Haidari v Minister for Immigration - [2008] FMCA 1314

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAIDARI v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1314

MIGRATION – Review of Migration Review Tribunal decision – refusal of a partner visa – Tribunal misconstruing visa criteria – whether the Court should order the Tribunal to remit the matter to the Minister’s delegate with a direction considered.

Migration Act 1958 (Cth), s.359A
Migration Regulations 1994 (Cth)

Chen Shi Hai v Minister for Immigration [2000] HCA 19

Applicant:

KHUDA DAD HAIDARI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1806 of 2008

Judgment of:

Driver FM

Hearing date:

18 September 2008

Delivered at:

Sydney

Delivered on:

18 September 2008

REPRESENTATION

Counsel for the Applicant:

Mr S Lloyd

Solicitors for the Applicant:

Fragomen

Counsel for the Respondents:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

By consent, the Court orders that there be an order in the nature of certiorari quashing the decision of the second respondent signed on 20 June 2008 and handed down on 27 June 2008.
By consent, the Court notes that the first respondent concedes that the decision of the second respondent is affected by jurisdictional error, in that the second respondent failed to construe clause 309.321 of Schedule 2 to the Migration Regulations 1994 (Cth) as though it read:
The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 309 or Subclass 100 visa.
There be an order in the nature of mandamus requiring the second respondent to review according to law the decision of the delegate of the first respondent dated 28 August 2007 to refuse Amanullah Haidari and Abdullah Haidari Partner (Provisional) (Class UF) visas.
The Court declares that Amanullah Haidari and Abdullah Haidari are taken to have met the requirements of clause 309.321 of Schedule 2 to the Migration Regulations 1994 (Cth) as at 27 June 2008.
The first respondent is to pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $7,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1806 of 2008

KHUDA DAD HAIDARI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application filed on 14 July 2008 seeking review of a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 27 June 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant Partner (Provisional) Class UF visas to two members of the applicant’s family.
The background circumstances are conveniently summarised in written submissions prepared on behalf of the applicant and filed on 3 September 2008. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 14 of those written submissions:
On 11 November 1999, the applicant (a citizen of Afghanistan) arrived in Australia. He was granted permanent residency.[1]
[1]     Relevant Documents (“RD”) 13
On 10 November 2005, his wife, Mrs Zobaida Haidari, together with a number of dependents (the couple’s five children (“Group 1”)) and the applicant’s two brothers (“Group 2”)), applied at the Australian High Commission in Islamabad, Pakistan, for both a Spouse (Subclass 100) and Spouse (Subclass 309) visas.[2] Mrs Haidari was the primary visa applicant and the applicant was the sponsor. The applicant and Mrs Haidari had been married for over five years at that time.[3]
[2]     RD 1025
[3]     RD 5
On 12 April 2006, the application in respect of Group 2 was refused by a delegate of the first respondent.[4] This was on the basis that the visa applicants did not satisfy clauses 309.311 or 310.311 of Schedule 2 of the Migration Act 1958 (Cth) (“the Migration Act”), because they were not ‘dependents’ of Mrs Haidari as defined by regulation 1.05A.
[4]     RD 26-30
On 25 April 2006, the applicant applied to the Tribunal for review of the delegate’s decision concerning Group 2.
On 28 June 2006, the application in respect of Mrs Haidari together with Group 1 was approved and they were granted permanent Subclass 100 visas. These visas could only have been granted after the applicants had been granted subclass 309 visas.[5]
[5]     RD 86.5
On 30 July 2007, the Tribunal handed down its decision in the review of the delegate’s decision concerning Group 2. It remitted the application to the delegate with a direction that they met clause 309.311 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”).[6] Specifically, it found that:[7]
[6]     RD 31-43
[7]     RD 42.5
As the visa applicants satisfy all the elements of Regulation 1.12(1)(e) the Tribunal finds that at the time of application they were members of the family unit of the primary applicant. Based on the details of the form 47SP submitted with the primary applicant’s original visa application, the Tribunal finds that at the time of application the visa applicants made a combined application with the primary applicant. As noted above the primary visa applicant was granted a subclass 100 visa on 28 June 2006. In order to be granted a subclass 100 visa the primary visa applicant was required to have held a subclass 309 visa. The Tribunal therefore finds that at the time of application the visa applicants made a combined application with a person who satisfies the primary criteria in subdivision 309.21 and therefore that the secondary visa applicants satisfy 309.311.
On 28 August 2007, the delegate made a decision to again refuse the application by Group 2 despite them having been found by the Tribunal to be members of Mrs Haidari’s family unit.[8] This was on the basis that they did not meet clause 309.321, being a requirement that:
The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 309 visa.
The delegate found that by the time the matter had been remitted by the Tribunal, the primary applicant had been granted a permanent spouse visa (a Subclass 100 visa) instead of the temporary spouse visa (Subclass 309 visa) and as a result this criterion was not met.
It may be observed that the delegate adopted a construction according to which a secondary applicant fails if the primary visa applicant is successful in achieving a permanent visa.
On 15 October 2007, the applicant applied to the Tribunal for review of the delegate’s second decision concerning Group 2.[9]
On 7 April 2008 and 6 May 2008, the Tribunal wrote to the applicant’s advisors, inviting comment upon, in essence, the fact that Mrs Haidari had become a holder of a Subclass 100 visa and was not the holder of a Subclass 309 visa.[10]
On 20 May 2007, the applicant’s advisors responded to the Tribunal’s letter.[11]
On 27 June 2008, the Tribunal handed down its decision, affirming the decision under review.[12] The Tribunal acknowledged that the construction of clause 309.321 had “caused an extremely unfortunate outcome in this case” and appeared to accept that the construction may be “inconsistent with the object of the provision”.[13]
[8]     RD 44-46
[9]     RD 47-56
[10]    RD 63-69
[11]    RD 70-78
[12]    RD 84-97
[13] RD 96 [24].
The parties have had discussions prior to today’s hearing and have reached agreement that the decision of the Tribunal should be set aside. I have approved a consent order that there be an order in the nature of certiorari quashing the decision of the Tribunal signed on 20 June 2008 and handed down on 27 June 2008. In connection with that order the Court notes that the Minister concedes that the decision of the Tribunal is affected by jurisdictional error in that the Tribunal failed to construe clause 309.321 of schedule 2 to the Migration Regulations as though it read:
The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 309 or Subclass 100 visa.
However, the parties have been unable to reach agreement on what other orders I should make, in particular in relation to an order in the nature of mandamus and in relation to costs.
On the first question, the applicant contends that I should make an order which requires the Tribunal to remit the applications of the two visa applicants to the Minister for reconsideration in accordance with a direction that the visa applicants must be taken to have satisfied clause 309.321. The Minister submits that I should make an order in the more usual terms, requiring the Tribunal to review the matter before it according to law.
The question has some practical significance in that the clause in issue calls for a finding of whether the applicant at the time of decision continues to be a member of the family unit of the visa holder. As is commonly the case with issues of dependency, as time passes, there is a possibility that a person who was formerly dependent may no longer be. In the present case, the first Tribunal found that the applicants met the requirements of sub-clause 309.311 at the time of application. The second Tribunal in its decision directed its attention to the question of the primary visa holder no longer holding a sub-class 309 visa rather than the issue of whether the applicants continued to be a member of her family unit. Counsel for the applicants pressed on me the view that the Tribunal must have been satisfied on that issue as no hearing was conducted.
The applicants, in responding to an invitation to comment issued pursuant to s.359A of the Migration Act by letter dated 20 May 2008[14], stated at paragraph 46 of the letter:
…should the Tribunal be contemplating a hearing in this matter - and in the event that the only issue which has [led] the Tribunal to contemplate a hearing is that set out in its 6 May 2008 Invitation to Comment on or Respond to Information in Writing - the Review Applicant requests that the Tribunal proceed to a decision without holding a hearing. (emphasis in the original retained)
[14] RD 70-78
I accept that by proceeding to make a decision without a hearing, the Tribunal must either be taken to have been satisfied on the issue of dependency or to have not turned its mind to that issue. While both interpretations are open, in my view, if there had been some question in the Tribunal’s mind on the issue of dependency, some reference would have been made to that issue in the Tribunal’s decision. The two applicants had been found to have been dependents at the time of application by the first Tribunal. If there had been some change at the time of decision that the Tribunal was aware of, I would have expected the Tribunal to mention it. I proceed on the basis that the Tribunal did not say anything about the issue of dependency because the Tribunal was satisfied that there was no issue as at the time of its decision. The problem is that there now might be.
The remittal of the matter to the Tribunal in the ordinary course requires the Tribunal to consider the facts and circumstances as they now exist. It is open to the Court, as counsel for the applicants submitted, to make an order in the terms sought by them. I rely in that respect on the decision of the High Court in Chen Shi Hai v Minister for Immigration [2000] HCA 19 at [9] and [43] in which the High Court reinstated orders to similar effect made by French J at first instance in that case. However, I do not consider that it would be appropriate for this Court to assume that there is nothing requiring a further examination by the Tribunal about the issue of dependency now; that would be to usurp the function of the Tribunal in relation to the assessment of the criteria. What would be appropriate is to give a clear direction to the Tribunal that the question of whether the applicants were members of the primary visa holder’s family unit had been answered as at the date of the second Tribunal decision. Whether any further examination by the Tribunal should be made is a matter that should be left to the Tribunal.
I will order that there be an order in the nature of mandamus requiring the second respondent to review according to law the decision of the delegate of the first respondent dated 28 August 2007 to refuse Amanullah Haidari and Abdullah Haidari Partner (Provisional) (Class UF) visas. The Court declares that Amanullah Haidari and Abdullah Haidari are taken to have met the requirements of clause 309.321 of Schedule 2 to the Migration Regulations as at 27 June 2008.
The remaining question is one of costs. I received an affidavit from the applicant’s solicitors detailing costs and disbursements including counsel’s fees incurred by the applicants. Those costs exceed $11,000 on a solicitor and own client basis. On a party-and-party basis the applicants seek $7,800 excluding the costs of today’s hearing. Scale costs under this Court’s Rules would be $5,000. The solicitor for the Minister noted that in the course of discussing this matter an offer had been made on 9 September 2008 which, if it had been accepted, would have avoided the need for today’s hearing.
The Minister has been successful in terms of the form of the order of mandamus that has been made but I have also made a declaration which may assist the applicants and the Tribunal to finally resolve the matter. I accept counsel for the applicant’s submission that the issue in this case was a particularly difficult one that involved a considerable amount of time being spent by counsel expert in migration law. This has somewhat increased the involvement that would normally be required of counsel and hence increased the amount of disbursements required for counsel. The scale provides inadequate recompense to the applicant in this instance because of that unusual requirement for counsel’s time. The scale would do little more than cover counsel’s fees.
In my view, a reasonable party-party assessment inclusive of today’s hearing would be $7,500. That takes into account the party-party assessment of solicitors’ fees at $3,500 and an allowance for counsel at $4,000. I will order that the first respondent is to pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $7,500.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 24 September 2008