Gararth v Minster for Immigration
[2005] FMCA 22
•21 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GARARTH & ORS v MINSTER FOR IMMIGRATION | [2005] FMCA 22 |
| MIGRATION – Migration Review Tribunal – special need relative – other serious circumstances – bringing up children – substantial and continuous assistance – discrete findings. |
Migration Act 1958, ss.31(1), 31(3), 65(1), 351, 417, 477(1A), 477(2), 499
Migration Regulations 1994, reg.1.03
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Wu v Minister for Immigration & Multicultural Affairs (2000)105 FCR 39
Huang v Minister for Immigration & Ethnic Affairs (1996) 71 FCR 95
Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745
Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 1621
Jackson v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 203
Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 503
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Applicant 2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576
Applicants A64/2002 v Minister for Multicultural & Indigenous Affairs [2003] FCA 568
Das v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 489
Applicant M29 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1266
Applicant VUAD of 2003 v Minister for Immigration & Multicultural& Indigenous Affairs [2003] FCA 1331
Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 205 ALR 198
M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293
Applicants: | SHANE CARYLINE PETER GARARTH, SANDRA NAOMI BERNICE GARARTH, ANISLEY ANTHONY ANURIN GARARTH and JESSICA CAROL ANNMERRY GARARTH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 296 of 2004 |
| Delivered on: | 21 January 2005 |
| Delivered at: | Melbourne |
| Hearing date: | 26 October 2004 |
| Judgment of: | O’Dwyer FM |
REPRESENTATION
| Counsel for the Applicants: | Mr. C. Fairfield |
| Solicitors for the Applicants: | Vernon Da Gama & Associates |
| Counsel for the Respondent: | Mr. E. Heerey |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application for Review filed on 18 March 2004, the Amended Application filed 6 August 2004 and the Further Amended Application filed 22 October 2004 be dismissed.
The Applicant pay the costs of the Respondent fixed in the sum of $7,000.00 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 296 of 2004
| SHANE CARYLINE PETER GARARTH, SANDRA NAOMI BERNICE GARARTH, ANISLEY ANTHONY ANNURIN GARARTH and JESSICA CAROL ANNMERRY GARARTH |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicants are from the one family unit consisting of a 38 year old father, his wife and two children - a boy aged 10 and a girl aged
7 years. Save for the youngest, who was born in Australia, they were born in Sri Lanka. The principal applicant is the father.
For the sake of convenience a reference to the Applicant is intended to be a reference to the father.
By an application for review filed on 18 March 2004, later amended by applications filed on 6 August 2004 and 22 October 2004, the Applicants seek to review the decision of the Migration Review Tribunal (the Tribunal) made on 11 April 2002. That decision affirmed the Respondent’s delegate’s determination that the Applicants were not entitled to the grant of a Family (Residence) (Class AO) visa.
In the amended application the Applicants seek leave to file their application for review out of time. The Tribunal’s decision was handed down on 11 April 2002. They became aware of that decision on that day, or soon thereafter. They were certainly aware of the decision by 26 April 2002, on which date an application was lodged with the Respondent seeking the exercise of the Respondent’s discretion under s.351 of the Migration Act 1958 (the Act).
Some 23 months later, the application for review was lodged.
Under s.477(1A) of the Act the Applicants had 28 days after notification of a privative clause decision in which to file the application for review. The application was, therefore, filed some
22 months out of time should it be determined that the decision was a privative clause decision.
Background
On 14 December 1995 the Applicant, his wife and son arrived in Australia on valid Sri Lankan passports pursuant to Short Stay (Visitor) (Class TR) subclass 676 visas valid until 14 March 1996.
On 11 March 1996 the Applicant applied to the Respondent’s Department for a Protection visa on the basis that he feared persecution for reasons of his ethnicity and political opinion. That application was refused by the Respondent’s delegate on 16 January 1997. On review, on 17 December 1997 the Refugee Review Tribunal affirmed the delegate’s decision.
On 14 November 1996 the Applicant applied for a subclass Sri Lankan (Temporary) visa, which was granted and which was valid for one year.
On 4 April 1997 the Applicant’s wife gave birth to their daughter.
On 6 February 1998 the Applicant made an application to the Respondent to exercise his discretion under s.417 of the Act and substitute a more favourable decision than that of the Refugee Review Tribunal made on 17 December 1997. That application was refused on 1 July 1998.
On 31 July 1998 the Applicant applied to the Department for a Family (Residence)(Class AO) visa (a special need relative visa). The Applicant’s brother was his nominator. The nominator arrived in Australia from Sri Lanka on 29 June 1989 and became an Australian citizen on 13 October 1994. The nominator is usually resident in Australia. It is this visa application that is the subject of this proceeding.
The special need relative visa application included the Applicant’s wife and two children as applicants for the visa. Their success in this application for review is dependent on that of the Applicant.
On 4 April 2001 the Respondent’s delegate refused the Applicant’s application for a special need relative visa. On 23 April 2001 the Applicant filed an application for review of the delegate’s decision with the Tribunal.
The Tribunal hearing was held on 1 March 2002 at which both the Applicant and his nominator gave evidence, although the nominator gave his by telephone.
The Tribunal handed down its decision, which is the subject of this review, on 11 April 2002.
On 26 April 2002 the Applicant made an application to the Respondent to exercise the Respondent’s discretion under s.351 of the Act.
In reply the Respondent indicated that although he had the power to intervene in the Applicant’s case, it would not be appropriate while proceedings in the High Court were on foot that touched on the issues in his case. That litigation involved the cases of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30.
The Applicant became a party to these proceedings.
Whilst these proceedings were on foot, the Applicant did not institute proceedings to have the decision of the Tribunal made on 17 December 2002 reviewed.
The ultimate outcome of the High Court proceedings, after the consequential involvement of the Federal Court, was that the Applicant’s hoped for avenue for redress was refused him on
20 February 2004.
On 18 March 2004 the Applicant initiated this proceeding.
The Applicant and his family currently hold bridging visas pending the outcome of this proceeding.
The Applicant’s brother and nominator was divorced from his wife in January 1998. After separation the nominator had full time care of his two children. Since August 2001 the nominator’s ex-wife and another child have resided in Sri Lanka. The nominator was employed full time and his employment required him to work long hours and travel interstate, usually once every six to eight weeks, but sometimes twice a month.
The basis of the Applicant’s special need relative visa was that the nominator was a special need relative. In his application the Applicant said that the circumstances that led the nominator needing his assistance, and the assistance he provided, were as follows:
“He is divorced and he is unable to look after his two young children. My wife and I are presently looking after my brother’s children. My… brother is also very much stressed due to his divorce.
…
My wife and I look after my brother and his two children.
My wife takes the children to school and bring[s] them back and she prepares the meals for my brother and his children.
We also feed my brother’s children wash their clothes and do other work.”
The Applicant claimed in the visa application that the nominator’s other relatives in Australia were not able to provide the nominator with assistance because they were taking care of other relatives.
The Respondent’s Department wrote to the Applicant inviting him to provide information about the nominator’s permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances of the nominator and his children and the nature of the assistance provided by the Applicant.
In response the Applicant stated the following:
“My brother… requires me and my spouse for his special need to look after his young children.
…
I wish to state that my above brother is not a disable person. Further, I never stated so in my application for permanent resident.
My above brother is divorced and is working full time and he is in charge of the Melbourne branch of his employer. As my brother is unable to get the required help and attention from the Child Care and other organizations, he has no other alternative other than to rely on me and my spouse to take care of his children.”
The Applicant went on to set out the assistance provided which included preparing the children for school, taking the children to and from school, making their meals, washing their clothes, helping them with homework, caring for them when sick and, for the Applicant’s wife, providing a mother figure to the nominator’s daughters.
The nominator also responded to a request from the Department for information. He stated:
“I am not disabled or suffering from illness. But due to my employment and as I am divorced and my children are the age of eleven and six, I need someone to look after my children.
I am not able to look after my children without the help of my brother … and his spouse…
I am a single father of two girls aged eleven and six respectively. Both children are attending a Catholic Primary school and are quite a handful. I am also working full time and have been always in employment since arriving in Australia. I am with my current employer for the past eight years. Presently, I am in charge of their Melbourne branch. Our business is the importing and distribution of Oriental Style Foodstuffs. As a result of my work commitments, I am extremely busy and have to work long hours, weekends and also travel to Sydney on a regular basis. There were occasions I was compelled to go out and attend to some work related matters after returning home from work. In such a situation, if not for my above brother and his spouse I could not have left my children with anyone else.
Coming to terms with my marriage breakdown, my work commitments and also caring for my two girls have been emotionally and physically very draining. If not for all the support I receive from my brother Shane and his family I honestly would not be able to cope with my situation. My brother and his family have been a God sent [sic] to me and my two girls under these trying circumstances.
I have tried child care but due to my work patterns it does not help. Furthermore, being a single father with full employment I am not left with much time for the housework and also to deal with my children’s education.”
The nominator also referred to the relationship between his family and that of the Applicant, noting that to separate them would cause hardship and anxiety.
The Applicant also relied on evidence from a psychologist who in a report stated:
“In 1996 [the nominator] and his wife separated. At this time [the applicant], his wife and children provided emotional and family support. [The nominator] was divorced in February 1998 and Shane and his family continued to give considerable support to [the nominator] and the two children in his care.
[The nominator] was then a sole parent, in full time employment with two children (girls) aged 9 and 54 [sic] years.
[The nominator] was greatly assisted by the presence of
[the applicant] and his wife. [The applicant’s] own two children bonded closely with [the nominator’s] children. This has relieved [the nominator] a great deal and has been of great assistance in many ways. Especially so as [the nominator’s] daughters, now aged 12 and 7 years, look on [the applicant’s wife] as a substitute mother. They relate to and discuss their personal problems with [the applicant’s wife] in ways they cannot so easily do with
[the nominator]. This concerns [the nominator] as he realizes that his elder daughter, Tashya, is approaching puberty and will need an older woman as guide and confidante.”
The psychologist’s assessment of the nominator was:
“…he appeared extremely apprehensive of his ability to look after his girls effectively if [the applicant and his wife] were not present. [He] has a responsible job and needs it to provide materially for the children, but feels helpless to give them the kind of support which the [applicant’s wife] provides and has provided over the last three years. These observations underline [the nominator’s] need of his brother and family who have knit closely with his family. This close relationship is an important feature of families originating in Sri Lanka.”
The psychologist concluded his report with the assessment that the nominator’s “present and future state of mind depends on the presence of his brother and family”.
A report submitted for consideration by the Tribunal from the local council stated:
“It would be very difficult for the entire family if they did not have the ongoing support from [the applicant and his wife].
It appears that the couple look after all the girls’ daily needs, such as transport, school work supervision, meals, washing and hygiene, and they are able to give them love and a feeling of performance, important factors for the children’s emotional development. [The applicant’s wife] also provides the role model, which the young girls need as they are growing up.”
The nominator (by telephone) and the Applicant in person gave evidence to the Tribunal to the effect that the Applicant’s family provided emotional and practical support to the nominator and his children.
Legislative Framework – Special Need Relative
Section 31(1) of the Act provides that there are to be specified classes of visas. Section 31(3) provides that Regulations may prescribe criteria for a visa of a specified class.
Section 65(1)(a) provides that, after considering a valid application for a visa, the Respondent, if satisfied that the criteria prescribed by the Act and the Regulations have been met, is to grant the visa.
Section 65(1)(b) provides that if the Respondent is not satisfied the Respondent is to refuse to grant the visa.
At the time the Applicant applied for a Family (Residence)(Class AO) visa, the criteria for such a visa were prescribed by the Regulations, Schedule 2, subclass 806. They relevantly provided:
“806.21 Criteria to be satisfied at time of application
806.211If
(a)The applicant
806.212
The applicant:
(a)satisfies schedule 3 criterion 3002; and
(b)either:
(i)is the holder of a substantive visa (other than a subclass 771 visa); or
(ii)is not the holder of a substantive visa, and immediately before ceasing to hold a substantive visa, was not the holder of a subclass 771 visa.
806.213
The applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of another person who:
(a)is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and
(b)is usually resident in Australia; and
(c)has nominated the applicant for the grant of the visa.”
Clause 806.221 provided that the Applicant must continue to satisfy the criterion in clause 806.213, as referred to above, at the time of decision.
The expression “special need relative” was relevantly defined in
reg.1.03 as follows:
“ ‘special need relative’ in relation to an Australian citizen usually resident in Australia, an Australian permanent resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:
(a)the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and
(b)the assistance cannot reasonably be obtained from:
(i)any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii)welfare, hospital, nursing or community services in Australia.”
Regulation 1.03 also defined “relative” to include a “close relative”. “Close relative” was defined to include brother.
Section 477(1A) of the Act provides that an application to this Court for prerogative writs in respect of a privative clause decision in relation to which the jurisdiction of the Court is not excluded by s.476 must be made within 28 days of the notification of the decision.
Section 477(2) of the Act provides that the Court must not make an order allowing or which effectively allows an Applicant to lodge an application outside the period specified.
In the Applicant’s further amended application filed on
22 October 2004, he particularised his contention that the Tribunal had made a jurisdictional error as follows:
(a)The Tribunal adopted an incorrect interpretation of the definition of “special need relative” for the purposes of reg 1.03 and
reg. 806.213 by construing the phrase “other serious circumstances” within that definition as meaning “circumstances similar to death, disability or prolonged illness”.(b)By not reviewing in the manner outlined by the Full Court in
Wu v MIMA (2000) 105 FCR 39 at 53-55, the whole of the nominators circumstances and those of his children as is found them to be, the Tribunal committed an error of law which is a jurisdictional error and in particular the Tribunal failed to consider cumulatively that:(i)The nominator had three young children and that in January 1998 he and his wife divorced;
(ii)After the divorce his wife had custody of the youngest daughter while the nominator had custody of the two elder daughters;
(iii)The nominator’s divorce had left deep emotional scares;
(iv)The nominator had custody of two daughters aged 12 years and 8 years;
(v)The two daughters were deprived of contact with their mother;
(vi)The two daughters were deprived of access to their sister after her move to Sri Lanka;
(vii)The two daughters were approaching puberty and required and were deprived of guidance from a close female relative;
(viii)The nominators other relatives in Australia were not able to provide assistance because they were taking care of other relatives;
(ix)None of the applicants family in Australia were citizens or permanent residents of Australia and were too busy with their own families to assist the nominator with his daughters;
(x)The nominator was working long hours away from home and was unable to provide adequate care and attention to his two daughters.
(c)Alternatively to (b) it was not open to the Tribunal to find that
“in absence of other factors, assistance in bringing up children does not create a permanent or long term need for assistance”.
That reasoning is inconsistent with Wu (supra) at 53-55 and to the extent that the reasoning reflects PAM3 [Procedural Advise Manual 3], PAM3 is invalid.
PAM3, which the Tribunal is required to take into consideration
(see s.499 of the Act) in making its determination states that
“in the absence of other factors” assistance in bringing up children does not constitute a permanent or long term need for assistance.
Contentions
The Applicant contends that, in essence, the Tribunal applied too narrow a definition of “other serious circumstances”. Indicative of that is the fact that the Tribunal made no reference, when referring to authorities, to Wu (supra). It was contended Wu modified and extended the definition otherwise applying under Huang v Minister for Immigration & Ethnic Affairs (1996) 71 FCR 95 and that had the Tribunal been cognisant of, and applied Wu, it would have taken into account pertinent factors such as the needs, emotional and physical of the nominator’s children as constituting “other factors” that cumulatively satisfied the requirement of “other serious circumstances” within the meaning of reg.1.03. The failure of the Tribunal to do so, it is contended, infected the determination so as to also render its discrete finding that there is not a “substantial and continuing need for assistance” invalid.
The Applicant argued that Wu extended the definition of “other serious circumstances” beyond the authorities cited by the Tribunal which held that “other serious circumstances” is to be “considered in light of the concepts of death, disability and prolonged illness.” Wu, it was argued, extended serious circumstances to include the needs of children.
His Honour Justice Ryan when referring to Wu concluded that
“the effect of that judgment seems to be to reaffirm that reg.1.3 was to be construed on the basis of a ‘normal and fair reading’ but that such an approach leads to a less restrictive interpretation of ‘other special circumstances’ than that adverted to by members of the Full Court in Huang.” The Tribunal’s reliance on Huang to find that the needs of the children, and the reliance of the nominator on the applicants to meet those needs, did not constitute serious circumstances was contrary to the later decision of Wu.
The Applicant also cited Narayan v Minister for Immigration & Multicultural Affairs [2001] FCA 1745 in respect of that Court’s determination that “‘serious’ is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long-term” and “…since the cause of the permanent or long-term need must be ‘serious’ circumstances…it seems likely that often such a need will be able to be met by nothing less than ‘substantial assistance’.” Had the Tribunal considered the needs of the children and the other matters set out in the amended application for review it was open to it to find that there were serious circumstances requiring substantial and continuing assistance.
The Tribunal had erred by not being cognisant of Wu and its apparent inclusion of a child’s needs as being serious. In those circumstances, it was contended; the Tribunal had identified the wrong issue or had asked itself the wrong question and, in so doing, fell into jurisdictional error.
In my view, this argument attempts to extend the decision in Wu too far. The Full Court in Wu focused on the question of whether young or old age must be excluded from the consideration of whether a person has a permanent or long-term need for assistance on the basis of
“other serious circumstances”, and found that it should not be necessarily excluded. Wu considered the circumstances of a child of tender years (aged 3) and found that “age can be a factor which, along with other circumstances, adds up to special circumstances”.
It does not, in my view, extend the definition of “serious circumstances” to include the circumstances of the Applicants.
A failure by the Tribunal to cite Wu as an authority in the context of the present case does not reflect that the Tribunal had asked itself the wrong question or identified the wrong issue. I am satisfied that the Tribunal directed its mind to the broad issues raised by the Applicant about the nominator’s needs and those of his children and, having done so, found that those needs were not substantial or continuing.
A basic finding of fact that this Court is not able to review.
In my view, the Tribunal correctly cited the decision of Emmett J in Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 1621 as providing a relevant interpretation of the term
“other serious circumstances”. Emmett J said:
“[16] It is significant that the expression that is relied upon by the applicants appears at the end of a phrase, namely, “because of death, disability, prolonged illness or other serious circumstances affecting the citizen”. That is to say “serious circumstances” must be considered in the context of “death, disability and prolonged illness”. All three of those matters are obviously serious. What constitutes “other serious circumstances” must be construed in the light of those concepts.”
Having correctly identified the relevant legislative provisions and judicial interpretation of those provisions, the Tribunal proceeded to apply the law to the evidence before it and came to the factual conclusion that the circumstances of the Applicant and the nominator’s family did not constitute “other serious circumstances”. In doing so, the Tribunal carried out its statutory function without error, and it is beyond the jurisdiction of this Court on review to reconsider the merits of such a factual conclusion by the Tribunal.
The alternative ground relied on by the Applicant that PAM3, in light of Wu, was invalid and the Tribunal’s reference and reliance on it, therefore amounted to an error in law, is not sustainable.
The Applicant argued that the Tribunal failed to address the needs of the nominator and his family, in particular the physical and emotional needs of the children. As already stated, I am satisfied that the Tribunal was fully cognisant of these issues and gave full treatment to the evidence in these regards. The Tribunal’s collective description of them as “the burden of raising two children” does not reflect a lack of understanding of the issues and a failure to give them such weight, cumulative or otherwise, as is required in order to determine whether the nominator’s and his family’s needs and circumstances constituted a “serious circumstance” requiring “a permanent or long term need for assistance”. PAM3 provides that in the absence of other extenuating circumstances, assistance in bringing up children does not create a permanent or long term need for assistance. The language used is not inconsistent with Wu. It is the absence of extenuating circumstances or other factors in this present case that, on the face of it, seems to have persuaded the Tribunal to have regard to PAM3 and not depart from it. From a reading of the Tribunal’s decision, I cannot conclude that the Tribunal treated PAM3 as prescriptive and was inflexible in applying it as was the finding in Jackson v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 203 at [20].
The Tribunal made two discrete findings pertinent to this review.
The first was that the circumstances of the nominator and his family were such as not to bring them within the description as “other serious circumstances”. The second was that there was not a need for “substantial and continuing care”. This second finding was not challenged in the written application before the Court. In oral submissions, however, the Applicant sought to challenge this second finding on the basis that the Tribunal’s failure to consider the nominator’s circumstances as coming within the description of
“other serious circumstances” as properly defined after Wu, “infected” the whole decision, including the finding that there was not a substantial and continuing need for assistance; that the narrow and restricted approach of the Tribunal is also reflected in this second finding. In my view, this second finding stands on its own and cannot be said, as the Applicant does, that Wu, even if the widest interpretation of that decision as invited by the Applicant is adopted, when applied to the facts of this case, would challenge the validity of the Tribunal’s finding. It would, in my view, be possible to challenge the first finding if the Applicant’s contentions were uncritically accepted, but still be open to the Tribunal to make the second finding. Because the Tribunal’s decision was based on two lines of reasoning, even should it have erred in respect of the first (which I have found it did not) then the second line, in my view, would validate the determination
(see Cakmak v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 503.
In my view the finding by the Tribunal that there was not a substantial and continuing need for assistance, standing independently as it does, also reflects on the first finding that there were not “other serious circumstances” which would satisfy the definition of a “special need relative”. The Full Court in Wu when considering the definition of “special need relative” stated at [41]:
“…In our opinion the word ‘serious’ is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long term…”
As there was no substantial and continuing need for assistance, it follows that there was also no serious circumstance.
There is, in my view, no jurisdictional error on the part of the Tribunal. Accordingly, the Tribunal’s decision is a privative clause decision and s.477(1A) of the Act applies. Clearly the Applicant’s application for review of that decision is out of time and is barred.
Should I be wrong in my determination that the decision is not one protected by the privative clause provisions of the Act, then the issue arises as to the exercise of the Court’s discretion as to whether leave should be granted to allow the application for review out of time.
In my view, it should not be exercised, in the circumstances of this case, in favour of the Applicants. When informed of the Tribunal’s decision, the Applicants chose not to challenge it as provided under the law, resolving instead to request the Respondent under s.351 of the Act to exercise his discretion in their favour. The Applicant seems to have abandoned at that time any course that would seek to challenge the decision of the Tribunal on grounds available at law. The Applicant’s conduct implicitly accepted that the Tribunal’s decision was not to be the subject of challenge. Whilst that request to the Respondent was under consideration, the Applicant availed himself of another avenue of challenge to his migration status afforded by class actions in the High Court. It was only after this challenge proved unsuccessful that, after a very significant time had expired, the application for review was filed. See Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491, Applicant 2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576, Applicants A64/2002 v Minister for Multicultural & Indigenous Affairs [2003] FCA 568, Das v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 489, Applicant M29 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1266, Applicant VUAD of 2003 v Minister for Immigration & Multicultural& Indigenous Affairs [2003] FCA 1331, Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 205 ALR 198 and M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293.
Conclusion
The Tribunal’s decision does not disclose a jurisdictional error and as a consequence the decision is protected by the privative clause provisions of the Act. As the decision is a privative clause decision, the Applicant must file his application for review within 28 days of becoming aware of the decision. The Applicant failed to do so and as a consequence, the application is barred by s.477(1A) of the Act.
In any event, should the decision not be a privative clause decision, the circumstances of this case and the considerable delay in initiating this review are such that it would not be reasonable to exercise the Court’s discretion and allow the filing of the application out of time.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 21 January 2005
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