Fanani v Minister for Immigration
[2020] FCCA 793
•6 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FANANI v MINISTER FOR IMMIGRATION | [2020] FCCA 793 |
| Catchwords: MIGRATION – Non-reviewable decision – application for a an Aged Dependent Relative (subclass 838) visa – whether the instructing of the employee by the solicitor for the applicant to deliver the visa application to the relevant address was delivered ‘by courier service’ – whether the respondent was correct to find that the application not made in accordance with mandatory requirements – mandatory requirements not satisfied – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.46, 476 Migration Regulations 1994 (Cth), reg. 2.07, item 1123B. Migration (IMMI 17/016: Arrangements for Family Visa Applications and New Zealand (Family Relationship) Visa Applications) Instrument 2017 (Cth), sch.2. |
| Cases cited: Muradzi v Minister for Immigration and Citizenship [2011] FCA 976 Hacker v The Owners – Strata Plan No. 17572 [2005] FCA 1936 |
| Applicant: | GIANFRANCO FANANI |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| File Number: | PEG 291 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 6 April 2020 |
| Date of Last Submission: | 6 April 2020 |
| Delivered at: | Sydney |
| Delivered on: | 6 April 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr D Estrin Estrin Saul Lawyers |
| Counsel for the Respondent: | Ms S Oliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The hearing will be recorded by Microsoft on Microsoft Teams and by Auscript on the Judge’s microphone and no other recording of the hearing is to be made.
A link to the Microsoft Teams recording will be uploaded to the “Transcript” folder on the Electronic Court File and may be made available to the parties and any member of the public provided that the order that no other recording of the hearing is to be made is complied with.
The application is dismissed.
The applicant pay the respondent’s costs fixed in the amount of $5,000.00.
DATE OF ORDER: 6 April 2020
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 291 of 2017
| GIANFRANCO FANANI |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a non-reviewable decision of the respondent, dated 1 May 2017, holding that an application that had been lodged for an Aged Dependent Relative (subclass 838) visa (“the Visa”) was invalid.
The respondent’s decision referenced a particular regulation in relation to the invalidity, in relation to the requirements of sch 1 of the Migration Regulations1994 (Cth) (“the Regulations”). It is, however, apparent from the material before the Court, that the application is one in respect of which it is alleged that the application was not made in accordance with the mandatory requirements to be a valid application under s 46 of the Act.
The relevant provision is item 1123B of sch 1 of the Regulations that specifies the form in relation to the application to be made and the accompanying charge. The Regulations also provide under item 1123B(3) that the application must be made at the place and in the manner, if any, specified by the Minister in a legislative instrument made for this item under reg 2.07(5).
Under sch 2 of the relevant instrument, Migration (IMMI 17/016: Arrangements for Family Visa Applications and New Zealand (Family Relationship) Visa Applications) Instrument 2017 (Cth), in that regard, concerning the particular visa, required that the visa application must be either:
i)“posted to:” a particular specified address; or
ii)“delivered by a courier service to:” a particular specified address.
In the circumstances of the present case, a courier service was not engaged to deliver the application.
The argument advanced on behalf of the applicant is that the law firm employee that was instructed to deliver the application to the relevant address was performing the role of a courier and should be described as a courier service.
There is no issue, in the circumstances of the case before this Court, that this Court is bound by the decision of the learned Tracey J in Muradzi v Minister for Immigration and Citizenship [2011] FCA 976 that makes clear that the method of delivery in the circumstances of the present case was a mandatory requirement.
The real issue between the parties is whether or not the instructing of the employee by the solicitor for the applicant to deliver the document, being the application, to the relevant address, is delivery using a courier service.
Mr Estrin, the solicitor for the applicant, identified in his affidavit the steps taken to instruct the person to describe themselves as a courier and in relation to the various activities which are undertaken by his law firm.
None of those activities gives rise to the law firm carrying on a courier service business or being a courier service and the fact that there may be documents that someone delivers by hand does not mean that the solicitors are carrying on a courier service.
The dictum by the learned Emmett J in Hacker v The Owners – Strata Plan No. 17572 [2005] FCA 1936 is of particular assistance in that regard. Paragraph 39 of that decision is as follows:
39. A courier might be described as a carrier who travels from one place to another to provide a safe and urgent letter or parcel delivery service (see the Australian Legal Dictionary). A courier might also be described as a running messenger, a messenger sent in haste or a special messenger (see the Shorter Oxford English Dictionary). A courier service is a private company which provides a letter or parcel delivery service, especially one which guarantees speed or safety (see the Macquarie Dictionary). It would be surprising if Mr Warren regarded himself as a courier or as conducting a courier service. I do not consider that the Bankruptcy Notice was sent to the Narrabundah Premises by a courier service. It was not served in accordance with reg 16.01(a).
Although His Honour’s observations were made in relation to different legislation, they give the natural and ordinary meaning to the full phrase, “courier service.” Mr Estrin’s argument would have considerable force if the word “service” had not been included in the reference to the mandatory requirements under the relevant instrument. The combined expression makes clear the natural and ordinary meaning that what is required is a private company that provides courier delivery services. That is not the service provided by the law practice in this case. The Court finds that there was no courier service delivery in the circumstances of the present case of the application.
Accordingly, the respondent was entirely correct to find that the application was not made in accordance with the mandatory requirements and was invalid.
In these circumstances, no relief as sought in the application can be granted.
Accordingly, the application is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 6 April 2020 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Date: 18 May 2020
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