Narnola v Minister for Immigration and Multicultural Affairs

[1999] FCA 455

FEDERAL COURT OF AUSTRALIA

Narnola v Minister for Immigration & Multicultural Affairs
[1999] FCA 455

MIGRATION – s 353 – whether Immigration Review Tribunal acted in a fair and just manner and according to the substantial justice and merits of the case – whether delivery of decision should have been delayed to allow the applicant more time to provide evidence

Migration Act (1958) ss 353, 476(1)(a), 476(1)(e)

Eshetu v Minister for Immigration(1997) 71 FCR 300 cited

ALFREDO NARNOLA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 968 of 1998

Mathews J

31 March 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 968 OF 1998

BETWEEN:	ALFREDO NARNOLA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MATHEWS J
DATE OF ORDER:	31 MARCH 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 968 OF 1998

BETWEEN:	ALFREDO NARNOLA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MATHEWS J
DATE:	31 MARCH 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application to review a decision of the Immigration Review Tribunal (the tribunal) in which the tribunal refused to grant a permanent visa to the applicant. The application, which is based on paras 476(1)(a) and (e) of the Migration Act 1958 (the Act) asserts that the tribunal failed to observe procedures which were required by the Act or Regulations to be observed in relation to the decision, (para (a)) and that the decision involved an error of law (para (e)).

2. The relevant facts are in short compass. The applicant was born in the Philippines on 9 October 1956. He first entered Australia on 13 November 1987. On 22 July 1994 he applied for permanent residence in Australia. This was rejected on 13 December 1994 on the basis that the applicant failed to meet one of the essential criteria for residency, namely the criterion contained in clause 816.721 of Schedule 2 of the Regulations.

3. It is common ground that the only method by which the applicant could meet this criterion was by bringing himself within the terms of subcl 816.721(2)(b)(ii). As relevant here, this required that the applicant, as at 1 November 1993, "held an overseas trade qualification or had work experience that is assessed as meeting Australian education or training standards for that trade". The section proceeds to set out the bodies with power to make such assessments.

4. In his application of 22 July 1994, the applicant said that he had employment experience in the trade of waiting. He referred to attached references. These references, from two Australian hotels, confirmed that he had been employed as a “houseperson” between 1990 and 1992 and as a “room attendant” since then. More importantly, para 5 of the application contained the following information:

   The applicant has employment experience in waiting, and as a hotel room attendant. We note that he has completed various in-house training programs at the hotel at which he was employed. We note the NSW Commissioner for Vocational Training will issue a craft certificate for the applicant's trade which appears at the ASCO Code at para. 6505. …

   A little later it said:

   … We note that he has Australian employment experience and submit that he should be given the opportunity to have his qualifications assessed by the Commissioner for Vocational Training of the NSW Department of Industrial Relations whom we assume to be the relevant authority. If his qualifications are assessed as meeting Australian standards, the applicant will meet the provisions of Regulation 816.721(2)(b)(ii) …

5. No craft certificate was produced and the application was accordingly rejected for failure to meet the relevant criterion. On 29 December 1994, the applicant sought internal review of the delegate's decision from the Migration Internal Review Office (MIRO). No further material was given to substantiate the applicant's claim. On 27 October 1995, a review officer telephoned the relevant assessment body. He was told that there was no record of the applicant having applied for a certificate.

6. On the same day, 27 October, the review officer affirmed the delegate's decision. This review decision was later vacated at the request of the applicant's solicitor. The reason for vacating it was that on 22 September 1995, about five weeks before the decision, the applicant's solicitor had sought further time in order to provide certain additional information. The MIRO decision had been made in the face of this request and the officer therefore agreed to vacate it.

7. Some considerable time then passed. On 18 March 1997 the applicant's solicitor wrote to MIRO in the following terms:

   … Our client has instructed us to apply on his behalf for a craft certificate in the trade of waiting and we are in the process of preparing this application. Our client had experience as a waiter in the Philippines and we are instructed he also has had experience in the trade in Australia. We request that your office delay finalisation of the application until the outcome of this trade certificate application.

8. No certificate was forthcoming. On 15 October 1997, the review officer requested that any further documentation be supplied within 35 days and warned that a decision would be made if the information was not received within that time. No further material was produced and on 30 January 1998, the delegate's decision was affirmed.

9. On 9 February 1998, the applicant applied to the tribunal for review of this decision. No further material was provided with the application. On 2 March 1998, the tribunal wrote to the applicant, asking him to forward any additional documents or arguments within 21 days. He did not do so.

10. On 9 April 1998, the tribunal again wrote to the applicant, asking for any written evidence or written argument within 14 days. On 22 April 1998, the applicant notified the tribunal that he would like to appear in person. A hearing was then arranged for 2 July 1998. It is apparent from the tribunal's later decision that on 2 July the applicant attended at the tribunal but presented no further material in support of his claim to meet the relevant criterion. He was told that his application must fail for lack of independent evidence. He was advised that a final decision would be made at the end of one month on the then available evidence and that he could produce further evidence during that period.

11. On 28 July 1998, the tribunal received a statutory declaration, sworn by the applicant on 16 July, setting out details of the waiting positions he was said to have held in the Philippines and the experience he was said to have gained from them. No independent evidence was produced in support of any of this material. On the same day, 28 July, the applicant's solicitor advised the tribunal that North Ryde TAFE had been requested to assess the applicant in order to determine whether he satisfied the Australian standards for the occupation of waiter. On 6 August 1998, the applicant's solicitor wrote to the tribunal in the following terms:

    North Ryde TAFE has confirmed that they can assess Mr Narnola in the trade of waiting for the purposes of his Class 816 visa application.
    We have requested Mr Narnola to confirm whether or not he wishes to have his skills assessed for the purposes of his Class 816 visa application. We will notify your office as soon as we receive any further information in relation to this matter.

12. On 10 August 1998, the tribunal affirmed the decision not to grant the applicant a visa. In its reasons it cited the history of the matter and quoted the applicant's solicitor's most recent letter. It made the following observation:

    The Visa Applicant has had since 22 July 1994, that is a period of just over 4 years, to produce evidence in support of his claim and to have this claim assessed. He has failed to do so. I am not prepared to place any weight on his claim that he worked as a waiter. I find that he is using (or abusing) the review system in order to prolong his stay in Australia.

13. The application to this court is, as already indicated, based on ss 476(1)(a) and (e) of the Act. Counsel for the applicant submits that the tribunal failed to observe the requirements of s 353 of the Act. That section, which is central to the tribunal's operation, provides as follows:

    353.     (1)       The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

    (2)The Tribunal, in reviewing a decision:

    (a)is not bound by technicalities, legal forms or rules of evidence;

    and

    (b)shall act according to substantial justice and the merits of the case.

14. The applicant submits that the tribunal, in failing to give the applicant an opportunity to present material which was central to his case, failed to provide a fair or just review as required by s 353(1). Nor did it act according to the substantial justice and merits of the case, as required by s 353(2)(b).

15. That a failure to meet the requirements of s 353 is reviewable under paras 1(a) and (e) of s 476 is conceded by the respondent. The link between these provisions was affirmed by Davies J in Eshetu v Minister for Immigration (1997) 71 FCR 300 at page 303. The respondent concedes that this decision, at least for the present, is binding on this court.

16. The real issue, therefore, is whether the tribunal, in giving its decision on 10 August in the face of the letter written by the applicant's solicitor on 6 August, was in breach of the relevant requirements of s 353. The applicant's case is that the information which might have become available, had the tribunal delayed giving its decision, went to the heart of the applicant's case. The tribunal was alerted to the possible availability of this material, yet it proceeded to deal with the matter and to find against the applicant on the basis that he had failed to provide the very material which might later have come to light.

17. If one were to consider only the proceedings before the tribunal and to disregard the previous history of the application there may well have been some merit in this submission. There was, as the applicant's counsel points out, no time limit within which the tribunal was required to reach its decision. Section 353(1) requires that the tribunal provide a “quick” review, but a few weeks delay would not have made any material difference. In giving its decision when it did the tribunal was depriving the applicant of the opportunity to provide the very material which, according to the tribunal's decision, was fatally lacking in his case.

18. One cannot, however, disregard the history of the matter. The tribunal's decision was given over four years after the original application had been made. One of the two matters which were required in order to support the application in the first place was a trade assessment in compliance with subcl 816.721(2)(b)(ii). This fact was acknowledged in the application form itself. The other requirement, which related to an English language proficiency test, was later met. Thus the trade assessment became the single item which the applicant was required to obtain in order to meet this essential criterion for his application. His failure to obtain it meant that his initial application was bound to fail. Similarly his review application to MIRO was bound to fail in the absence of this material. It was precisely because the applicant continually sought further time to obtain a trade assessment that the MIRO proceedings took as long as they did: a somewhat staggering three years and one month, from December 1994 to January 1998.

19. Most relevantly, during the course of the MIRO proceedings, in March 1997, the applicant's solicitors wrote to MIRO saying that they were in the process of preparing an application for a trade certificate in relation to the applicant. No certificate, as we know, was forthcoming. Given this history the tribunal had, in my opinion, every reason to be cynical as to what lay behind any further attempts to delay the finalisation of the proceedings before it.

20. It is also pertinent to consider the terms of the applicant's solicitor's letter dated 6 August 1998. It is this letter which is central to the applicant's case. Without it, the applicant would have had no basis for complaint about the tribunal's decision. The letter said (and I quote the relevant portions again):

    We have requested Mr Narnola to confirm whether or not he wishes to have his skills assessed for the purpose of his class 816 visa application.

21. It went on to indicate that the solicitors would notify the tribunal when further information was received.

22. This letter was much more equivocal in its terms than the letter which was written by the same solicitors 16½ months earlier, in March 1997, in which they informed MIRO that they were in the process of preparing an application for a certificate. This was clearly a relevant matter for the tribunal.

23. Counsel for the applicant submitted before me that the tribunal should have waited “just a little longer” to enable this material to be obtained. However, as the respondent's counsel points out, the tribunal had on the history of the matter every reason to conclude that this was yet another attempt to delay the matter and that “just a little longer” would extend into a lengthy period as it had so often done in the past. In my view, the tribunal was entirely justified in adopting the course it did. No failure to observe requisite procedures and no error of law has been demonstrated. Accordingly, I dismiss the application with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated:             31 March 1999

Counsel for the Applicant:	Ms S McNaughton
Solicitor for the Applicant:	Parish Patience
Counsel for the Respondent:	Mr D Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 March 1999
Date of Judgment:	31 March 1999