Fahmi v Minister for Immigration and Multicultural Affairs

[2001] FCA 966

FEDERAL COURT OF AUSTRALIA

Fahmi v Minister for Immigration & Multicultural Affairs [2001] FCA 966

ABDELLAH FAHMI  -v-  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V256 of 2001

RYAN, WEINBERG and STONE JJ

23 JULY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V256 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ABDELLAH FAHMI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGES:	RYAN, WEINBERG and STONE JJ
DATE OF ORDER:	23 JULY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The appellant pay the respondent's costs of the appeal, to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V256 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ABDELLAH FAHMI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	RYAN, WEINBERG and STONE JJ
DATE:	23 JULY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1. The appellant, a citizen of Morocco, married Ms Bronwyn Jane Smith, an Australian citizen, in Morocco in February 1999.  On 7 March 1999, Mr Fahmi applied for a spouse visa to migrate to Australia, sponsored by Ms Smith.  On 27 November 1999, the Australian embassy in Cairo wrote to Mr Fahmi, advising him that he had been granted a spouse provisional temporary visa, class UF, subclass 309, to enter Australia, which he did on 14 January 2000.  In September 2000, Ms Smith informed the Department of Immigration and Multicultural Affairs (“the Department”), that her relationship with Mr Fahmi had ended and withdrew her support for her husband's visa application.

2. On 21 September the Department wrote to Mr Fahmi advising him that because his relationship with Ms Smith had ended he should consider whether he was still entitled to apply for a spouse visa and, if not, that he should send a letter to the department indicating his intentions.  The Department's letter set out the circumstances in which entitlement to a spouse visa would survive the relationship.  None of those circumstances is relevant here.

3. On 6 December 2000 the Department wrote to the appellant informing him that his application for a spouse class BC subclass 100 visa had been refused and that his spouse provisional visa would cease on 13 December 2000.  The letter stated that the appellant had been granted a bridging visa A to remain in effect until 10 January 2001 and that if he wished to have the decision reviewed by the Migration Review Tribunal (“the MRT”), he was required to make the relevant application by 3 January 2001.  Both letters, which had been sent to the appellant's last known address, were returned to the Department.

4. On 10 January 2001 the appellant became an unlawful non-citizen and on 2 February 2001 he was placed in immigration detention.  In an interview with an officer of the department he indicated that he did not wish to return to Morocco because he wanted to maintain contact with his daughter born recently in Australia.  The appellant lodged an application for a protection visa on 6 February 2001.  As a result of this application Mr Fahmi was automatically considered for the grant of a bridging E visa.  On 7 February 2001 an officer of the Department refused to grant the bridging E visa and gave reasons for that decision.  On 8 February 2001 the appellant wrote withdrawing his application for a protection visa and requesting a bridging visa, stating that he wished to remain in Australia because of his desire to remain in contact with his daughter.

5. Subsequently, on 9 March 2001, he lodged an application for a bridging E class WE visa. That application was refused by the respondent's delegate on 13 March 2001 and the refusal was affirmed by the MRT on 21 March 2001. On 12 February 2001 the appellant was given a copy of a document headed “Notification of Removal Arrangements Pursuant to Sections 198, 199 and 205 of the Migration Act 1958”. That document informed him that arrangements had been authorised to remove him to Morocco at any time after 48 hours from the time of notification. On 13 February 2001 the appellant filed an application for an order of review in this Court. That application states:

   “The applicant is aggrieved by the decision because I'm married with Australian for nearly three years.  I had a daughter from her.  She cancelled my visa.  While I ask the department for application to have a permanent visa as a father, they said, "You have no right except if you want to be a refugee to have protection visa."  The grounds of the application are:  because I'm married nearly three years and I have my daughter here.  It's my duty to look after her and be near her as any father.”

6. The appellant claims:

   “I want a bridging visa to go out from detention centre to sort out my problem.”

7. The application did not contain any other information.  In particular, it did not identify the decision to be reviewed.  The respondent filed a notice of objection to competency, contending that the Court did not have jurisdiction to determine the application because it did not refer to any decision reviewable by the Court and because no such decision existed.  The appellant was advised of the objection.  Goldberg J dismissed the application with costs. 

8. On 27 March 2001 Mr Fahmi filed another application for order of review in this Court which became proceedings V 221 of 2001.  The application stated:

   “Application to review the decision of the respondent, that I not agree with the decision.  I look forward to have another justified re-look at my case from the honourable Federal Court.  The applicant is aggrieved by the decision because I think the whole exercise of the case has been fought at wrong platform as I have problem with my wife which is not outstanding situation.  My request is to look at my case in the scenario of reconciliation in the Family Court.”

9. The grounds of the application referred to the applicant's fear of the Department and the possibility of deportation.  The applicant claimed:

   “(1)Please allow me a bridging visa;

   (2)I want to go to Family Court, please allow me to exercise my legal right to settle the difference between me and my wife.  Please order the department and associate authorities not to deport me by force.”

10. Apparently assuming that the application was an attempt to appeal from the decision of Goldberg J, the Listing Manager of the Victoria District Registry of the Court wrote to the appellant on 2 April 2001 stating that he should complete a notice of appeal with 21 days of 14 March 2001.  A notice of appeal claiming that the learned Judge has erred in law and stating that particulars will be provided was filed on 4 April 2001.  The notice states that leave to appeal was granted on 14 March 2001.  Possibly this is an inference made from the listing manager's letter.

11. On 11 April 2001 the National Appeals Manager of the Court wrote to Mr Fahmi referring to a telephone conversation that had taken place on 10 April 2001.  The letter states that;

    “As a consequence of that discussion we understand that your application for review filed by facsimile on 27 March 2001 relates to a decision of the Migration Review Tribunal made on or about 20 March 2001.”

12. The decision of the MRT referred appears to be the decision mentioned earlier.  The appeal from that decision was thereafter treated as a separate proceeding and was dismissed by Finkelstein J on 21 May 2001.  The letter from the National Appeals Manager invited the appellant, if he did not wish to proceed with the appeal from the decision of Goldberg J, to file a notice of discontinuance.  The appropriate form was included with the letter.  No such notice was filed nor were any particulars or written submissions in the appeal provided.

13. The primary Judge stated that the objection to competency should be upheld and the application dismissed because the application did not identify any judicially reviewable decision.  However, because the appellant was unrepresented, his Honour endeavoured to determine whether there was any decision which might be the subject of an application for review by the Court in which case leave could be granted for the application to be amended appropriately.  His Honour noted that there were three decisions which could be the subject of the review being first, the decision of the respondent's delegate refusing to grant the appellant a permanent spouse visa, this is Decision 1;  secondly, the decision of the respondent's delegate cancelling the appellant's spouse provisional visa, Decision 2, and the decision of the respondent's delegate on 7 February 2001 refusing to grant the appellant a bridging E visa, Decision 3.

14. The primary Judge stated that each of the above decisions was reviewable by the MRT pursuant to s 338 of the Migration Act 1958 (“the Act”) and therefore each was an MRT reviewable decision. He pointed out that, pursuant to s 475(2) of the Act, MRT reviewable decisions are not judicially reviewable and therefore cannot be reviewed by this Court. He therefore concluded that no amendment to the application would assist the applicant in invoking the jurisdiction of this Court. Section 485 of the Act provides, among other things, that the Federal Court does not have jurisdiction in relation to decisions covered by s 475(2) other than the jurisdiction conferred by Pt 8 of the Act and by s 44 of the Judiciary Act 1903. 

15. Section 475(2) states that certain decisions, including MRT reviewable decisions, are not judicially reviewable. Part 8 of the Act gives this Court jurisdiction to determine only applications that relate to judicially reviewable decisions. Section 44 of the Judiciary Act 1903 is not relevant here. It follows from the above that this Court has no jurisdiction to determine applications that relate to MRT reviewable decisions. The definition of MRT reviewable decisions in contained in s 338 of the Act and in Reg 4.02(2) of the Migration Regulations 1994.

16. The learned primary Judge identified three decisions referred to above to which the application for an order of review might refer. Decision 1 is an MRT reviewable decision pursuant to s 338(7)(a) as well as s 338(9) and Reg 4.02(2). Decision 2 is an MRT reviewable decision pursuant to s 338(3) and Decision 3 is an MRT reviewable decision pursuant to s 338(4)(a). Accordingly, none of those decisions can be reviewed in this Court.

17. As discussed above, an application to review the decision of the MRT dated 21 March 2001 was dismissed by Finkelstein J on 21 May 2001.  His Honour's decision is not the subject of this appeal.  The respondent has submitted that the appeal ought to be dismissed as incompetent on the basis that the notice of appeal was filed outside the time limit prescribed in O 52 r 15 of the Federal Court Rules. 

18. Because it is possible that the application filed in proceedings V221 of 2001 was intended as an appeal from the decision of the primary Judge on 7 March 2001, it was initially treated as such by the Listing Manager of the Victorian District Registry Court in correspondence with the appellant; and because, for the reasons given below, we would dismiss the appeal in any event, there is no need to consider whether the notice of appeal was filed late, and, if so, whether leave would be granted pursuant to O 52.15(2).

19. The learned primary Judge correctly pointed out that the application for an order of review must refer to a decision that this Court has jurisdiction to review.  In this case not only did the application fail to point to any such decision, but, as shown above, the existence of any such decision is not evident from the material before the Court.  Accordingly, the primary Judge was correct to dismiss the application.

20. These observations are sufficient to explain why the Court must dismiss the appeal in the form in which it has been brought from the judgment of Goldberg J.  However, in the course of the hearing of the appeal it became apparent from the submissions of the appellant, who appeared in person with the assistance of an interpreter, that the decision of the delegate of the Minister to refuse the appellant a subclass 100 spouse visa may have been made on the basis of an incomplete apprehension of the relevant facts.  That decision, it seems, was made in Darwin on 6 December 2000.

21. In the course of it, the delegate recited the following background facts:

“7 March 1999	Applicant lodged an application to migrate to Australia as a spouse of an Australian Citizen
4 January 2000	Provisional (Spouse) Visa Subclass 309 granted
14 January 2000	Applicant arrived in Australia
14 September 2000	Letter received from the nominator withdrawing support of the application as the relationship had ceased.
22  September 2000	A letter sent registered mail to the applicant advising him that the nominator had withdrawn support of the application.
23 October 2000	Letter returned unclaimed.”

1. The letter described as having been sent to the appellant and returned unclaimed was sent to an address at 774 Drummond Street, North Carlton, which was the address of the appellant's wife's parents and apparently had been given to the Department for the purposes of the appellant's application at the time when his wife was actively supporting that application. 

2. Understandably, communications to that address after the marriage had broken down would almost certainly not come to the attention of the appellant.  The appellant credibly asserted that, until he was taken into migration detention on 2 February 2001, he did not become aware of the delegate's decision.  By then, the time within which he could apply to the MRT for a review of that decision had expired.

3. Accordingly, the appellant has been unable to bring to the notice of an effective decision-maker the fact that a daughter was born to himself and his wife on 27 November 2000.  One consequence of the birth of the child was that an order was made by consent in the Family Court at Melbourne which contained, amongst others, these provisions:

   “2.Until further order the husband have contact with the child each Monday from 11 am to 1 pm at the Maribyrnong Detention Centre, such contact to be supervised by Robert Palmer.

   .....

   5.Until further order the wife be restrained from changing the child’s residence from the State of Victoria (the wife denying the requirement for such an order).

   6.All extant applications be otherwise adjourned to the Registrar’s Duty List at 9.45 am on 1 October 2001.”

4. It will be apparent that, had the delegate's decision been made after 27 June 2001, the appellant would have satisfied the criteria for the grant of a subclass 100 spouse visa set out in Reg 100.221(4)(a), (b) and (d).  However, the delegate of the Minister mistakenly recited in the decision of 6 December 2000 that;

   “In this case the nominator notified DIMA that the relationship had broken down.

   Therefore, at the time of decision, the applicant cannot be considered the spouse of his former nominator.  There is no evidence to suggest that the relationship has ceased due to death of the nominating spouse or domestic violence perpetrated against the applicant, and there are no children of the relationship.

   Therefore, the applicant fails to meet the criteria for subclass 100 (Spouse) visa.”

5. Against this background, this Full Court was concerned that the dismissal of the appeal, to which we have been compelled, might deprive the appellant of any fair consideration on the merits of his claim to a visa. Accordingly, we requested Mr Fairfield of Counsel for the Minister to seek instructions as to whether any avenue existed under the Act or the Regulations to afford the appellant sufficient consideration to allay our concern.

6. Mr Fairfield, on instructions, pointed to s 351 of the Act and the fact that a decision had been made by the MRT in relation to a refusal to extend the appellant's bridging visa. There may also be other mechanisms for providing the appellant with an effective reconsideration of his claim.

7. Accordingly, we propose to direct under O 80(4) of the Rules of this Court that the appellant be provided with pro bono assistance for the full and effective prosecution of an application under s 351 and any other or consequential proceedings which the assigned legal practitioner may advise are appropriate. We note that to ensure that this assistance is not rendered nugatory, the Minister, by his Counsel, has undertaken not to deport the appellant until the expiration of two months from this day.

8. However, for the reasons which have been explained above, the appeal must be dismissed with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate:

Dated:             23 July 2001

The Appellant appeared in person.
Counsel for the Respondent:	Mr C G Fairfield
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	23 July 2001
Date of Judgment:	23 July 2001