NATH v Minister for Immigration
[2004] FMCA 314
•10 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NATH v MINISTER FOR IMMIGRATION | [2004] FMCA 314 |
| MIGRATION – Review of decision of MRT – where applicant did not respond to a notice and s.359A – where Tribunal proceeded without a hearing – whether a breach of the rules of natural justice occurred – whether the audi alterem partem rule was breached – whether there was utility in providing applicant with further time to comply with orders of court. |
Federal Magistrate Courts Rules P 13, r 13.03(2)(b), 13.10(a), P 21, r 21.02(2)(a)
Migration Act 1958 (Cth), s.359A, C, 360(c)
| Applicant: | LEKESHWAR NATH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 2374 of 2003 |
| Delivered on: | 10 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 10 May 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr D Burwood |
| Solicitors for the Applicant: | Mark Clisby |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to the substantive proceedings and the respondent to the Notice of Motion pay the respondent to the substantive proceedings and applicant to the Notice of Motion's costs, which I assess in the sum of $750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 2374 of 2003
| LEKESHWAR NATH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
There is before me an application by the respondent Minister that the proceedings be dismissed pursuant to Rule 13.10(a) of the Federal Magistrate Courts Rules as disclosing no reasonable cause of action. The application is supported by an affidavit of the respondent's solicitor, Mr Markus, and the applicant to the proceedings, the respondent to the application, is represented by Mr Burwood.
The substantive application seeks review of a decision of the Migration Review Tribunal made on 29 September 2003, affirming a decision of a delegate that the review applicant was not entitled to the grant of a Partner (Temporary) (Class UK) Visa.
The short history of the claim for such a visa is that the review applicant entered Australia on 20 February 1999 and was granted two extension visas until 31 January 2000. On 28 January 2000 he married the nominator, who claimed that she had commenced a relationship with him on 15 April 1999, after meeting him on the 8th of that month.
The applicant had been previously married. The department carried out certain investigations, the result of which was that it alleged that the applicant travelled with his original wife from Fiji to Australia. They both sought to commence relationships in Australia and claim the spousal visas but they were in fact living together.
When the applicant's matter came before the delegate the nominator withdrew her nomination and signed a statutory declaration on 9 May 2001 which is found at [CB 116]. The delegate, needless to say, dismissed the application and the applicant sought review.
Before the matter came to the Tribunal for hearing, the Tribunal sent the applicant a letter under s 359A of the Migration Act 1958 (Cth). That letter is found at [CB 149]. The letter refers to the history of the matter, the fact that the applicant travelled with his former wife, that he was found living with her, that the nominator had withdrawn her nomination and that she had signed a statutory declaration. It requested the applicant to make comment thereon.
The applicant did not make a comment and this brought into play the provisions of s.359C of the Migration Act, which states relevantly:
“359C (1) If a person:
(a) is invited under section 359 to give additional information; and
(b)does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the additional information.
(2) If the applicant:
(a)is invited under section 359A to comment on information; and
(b)does not give the comments before the time for giving them has passed;
the Tribunal may make a decision under review without taking any further action to obtain the applicant's views on the information.”
The Tribunal proceeded under the provisions of s 360(1)(c) to make a decision without inviting the applicant to appear before it. The provisions of s.360(1)(c) exclude the requirement to invite the applicant to a hearing if subsections 359C(1) or (2) apply to the applicant.
The substantive application in this case was filed on 5 November 2003. It claimed the usual form of prerogative relief on the grounds that a breach of natural justice had occurred with the making of the decision and that the applicant was denied procedural fairness, particulars of which were that the nominator had been threatened at interview by the delegate and coerced into signing the statutory declaration.
Another particular provided was that the audi alterem partem rule required a decision maker to hear a person before making a decision affecting the interests of that person. It was a breach of that hearing rule to deny a person the opportunity to be heard before a decision was made.
The application came before a Registrar of this court on 24 March 2004. The Registrar made orders including an order that the applicant file and serve any additional evidence and a fully particularised amended application by 14 April 2004. That was not done. The respondent to the substantive proceedings now wishes the court to make the orders set out in the application, namely, an order for dismissal of the proceedings.
Mr Burwood argues that the applicant should be granted a further extension of time of three weeks in order to file his affidavit. The affidavit is one that will go to the allegation that the nominator was coerced into signing the statutory declaration and withdrawing her nomination.
The difficulty that I see with this request is that this is the very evidence that the applicant should have put before the Tribunal, which is there to review on the merits the decision of the delegate. Even if this court had an affidavit, it seems there would be very little that the court could do with it. The court is not allowed to make a decision on the merits. The court is only entitled to review the Tribunal's decision to see whether or not it was made in jurisdictional error. The only possible jurisdictional error argued for by the applicant is the failure to comply with the audi alterem partem rule. However, as I have said above, that rule is negated by the provisions of s 360 of the Migration Act where the applicant declines to respond to a letter written under ss.359 or 359A.
In these circumstances, it seems to me that there is little utility in allowing this claim to go forward or to give the applicant the indulgence that Mr Burwood so articulately requests.
The hearing date for this matter has been set for December 2005. In my view it would be wrong to permit a case with such little prospect of success as this one to await the lists for that period of time when the applicant is in breach of the orders of the court. Therefore, I dismiss the application pursuant to Part 13 Rule 13.10(a) of the Federal Magistrate's Court Rules on the grounds that no reasonable cause of action is disclosed in relation to the claim for relief. I would also dismiss the application pursuant to Part 13 Rule 13.03(2)(b) of the Federal Magistrates Court Rules.
I order that the applicant to the substantive proceedings, and the respondent to the notice of motion pay the respondent to the substantive proceedings and applicants to the notice of motion's costs, which I assess in the sum of $750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM
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