Koch v Minister for Immigration
[2008] FMCA 927
•8 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOCH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 927 |
| MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal’s decision was a continuation of an earlier review by a differently constituted Migration Review Tribunal – whether the decision of the Migration Review Tribunal is a reviewable decision – whether the Migration Review Tribunal had jurisdiction to consider the application. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.338(6); 347; 347(2); 474; pt.8 div.2 |
| First Applicant: | BERND PETER KOCH |
| Second Applicant: | ANNEGRET KOCH |
| Third Applicant: | OLIVER KARSTEN FAUPEL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 130 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 18 June 2008 |
| Date of last submission: | 24 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2008 |
REPRESENTATION
| Applicants appearing on their own behalf |
| Solicitors for the Respondent: | Mr G. Johnson, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 130 of 2008
| BERND PETER KOCH |
First Applicant
| ANNEGRET KOCH |
Second Applicant
| OLIVER KARSTEN FAUPEL |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 20 December 2007 and handed down on 21 December 2007.
The first named applicant (“the Applicant”) was born on 27 August 1949 and arrived in Australia in 1966 on a Permanent Resident Visa with his parents who had migrated to Australia. The Applicant has never made an application for citizenship of Australia. The second named applicant is the wife of the Applicant and the third named applicant is the Applicant’s step-son. The applications of the second and third named applicants are dependent on those of the Applicant.
In December 1986 the Applicant left Australia and returned to Germany where he subsequently married.
On 6 December 1999, the Applicant returned to Australia with his wife and her children, the step-children of the Applicant.
On 25 November 2000, the Applicant and his family left Australia again.
On 20 October 2004, the applicants arrived back in Australia. The Applicant held a Subclass 976 visa.
On 27 October 2005, the Applicant lodged an application for a Special Eligibility (Migrant) (Class AR) visa. The application for special migration to Australia form has a choice of three types of application those being:
i)Former Resident;
ii)Close Ties;
iii)Distinguished Talent.
The visa for which the Applicant was applying was the Former Resident visa that being the Special Eligibility (Migrant) (Class AR) visa. The Applicant provided in the application form the details of his spouse and that, relevantly, of his step-children.
On 4 January 2007, a delegate of the First Respondent refused the Applicant’s application for a Special Eligibility (Residence) (Class AO) visa. Plainly the delegate had not considered the visa for which the Applicant had applied, that being the (Class AR) visa.
On 18 July 2007, the Migration Review Tribunal remitted the matter to the Department to consider the Applicant’s application in respect of the correct visa, namely the Special Eligibility (Migrant) (Class AR) visa application.
On 26 October 2007, a delegate (“the Delegate”) of the First Respondent considered the Applicant’s visa application and found that the Applicant did not satisfy mandatory criteria, including that the Applicant must be aged under 45 years at the time of the application. At the time the application was lodged the Applicant was 56 years old. There were other criteria that the Migration Review Tribunal also found the Applicant did not meet. However a failure to meet any of the criteria was fatal to the Applicant’s application.
Accordingly, the application for the visa was refused.
On 29 October 2007, the applicants lodged an application with the Migration Review Tribunal for review of the Delegate’s decision. It is that decision that is the subject of judicial review by this Court.
On 21 November 2007, the Tribunal wrote to the applicants inviting them to comment on information. In particular, the Tribunal’s letter informed the applicants that s.347(2) of the Act states that the only person who has a right to apply for review of the decision of the Delegate was a relative of the visa applicant who is also an Australian citizen or an Australian permanent resident. In the circumstances, none of the applicants are such persons and therefore none of the applicants have a right of review. The letter informed the applicants that their applications for review may be invalid because none of the applicants had the right to seek review of the Delegate’s decision.
The letter also informed the applicants that:
“If you make comments, the Tribunal will consider your comments carefully. If after considering all the information, the Tribunal finds that the application is not valid you will be sent a statement of reasons and you will be entitled to a refund of the fee if paid.”
The letter also contained details of interpretation services and a contact number with the Tribunal for any further queries.
The Tribunal noted in its decision record, that an application is properly made for review of a delegate’s decision pursuant to s.347 of the Act if, relevantly, the decision is an Migration Review Tribunal reviewable decision under s.338(6) of the Act.
Section 338(6) is as follows:
“(6) A decision to refuse to grant a non‑citizen a visa is an MRT‑reviewable decision if:
(a) the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
(b) a criterion for the grant of the visa is that the non‑citizen has been an Australian permanent resident; and
(c) a parent, spouse, child, brother or sister of the non‑citizen is an Australian citizen or an Australian permanent resident.”
The Tribunal then recited the relevant criteria for the Special Eligibility (Migrant) (Class AR) visa as was required immediately before 1 November 2005.
The Tribunal noted that it had regard to submissions received by it on 4 December 2007 in relation to the question of its jurisdiction. In particular, the Tribunal noted the Applicant’s submission that his application for review was a continuation of the earlier Migration Review Tribunal decision which remitted the application for a visa to the Department on 18 July 2007. However, the Tribunal found that the earlier Migration Review Tribunal decision had been remitted for reconsideration of the application for a Subclass 832 (Close Ties) (Class AO) visa on the grounds that the Applicant had not applied for that subclass visa.
The Tribunal noted that the application for review before it concerned the Delegate’s decision to refuse to grant the applicants (Class AR) visas because they did not satisfy all the mandatory criteria for that visa.
In the circumstances, the Tribunal found that the application before it was not a continuation of the application for review before the earlier Migration Review Tribunal which finalised its decision on 18 July 2007.
The Tribunal found that the applicants applied for the (Class AR) visas on 27 October 2005. The Tribunal found that, because the visa applications were lodged prior to 1 November 2005, the Delegate’s decision to refuse to grant a (Class AR) visa was only a reviewable decision if it satisfied s.338(6) of the Act.
As referred to above in these Reasons, s.338(6) of the Act provides relevantly, inter alia, that an application for review of a Migration Review Tribunal reviewable decision may only be made by a specified relative of the Applicant who is an Australian citizen or an Australian permanent resident.
The Tribunal found that the applicants before it were ineligible to seek review and did not have standing to make the application for review of the Delegate’s decision.
In the circumstances, the Tribunal found that it did not have jurisdiction.
The applicants were unrepresented before this Court. The fourth named applicant, being the step-daughter of the Applicant, withdrew her application at the first court date before this Court on 10 April 2008.
At the hearing of this matter before the Court, the Applicant appeared on behalf of the second named applicant and the third named applicant, both of whom attended the hearing. The Applicant confirmed that the applicants relied on the grounds specified in the application as follows:
“1. Application ineligibility for review is incorrect
2. Migration Review Tribunal File NR 07182897
3. The Department of Immigration and Citizenship and Former Minister”
The orders ought by the applicants in the application are as follows:
“1. Can be reviewed
2. Failing in their duty of care and misuse of office
3. Giving false and misleading information
Taking money under false pretences
I also [intend] to claim compensation”
The Applicant was invited to make submissions in support of the application. Plainly none of the grounds on their face disclose an error capable of review by this Court.
Considerable time was spent at the hearing whilst the Applicant recounted to the Court the history of his applications for visas to the Department and his history of seeking review of the refusal to grant him and his family visas.
In the course of his submissions, the Applicant submitted that the decision of the Tribunal was a continuation of the earlier review by the Migration Review Tribunal on 18 July 2007. The First Respondent made the following submissions in response:
“The applicant, before the last constituted MRT, argued that that proceeding was a continuation of the MRT proceedings conducted on 18 July 2007. In that proceeding, the matter was remitted to the Minister’s delegate for the reason that the delegate had mistakenly assessed the applicant’s case against criteria related to a different subclass. Clearly, the MRT proceedings which led to the decision the subject of this application for judicial review, concerned an entirely different decision of the delegate. Although the applicant did not lodge a new application for a different visa, as the delegate was required to make a further decision, any nexus between the delegates’ two decisions was severed.”
The First Respondent’s submissions were clearly referring to the Tribunal’s decision record where it found that its review was not a continuation of the earlier Migration Review Tribunal proceeding because the earlier Migration Review Tribunal proceeding was considering the refusal of a delegate of the First Respondent to grant a visa for which the Applicant had not applied (namely the (Class AO) visa). The Delegate’s decision the subject of this Tribunal’s decision was its refusal to grant the Applicant the visa for which he had applied (namely the (Class AR) visa).
I accept the submissions of the First Respondent in this respect and am satisfied that the decision of the Tribunal, the subject of this proceeding, is not a continuation of the review conducted by the Migration Review Tribunal on 18 July 2007.
In relation to whether or not the decision of the Migration Review Tribunal is a reviewable decision under s.338(6) of the Act, it is clear from the legislative regime that the applicants, or any of them, are not persons with standing to seek review of the Delegate’s decision dated 20 December 2007. None of the applicants have a parent, spouse, child, brother or sister who is an Australian citizen or an Australian permanent resident.
A fair reading of the Tribunal’s decision makes clear that the Tribunal had regard to the correct legislation in considering whether or not it had jurisdiction to consider the application for review of the Delegate’s decision before it.
In the circumstances the Tribunal had no jurisdiction to consider the application before it.
The decision of the Migration Review Tribunal is not affected by jurisdictional error. Accordingly, pursuant to s.474 of the Act, the Migration Review Tribunal’s decision dated 20 December 2007 is a privative clause decision with which this Court cannot interfere.
The proceeding before this Court commenced by way of application filed on 17 January 2008 is dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 8 July 2008
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