal for review of that decision. Clearly, it would have continued to apply when he filed his application to the Federal Magistrates Court on 28th June 2005 for review of the Tribunal’s decision, and would have continued to apply throughout the process up to, and including, his application to the Federal Magistrates Court on 19th November 2007 for review of the third Tribunal decision.
His application for judicial review was listed for final hearing on 19th June 2008. It was dismissed under Rule 13.03A because the applicant did not attend the hearing. There was no adjournment granted, nor is there any record of any application for an adjournment.
The Federal Magistrates Court is required by s.14 of the Federal Magistrates Act 1999 to grant either absolutely or conditionally all remedies to which any of the parties before it appeared to be entitled so that, as far as possible;
(c) all matters in controversy between the parties may be completely and finally determined;..
Under s.15 of its Act, the Federal Magistrates Court has power, in relation to matters in which it has jurisdiction, to:
(a)make orders of such kinds, including interlocutory orders, as the Federal Magistrates Court thinks appropriate; and
(b)issue, or direct the issue of, writs of such kinds as the Federal Magistrates Court thinks appropriate.
Rule 16.02 of the Federal Magistrates Court Rules provides:
Unless the Court otherwise orders, a judgment or order takes effect on the day when it is given or made.
The orders made by Cameron FM on 19th June 2008 are:
1. Pursuant to r.13.03A(c) of the Federal Magistrates Court Rules 2001, the application be dismissed.
2. The applicant pay the first respondent’s costs fixed in the sum of $4,300.[10]
[10] Court Book 36
The copy of the orders appearing in the Court bears the seal of the Court and the signature of an “authorised officer” (rule 16.08).
The application for judicial review of the Tribunal’s decision not to grant a protection visa to the applicant therefore took effect on the 19th June 2008, the day it was made. At that stage, the application for a protection visa was finally determined for the purposes of s.5(9) of the Migration Act, as the application was no longer subject to any form of review under Part 7 of the Act.
The applicant submits that on 14th July 2008, when he applied for a Bridging A visa, his application still “in the Federal Magistrates Court under judicial review” because he applied for the visa within “the statutory time limit of 21 days to lodge an appeal to the Federal Court”.[11]
[11] Applicant’s submission Page 2
However, the applicant had not lodged an appeal to the Federal Court, and did not do so. What he had done, instead, was file an application for reinstatement of his application under Rule 16.05. This application did not have the effect of rendering his Honour’s orders of 19th June 2008 dismissing the application uncompleted. The orders remained in force unless and until they were varied or set aside under Rule 16.05.
It is misleading for the applicant to refer to making an application within the statutory time limit. There is certainly a time limit for an appeal, but there is no time limit within which an applicant must apply to set aside a judgment or order.
It was a matter for the applicant whether he chose to apply to set aside the order or to appeal against the decision to dismiss his application for judicial review on 19th June 2008.
There appears to be no reason why a person in the position of the applicant could not file an appeal against the decision to dismiss an application under r 13.03A (now 13.03C). Hely J dealt with an application for an application for an extension of time to file and serve a notice of appeal in respect of an application dismissed under Rule 13.03A in SZDMD v Minister for Immigration & Multicultural & Indigenous Affairs[12]. His Honour held at [7]:
Given the shortness of the delay I would grant an extension of time within which to appeal if I were satisfied that the appeal had any realistic prospect of success. However, the issue on any appeal would be whether the Federal Magistrate wrongly exercised his discretion to dismiss the appeal by reason of the applicant’s failure to attend. There is no realistic prospect of the applicant succeeding on an appeal from that decision, hence it would be futile to grant an extension of time within which to lodge an appeal and the application is therefore dismissed.
[12] [2005] FCA 126
His Honour then went on to point out at [8]:
Rule 16.05(2)(a) of the Federal Magistrates Court rules provides that the Federal Magistrates Court may vary or set aside any order after it has been entered if the order was made in the absence of the party. It may therefore be open to the applicant to apply to the Federal Magistrates Court to re-open the proceedings in that court.
The Tribunal has not fallen into jurisdictional error. The Tribunal decision refusing to grant a Bridging A visa is a privative clause decision (s.474(3)) and is not therefore subject to orders in the nature of prohibition, mandamus or certiorari (s.474(1)(c)).
The application will be dismissed. I will hear submissions as to costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 22 April 2009
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