Dharmesh v Minister for Immigration

[2009] FMCA 442

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DHARMESH v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 442

MIGRATION – Review of Refugee Review Tribunal decision – visa application invalid – Tribunal had no jurisdiction.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.47, 338, 359A, 424A, 476, 477
Migration Regulations 1994 (Cth)

Refugee Review Tribunal; ex parte H (2001) 179 ALR 425
Vahaakolo v Minister for Immigration [2002] FCA 648

Applicant: DHARMESH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 394 of 2009

Judgment of: Driver FM

Hearing date: 11 May 2009

Delivered at: Sydney

Delivered on: 11 May 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 394 of 2009

DHARMESH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I have before me a show cause application filed on 19 February 2009 seeking review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 16 October 2008. The Tribunal found that it did not have jurisdiction in the matter, which was a Departmental decision that a visa application made by the applicant was invalid because it did not meet item 1229 of Schedule 1 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”). This was because the applicant's student visa expired on 30 September 2007. The Department did not receive the application for a Skilled Provisional (Class VC) visa until 2 October 2007. As Mr Dharmesh did not hold a substantive visa at the time of his application for the skilled visa, that application was considered to be invalid.

2. I adopt as additional background, with amendments, paragraphs 2 through to 12 of written submissions filed on behalf of the Minister on 29 April 2009:

   On 2 August 2007, the applicant applied for a Class VC subclass 485 Skilled (Provisional) Graduate visa: court book (CB) 1–3.

   On 21 August 2008, the Department notified the applicant that his application was invalid because it did not meet Item 1229(4)(a)(iii) of Schedule 1 of the Migration Regulations: CB 4–6. Item 1229(4)(a)(iii) requires an applicant to be the holder of a specified substantive visa. The applicant did not meet this requirement as his student visa had expired on 30 September 2007.

   The applicant responded to the Department, by email dated 23 August 2008: CB 7–8. The applicant stated that he attempted to lodge his application online on 28 September 2007, but was unable due to a computer error to complete the application. He contacted the Department and was told to post his application, which would be back dated.

   By email dated 25 August 2008, the Department invited the applicant to submit evidence to support this allegation: CB 7. The applicant submitted supporting material by email dated 28 August 2008: CB 9–21.

   By email dated 4 September 2008, the Department confirmed its advice that the applicant’s application was invalid: CB 22. The Department was unable to find any evidence that the applicant attempted to lodge a valid visa application online, or that he spoke to an officer of the Department.

   Section 47(3) of the Migration Act 1958 (Cth) (“the Migration Act”) provides that the Minister is not to consider an application that is not a valid application. This section ‘imposes a duty on the Minister to consider, or not to consider, an application depending upon whether or not it is a valid application’[1]

   On 22 September 2008, the applicant filed an application for review and supporting documents with the Tribunal: CB 25–42.

   On 23 September 2008, the Tribunal wrote to the applicant inviting him to comment and provide further information on the eligibility issue: CB 44–45. The Tribunal stated that the application for review may not be eligible because an advice that an application is not valid is not a decision to refuse to grant a visa and is therefore not subject to merits review.

   The applicant responded by letter dated 6 October 2008: CB 47–50.

   On 16 October 2008, the Tribunal found that the Department’s advice that the applicant’s visa application was invalid was not an MRT-reviewable decision: CB 54.6.

   The Tribunal stated that its jurisdiction arises under s.348 of the Migration Act if an application is properly made under s.347 of the Migration Act for review of an MRT-reviewable decision: CB 53.8. The Tribunal further stated that s.338 of the Migration Act and regulation 4.02(4) of the Migration Regulations specify the decisions that constitute MRT-reviewable decisions: CB 53.8. The Tribunal found that the delegate’s decision that the application was invalid did not fall within the definition of an MRT-reviewable decision contained in s.338 of the Migration Act or r.4.02(4) of the Migration Regulations: CB 54.3. Accordingly, the Tribunal correctly found that it did not have jurisdiction: CB 54.7.[2]

   [1] Vahaakolo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 648 at [15].

   [2] See Jang & Ors v Minister for Immigration & Anor [2007] FMCA 869; Jang & ors v Minister for Immigration & Anor [2007] FCA 1697.

3. The application is supported by a short affidavit, which I received.

   
   

   I also received as evidence the court book filed on 19 March 2009.

   
   

   I received written submissions from both the Minister filed on 29 April 2009 and the applicant filed the day before. 

4. The applicant's submissions are problematic in that they relate to issues which are substantially irrelevant to this case, such as the conduct of a hearing by the Tribunal.  There was no hearing in this case because the Tribunal found that it lacked jurisdiction.  The applicant's submissions attach a psychological assessment concerning himself which post-dates the Tribunal decision and also medical reports concerning his father dated from 2007.  I accept from those documents that the applicant has suffered from a generalised anxiety disorder this year and that his father received medical attention in 2007.  Both those matters are, however, extraneous to the decision of the Tribunal. 

5. The grounds of the application are lengthy and, like the applicant's submissions, are of limited assistance because they assert error in the conduct of a hearing which did not occur.  The Minister's submissions deal with that application in paragraphs 13 and 14 which I incorporate in this judgment:

   The grounds for the application are contained in ‘Annexure A’. Under the heading ‘Procedural Unfairness’ the applicant complains that the Tribunal breached procedural fairness, due to apprehended bias. The applicant has not submitted any evidence in support of this serious allegation. The ‘question to be decided’[3] by the Tribunal was one of jurisdiction, which is a legal determination. As the Tribunal found it did not have jurisdiction, there was no need for it to assess the applicant’s claims and evidence. Therefore, the complaint of bias simply does not arise.

   Under the heading ‘Breach of s.424A’ the applicant complains that the Tribunal breached s.424A of the Migration Act. We assume this is meant to assert a breach of s.359A of the Migration Act (the corresponding provision applicable to the MRT). As the Tribunal found it did not have jurisdiction under the Migration Act, the natural justice provisions contained in division 5 of the Migration Act did not apply. In any event, the Tribunal wrote to the applicant by letter dated 23 September 2008 (see paragraph 9 above). This letter invited the applicant to comment on the determinative issue, being whether the decision in question was eligible for review. Accordingly, this ground cannot be sustained.

   [3] Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 at [27] – [28] and [30]-[31].

6. I accept the Minister's submissions that there was no breach of s.359A in this case. The Tribunal found it had no jurisdiction and the procedural requirements concerning the conduct of a review by the Tribunal did not apply. In any event, as is noted in the Minister's submissions, the Tribunal did write to Mr Dharmesh by letter dated 23 September 2008 and invited his comment on what appeared to the Tribunal to be the determinative issue.

7. There can be no doubt that the Tribunal was correct that it lacked jurisdiction because the decision of the Minister's delegate was not an MRT-reviewable decision[4].  The application to review the decision of the Tribunal raises no arguable case of jurisdictional error by the tribunal.

   [4] See ss.47(4) and 338 of the Migration Act and regulation 4.02(4) of the Migration Regulations

8. The applicant's real grievance is that his skilled graduate visa application was not accepted as valid by the Minister's Department. He raised that grievance with the Department and it was investigated. The applicant asserts that he was under pressure at the time his skilled visa was due to be filed, either because he was awaiting the results of English language testing or because of his father's illness or both. He asserts that he attempted to lodge the visa application online but because of system error was unable to complete the application.

   
   

   He asserts that he spoke to a female at the Minister's Department on

   
   

   the day on which the visa application was due and was given information along the lines that if he sent the application that day it would be treated as having been made on that day. Page 20 of the court book records the telephone call apparently from the applicant to

   
   

   the Minister's Department over 17 minutes and 42 seconds on

   
   28 September 2007

   . However, there is no contemporaneous record of what might have been discussed in that telephone call and the applicant cannot now recall who he spoke to. 

9. The Department was unable to verify a failed attempt to lodge the visa application online and was also unable to verify what was discussed in the telephone call on 28 September 2007. There is no doubt that the visa application was not in fact received by the Department until

   
   2 October 2007

   which rendered the application invalid. 

10. The applicant has not sought review of the delegate's decision by this Court. It appears to me that hypothetically the Court would have jurisdiction to review that decision under s.476 of the Migration Act, subject to s.477. No such application having been made, however, I will not consider it further. The applicant was given an opportunity in accordance with orders made by me on 9 March 2009 to file and serve an amended application and he has not taken up that opportunity. I informed the applicant today of his right to seek Ministerial intervention in his case. That is a matter for him. It is beyond the scope of this proceeding.

11. I find that the applicant has failed to raise an arguable case of jurisdictional error by the Tribunal. Accordingly, I will dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). I so order.

12. The application having been dismissed, costs should follow the event. The Minister seeks an order that the applicant pay costs in accordance with the Court scale in the sum of $2,935. The applicant spoke about his concern concerning the inability of the department to verify his claims relating to his visa application but did not otherwise make submissions bearing on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  13 May 2009