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order a writ of mandamus – whether visa application was invalid – whether Tribunal could allow visa application to be withdrawn – right of applicant to access Ministerial discretion – relief granted by Court.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 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.
It is therefore, in effect, conceded that the applicant has made out a ground for a writ of mandamus issued to the Tribunal directing it to conduct the review on the application which was validly brought to it by the applicant under s.347. The Tribunal has a duty under s.348 to review the delegate’s decision and to exercise its powers under s.349, and that duty has not yet been performed.
The issue of relief by way of mandamus is, however, discretionary, and a broad range of matters may be relevant to deciding whether the Court should decline to grant relief. A starting point has been identified in the High Court, which is that relief will normally be granted unless there is some ground disqualifying the applicant for relief, such as delay or other conduct inconsistent with the grant (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 at [80]). Such considerations are not relevant in the present case.
There is also authority that the Court may decline to order the exercise of jurisdiction by a decision‑maker, if an adverse outcome would be “virtually inevitable” (see, for example, Samad v District Court of NSW (2002) 209 CLR 140 at [46]). In relation to statutory judicial review jurisdictions such as conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth), there are well developed lines of authority referring to the Court’s discretion to refuse relief where “setting aside the decision would be futile because no different decision could lawfully be made” (c.f. X v Commonwealth (1999) 200 CLR 177 at [112], Jankovic v Minister for Immigration & Ethnic Affairs (1995) 56 FCR 474 at 477, Nguyen v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 206 at 213, and Kumaraperu v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 381 at 397). Those cases, however, have all concerned a remitter after the merits review tribunal has actually purported to embark upon and fully exercise its jurisdiction, which is not the present case.
The first respondent in the present case invoked that discretion. She invited the Court to refuse relief to the applicant on the ground that it was conceded that the Tribunal could not be satisfied as to an essential criteria for the visa application, and would therefore be bound to affirm the delegate’s decision.
In response, the applicant has pointed to three considerations which could still justify the Court requiring the Tribunal to perform its jurisdiction by conducting the review that was sought.
The first is that the Tribunal would have power to address a contention that the applicant’s original visa application was invalid, and that the delegate’s decision should be set aside on that ground. This would then allow the applicant to bring a fresh visa application, unfettered by restraints under s.48A on the bringing of second applications after an application has been “refused”.
The invalidity in the original visa application was argued to have arisen from circumstances which were not contested before me by the Minister. The evidence showed that the visa application when it was lodged was accompanied by an application by the sponsoring employer for approval under reg.1.20D. Such a course is reflected in the provisions of Sch.1 item 1223A(3)(d)(C):
1223A(3)
(d)If an applicant seeks to satisfy the primary criteria for the grant of a Subclass 457 (Business (Long Stay)) visa on the basis that the applicant satisfies the requirements of subclause 457.223 (4) of Schedule 2, the application must:
(i) specify the employer by whom the applicant proposes to be employed for subclause 457.223 (4); and
(ii) be accompanied by evidence that the proposed employer is:
(A)a pre‑qualified business sponsor; or
(B)a standard business sponsor; or
(C)a person who has applied for approval under regulation 1.20C as a pre‑qualified business sponsor or standard business sponsor but whose application has not yet been decided.
The applicant wishes to argue to the Tribunal that compliance with the requirement that the proposed employer “has applied for approval” goes to the validity of his own visa application. This is not contested by the first respondent.
The applicant also wishes to argue that this requirement was not met in the present case, because the employer’s application was accompanied by a cheque which was subsequently dishonoured. This gave rise to a decision within the Department that that sponsorship nomination approval was “not a valid application under Australian migration law”.
The circumstances of the dishonouring of the cheque, and the decision that the employer’s application was invalid, were not contested by the first respondent. However, counsel for the first respondent argued that the reference in Sch.1 item 1223A(3)(d)(C) to an employer “who has applied for approval” is a reference to an employer’s application in fact received, even if not made validly. She argued that in the present case the applicant’s concurrent visa application was therefore not rendered invalid by the dishonouring of the employer’s cheque. The delegate’s subsequent decision that the applicant’s application failed because his nominated employer had not been approved, was therefore correct.
This is an interesting point of construction, in relation to which I was not referred to any authority directly or indirectly on point. The debate as to whether the reference to “application” includes reference to an invalid application has similarities in other areas, for example, in an entirely different context: Adams v Lambert [2006] FCA 623 at [10]. Counsel for the first respondent invited me to make a ruling upon this legal issue, rather than allow it to be addressed by the Tribunal in the course of the review which it would be obliged to conduct if I gave the applicant the relief which he seeks.
The applicant submitted that I should not decide the issue, and did not seek to include in his application a request that the Court give declaratory relief addressing the validity of his visa application.
The relevant provisions of the Migration Act and Regulations are of considerable complexity, and I have only skated over their surface in my description of this issue. In my opinion, this is a situation where the Court would be assisted by a consideration of the legal and factual issues by the Migration Review Tribunal before itself embarking on that consideration, taking into account also the time available to me for research and reflection in matters in this jurisdiction and the manner in which this issue has arisen in this case. I have therefore decided that I should not make a ruling on the validity of the applicant’s original visa application, but should allow that issue to be addressed in the course of the Tribunal’s exercise of its jurisdiction.
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.
It was also contended on behalf of the Minister that the Tribunal’s powers upon review under s.349 did not include a power to set aside a primary decision on the ground of procedural irregularity, so as to allow an applicant to exercise the s.49 right of withdrawal. Under s.349(2)(c), which is the Tribunal’s only power of remitter, the Tribunal has power to remit “in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations”. In reg.4.15(1), the only permissible direction “is that the applicant must be taken to have satisfied a specified criterion for the visa or entry permit”. It was argued for the Minister that this implies that the Tribunal would not have power to set aside a primary decision and remit the matter with a direction that the Minister should allow an applicant an opportunity to withdraw his visa application. I was also inclined to accept that construction, but here also it is not necessary for me to determine the issue.
As I have indicated above, I consider that it is appropriate to direct the Tribunal to exercise its jurisdiction, even on the assumption that the Tribunal would not have power to grant any suitable remedy to the applicant to remedy his concerns in relation to the procedures followed at first instance. If the Tribunal considers it necessary to explore its powers in relation to withdrawal of the applicant’s visa application, then here also I consider that the Court would be guided by an interpretation of this complex legislation offered by the Tribunal before it embarked itself upon these issues.
For all the above reasons, I consider that I should grant the relief sought by way of an order for a writ of certiorari quashing the Tribunal’s decision that it did not have jurisdiction, and an order for the issue of a writ of mandamus requiring it to conduct the review required under the outstanding application of the applicant.

I certify that the preceding twenty‑five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 22 June 2006