Dirckze & Ors v Minister for Immigration & Anor (No.2)
[2007] FMCA 743
•18 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DIRCKZE & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2007] FMCA 743 |
| MIGRATION – Subclass 435 temporary visa – whether jurisdictional error – status of Sri Lankan subclass 435 visa holders who arrived in Australia before 1 November 1993 – applicants arrived on 9 November 1995 – whether cut off date valid – no error. |
| Migration Regulations 1994, cl.435.213, reg.119G Migration Regulations (Amendment) Statutory Rule No 184 Migration Regulations (Amendment) Statutory Rule No 279 Migration Act 1958, s.359A Migration Regulations (Amendment) 1998 |
| De Silva & Ors v Ruddock as Minister for Immigration and Multicultural Affairs & Anor (unreported, Merkel J, 19 February 1998) De Silva v Minister for Immigration and Multicultural Affairs and Another (1998) 159 ALR 355 Dirckze v Minister for Immigration & Anor [2007] FMCA 472 |
| First Applicant: | MAXWELL KENNETH DIRCKZE |
| Second Applicant: | JEAN SUZANNE PATRICIA DIRCKZE |
| Third Applicant: | CASSANDRA SHANNEN DIRCKZE |
| Fourth Applicant: | CRAIG KEEGAN PHILLIP DIRCKZE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1547 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 4 May 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 18 May 2007 |
REPRESENTATION
| First Applicant: | In person |
| Second Applicant: | No appearance |
| Third Applicant: | No appearance |
| Fourth Applicant: | No appearance |
| Solicitor for the First Respondent: | Mr T. Mosby |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicants shall pay the First Respondent’s costs fixed in the sum of $3,700.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1547 of 2006
| MAXWELL KENNETH DIRCKZE |
First Applicant
| JEAN SUZANNE PATRICIA DIRCKZE |
Second Applicant
| CASSANDRA SHANNEN DIRCKZE |
Third Applicant
| CRAIG KEEGAN PHILLIP DIRCKZE |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application the Applicants seek judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 25 October 2006. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent finding that the Applicants were not entitled to the grant of a Sri Lankan (temporary) (class TT) visas.
The Applicants are husband, wife, daughter and son who are citizens of Sri Lanka and save for the son they arrived in Australia on 9 November 1995. They arrived in Australia pursuant to subclass 676 visitor visas. The visas were valid until 9 February 1996. On 21 November 1996 the Fourth Applicant, a son, was born in Australia.
A short time after the Applicants' arrival in Australia the First Applicant was granted a Sri Lankan (temporary) (class TT) subclass 435 visa ("the subclass 435 visa"). That visa was granted on 20 February 1996 and was valid until 31 July 1997. The Second and Third Applicants were included in that visa.
By application dated 30 July 1997 the First Applicant applied for a further subclass 435 visa. The First Applicant’s family were included in the application, including the Fourth Applicant who by that time had been born in Australia. The application was refused by a delegate of the First Respondent on 4 August 1997. The refusal was based upon the conclusion that the Applicants did not meet the criteria of the then cl.435.213 of the Migration Regulations 1994 ("the Regulations") because the Applicants had arrived in Australia after 1 November 1993.
It is not necessary to refer in detail to the change of options for review which have occurred in the intervening period, save to note that I am satisfied that ultimately it was appropriate that the Applicants be permitted to seek review of the delegate's decision before the Tribunal. No issue arises as to any time limits concerning notification or otherwise, and indeed the First Respondent has not taken issue with any technical matter at all arising out of the application.
However, it is appropriate in considering this application to note, as submitted by the First Respondent, the history of the subclass 435 visa. Those visas were introduced in 1990 as entry permits for temporary visitors from Sri Lanka who had arrived lawfully in Australia under one of several different classes of other temporary permits. They were introduced by what was then reg.119G of the Regulations as part of what is described by the First Respondent as "the Australian government's humanitarian program".
Under that program temporary arrangements were made for persons lawfully in Australia who, in the then government's view, were unable to return or ought not return to their home country because of, for example, internal conflict in their country of origin. There is no dispute that arrangements were made for the issue of subclass 435 visas in circumstances arising out of what could be considered to be civil conflict and unrest that existed in Sri Lanka in 1990. It is otherwise not necessary to further consider the nature of the subclass 435 visas which were granted.
It is, however, important to note that on 13 June 1997 the then Minister for Immigration and Multicultural Affairs announced a new category of permanent residency visas to be created for citizens of various countries, including, relevantly, citizens of Sri Lanka who had arrived lawfully in Australia on or before 1 November 1993 and who had resided in Australia for 10 years.
It was decided that eligible Applicants would be granted further temporary residence under subclass 850 resolution of status (temporary) visas available to Sri Lankans who had arrived in Australia on or prior to 1 November 1993 or permanent residency under the permanent subclass 851 resolution of status visa (which applied to holders of subclass 435 visas who satisfied the requirements for permanent residency which included 10 years residence in Australia).
It is significant to note that on 30 June 1997 the Migration Regulations (Amendment) Statutory Rule No 184 ("SR184") changed the eligibility for a subclass 435 visa, requiring entry into Australia before 1 November 1993. On 1 October 1997 the Migration Regulations (Amendment) Statutory Rule No 279 ("SR279") was also announced in respect of subclass 850 and 851 visas.
It is noted that in the First Respondent's contentions it is claimed that the introduction of SR184 was "to resolve the status of the Sri Lankan subclass 435 visa holders so that they would be considered lawful prior to the introduction of the subclass 850 and 851 visas". It was submitted that as subclass 850 and 851 visas commenced on 1 October 1997, it was necessary to provide for the existing subclass 435 visas which were due to expire on 31 July 1997 to be extended further to 31 July 1998.
The extension, it was submitted, was only to enable those eligible for the subclass 850 and 851 visas to be considered lawful, non‑citizen residents in Australia at the date of their application for a subclass 850 or 851 visa. It is argued that, relevantly, the subclass 850 and 851 visas were not intended for persons who were aware of the situation of their home countries, had the means to leave and had obtained temporary visa for Australia several years after the introduction of the subclass 435 visa category.
It was argued that in particular the visa category was not meant to be a response to the "present day situation" (as it then was) in Sri Lanka. In the submissions, the First Respondent's representative referred the Court to the decision at first instance of Merkel J in De Silva & Ors v Ruddock as Minister for Immigration and Multicultural Affairs & Anor. That decision is an unreported decision of Merkel J dated 19 February 1998.
It is noted that the cut‑off date of 1 November 1993 was considered valid by the Full Court of the Federal Court in an appeal from the decision of Merkel J in De Silva (see De Silva v Minister for Immigration and Multicultural Affairs and Another (1998) 159 ALR 355) (De Silva). The Full Court in that case, when upholding the validity of the cut‑off date, determined that it had taken into account a range of factors including Australia's economic and budgetary capacity to assist.
It is noted that Merkel J at first instance in De Silva held that any person, including Sri Lankans, who arrived in Australia after 1 November 1993 who believed that he or she had a well-founded fear of persecution could apply for a protection visa. In the present case it is noted that the Applicants have clearly exhausted all possible avenues for obtaining a protection visa.
It is not necessary to recite in detail the chronology of events which have ultimately led to a dismissal of an application for special leave to the High Court in relation to the protection visa applications of the Applicants. It is sufficient in the circumstances to note that the Applicants indeed pursued a protection visa application and were unsuccessful both in terms of decisions by the delegate upheld by the Refugee Review Tribunal and the subject of unsuccessful applications to the Courts.
The Tribunal decision
In the present case the Tribunal had forwarded, pursuant to s.359A of the Migration Act 1958 (the Act), a letter to the Applicants (Court Book pp.36-37). In the s.359A letter the Applicants were invited to comment on information regarding the criteria to be satisfied to be eligible for a subclass 435 visa and in particular the fact that the Applicants could not satisfy cl.435.213 which required arrival in Australia before 1 November 1993.
It is noteworthy that the First Applicant provided an undated written response to the s.359A letter (Court Book pp.48-51) which relevantly states as follows:
“I do concede that I do not strictly comply with the requirement of class T.T Sri Lankan (Temporary) subclass 435) in that I lodged my application after 1st Nov 1993…”
(Court Book p.48)
The response from the First Applicant then proceeds to set out the background circumstances in Sri Lanka claimed to be relevant to the application. Ultimately, the Tribunal, by letter dated 19 November 2006 (Court Book pp.36-37), invited the First Applicant to attend a hearing on 24 October 2006. The First Applicant and two witnesses attended the hearing on that day and gave oral evidence.
In its decision dated 25 October 2006, the Tribunal, as indicated earlier in this judgment, affirmed the decision of the delegate not to grant the Applicants a subclass 435 visa. I accept that the Tribunal’s reasons have been accurately summarised in the First Respondent's contentions as follows:
“(a)in order to succeed in the visa application, the applicant must meet all the criteria for the grant of the visa. Here, the visa application was refused because the applicant did not meet the requirement of clause 435.213 which provided that the applicant must have entered Australia prior to
1 November 1993;
(b)the applicant first arrived in Australian on 9 November 1995 and as such, cannot satisfy clause 435.213; and
(c)in light of this finding, it is unnecessary for the Tribunal to consider whether the application met the remaining requirements for the grant of a subclass 435 visa.”
Application for judicial review
The Applicants have relied upon an application filed on 7 December 2006 which claims that the Tribunal decision was made "without jurisdiction or is affected by an error of jurisdiction". Subjoined to that ground are the following particulars:
“I do not believe it was the mind of the legislature when the regulations were implemented to afford protection to Sri Lankans who for a substantial and well founded fear of persecution were entitled to your protection.
I am certain it was never in the minds of the Legislature to deny protection to those with a substantial and well founded fear of persecution, only because they failed to meet a date, arbitrarily enacted by the Act.
If the intention of the legislature was to afford safety of life and limb then the arbitrary date discriminates against us because the date does not by itself diminish the violence and nature of the danger endured by us when we entered Australia.
If the Act was enacted in the spirit of providing protection for those in need, then I do believe we have been the victims of an arbitrary date The application of this date was discriminatory and the Act/Regulation should be overturned.” (sic)
Orders were made by the Court in relation to this matter on
16 February 2007 which, amongst other things, required the Applicants to file and serve an Amended Application "with proper particulars, if any, by 12 March 2006". Orders were also made for the Applicants to file and serve a supplementary Court Book, if any, and contentions of fact and law. Those orders were not complied with by the Applicants.
When the matter was called on for hearing this day, the First Applicant sought an adjournment. That adjournment was refused and reasons given (see Dirckze v Minister for Immigration & Anor [2007] FMCA 472). However, the Court was prepared to permit the self-represented first Applicant to otherwise rely upon two sets of typewritten documents which the Court was prepared to regard, to the extent that they were relevant, as submissions in writing.
The first document is entitled "Application under Migration Act." It is undated, though comprises five pages of typewritten material. The second document is a two page undated document without a heading, which has annexed to it a photocopy of a newspaper article purportedly dated 29 April 2007. It is clear in my view that both documents relied upon seek to agitate issues which this Court does not have power to consider.
Specifically, complaints are made concerning the validity of the legislation and/or otherwise complaints made, perhaps understandably, as to the perceived unfairness of the process which has resulted in the Applicants in this instance subjected to a cut off date which they regard as unfair in circumstances where they have a belief that they were subjected to the similar circumstances of others who may have gained the benefit of arriving in Australia before the cut off date.
Otherwise, I am not assisted by those submissions, nor in my view is the Court assisted by the particulars subjoined to the ground set out in the application filed 7 December 2006. Those particulars clearly seek to address concerns the Applicants have in relation to the legislature arising out of the changes to the law.
It is submitted on behalf of the First Respondent that the ground relied upon by the Applicants cannot succeed. It is submitted, further, that the Tribunal's decision was open to it on the evidence before it and the Tribunal properly applied the law as it stood at the time of the application on 30 July 1997. It was argued that the language used in the then cl.435.213 is neither ambiguous nor unnecessarily complex. The provision then provided as follows:
“SUBCLASS 435 – SRI LANKAN
…
435.2 PRIMARY CRITERIA
435.21 Criteria to be satisfied at time of application
435.211If section 48 of the Act applies to the applicant, he or she has not been refused a visa, or had a visa cancelled, under section 501 of the Act.
435.212The applicant is a citizen, and normally a resident, of Sri Lanka.
435.213The applicant entered Australia on or before 1 November 1993 as the holder of an entry permit or an entry visa which had effect as if it were an entry permit.
435.214The applicant is not the holder of a visa (other than a subclass 435 visa) having effect on or after 31 July 1998.
…”
It was submitted by the First Respondent that at the time of the application, the clause required the Applicants to have entered Australia on or before 1 November 1993. The Applicants in fact arrived in Australia on 9 November 1995. Whilst it was noted that the subclass 435 visa has since been repealed by item 23 of the Migration Regulations (Amendment) 1998 which came into operation on 1 August 1998, it is necessary according to the First Respondent's submissions to apply the legislation as it stood at the time and there is no discretion on the part of the Tribunal to make an alternative determination (see s.349(1) of the Act). It was otherwise submitted that there is no jurisdictional error.
In my view the submissions made for and on behalf of the First Respondent are correct. Although it may appear to be somewhat unfortunate for the Applicants in the present case and although their present position may be somewhat aggravated by circumstances where they find at least one child has now been granted Australian citizenship, that does not detract from the conclusion I reach that in this instance the Tribunal has applied the law as it then stood and has done so in a manner free of jurisdictional error.
It is clear in my view, applying the authorities to which reference has been made by the First Respondent, that in this instance the Applicants have simply arrived in Australia after a cut-off date which has been validly set. In those circumstances I cannot see any error in the manner in which the Tribunal has embarked upon its task. It has correctly applied the law and has reached a decision reasonably open to it on the evidence. In the absence of jurisdictional error, it follows for the reasons given that the application should be dismissed with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 18 May 2007
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