Lal v Minister for Immigration
[2007] FMCA 1014
•18 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1014 |
| MIGRATION – Subclass 801 (Spouse) visa – review of Migration Review Tribunal decision – review of delegate’s decision – Tribunal found it did not have jurisdiction – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.477, 477(2), 477(1) |
| Lal v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 461 Minister for Immigration & Multicultural & Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 |
| Applicant: | JYOTIMALA GOUNDER LAL |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 621 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 18 May 2007 |
| Date of Last Submission: | 7 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Solicitor for the Respondents: | Ms. A. Nanson |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application made on 22 February 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 621 of 2007
| JYOTIMALA GOUNDER LAL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore: Revised from Transcript)
I have before me an application filed in this Court on 22 February 2007 which seeks review of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 25 January 2007 and sent to the applicant on 30 January 2007. The Tribunal found that it did not have jurisdiction in this matter to review the decision of the delegate of the respondent Minister to cancel the applicant’s Subclass 801 (Spouse) visa because it had already reviewed the delegate’s decision. I note the matter had come before the Tribunal for a second time by way of the application to it made on 30 August 2006. The application is reproduced in the Court Book “CB” at CB 1 to CB 8.
I have before me, for the applicant:
1)An application filed on 22 February 2007.
2)An affidavit of the applicant made on 21 February 2007.
For the respondent:
1)A Response to the application filed on 29 March 2007.
2)The affidavit of Dale Jennifer Watson, sworn on 29 March 2007, with annexures and written submissions setting out a chronology of relevant events. This affidavit was filed in Court today by the Minister.
Background
The background to this matter that can be discerned from this material is that the applicant, Mrs. Jyotimala Goundar Lal, appears to have entered Australia as the holder of a student visa on 31 July 1998. On 30 August 2002, the applicant was the recipient of a Subclass 820 (Spouse) visa, following her marriage to Mr. Lal. A further category of spouse visa was granted on 19 November 2002. Sometime in 2004, this visa became the subject of consideration for cancellation by the first respondent. On 10 August 2004, a delegate of the Minister cancelled the applicant’s Subclass 801 (Spouse) visa (“the delegate’s decision”). It appears the grounds of this cancellation were that the applicant had provided incorrect information to the Minister’s Department in support of her application for a visa.
On 17 August 2004, the applicant applied for review of the delegate’s decision. On 6 May 2005, the Tribunal (“the first Tribunal”) affirmed the delegate’s decision to cancel the applicant’s Subclass 801 (Spouse) visa. I note further that the first Tribunal decision has previously been the subject of judicial consideration by Finn J. of the Federal Court on 17 October 2005 in Lal v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 461 (“Lal”), when the matter was dismissed (see Annexure B to the affidavit of Ms. Watson).
The applicant has also unsuccessfully sought the Minister’s intervention under s.351 of the Act. On 30 August 2006, the applicant lodged a further application to the Tribunal. The Tribunal, differently constituted signed its decision on 25 January 2007. I note copies of this decision are before the Court as an Annexure to the applicant’s affidavit, as Annexure “A” to the affidavit of Ms. Watson, and as reproduced at CB 32 to CB 36.
In all, the material before the Court reveals that once the Tribunal received the “second” application from the applicant, it identified the critical threshold question as whether it had jurisdiction to review the decision, that is, the delegate’s decision, made on 6 May 2005.
The Tribunal formed a preliminary view that the second application to it was lodged outside the time limits provided by the Migration Act 1958 (“the Act”) and Migration Regulations 1994 (“the Regulations”) for the making of such applications. In any event, the Tribunal found that the decision that the applicant sought to be reviewed had already previously been reviewed by the first Tribunal.
The Tribunal, after giving the applicant an opportunity to comment on its preliminary view (see the “Invitation to Comment” letter from the Tribunal to the applicant dated 5 December 2006 (CB 29 to CB 30), ultimately (in its “Findings and Reasons” at CB 34.7 to CB 36.5):
1)Noted that it had before it relevant files, which indicated it had previously reviewed the decision relating to the applicant’s previous application (that is, the applicant’s application for review of the decision to cancel the applicant’s visa of 10 August 2004) (CB 34.7 to CB 34.8).
2)Noted that the applicant was taken to have received notification of that decision on 19 August 2004 (CB 34.10 to CB 35.1).
3)Noted the applicant’s application for review, submissions of 26 October 2006, further submissions of 17 November 2006 and further supporting documentation provided by the applicant (CB 35.2 to CB 35.9).
4)In light of this, found that the applicant was seeking review of the delegate’s decision under s.338(3) of the Act, but was outside the relevant period for the making of such applications under s.347(1)(b)(i) and applied r.4.10(1)(b) of the Regulations (CB 35.10).
5)Considered the applicant’s submissions but did not accept that they provided any basis for accepting the application for review lodged on 30 August 2006 (CB 36.2).
6)Ultimately found the application for review of 30 August 2006 was lodged outside of the statutory and regulatory time periods, and that the delegate’s decision to which the application for review related had already been the subject of review (before the first Tribunal) and therefore the Tribunal had discharged its function under the Act to review the earlier delegate’s decision. In addition, the Tribunal noted the applicant had been the subject of judicial review before the Court (CB 36.3).
In all, the second Tribunal found that it had no jurisdiction to proceed with the review of the second application put before it (CB 36.4).
At the hearing today, the applicant appeared in person with the assistance of an interpreter in the Hindi language. Ms. A. Nanson appeared for the first respondent.
The applicant’s application to the Court today, filed on 22 February 2007, and her affidavit of 21 February 2007, assert a large number of matters which appear to have little relevance to the Tribunal’s decision of 25 January 2007. The matters asserted appear largely to seek a revisiting before this Court of the delegate’s decision, the first Tribunal decision and the judgment of the Federal Court. To the extent that the applicant’s grounds for review also refer to “DIMIA” and the “MRT” and “The Federal”, I take that the applicant also appears to seek review of the delegate’s decision, the first Tribunal decision and the Federal Court decision in Lal.
Before the Court today, the applicant was unable to assist further to what was set out in her written application. The applicant asked the Court whether she could obtain “PR” in Australia. I understood this to be a question as to whether she could remain in Australia by way of obtaining a visa, that would, in effect, grant her permanent residence in Australia. The applicant also told the Court that she had received some assistance in the preparation of her application from a solicitor whom she named: “Mr. Power”. I should note that this Court has some difficulty in accepting that a solicitor would have any role in providing grounds of application as those that appear before this Court now. Nonetheless, without being able to obtain further explanation or assistance from the applicant, I considered these stated grounds with as wide an application as possible to see if any benefit for the applicant can be derived from them.
The Delegate’s Decision and First Tribunal Decision
Insofar as the application to the Court now refers specifically to the decision of “DIMIA”, this appears to seek review of the delegate’s decision made on 10 August 2004 (to which I have already referred). Further, in context the references to “the Migration Tribunal”, appear to seek review of the first Tribunal decision made on 6 May 2005.
The state of the evidence before the Court today indicates that the applicant had notice of both the delegate’s decision and the first Tribunal decision soon after the decisions were made. I note that relevantly, notice was received by the applicant in both decisions before 1 December 2005. In relation to the delegate’s decision, because the application for review was made before 1 December 2005, and in relation to the first Tribunal decision, because the application to the Federal Court was made before 1 December 2005. In fact, the matter was disposed of by the Federal Court on 17 October 2005.
I note that amendments to the Act, made by the Migration Litigation Reform Act 2005 (Cth) (“the reform Act”), provide time limits to be applied to the filing of applications before this Court. Section 477 of the Act provides:
“Time limits on applications to the Federal Magistrates Court
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2)The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a)an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b)the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3)Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4)The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.”
The reform Act commenced operation on 1 December 2005 and, as such, actual notification of the decision (if it was made prior to that day) is taken to have occurred on that day. In these circumstances, if an application is filed later than 28 days after 1 December 2005 (29 December 2006), and no extension of time is given extending that 28 day period by up to 56 days pursuant to s.477(2) (until up to 23 February 2006), the application is incompetent before this Court.
In all of these circumstances, therefore, if the applicant is today seeking review of the delegate’s decision and the first decision of the Tribunal then such an application would need to have been made within 28 days from 1 December 2005. Plainly, the applicant’s application of 22 February 2007 is made outside that time limit. I note that while, by virtue of s.477(2) of the Act, the Court may extend the 28 day time period by a further 56 days, no such application for extension within the further 56 day period has been made. Further, even if such an extension had been granted, what would have been required is an application made by 23 February 2006. The application made on 22 February 2007 does not provide any opportunity for the Court to consider any further extension to the time limits set out in s.477(1) of the Act.
I should just note, in any event, in relation to the delegate’s decision, with reference to Lal, any jurisdictional error or defect in that decision would have been cured by virtue of the Tribunal’s subsequent review.
The Federal Court Decision
To the extent that the applicant may be seeking review of the decision of the Federal Court, I can only say, with the greatest of respect to the Federal Court, that such an application is plainly a nonsense given this Court’s inferior standing.
The Tribunal Decision
With reference to the applicant’s application, what the Court is then left with, is the Tribunal’s decision. As I put to the applicant, the issue for the Court is whether such decision can be seen to contain any error of law.
In seeking to make some sense of the applicant’s long list of grounds and what may remain of them as they relate to the Tribunal’s decision, I note that to the extent that the application asserts a breach of the rules of natural justice or that the applicant was denied procedural fairness at general law, I cannot discern any error in what the second Tribunal has done. The application does not particularise these grounds. The material before the Court shows that having received the application from the applicant, the Tribunal wrote to her and she was given the opportunity to focus on the relevant issue identified by the Tribunal. That is, the issue of its jurisdiction to again consider the cancellation of her visa. The Tribunal took into account the applicant’s responses in arriving at the conclusion that it lacked jurisdiction to consider the applicant’s second application for review. I should just note also that specifically, the provisions of Division 5, Part 5 of the Act, dealing with the exhaustive statement of the natural justice hearing rule, of course, are engaged once the Tribunal has determined that it does have jurisdiction to consider an application. Plainly, in this case, the Tribunal did not get to that point.
The application before the Court today also makes reference to the apprehension of bias. Again, this appears to be focused on the first Tribunal decision with which I have dealt with above. But to the extent that this may be said to be a ground in relation to the second Tribunal decision, then with reference to the High Court authorities Minister for Immigration & Multicultural & Indigenous Affairs v Jia [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, I cannot see that any apprehension of bias, or indeed bias, is evident or arises from the material before me.
Aside from the two issues which I have dealt with above, I note in particular the references to cross-examining of certain persons and the references to domestic violence. I agree with the Minister’s submission that these are matters which relate to the delegate’s decision and the first Tribunal decision. I have already dealt with these decisions above. Beyond the possibilities I have already identified, I agree with the Minister that the application before the Court now raises no grounds of review (beyond the two issues I have dealt with above) which are referable only to the Tribunal’s decision.
I should also just add that whilst I appreciated the applicant was unrepresented before this Court, the material before the Court does reveal that she has had the benefit of legal advice in the past. On her own statement to the Court she claims to also have had the benefit of legal advice in preparing the application now.
To the extent that the application before the Court now seeks to re-agitate matters relating to the delegate’s decision, the first Tribunal decision and in particular the Federal Court’s judgment, that part of the application is, as the Minister submits, clearly an abuse of the processes of this Court.
Even beyond the stated grounds in the application, I cannot discern any error of law in what the Tribunal has done. The application is dismissed.
Costs
It is appropriate in these circumstances that an order for costs be made. There is nothing before the Court now, which would argue against such an order being made. Indeed, the applicant’s statements to the Court about paying by instalments would appear to indicate some acceptance on her part that an order for costs should be made. I note in particular the reference to cost payments in relation to the earlier Court proceedings.
Secondly, I am of the view with reference to the work that has been done in this matter, including the filing of Court Books, preparation of affidavits, preparation of a Response, attendance by a solicitor at the first Court date and Ms. Nanson’s appearance today, that an amount of $2,300.00 is a reasonable amount in all the circumstances. The applicant has asked whether this can be paid in instalments as has been done previously. I cannot see any reason to go beyond making an order for costs. I leave the actual method, timing and mode of payment to the parties to negotiate between themselves.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 19 September 2007
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