DENG v Minister for Immigration
[2010] FMCA 1023
•3 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DENG v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 1023 |
| MIGRATION – Migration Review Tribunal – application for extension of time – explanation for delay – application to Minister under s.351 – Minister conceded jurisdictional error – extension granted. |
| Migration Act 1958 (Cth), ss.351, 424A, 417, 477 |
| Minister for Immigration v Kamal (2009) 178 FCR 379; (2009) 111 ALD 246; [2009] FCAFC 98 Berenguel v Minister for Immigration (2010) 84 ALJR 251; (2010) 264 ALR 417; [2010] HCA 8 SZGNO v Minister for Immigrationand Multicultural and Indigenous Affairs (2005) FMCA 1433 SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1816 Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; [2004] FCA 21 Ex parte Soetanto; Re Minister for Immigration & Multicultural Affairs & Ors S86/1999 [1999] HCATrans 337 (21 September 1999) Gararth v the Minister for Immigration and Multicultural and Indigenous Affairs (2006) 91 ALD 790; [2006] FCA 316 S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 283; (2004) 85 ALD 492 Kaur v Minister for Immigration & Anor (2010) FMCA 634 Re Commonwealth of Australia and Another; Ex parte Marks (2000) 75 ALJR 470; (2000) 177 ALR 491; [2000] HCA 67 Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 SZFGO V Minister for Immigration and Citizenship [2008] FCA 1478 VQAN v Minister for Immigration and Multicultural and Ethnic Affairs (2003) FCA 1541 Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 |
| Applicant: | LIANG DENG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1190 of 2010 |
| Judgment of: | Riley FM |
| Hearing date: | 3 December 2010 |
| Date of Last Submission: | 3 December 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 3 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Cahal Fairfield |
| Solicitors for the Applicant: | Lily Ong Business Lawyers And Migration Consultants |
| Counsel for the Respondent: | Melissa Gangemi |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application for an extension of time filed on 26 August 2010 be granted.
The decision of the Migration Review Tribunal handed down on
9 March 2009 in matter number 0802999 be set aside.The matter be remitted to the Migration Review Tribunal for determination according to law.
Each party bear their own costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1190 of 2010
| LIANG DENG |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for an extension of time under s.477 of the Migration Act 1958 (“the Act”) in which to bring an application for judicial review of a decision of the Migration Review Tribunal, and if that application is successful, for writs of certiorari and mandamus in respect of the Tribunal’s decision.
The applicant relies on an affidavit affirmed by him on 31 August 2010. In that affidavit, he says as follows:
3.I was born in China on 10 February 1981.
4.I came to Australia to further my education. I arrived in Australia in July 2004 on a student visa. My parents have supported me financially.
5.My student visa was subsequently cancelled but I was advised on or around 17 January 2008 that my visa was to be reinstated because of a judgment in a Full Federal Court case.
6.However, that reinstated visa was due to expire around 14 March 2008 so I contacted the Department of Immigration and Citizenship (“the Department”) and was advised that I would need to undertake a new IELTS test in order to lodge a student visa application.
7.However all the tests were fully booked and I was not able to sit the IELTS test until 19 April 2008.
8.On 14 March 2008, I lodged the student visa application with the Department for a Student (Temporary) (Class TU visa).
9.On 19 April, 2008 I sat my test and the test results issued on 1 May 2008.
10.On 28 April 2008, my application was refused by a delegate of the Minister for Immigration and Citizenship.
11.On 16 May 2008, I applied to the Migration Review Tribunal (“the Tribunal”) for a review of that decision.
12.By a decision dated 10 March 2009, the Tribunal affirmed the delegate’s decision. Now produced and shown to me and marked “Annexure 1” is a copy of the decision of the Tribunal.
13.I received the decision of the Tribunal in March 2009. My migration agent Mr John Kotsifas of JK Legal Barristers and Solicitors advised me to seek the intervention of the Minister to grant me a visa. I know very little about Australian migration law and I relied upon my agent’s advice.
14.I am informed and believe that my agent sent an application to the Minister in late March 2009.
15.I contacted my agent about once per month to find out the progress of my application.
16.I remember that around late August 2009, I had a conversation with Mr Kotsitfas (sic) in which he told me that the law had now been changed and that the Department of Immigration and the Migration Review Tribunal would accept IELTS test results from tests conducted after the date of filing the visa application. Mr Kotsifas said words to the effect “because of this change in law you will probably succeed in your application to the Minister because the Tribunal got it wrong.” I relied upon that advice.
17.On or about 23 July 2010, the Minister made a decision not to intervene in my case. Now produced and shown to me and marked “Annexure 2” is a copy of a letter from the Department dated 23 July 2010 which I received from my migration agent around that time. I was extremely surprised and disappointed by this given that my migration agent had told me that since the law had been changed I would, for that reason, probably succeed.
18.After I received notice that my application to the Minister had been refused, I was referred to my present solicitor through a friend.
19.I humbly ask the Court as a matter of fairness to grant me the extension of time I seek.
20.I have undertaken on 1 May 2008 and completed an IELTS test which I passed to a level above the required standard. I am informed and believe that the required standard was an overall score of at least 5.5. I scored an overall score of 6. I speak and read English well. Now produced and shown to me and marked “Annexure 3” is a copy of the IELTS test that I passed.
21.I could not undertake an IELTS test before the date of lodging my visa application because all the available dates to take the test were full and I took the test as early as I could.
22.I have been informed that the decision of the Tribunal is legally incorrect and that the Tribunal ought to have accepted the IELTS test score which I had achieved in the test undertaken in April 2008.
23.After I received the Tribunal decision, I immediately sought advice from my migration agent. I relied upon what my agent told me.
24.If the Court does not grant me an extension of time, the prejudice to me will be enormous. I have a partner. Her name is Chan Shan Liu. We met in Australia. We have known each other five years and have lived together as a couple these past four years. My partner has been granted temporary residence in Australia.
25.If an extension of time is not granted, I will not be able to remain in Australia in circumstances where the Tribunal’s decision affirming the cancellation of my student visa is legally incorrect. I will be forced to leave behind my partner whom I love very much. I will also be unable to study further in Australia, which was the reason I came here. I have made friends here in Australia. I have also never been a burden to the Australian community and my parents in China have paid all my student expenses. My partner also supports me financially in Australia.
The matters to be considered in any application under s.477 of the Act well known. They are
a)the extent of the delay and the reason for the delay;
b)whether there is any merit in the substantive application;
c)whether there is any prejudice to the respondents;
d)the prejudice to the applicant if the extension were not granted;
e)the interests of the public at large; and
f)in a general sense, the court’s discretion.
Regarding the merits of the substantive application, the Minister in this case, perhaps somewhat unusually, has conceded that there was, in fact, a jurisdictional error in the Tribunal’s decision. The substantive application was for a student visa that required the applicant to have proficiency in English, as demonstrated by an IELTS test. In this particular case, the Tribunal considered that it was bound by authority that was subsequently overturned in the decision of the Full Federal Court in the Minister for Immigration v Kamal (2009) 178 FCR 379; (2009) 111 ALD 246; [2009] FCAFC 98. That decision was also upheld by the High Court in the decision in Berenguel v Minister for Immigration (2010) 84 ALJR 251; (2010) 264 ALR 417; [2010] HCA 8 more recently. The upshot of those decisions is that the Tribunal’s decision, in fact, contained a very significant jurisdictional error. It was not submitted to the court by the first respondent that if the matter were remitted to the Tribunal, the Tribunal would, more or less inevitably, decide the case against the applicant for some other reason. The case today has proceeded on the basis that, if the matter were remitted to the Tribunal, there would be at least some prospect of the outcome there being different.
The proceeding today focused on the delay of the applicant in bringing the application to this court for judicial review. The delay was some 16 months. The explanation for the delay was that the applicant sought the exercise of the Minister’s discretion under section 351 of the Act. That application was made on the basis of the advice of a migration agent. Once the Minister exercised his discretion against the applicant, the applicant promptly brought the proceedings in this court. The crux of the issue before the court today is whether the s.351 application is an adequate explanation for the delay. The applicant took the court to a number of authorities which strongly suggest that such a step is by no means an inadequate explanation for the delay.
The first case that the court was taken to was a decision of Lloyd-Jones FM in SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FMCA 1433. In that case, his Honour noted that there was a delay of about four years and also noted that the Minister conceded that there had been an error under s.424A of the Act. Section 424A errors relate to the statutory equivalent of the common law right of natural justice. It was submitted on behalf of the applicant that the error in SZGNO was a procedural error whereas in this case the error was a substantive error in that it concerned one of the criteria for the grant of the visa. In any event, in SZGNO, Lloyd-Jones FM refused the extension of time, notwithstanding that there was the concession about the jurisdictional error. The essence of his Honour’s decision seems to have been that the applicant in that case had made an application to the Minister under s.417 of the Act. That section is the equivalent of s.351 in non-refugee migration matters. The other significant factor in that case was that after the s.417 application was refused, the applicant did not promptly bring his review application to the court.
In any event, the exercise of the discretion by the Federal Magistrate was overturned on appeal by Graham J in the matter of SZGNO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1816. In that case, Graham J noted the decision of Goldberg J in Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; [2004] FCA 21. In Daniel, Goldberg J noted that there had been a s.417 application and concluded as follows at [14]:
This course of conduct, in my view, should properly be characterised as an indication by the applicant that he was prepared to accept that the Tribunal’s decision was correct and that he did not intend to challenge that decision further in the Court.
Graham J in SZGNO noted that Daniel was not a case where the Minister had accepted that there was jurisdictional error on the part of the Tribunal. Graham J went on to conclude that the Federal Magistrate had fallen into error by concluding that making an application to the Minister under s.417 of the Act and the subsequent delay thereby amounted to an acceptance by the applicant of the correctness of the Tribunal’s decision.
There was some discussion in SZGNO about whether the applicant had been properly notified of the Minister’s decision. However, in any event, Graham J considered that the discretion exercised by the Federal Magistrate had miscarried and overturned the decision.
The applicant also referred the court to the decision of Gummow J in the matter of Ex parte Soetanto; Re Minister for Immigration & Multicultural Affairs & Ors S86/1999 [1999] HCATrans 337 (21 September 1999). In that case, Gummow J considered an application for an extension of time in the original jurisdiction of the High Court. There had been a two-and-a-half-year delay in circumstances where the rules fixed a time limit of six months. Gummow J noted in that case that the Minister did not dispute that there was a ground of some substance in that case, although the Minister did not go as far as he has in the present case, and conceded that there was, categorically, a jurisdictional error. Nevertheless, the Minister said that the fact that there was some substance in the application was not sufficient to overcome the hurdle of delay. His Honour ultimately considered that the matter was close to the line but granted the extension, notwithstanding that there had been an application under s.351. That is, the s.351 application of itself was not regarded by his Honour as being anything remotely resembling an absolute bar to the extension of time.
Counsel for the applicant also referred the court to the decision of Gararth v the Minister for Immigration and Multicultural and Indigenous Affairs (2006) 91 ALD 790; [2006] FCA 316. That was a decision of Wilcox J, in which the decision of the Federal Magistrates Court was overturned. In that case, the Federal Magistrate had considered that the making of a s.351 application was an indication that the applicant had abandoned any right he may have had to judicial review in this court. Wilcox J examined some of the authorities, including the matter of S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 283; (2004) 85 ALD 492. In S58 of 2003, Madgwick J said that even if the applicant has a good case on its merits for constitutional relief, and notwithstanding the possible importance of the case to him, to sanction such a long and poorly explained delay would be quite wrong. In S58 of 2003, the delay was five years, and, as his Honour noted, the delay was poorly explained.
In Gararth, Wilcox J noted that there was an explanation for the delay. The applicant had applied to the Minister under s.351, but upon that application being dismissed, the applicants had applied to the court reasonably promptly. His Honour considered that the appeal should be allowed and that the constitutional relief sought should be granted.
The applicants also referred to the decision of Barnes FM in the matter of Kaur v Minister for Immigration & Anor (2010) FMCA 634. In that case, her Honour considered the various authorities in considerable detail. In particular, her Honour referred to the decision of Goldberg J in Daniel and the decision of McHugh J in Re Commonwealth of Australia and Another; Ex parte Marks (2000) 75 ALJR 470; (2000) 177 ALR 491; [2000] HCA 67. Marks was a decision in the industrial law context. There was a considerable delay in bringing any application at all and then a further delay in bringing the application to the High Court. It was noted that the time limits in industrial matters generally are tight because of the nature of the proceedings. Barnes FM in Kaur also considered the decision in Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576, where there had been an application to the Minister under s.417 of the Act. In that case, von Doussa J had considered that the making of an application under s.417 indicated an acceptance of the decision made by the Refugee Review Tribunal. After reviewing the various authorities, Barnes FM noted in Kaur the decision in SZGNO and concluded that at [67]:
This case suggests that an application to the Minister is not necessarily an indication that an applicant has decided to accept a Tribunal decision. It should not be looked at in isolation, but rather as part of all the circumstances, including the grounds relied upon by the applicant.
Her Honour also referred to the decision of Edmonds J in SZFGO v Minister for Immigration and Citizenship [2008] FCA 1478. Edmonds J referred to the passage cited above from Goldberg J’s decision in Daniel and said at [17]:
I very much doubt that what his Honour said in this extract from his reasons was being put as a general statement of principle; more likely, a conclusion drawn from the facts of the case before his Honour. But if I am wrong, then, with respect, I cannot agree with it.
In Kaur, Barnes FM noted at [70] that:
there was no evidence before the court [in SZFGO] that in electing to pursue Ministerial intervention under s.417 the applicants had chosen to abandon their rights of appeal, such as by the filing of a notice of discontinuance.
Finally, Barnes FM concluded at paragraph 72 as follows:
In my view, in the particular circumstances of this case the application to the Minister under s.351 should not be seen as indicating that the applicant had chosen to abandon her right to seek judicial review of either or both of the decisions in issue, bearing in mind that she acted on legal advice and the promptness with which the present proceedings were commenced after the unfavourable Ministerial response.
Barnes FM at [74] also noted the decision of Heerey J in VQAN v Minister for Immigration and Multicultural and Ethnic Affairs (2003) FCA 1541, and said:
Heerey J suggested that the longer the unexplained delay the stronger the argument on the merits would need to be to grant an extension of time.
Her Honour also considered that the reverse should apply if the delay is not excessive. Her Honour went on to grant the extension of time, but subsequently dismissed the application.
The respondent relied on the well-known decisions in Marks and also Applicant A2, Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 and Daniel.
I accept that in many cases the courts have considered that an application under s.351 or its equivalent, s.417, is to be regarded as an abandonment by the applicant of his rights to judicial review. However, as I perceive the authorities, the question is always a discretionary matter for the court. Taking into account all of the circumstances of the case, I do not read the authorities as indicating that a s.351 application is necessarily a bar to an extension of time, though it is obviously a matter that goes into the balance, and taking all matters into consideration, it may be sufficient to warrant a refusal of an extension of time.
In the present case, there was no mention of any particular prejudice to the respondents if the extension of time were granted, although I assume that there would be some inconvenience.
The question of the impact on the applicant is significant. Clearly, if the extension of time is not granted, subject to any appeal from this decision, the applicant would be completely shut out from having further consideration of his visa application.
In terms of the interests of the public at large, the public, of course, has an interest in matters before the courts being brought to a close promptly. There is a public interest in the finality of litigation. The public purse would be somewhat affected by this matter proceeding. However, the public interest would not be any more affected as a result of the delay than it would have been if the matter had been brought promptly. So, ultimately, this case really turns on the delay and the reasons for it.
Considering all of the matters before me, it seems to me that there has been an admitted jurisdictional error that goes to the essence of the criteria that the Tribunal was required to consider. This is a very significant factor. It seems to me in all the circumstances that the gravity of the jurisdictional error outweighs the considerable delay in this case. Sixteen months in a long time, but in my view, the delay has been adequately explained. The s.351 application was brought. The applicant says that he checked regularly with his migration agent about whether there had been any result and, in fact, once the Minister did exercise his discretion contrary to the applicant, the proceedings in this court were brought promptly. I would not regard the s.351 application in this case as indicating that the applicant was abandoning his judicial review rights. On the contrary, I would see it as an application that was endeavouring to keep alive the proper consideration of his case, albeit via the Minister rather than by the courts.
All in all, it seems to me that it is proper in this particular case to exercise my discretion in favour of an extension of time. In view of the jurisdictional error, and in the absence of any suggestion that the outcome in the Tribunal could not be different, the matter must be remitted for determination according to law.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate:
Date: 18 January 2011
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