FAROOQ v Minister for Immigration - [2006] FMCA 865

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAROOQ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 865

MIGRATION – MRT decision – jurisdiction erroneously declined under time limit – applicant unable to qualify on visa application – whether futile to order a writ of mandamus – whether visa application was invalid – whether Tribunal could allow visa application to be withdrawn – right of applicant to access Ministerial discretion – relief granted by Court.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act 1958 (Cth), ss.46, 46A, 46B, 47, 48, 48A, 48B, 49, 347, 347(1)(b), 348, 349, 349(2)(c), 351, 351(1), 483A

Migration Regulations 1994 (Cth), regs.1.20C, 1.20D, 4.15(1), Sch.1 item 1223A(3)(d)(C)

Adams v Lambert [2006] FCA 623
Fernandez v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1170
Jankovic v Minister for Immigration & Ethnic Affairs (1995) 56 FCR 474
Kumaraperu v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 381
Nguyen v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 206
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
Samad v District Court of NSW (2002) 209 CLR 140
X v Commonwealth (1999) 200 CLR 177
Xavier Fernandez & Ors v Minister for Immigration [2005] FMCA 960

Applicant:

MUHAMMAD FAROOQ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG3348 of 2005

Judgment of:

Smith FM

Hearing date:	7 June 2006
Delivered at:	Sydney

Delivered on:

7 June 2006

REPRESENTATION

Counsel for the Applicant:

Ms N Walker

Counsel for the First Respondent:

Ms D Watson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 4 March 2005 in MRT File No. N04/07476.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 19 October 2004.
The first respondent pay the applicant’s costs in the sum of $3,100.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3348 of 2005

MUHAMMAD FAROOQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application filed on 16 November 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 4 March 2005. In that decision the Tribunal made a ruling that an application for review made by the applicant to it on 7 December 2004 had been brought outside the mandatory time limit under s.347(1)(b), and that it therefore lacked jurisdiction to conduct the review which was requested.
The applicant had sought review of a decision of a delegate taken on 19 October 2004, refusing an application made by the applicant on 17 August 2004…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FMCA 865
Decision Date: 7 June 2006

CaseChat Overview and Summary

The case of Farooq v Minister for Immigration involves an applicant, Mr. Farooq, who sought judicial review of a decision made by the Migration Review Tribunal (Tribunal) on 4 March 2005. Mr. Farooq had applied for a Long Stay Temporary Business Visa (Class UC) (subclass 457) on 17 August 2004, but the delegate refused his application on 19 October 2004. He then sought review of the delegate's decision by the Tribunal, but the Tribunal held that it lacked jurisdiction to conduct the review as the application for review was brought outside the mandatory time limit under s.347(1)(b) of the Migration Act 1958 (Cth). Consequently, the Tribunal did not consider various issues raised by Mr. Farooq, including the validity of his original visa application, his power to withdraw that application and make a fresh application nominating a different sponsoring employer, and his concerns about the good administration of the Department of Immigration in relation to the processing of his visa application.

The legal issues before the court were whether the Tribunal had erroneously declined jurisdiction to conduct the review, and if so, whether the court should require the Tribunal to complete the exercise of its jurisdiction. The court also considered whether the Tribunal had powers which would allow Mr. Farooq to withdraw his original visa application, so as to be able to make another application with a different employer. The applicant contended that in the course of the review proceeding before the Tribunal, he would be able to obtain factual rulings of the Tribunal as to the course of administration taken within the Department when ruling upon the invalidity of the employer’s application, and then subsequently refusing the applicant’s visa on the ground of the absence of an approved employer.

The court found that the Tribunal had erroneously declined jurisdiction to conduct the review, and that it was appropriate for the court to require the Tribunal to complete the exercise of its jurisdiction. The court was inclined to accept the argument that the right of an applicant to withdraw his visa application under s.49 of the Migration Act ceases to be available once the Minister has taken a decision refusing to grant a visa. However, it was not necessary for the court to make clear rulings upon that issue. The court also found that it was appropriate for the court to quash the decision of the Tribunal and to require the Tribunal to determine according to law the application for review of the decision of the delegate.

The orders made by the court were as follows: 1. A writ of certiorari was issued, quashing the decision of the Tribunal made on 4 March 2005 in MRT File No. N04/07476. 2. A writ of mandamus was issued, requiring the Tribunal to determine according to law the application for review of the decision of the delegate dated 19 October 2004. 3. The first respondent was ordered to pay the applicant’s costs in the sum of $3,100.

Orders

Orders of the court

A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 4 March 2005 in MRT File No. N04/07476.

A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 19 October 2004.

The first respondent pay the applicant’s costs in the sum of $3,100.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I have been confirmed in my opinion that the applicant should be given the relief sought in this Court, by a further argument presented by his counsel. This is that, even if the outcome of the exercise of the Tribunal’s jurisdiction is inevitably the affirmation of the delegate’s refusal of the visa application, the making of such a decision would give him the benefit of the right conferred by the Migration Act in s.351: Minister may substitute more favourable decision (1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. The applicant contends that in the course of the review proceeding before the Tribunal he would be able to obtain factual rulings of the Tribunal as to the course of administration taken within the Department when ruling upon the invalidity of the employer’s application, and then subsequently refusing the applicant’s visa on the ground of the absence of an approved employer. He claims that he was not informed by the Department nor his employer that the employer’s sponsorship approval application had been ruled invalid due to a dishonoured fee, before he was made aware that his visa application had been refused. He argues that he was thereby unfairly denied an opportunity to withdraw his visa application and present a new application supported by a different employer. Although his factual claims about this were not conceded by the Minister, they were not contested before me. It is not clear to me whether the Tribunal would consider it appropriate itself to explore this area, but it is possible that it might make comments which would assist an application by the applicant to the Minister under s.351. Even if the Tribunal did not make relevant findings and comments, the scheme of the Migration Act gives an applicant the right, once a Tribunal has fully exercised its powers of review, to invoke the Minister’s discretion. The applicant at present has been denied that right, since the Tribunal’s erroneous denial of jurisdiction has left him without “a decision of the Tribunal under section 349”. In my opinion, in the present circumstances it is appropriate for the Court to recognise this as a sufficient reason for requiring the Tribunal to complete the exercise of its jurisdiction. As well as the above issues, another issue explored in argument before me was whether the Tribunal had powers which would allow it to permit the applicant to withdraw his original visa application, so as to be able to make another application with a different employer. Counsel for the Minister contended that the scheme reflected in ss.46 to 49 indicated that the right of an applicant to withdraw his visa application under s.49 ceases to be available once the Minister has taken a decision refusing to grant a visa. It is unnecessary for me to make clear rulings upon that, but I was inclined to accept that argument, in particular arising from the language of s.49 itself.

Ratio Decidendi

Legal Principle Established

I have before me an application filed on 16 November 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 4 March 2005. In that decision the Tribunal made a ruling that an application for review made by the applicant to it on 7 December 2004 had been brought outside the mandatory time limit under s.347(1)(b), and that it therefore lacked jurisdiction to conduct the review which was requested. The applicant had sought review of a decision of a delegate taken on 19 October 2004, refusing an application made by the applicant on 17 August 2004 for a Long Stay Temporary Business Visa (Class UC) (subclass 457). By reason of the Tribunal’s decision that it did not have jurisdiction, it did not embark at all upon a consideration of various issues which the applicant wishes it to address. These concern the validity of his original visa application, his power to withdraw that application and make a fresh application nominating a different sponsoring employer, and his concerns about the good administration of the Department of Immigration in relation to the processing of his visa application. The subclass of visa which was applied for had a mandatory condition which required the applicant at the time of decision by the delegate, or by the Tribunal on review, to satisfy the decision‑maker that the employer proposed in his original visa application had received approval of the Minister under reg.1.20D of the Migration Regulations 1994 (Cth) (“the Regulations”), following a separate application for approval by that employer under reg.1.20C. The legislative provisions governing this criteria were addressed by me in Xavier Fernandez & Ors v Minister for Immigration [2005] FMCA 960 (“Fernandez”), which was upheld by Hill J in Fernandez v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1170, and it is unnecessary for me to explore them again in this case. It was not contested by counsel for the applicant that the relevant criteria would not allow the applicant to “substitute” a different employer for the employer nominated in his original visa application. It was also conceded that the employer he identified in his visa application had subsequently gone into liquidation without ever obtaining approval, and that any future decision on his visa application would therefore never be able to reach satisfaction as to the criteria which is discussed in Fernandez. Prior to today’s hearing the first respondent considered evidence presented by the applicant that the Tribunal’s decision that the application for review was out of time was based on an incorrect factual finding as to when the applicant was notified of the delegate’s decision for the purposes of the deemed‑receipt provisions of the Migration Act. It is unnecessary for me to explore the evidence in this respect. It is now conceded that the Tribunal erroneously declined jurisdiction to conduct the review sought.