Hariady v Minister for Immigration
[2018] FCCA 407
•9 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARIADY v MINISTER FOR IMMIGRATION | [2018] FCCA 407 |
| Catchwords: PRACTICE & PROCEDURE – Application in a Case seeking dismissal pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) – whether there are reasonable prospects of success – no reasonable prospects of success – Application in a Case allowed. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.17A Migration Act 1958 (Cth), ss.5, 46, 47, 48, 476 Migration Regulations 1994 (Cth), reg.2.12, sch 1 |
| Cases cited: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372 |
| Applicant: | LINDA HARIADY |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 3262 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 9 February 2018 |
| Date of Last Submission: | 9 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondent: | Ms H Dejean of Australian Government Solicitor |
ORDERS
The application made on 20 October 2017 is dismissed pursuant to Rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the respondent’s costs set in the amount of $2,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3262 of 2017
| LINDA HARIADY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
On 9 February 2018 I made orders in relation to an Application in a Case (“AIC”) made by the Minister on 18 January 2018. These are the written reasons for judgment.
Pursuant to the AIC, the Minister sought orders pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) on the basis that Ms Hariady has no reasonable prospect of successfully prosecuting the substantive application she made to the Court pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 20 October 2017.
The following is in evidence before the Court:
a)The affidavit of Linda Hariady, [no occupation specified], made on 14 October 2017.
b)The affidavit of Hervee Dejean, solicitor, made on 17 January 2018.
c)The affidavit of Hervee Dejean, solicitor, made on 29 January 2018.
As mentioned above, Ms Hariady filed her substantive application to the Court on 20 October 2017, which sought review of the decision of a delegate of the Minister made on 10 October 2017, which determined that her application for a visitor (sponsored family) (subclass 600) visa was invalid.
Pursuant to orders made on 18 January 2018, the Minister filed written submissions on 25 January 2018. Ms Hariady filed no written submissions.
The background to the matter can be derived from the evidence before the Court. On 9 June 1998, Ms Hariady lodged an application for a Protection (Class XA) visa. On 26 June 1998 that application was refused by a delegate of the Minister. That decision was not set aside on judicial review (see [3] of the affidavit of Ms Dejean made on 17 January 2018 and [1] – [2] of the affidavit of Ms Dejean made on 29 January 2018 and relevant annexures).
On 25 September 2017, Ms Hariady lodged an application for a visitor (sponsored family) (subclass 600) visa (“the first visitor visa”). On that same day, a delegate determined that that application was invalid (see [5] – [6] of the affidavit of Ms Dejean made on 17 January 2018 and relevant annexures).
On 9 October 2017, Ms Hariady lodged another application for a visitor visa (“the second visitor visa”) and on 10 October 2017, that application was also determined to be invalid (see the affidavit of Ms Hariady and relevant annexures).
The grounds of Ms Hariady’s substantive application to the Court are as follows:
“1. I applied for the visitor visa previously and the Department sent me a letter of 25 September 2017 advising me to lodge application to meet Schedule 1 requirement and instructed me to lodge the application in Adelaide. The Department received my application and treated it as invalid. That action is against the law as I believe that I have the right to lodge the application and my application should not be treated as invalid.
2. The Department acted contrary to their instructions in a letter dated 25 September 2017. Therefore their decision is affected by error of law.”
The Minister submits that the Migration Regulations 1994 (Cth) (“the Regulations”) may prescribe certain criteria that must be satisfied for an application to be a valid application for the visa. Pursuant to s.46(4) of the Act, the Regulations may also prescribe “where an application for a visa of a specified class must be made”.
Schedule 1 of the Regulations prescribes classes of visa. That Schedule also provides that:
“This schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class. An application that is not made as set out in this Schedule is not valid and will not be considered.”
Schedule 1 provides for the 1236 Visitor (Class FA) visa. Item 4 refers to the “sponsored family stream” and sub-item 4(2) provides that a requirement for the visa is that “[t]he applicant must be outside Australia” when the application is made.
The Minister submits that since Ms Hariady was in Australia when the application was made, therefore the application was not made as set out in Schedule 1 to the Regulations, and the delegate was correct to hold that her application for the visa was invalid. Further, s.47(3) of the Act prevents the delegate from considering an invalid application
([9] – [10] of the Minister’s written submissions).
The Minister further submitted that in any event, since Ms Hariady “does not hold a substantive visa, last arrived in Australia on 1 June 1998, had a [protection visa] refused on 26 June 1998, and has not departed since”, then s.48 of the Act applies. Regulation 2.12 of the Regulations then prescribes the classes of visas that an applicant may apply for if s.48 of the Act applies to them.
The visa that Ms Hariady applied for in this case, is not one that is prescribed in reg.2.12 of the Regulations. The Minister therefore submits that Ms Hariady is barred from making the current application, and in any event, can have no reasonable prospect of successfully prosecuting the substantive application made to the Court on 20 October 2017 ([12] – [15] of the Minister’s written submissions).
At the hearing of the AIC Ms Hariady appeared in person. She was assisted by an interpreter in the Indonesian language. The Minister was represented by a solicitor.
As mentioned above, the Minister seeks orders pursuant to r.13.10 of the FCC Rules on the basis that the applicant has “no reasonable prospect of successfully prosecuting the proceeding”. In the circumstances, more specifically, this can be understood as the Minister seeking orders pursuant to r.13.10(a) of the FCC Rules.
Rule 13.10(a) of the FCC Rules is in substantially similar terms to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”). Section 17A of the FCCA Act contains the power to summarily dismiss an application, and, for current purposes, is the equivalent provision to s.31A of the Federal Court of Australia Act 1977 (Cth).
In Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (“Spencer”), the High Court considered the meaning of “no reasonable prospect of success”. Their Honours Hayne, Crennan, Kiefel and Bell JJ held that the power to dismiss an application summarily is not to be exercised lightly, and consideration is to be given to the expression “as a whole” as follows (Spencer
at [58] – [60]):
“[58] How then should the expression ‘no reasonable prospect’ be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is ‘no reasonable prospect’. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like ‘no reasonable prospect’ is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
[59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like ‘clearly’, ‘manifestly’ or ‘obviously’) as ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word ‘reasonable’, in the phrase ‘no reasonable prospect’, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a ‘frivolous’, ‘untenable’, ‘groundless’, or ‘faulty’ claim.
[60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is ‘no reasonable prospect’ of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to ‘no reasonable prospect’ can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase ‘just and equitable’ when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.”
In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd & Ors [2008] FCAFC 60; (2008) 167 FCR 372, Justice Gordon outlined general principles in consideration of the exercise of the Court’s power under s.31A of the FCA Act (which, as mentioned above, is the equivalent provision to s.17A of the FCCA Act for current purposes and see also Adnunat Pty Ltd v ITW Construction Systems Australia Pty Ltd [2009] FCA 499 at [37] per Sundberg J). However, clearly the concept of “no reasonable prospect of success” does not mean that a case must only be hopeless or bound to fail to fall within this concept, but it is certainly included (and see s.17A(3) of the FCCA Act).
Ms Hariady’s case was heard at the same time as that of her husband (the applicant in proceedings SYG 3264 of 2017). Both cases presented the same legal issue, and had similar facts. Both applicants made submissions which applied equally to both cases.
Essentially Ms Hariady’s submissions in support of the grounds of the substantive application were that she had applied for the first visitor visa in Sydney (presumably through the Sydney office of the Minister’s department), in September 2017. She was then “told” she should make her application to the Adelaide office (of the Minister’s department). It was not clear whether this was a reference to the letter of notification from the Minister’s department’s Sydney office, or to being “told” by someone else.
Her position was that it was an error of law for the Minister’s department to tell her to apply in Adelaide, only for the application to then be determined to be invalid (this is relevant to ground two of the substantive application).
Further, Ms Hariady asserted that she had a “right” to apply for the visa, and therefore it was an error of law for the application to be determined to be invalid.
The immediate difficulty for Ms Hariady is that she has provided no evidence to support the allegation that she was told by the Minister’s department’s Sydney office in September 2017, to apply for the visa in Adelaide.
To the contrary, on the evidence she has provided, the letter of 25 September 2017 (annexed to Ms Hariady’s affidavit) sent from the Minister’s department’s Sydney office (see the address at the bottom of the second page), makes clear that the purpose of the letter was to notify her that the application she had lodged for the first visitor visa in Sydney in September 2017 was invalid.
There is nothing in that letter referring Ms Hariady to the Minister’s department’s Adelaide office.
In any event, even if Ms Hariady’s assertions were to be accepted (which on the evidence they cannot be), this would still not assist her.
The Minister’s submissions as to the relevant state of the law were correct. There are at least two separate reasons that make Ms Hariady’s application for the second visitor visa (and for that matter, the first visitor visa) invalid.
The Act makes provision for criteria that may be prescribed for the making of a valid application. If such criteria are made, they must be satisfied, such as to make an application for a visa a valid application (s.46(4) of the Act).
Relevantly, sub-item 4(2) of item 1236 of Schedule 1 to the Regulations provides that an applicant for the subclass of visa applied for by Ms Hariady must be “outside Australia at the time of the application”.
On the evidence before the Court, and not disputed by Ms Hariady, she was not outside Australia at the time she applied for the second visitor visa in October 2017. Nor for that matter was she outside Australia in September 2017 when she applied for the first visitor visa (see annexure “HD-1” to the affidavit of Ms Dejean made on 17 January 2018).
Schedule 1 to the Regulations provides that an application that is not made as set out in the Schedule is not valid.
The basis on which the determination of 10 October 2017 was made was that Ms Hariady was not outside Australia. There is no legal error in that determination given the relevant law. I note this was also one of the bases for the determination of 25 September 2017.
While both determinations of the two officers of the Minister’s department made references to other bases on which the two (separate) applications were not valid, that determination for each application stands alone, and is a sufficient basis on which to say that no legal error is revealed by the determination that the application on 10 October 2017 and the application on 25 September 2017were not valid.
It is also the case for the determination of 10 October 2017 (and for the determination of 25 September 2017), that Ms Hariady’s application was invalid for the following reason.
Section 48 of the Act provides that a person who does not hold a substantive visa (as defined in s.5 of the Act) and after last entry in Australia has been refused a visa, may only apply for a class of visa as prescribed for the purposes of s.48 of the Act. Such an applicant may not apply for a visa of any other class. Regulation 2.12 of the Regulations prescribes the classes of visa for the purposes of s.48 of the Act.
In the current case, on the evidence, Ms Hariady did not hold a substantive visa at the time of her application for the second visitor visa (or for that matter, the first visitor visa). She remained in Australia after her arrival and since that time, has been refused a substantive visa (see [6] above). The visa she applied for (for both the first and second visitor visa applications) was not a prescribed visa for the purposes of s.48 of the Act.
The Minister’s AIC must succeed. The substantive application to the Court is, in the circumstances, hopeless and bound to fail. There is no legal error in the determination that the application for the visa was not valid.
A part of Ms Hariady’s submissions to the Court was that they (Ms Hariady and her husband) have been in Australia for about twenty years and have two children with established links in Australia. It is the case that Ms Hariady (and her husband) have been in Australia for over 20 years. The question must arise as to why, in the circumstances, the Minister’s department has “allowed” them to stay in Australia for some years without authority to do so. I would respectfully, and probably gratuitously, note for the Minister’s benefit, that there is an inconsistency in coming to Court to oppose applications from persons who seek to remain in Australia when such persons have been “allowed” to remain in Australia for many years without authority to do so.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 22 February 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Civil Procedure
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Standing
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Statutory Construction
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