MBR v Minister for Immigration
[2005] FMCA 1929
•12 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MBR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1929 |
| MIGRATION – Visa – class 816 special permanent entry permit – Migration Review Tribunal – application for review of decision of immigration Review Tribunal – whether decision is a privative clause decision. PRACTICE & PROCEDURE – delay – where applicant notified of decision on 13 May 1997 but did not file application for review until 7 November 2005 – competency – objection to competency. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.477(1A) |
| R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565 Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 |
| Applicant: | MBR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2223 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 December 2005 |
| Date of Last Submission: | 12 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Ms Mason |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The Applicant is to be referred to as MBR.
The application is not competent.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00 and I will allow (9) nine months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2223 of 2005
| MBR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Immigration Review Tribunal that was made on 13th May 1997.
The applicant arrived in Australia in 1989. He had worked as a storeman in Bangladesh; he worked in Australia in that role. He had also worked in Saudi Arabia. He obtained qualifications in Australia. He had suffered some period of time when he was on workers compensation and at the time he came before the Tribunal in May 1997 he had not seen his family for seven years. He told the presiding member of the Tribunal at the hearing that he wished to remain in Australia. He had applied for a class 816 special permanent entry permit to enable him to remain in Australia.
The applicant had in fact applied for refugee status in this country. Indeed, that application had been made on 12th January 1990.
The applicant told the Court that there were some ongoing or quite lengthy proceedings from the Refugee Review Tribunal through various Courts including taking part in a class action. He did not complete the application for judicial review of a decision of the Refugee Review Tribunal until August this year. At that stage he had a solicitor acting for him. He is not legally represented now and what he did do after his other proceedings came to an end was commence proceedings under s.39B of the Judiciary Act for review of his MRT decision and he commenced those proceedings on 17th August 2005.
The applicant filed an amended application on 7 November this year and in that amended application he refers to jurisdictional error by the Tribunal. He said that the Tribunal rejected his claim because the Federal Court found that a storeman was not a trade for the purpose of para.816.721 (2) (b) (ii) of the regulations. He referred to the position of storeman requiring six weeks on the job training. He says that he has worked as an employee in Australia and not as a self-employed businessman. He claims that the Tribunal failed to make due inquiry into the obligation to act according to substantial justice and of his experience in training both in Bangladesh and Australia.
He claimed that the Tribunal failed to accord him procedural fairness in that it did not give him the opportunity to respond to any adverse material prior to making a decision against him and claims a breach of s.424A of the Migration Act. It is my understanding that s.424A was not in force at that time. He also says the Tribunal constructively failed to exercise its jurisdiction in arriving at this decision. It has described to the Court today factual errors relating to the evidence that he says he gave to the Tribunal about the amount of training that he had had, three months rather than three weeks and about the Tribunal's finding that the degree that he had obtained from the University of Chittagong should be regarded as being equivalent in educational standard to completion of the higher school certificate in Australia. To my mind, these are factual matters that are purely within the decision of the administrative decision-maker.
I do not propose, nor do I consider it necessary, to go any further into those matters. I am satisfied there is no jurisdictional error in the Tribunal's decision. But the significant feature of this matter is the substantial period of delay between the decision having been notified to the applicant and the commencement of these proceedings.
The respondent Minister has filed a notice of objection to competency objecting to the jurisdiction of the Court to try the application on the grounds that under sub-s.477 (1A) of the Migration Act an application for review must be lodged with the Registry of the Court within 28 days of the notification of the decision. In this case the applicant was notified by letter dated 23 May 1997 and the application for judicial review was not filed until 17 August 2005.
That is a delay of over eight years. It is certainly not within 28 days.
It is well accepted that relief under Constitutional writs is discretionary and delay, especially unexplained delay, is a ground for the Court declining to exercise its discretion. The Court has a discretion to dismiss an application for a Constitutional writ in cases where there has been unwarrantable delay. This discretion can be exercised against an applicant without determining whether there has been any jurisdictional error (see R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565; see also S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283). In S58 the facts, so far as they were relevant, was that the refusal of a protection visa was affirmed by the Refugee Review Tribunal on 31 March 1998 and the appellant in that case did not institute proceedings for judicial review of that refusal until
13 February 2003.
The primary Judge refused relief on the ground of the long and poorly explained delay. In that case it was said that in all the circumstances it would be quite wrong, even if the applicant has a good case on its merits for Constitutional relief, notwithstanding the possible importance of the case to him, to sanction such a long and poorly explained delay. The delay in that case was four years and 11 months.
In Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67 handed down on 14 December 2000, also reported in (2000) 177 ALR 491, the applicant's applications for an order nisi and for the issue of certiorari and mandamus were out of time. The application for the order nisi was 11 months out of time and for the issue of mandamus was 15 months out of time. McHugh J in that case at [16] said:
Independently of the merits of the case I find it difficult to see how a person who with knowledge of the decision delays 17 months before seeking relief would ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about delay.
His Honour went on to say at [17]:
An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari.
In this case the delay is quite significant. The explanation for it is that the applicant had from 1991 till August 2005 been seeking review of the decision of the Refugee Review Tribunal in respect of his application for refugee status. The applicant said that he had been told that one could not run two actions at one time, but, with respect, I do not see how that could be so. It is certainly not appropriate, as Ms Mason for the respondent Minister submitted, for an applicant to conclude one set of proceedings and then commence a second
re-application in respect of a matter that is a number of years old.
The delay in this case is quite significant. The explanation is not, to my mind, an explanation which would justify the Court in exercising its discretion to grant relief. It was quite open to the applicant to seek judicial review of the Immigration Review Tribunal's decision in 1997. The fact that he has elected to commence it now after his refugee proceedings have finally come to an end does not, to my mind, entitle him to relief by way of the issue of the Constitutional writ.
One comment I would make is that whilst the applicant has commenced these proceedings in his own name, the Migration Review Tribunal was aware of the fact that he had made a refugee application. They referred to him throughout the decision by the initials MBR and did not use his full name. To my mind, it is appropriate that this Court should do the same. Therefore, for the purpose of the orders and for the purpose of the recording of this decision the applicant will be referred to as MBR and by no other description.
The application is not competent. The application is dismissed. I will require a transcript of my reasons.
There is an application for costs in the sum of $5,500.00 assessed on a party-party basis including counsel's fees. The applicant says that he has not held a work permit for about three years and does not have an income. That is not of itself a ground not to make a costs order, but it is, to my mind, a ground to consider as far as time to pay is concerned. The likelihood of the applicant having funds of that nature within the relatively near future seems to me to be very remote. The applicant is to pay the first respondent's costs fixed in the sum of $5,500.00. I will allow, however, nine months to pay. The application is removed from the list of cases awaiting finalisation.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 22 December 2005
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