Narayan v Minister for Immigration
[2005] FMCA 1622
•3 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NARAYAN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1622 |
| MIGRATION – Visa – Migration Review Tribunal – application for review of decision of MRT – review of visa refusal – Subclass 456 – Temporary Business Entry (Class UC) visa – Subclass 457 – whether decisions concerning the second and third applicant are MRT-reviewable decisions – where second and third applicants were outside the migration zone at the time the application was lodged – bias – apprehended bias. PRACTICE & PROCEDURE – Competency – application out of time – application not filed until more than 2 years and 3 months after MRT decision – delay – where third applicant is a child – litigation guardian – parties – joinder of parties – removal of party – where applicants included a child as applicant without leave of the Court – where applicant had no standing. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.338, 359, 359C, 477(1A) Federal Magistrates Court Rules 2001 R. 11.02 |
| Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] KB 223 (CA) El Merhabi v Minister for Immigration & Multicultural Affairs [2000] FCA 42 Minister for Immigration and Multicultural and Indigenous Affairs v Eshutu (1999) 197 CLR 611 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 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 Naguit & Anor v Minister for Immigration [2005] FMCA 930 |
| First Applicant: | AJAY NARAYAN |
| Second Applicant: | SHUSHILA NARAYAN |
| Third Applicant: | RAAJAL NARAYAN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1235 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 November 2005 |
| Date of Last Submission: | 1 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Lloyd |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Leave to join the Migration Review Tribunal as Second Respondent.
The Fourth Applicant is removed as a party.
The requirement for a litigation guardian for the Third Applicant is dispensed with.
The application is dismissed.
The application is not competent.
The First Applicant is to pay the First Respondent’s costs of this application fixed in the sum of $8,000.00 and I allow (6) six months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1235 of 2005
| AJAY NARAYAN |
First Applicant
And
| SHUSHILA NARAYAN |
Second Applicant
And
| RAAJAL NARAYAN |
Third Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Migration Review Tribunal that was handed down on 20th January 2003. The decision of the Tribunal was to affirm the decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs that the first applicant was not entitled to the grant of a Temporary Business Entry (Class UC) visa.
The Tribunal found that the decisions of the delegate concerning the Second and Third applicants were not reviewable by the Tribunal under the provisions of sub-s.338(2) (b) of the Migration Act 1958 (Cth). Sub-s.338(2) (b) provides that a decision is an MRT-reviewable decision if the person made the application for a visa whilst inside the migration zone. The Tribunal found that the visa application was lodged on 16th March 1999, by which time the Second and Third applicants had left Australia.
Background
The applicants are citizens of Fiji. They are husband, wife and son.
The son was born on 21st February 1988. He is aged 17 years and 8 months at the date of this hearing.
The applicants applied for Temporary Business Entry (Class UC) visas on 16th March 1999. A delegate of the Minister refused to grant the visas on 20th February 2001.
The applicants sought a review of that decision from the Migration Review Tribunal. On 2nd May 2002 the first applicant and his employer attended a hearing of the Tribunal. At the hearing, the employer, who was the applicants’ sponsor, produced evidence of an application to the Department of Immigration and Multicultural and Indigenous Affairs on 24th April 2002 for nomination of a business activity.
The Tribunal adjourned the hearing until advice was received as to whether the nomination had been successful or had been refused by the Department. The Department advised the Tribunal on 23rd July 2002 that the application for a nomination had been refused on 12th July.
On 12th August 2002 the Tribunal wrote to the first Applicant inviting him to provide additional information about his case. The letter drew the first applicant’s attention to the provisions of s.359(2) of the Migration Act. The letter warned the applicant that if the Tribunal did not receive the information within the time allowed, it had the authority under s.359C of the Act to make a decision on the review without taking any further action to obtain the information.
The first applicant did not provide any further information in answer to that letter.
The Tribunal’s decision
The Tribunal handed down its decision on 20th January 2003.
The Tribunal found that the applicant did not meet the criteria for a Subclass 456 (Business (Short Stay)) visa.
The Tribunal then considered whether the first applicant was eligible for a Subclass 457 (Business (Long Stay)) visa. The Tribunal found that the applicant may have been qualified as an automotive mechanic but the nominated activity for him was as a mechanic to look after all vehicles registered, including maintenance and service to 3 sawmills located in Weipa, and to look after generators.
The Tribunal found that there was no compelling evidence that the applicant had qualifications or experience in maintenance of sawmills and generators. The Tribunal was not satisfied that the applicant had the skills necessary to perform the proposed activity. The Tribunal was also not satisfied that the position to be filled by the applicant had not been created solely for the purpose of securing the entry of the applicant to Australia.
The Tribunal also noted that the nomination lodged by the sponsoring business was refused on 12th July 2002. Whilst the sponsor had applied to the Migration Review Tribunal for a review of that decision, the tribunal did not consider that the review of the First Applicant’s decision should be delayed any further, in the light of the Tribunal’s findings about the First Applicant.
The Tribunal found that the First applicant did not meet the criteria for either a Subclass 456 or a Subclass 457 visa.
The Application to the Court
On 13th May 2005 the applicants applied to the Court under s.39B of the Judiciary Act 1903 (Cth), seeking a review of the decision.
They state that they were notified of the decision of the MRT on
27th January 2003. The applicants seek orders in the nature of:
a)certiorari, quashing the decision;
b)mandamus to compel the Tribunal to rehear and redetermine the application according to law; and
c)Such further orders as the Court considers appropriate.
The Applicants filed an amended application on 22nd July 2005. In that amended application they added a Fourth Applicant, Shreeya Narayan, a child of the First and Second Respondents, who was born on
14th August 2003. The child can have no standing in the proceedings, as the application is for review of a decision of the Migration Review Tribunal that was made on 20th January 2003, nearly seven months before her birth. Quite clearly, the decision of the Tribunal does not apply to her.
In any event, the other Applicants added the child as a party on
22nd July 2005, which is after the first court date of the proceedings. They did not seek the leave of the Court. The joinder of the child is in any event misconceived and her name is to be removed as a party.
The Applicants rely on 7 grounds for relief:
1. The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) as well as the Migration Review Tribunal erred in law as failed (sic) to grant a visa since the application was originally approved on 26th August 1999.
2. The MRT erred in law by asserting that the applicant was not living in Queensland.
3. The MRT, as I have previously explained through my correspondence, ultimately failed to address the correct question as to the applicant’s ability to carry out his duties as a mechanic in Weipa, Nth Queensland.
4. The MRT had before it uncontested evidence of applicant’s skills and it is extremely unreasonable to make a decision stating that “the MRT is not satisfied that the applicant has demonstrated that he has the skills necessary to perform the proposed activities.”
5. The MRT erred in law by breaching the fairness policy by not even waiting for a decision of a review of the refusal decision concerning the nomination (Clause 38 of the decision).
6. The applicant has lived in Australia since 23rdJanuary 1999 and DIMIA took years to deal with his application and such has caused irreparable prejudice and trauma to both the sponsor and the applicant and his family.
7. The MRT failed to consider the information given by the employer to DIMIA and to the MRT which answers all the details required by the MRT member such as name of employer, job title, duties in each job, whether full-time or part-time and salary.
The Green Book surely does not contain information given to the Department such as applicant’s family details such as wife and son’s passport details, especially the letter made by Regional Director, Hamish Lindsay, dated 6th June 2003, clearly states that “Mr Ruddock has no power to intervene in the case of your wife and son, Raajal, as they were not part of the review decision” contrary to the evidence on file, Green Book pages 3, 60 and 66.
The amended application gives particulars of these grounds by alleging that the Department of Immigration and Multicultural and Indigenous Affairs and the MRT fell into jurisdictional error by not “acting properly” on the available documentation, including evidence of employment in Weipa, North Queensland.
The Applicants also seek to rely on the original application filed on
13th May 2005. That application contains similar grounds to the amended application. The original application provides particulars to the effect that the First Applicant and his employer provided evidence in support of the Applicants’ case that included:
a)trade certificate;
b)evidence of compliance with the requirements for temporary business entry;
c)video tape;
d)photographs;
e)tax returns; and
f)airline tickets.
Notice of Objection to Competency
The Respondents filed a Notice of Objection to Competency on
26th September 2005, in which they claim that the decision of the MRT is a privative clause decision within the meaning of s.474(2) of the Migration Act. As the Applicants were notified of the decision on
29th January 2003 but did not file an application for review of the decision at the Court until 13th May 2005, the Notice claims that the Applicants have failed to make their application within the 28 days provided by s.477 of the Migration Act. The Notice refers to s.477(1), but this appears to be a typographical error, as s.477(1A) relates to applications filed in the Federal Magistrates Court.
The Respondents’ Submission
The Respondent Minister filed an outline of submissions on
4th October 2005. In that submission, the Respondent Minister makes the following points:
a)There is an unexplained delay of 2 years and 3 months in filing the application at this Court.
b)The Court has a discretion to dismiss an application for a constitutional writ in cases where there has been an unwarrantable delay and that discretion can be exercised against an applicant without determining whether there has been any jurisdictional error.
c)The length of the unwarranted delay and the absence of any evidence excusing that delay justify the withholding of relief
d)The Tribunal did consider the evidence on file about the First Applicant’s ability to repair the sawmills and generators but did not consider that the evidence established that point. This was a question of fact for the Tribunal and not a jurisdictional error.
e)The finding by the Tribunal that the First Applicant was not living in Queensland is not a question of law but a question of fact. There was evidence for this finding.
f)The Tribunal’s delay in determining the matter whilst the nomination was valid was claimed to have prejudiced the First Applicant, but the nomination was not valid at any time during the Tribunal’s review.
g)
It was “just wrong” to say that the Tribunal erred in law in asking whether the First Applicant was able to perform his duties.
The Tribunal asked itself the correct question.
h)The Tribunal did not deny the First Applicant procedural fairness by not waiting for the decision on the nomination because:
i)there was no duty to wait; and
ii)the decision under review did not turn on that matter alone.
i)The claim that the Court Book does not contain important material such as the Second and Third Applicants’ passport details did not assist the Applicants as that material would not have been relevant to the Tribunal’s decision.
The Respondent Minister filed an affidavit by Kathleen Mary Crawley, a solicitor, annexing copies of material relating to the First Applicant contained in Department of Immigration and Multicultural and Indigenous Affairs files and the MRT file. Ms Crawley deposes that she was unable to locate a copy of a videotape, a tax return relating to the First Applicant or an airline ticket relating to the First Applicant on any of those files. She annexes copies of letters to the Parramatta Business Centre refer to a videotape that may be provided. Ms Crawley deposes that she was unable to find any correspondence indicating that a videotape had been provided.
The Applicants’ Submission
The First Applicant attended Court accompanied by his employer,
Mr Toufic Sarkis. The First Applicant was not legally represented.
Mr Sarkis sought to assist the Applicants as a “McKenzie friend”. Counsel for the Respondent did not object to this course.
Without objection, I granted leave to join the Migration Review Tribunal as Second Respondent, as required by SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24.
The Applicants tendered a written submission to the court at the commencement of the hearing, without objection. The submission makes the following points and refers to the following authorities:
a)The MRT decision is unreasonable in the Wednesbury sense;
b)“… (A) person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he must consider. If he does not obey these rules, he may truly be said and often is said to be acting ‘unreasonably’.” See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] KB 223 (CA).
c)“We each adhere to what we said in Abebe with respect to relief under s. 75 in the case of a decision that is unreasonable, in the sense that no reasonable person could reach that decision.”
See the decision of Gaudron and Kirby JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Eshutu (1999) 197 CLR 611.d)
The Tribunal’s decision was one that could not be characterised as a bona fide attempt to exercise the power conferred on it.
The Tribunal’s decision as well as the Department’s behaviour can be described as unreasonable.
e)The Tribunal failed to address the delegate’s decision.
f)The Tribunal ignored relevant material.
g)There is an apprehension of bias.
h)As to the Notice of Objection to Competency, the First Applicant’s employer wrote to the Minister for Immigration and Multicultural and Indigenous Affairs on 22nd February 2003 after negotiating with Departmental officers. A reply was forwarded on the Minister’s behalf on 6th June 2003. Mr Sarkis wrote again to the Minister on 16th June 2003, but received no other correspondence from the Minister’s Office.
i)
Because of the correspondence entered into, the time under
s.477(1A) should not run.
j)Annexed to the submission were copies of a number of documents, by way of evidence. The documents included a copy of a letter to the Minister dated 22nd February 2003. The other material related to the Applicants’ case.
Mr Sarkis made an oral submission to the Court, without objection from Counsel for the Respondents, covering these issues:
a)He believed the Tribunal was biased;
b)The Tribunal had made serious errors of fact.
c)He had submitted a videotape to the Migration Review Tribunal in the case of an employee but there was no evidence that the MRT member had seen it in the Applicants’ case.
d)A lot of correspondence has been misplaced, and the MRT should have found the missing material and investigated it.
The First Applicant made an oral statement to the Court. He said that the MRT had made a serious error because he is a qualified motor mechanic.
The Applicants’ McKenzie friend, Mr Sarkis, also referred the Court to the decision of El Merhabi v Minister for Immigration & Multicultural Affairs [2000] FCA 42.
Conclusions
The Application to the Court is out of time. The Court has no power to extend the time limit provided by s.477(1A) (see sub-s.477(2)).
The time limit in s.477(1A) will not apply if the decision under review is not a privative clause decision, which would be the case if there were a jurisdictional error.
The Application is misconceived, in that questions are described as errors of law. A Court conducting judicial review of an administrative decision does not conduct a merits review. Decisions of fact are the province of the decision maker. The questions of the First Applicant’s qualifications and whether or not he was living in Queensland are questions of fact, not law.
The Tribunal’s decision on the facts may well have been hard on the Applicants, but the evidence allowed the findings on fact to be made. There is no Wednesbury unreasonableness.
The Tribunal is under no duty to conduct its own investigations. Evidence submitted in respect of other applications concerning other people would not be considered unless the Applicant specifically relied on it in his or her own case.
The Tribunal decided not to wait for the MRT review of the decision by the Department because the other findings made by the Tribunal meant that the Tribunal found that clause 457.223(5) had not been satisfied. There was no point in waiting for the review, because it would not assist the Applicants.
There is no evidence of bias, whether apprehended or actual. Bias must be specifically alleged and strictly proved. An unfavourable decision is not of itself evidence of bias.
The material such as the passport details of the Second and Third Applicants was not relevant to the Tribunal’s decision on the review.
The decision in El Merhabi v MIMA (supra), which relates to whether a single persecutory act involving a rape of the applicant’s wife could be regarded as persecution of the applicant under the Refugees Convention, can be distinguished on its facts.
There is no evidence that the videotape was ever submitted to the Tribunal as part of the Applicants’ case, or that it was in any way relevant to the Applicants’ case. I accept the affidavit evidence of Kathleen Mary Crawley on this point. Ms Crawley was available for cross-examination but was not required for cross-examination so the material in her affidavit is admitted unchallenged.
Mindful that the Applicants are not legally represented, I have examined all the material carefully in order to ascertain whether there is an arguable case. I am unable to discern one.
There is no jurisdictional error. The decision is a privative clause decision and attracts the protection of s.474 of the Act. It follows that the application is not competent under s.477(1A) as it was filed more than 28 days outside the time prescribed.
In any event, the delay in bringing this application would itself justify withholding relief by way of a constitutional writ. The delay is not satisfactorily explained. Correspondence with the Minister between February and June 2003 does not go near to explaining a delay of more than two years in seeking relief. On this ground alone, even if I were satisfied that there were a ground for relief, the application should be dismissed (see S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283; Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67, also R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565; Naguit & Anor v Minister for Immigration [2005] FMCA 930).
The orders that I make are to dismiss the application with costs. I will also order that the application is not competent.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 3 November 2005
0
6
3