Fletcher v Minister for Immigration

[2013] FCCA 80

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLETCHER & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 80

Catchwords: MIGRATION – Application considered futile as visa has been granted – application dismissed.

Legislation: Migration Act 1958 (Cth), ss.479 and 486(c)

Federal Magistrates Court Rules 2001 (Cth) r.13.10(a)

First Applicant: JAMES FLETCHER

Second Applicant: DOLKAR LHAMO

Third Applicant: TENZIN PEMA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 222 of 2012

Judgment of: Judge Simpson

Hearing date: 12 April 2013

Date of Last Submission: 12 April 2013

Delivered at: Adelaide

Delivered on: 12 April 2013 – ex-tempore

REPRESENTATION

For the first Applicant: In person

For the second Applicant: In person

For the third Applicant: No appearance

Counsel for the first and second Respondents: Ms K Whittemore

Solicitors for the first and second Respondents: Sparke Helmore Lawyers

ORDERS

1. The Application filed on 26 September 2012 and all extant applications are dismissed pursuant to Rule 13.10a of the Federal Circuit Court Rules 2001.

2. The first applicant do pay the first respondent’s costs fixed in the sum of SEVEN THOUSAND AND THREE HUNDRED DOLLARS ($7,300).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 222 of 2012

JAMES FLETCHER

First Applicant

DOLKAR LHAMO

Second Applicant

TENZIN PEMA

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-tempore settled reasons

1. I have before me an Application in a Case filed by the first respondent on 30 January 2013 in which the following orders are sought: There is an order firstly that the application filed on 26 September 2012 be dismissed pursuant to r.13.10(a) of the Federal Magistrates Court Rules.  There is also an application for the costs.

2. The substantive proceeding that is before me is an application seeking judicial review of a decision of the Migration Review Tribunal dated 22 August 2012.  The application was filed on 26 September 2012. 

3. The background to the matter is that on 19 April 2011 the third applicant, who is the visa applicant, is a citizen of India who applied to the Department of Immigration and Citizenship for an Other Family (Migrant) (Class BO) visa.  This class of visa contains a subclass of visa known as a subclass 116 (Carer) visa.  The visa applicant was sponsored for a subclass 116 visa by the first applicant who is her brother-in-law and who is an Australian Citizen. 

4. The third applicant also appointed Mr Fletcher as her authorised receipt. 

5. The second applicant is the wife of the first applicant and in the submission of the respondent, has no standing to bring the proceedings by reason of ss.479 and 486(c) of the Migration Act 1958 (Cth). It is submitted by the respondent that the second applicant ought to be removed as a party to these proceedings.

6. On 24 September 2011 the delegate of the first respondent refused to grant an Other Family (Migrant) (Class BO) subclass 116 (Carer) to the third applicant.  On 22 August 2012, the Tribunal affirmed the delegate’s decision. 

7. The significant thing that has happened in this case since then, is some change to circumstances as far as the visa is concerned. On 30 January 2013, the first respondent filed an Application in a Case seeking summary dismissal of the proceedings pursuant to r.13.10(a) of the Federal Magistrate Court Rules.  The application was filed and served as a consequence of the third applicant being granted a subclass 116 visa on 14 January 2013. 

8. An affidavit was filed at the same time as the Application in a Case.  It was an affidavit of Matthew Alderton, a solicitor employed by Sparke Helmore Lawyers, solicitors for the respondent.  Mr Alderton said in his affidavit, this:

   “I am a solicitor employed by Sparke Helmore Lawyers, the solicitors for the first respondent.  I have perused the file relating to the applicants held by Sparke Helmore Lawyers and make this affidavit based on the information contained in those files as well a from my own knowledge unless otherwise stated.

   These proceedings seek judicial review of a decision made by the second respondent on 22 August 2012 to affirm a decision of the delegate of the Minister not to grant the third applicant and Other Family (Class BO) Carer (subclass 116) visa.  On 15 January 2013 an officer of the Department of Immigration and Citizenship sent an email to the first applicant, notifying him that the third applicant was granted an Other Family (Class BO) Carer (subclass 116) Visa on 14 January 2013.”

9. We do not need to go into why that occurred, but I accept that such a visa was granted to the third applicant on 14 January 2013.  The affidavit of Mr Alderton continues:

   “On 18 January 2013, the solicitors for the fist respondent sent a letter to the first applicant informing him that as the third applicant had been granted a subclass 116 visa on 14 January 2012, these proceedings were now futile and there was no utility in remitting the matter to the second respondent to determine her eligibility for a visa that had already been granted.  The first applicant was also invited to immediately discontinue these proceedings to avoid further unnecessary costs being incurred.”

10. The letter is annexed Mr Alderton’s affidavit and says this in part:

    “In our telephone conversation with you today (18 January 2012) we confirmed that you were aware that the third applicant in these proceedings, Ms Tenzina Pema was granted an Other Family (Class BO) Carer (Subclass 116) visa on 14 January 2013.

    As you know these proceedings seek judicial review of a decision made by the Migration Review Tribunal on 22 August 2012 to affirm a decision of the delegate of the Minister not to grant Ms Pema a subclass 116.  Given that Ms Pema was granted a subclass 116 visa on 14 January 2013, these proceedings are now futile and there is no utility in remitting the matter to the MRT to determine her eligibility for a visa that has already been granted.

    In these circumstances, we repeat our verbal invitation for you to immediately end these proceedings to avoid further unnecessary costs being incurred.  We note further that an Application in a Case was also filed on 17 December 2012.  The application lists a court date for 21 February 2013.  The application is supported by a further affidavit affirmed by you on 17 December 2012.  In our view the Application in a Case and your further affidavit simply contain a number of contentions in the form of submissions and further material concerning various matters.

    In substance, the supported orders in the Application in a Case, seek to assert further errors in the decision and approach of the MRT and the Department in determining that Ms Pema was not entitled to the grant of a subclass 116 visa and make a broad claim for compensation.  In our view, these matters do not advance the issues of a claim for relief connected with your substantive application filed on 26 September 2012.  As such, the Application in a Case fails to raise an arguable case or has no reasonable prospect of success and should also be dismissed.”

11. A little later the letter states:

    “If we do not receive signed consent orders from you by 2 o’clock on 23 January, then the following orders will be sought indicating that action would be taken immediately to have the two applications dismissed and the substantive application dismissed and to seek an order for costs.”

12. It is suggested in the letter that Mr Fletcher might seek some legal advice. 

13. There is no dispute that the third applicant received the 116 visa.  What is clear from the documents that have been handed up by Mr Fletcher is that Mr Fletcher has a number of other issues that are of concern to him.  None of those issues are matters that I can deal with in these proceedings. 

14. Mr Fletcher said in his submissions that he put to me a little earlier today that he had a phone call from Mr Alderton advising him that if he had other concerns that some court other than the Federal Magistrates Court, or as it is now, the Federal Circuit Court, should deal with the matter.

15. That is certainly the case.  The only matter that I have jurisdiction to deal in the present application is the question of the decision made by the Tribunal.  In a situation where, as here, it is futile to embark on an argument in relation to the decision of the Tribunal and the application should be dismissed.  The concerns that Mr Fletcher has should be pursued with an appropriate application in an appropriate court.  The application that has been filed here is clearly an application under the Migration Act and refers to the decision of the Tribunal.  It is not possible for me, in these proceedings, to make decisions about the matters that Mr Fletcher raises in the numerous documents that he has filed.

16. Mr Fletcher provided me today with a document with the hearing “Presentation to Court 12.04.2013”.  I received that document as evidence and gave it exhibit number A1.  Nothing in that document convinces me that I should do any more than simply dismiss the application. 

17. I have also taken into account the numerous other documents that have been filed in these proceedings.  Having taken all of those documents into account, I consider the only proper course is for the application filed on 26 September 2012 to be dismissed.

18. The respondent seeks an order for costs.  I consider it appropriate to make an order for costs.  I consider the sum of $7,300 to be reasonable and I will make an order that the first applicant pay the first respondent’s costs fixed in the sum of SEVEN THOUSDAN, THREE HUNDRED DOLLARS ($7,300.00).

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Date:  18 April 2013