Nedelkoski v Minister for Immigration
[2006] FMCA 116
•1 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NEDELKOSKI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 116 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of employer nomination residence visas – visa criteria required application to be lodged by certain date – applicant asserted that he attempted to lodge an application before the due date but that the Minister’s Department refused to accept it – assertion treated by the delegate and the MRT as if it was true – MRT failed to understand that the legal consequence of that approach was that the application must be treated as having been made within time – jurisdictional error established. |
| Migration Act 1958 (Cth), s.359A Migration Regulations |
| Dranichnikov v Minister for Immigration [2003] HCA 26 Htun v the Minister for Immigration [2001] FCA 1802 |
| First Applicant: Second Applicant: Third Applicant: Fourth Applicant: Fifth Applicant: Sixth Applicant: | LJUBEN NEDELKOSKI ELICA NEDELKOSKA SARA NEDELKOSKA KIRE NEDELKOSKI LJUBEN NEDELKOSKI SANJA NEDELKOSKA |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG2607 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 1 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N McNally Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal made on 12 November 2003.
A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the application before it according to law.
There shall be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2607 of 2003
| LJUBEN NEDELKOSKI |
First Applicant
ELICA NEDELKOSKA
Second Applicant
SARA NEDELKOSKA
Third Applicant
KIRE NEDELKOSKI
Fourth Applicant
LJUBEN NEDELKOSKI
Fifth Applicant
SANJA NEDELKOSKA
Sixth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 12 November 2003 and communicated to the applicant by letter dated the same date. The MRT affirmed a decision of a delegate of the Minister that the applicants were not entitled to the grant of employer nomination residence class BV visas. There were four applicants before the MRT who are, I understand, a husband and wife and two children. There are six applicants in the amended application before me filed on 16 January 2006. I assume that the additional applicants are additional children. The relevant visa claims were made by the first applicant, who is referred to as “the applicant”. The fate of the other applications depended upon his.
The relevant background is set out in the Minister's written submissions from paragraphs 2-15. I adopt those paragraphs as background for the purposes of this judgment:
The applicant entered on a tourist visa on 7 March 1998, which expired on 7 February 1999. On 28 January 1999, the applicant was granted a further tourist visa, which expired on 15 August 1999.[1]
[1] court book, page 161 [9]
On 25 October 2000, the applicant was granted a Business Long Stay subclass 457 visa, which expired on 25 October 2001.[2]
[2] court book, page 161 [10]
On 17 September 2001, a delegate cancelled the applicant's subclass 457 visa. However, the applicant sought review of that decision in the MRT and ultimately succeeded on 12 November 2001.[3]
[3] court book, page 161 [13]
On 3 December 2001, the applicant purported to lodge an application for a subclass 856 visa.[4] It had a covering letter dated 30 November 2001.[5]
[4] court book, pages 46.3, 51.1
[5] court book, page 1
By letter dated 13 December 2001, a delegate wrote to the applicant and gave him an opportunity to address her concerns that his application was made out of time such that, while it was valid, he did not meet the requirements of reg 856.211 of the Migration Regulations 1994 and, in particular, Schedule 3 criterion 3001.[6]
[6] court book, pages 46-47
By minute dated 15 December 2001, an officer of the Department informed the processing area of the Department that the applicant’s cheque had been dishonoured.[7] A message was left for the applicant’s agent on 21 December 2001.[8]
On 7 January 2002, the delegate received a call from Mr Muthu who said that he was calling for the applicant’s agent. He was told that the applicant’s application would not be processed until the fee was paid.[9]
By letter dated the same day, the applicant sent the Department a cheque and two money orders to pay the amount due.[10]
By separate letter also of the same date, the applicant’s agent addressed the delegate’s concern about the timing of the lodgement of the application. In that letter, the applicant’s agent made a hearsay claim about what the applicant had done in the following form:[11]
On receiving the letter from MRT dated 12 November 2001 which was within the time limit the applicant approached DIMA of Rocks to lodge the application but the case officer advised Mr Nedelkoski that they have not received any information from the MRT and therefore the application cannot be accepted.
By letter dated 23 January 2002, the delegate notified the applicant that his application for a visa was refused.[12] The delegate noted that the applicant had not indicated when he had approached the Department after his MRT decision. However, even assuming that the claim were true, the delegate noted that the MRT’s decision was recorded on Departmental record on 20 November 2001 (still within time) and the applicant had not taken any other action within time to lodge his application.[13]
On 30 January 2001, the applicant’s adviser contacted the delegate claiming, this time, that the applicant had twice approached DIMIA to lodge his application, including after 20 November 2001. The delegate did not accept this claim as truthful for reasons stated.[14]
On the same day, the applicant lodged an application for review of the visa refusal decision with the MRT.[15] In this application, a slightly different version of the claim to have gone to the Department was made.[16]
By letter dated 11 September 2003, the applicant’s new agent reported a further version of the claim about attempts to “contact” the Department.[17] The letter also claimed that the delegate was wrong in saying that the Departmental record disclosed that the original MRT decision was recorded as at 20 November 2001.[18]
On 12 November 2003, the MRT affirmed the decision under review.[19] This decision was premised upon the MRT’s finding that the applicant had not lodged a visa application until 3 December 2001.
[7] court book, page 48
[8] court book, page 48
[9] court book, page 65
[10] court book, page 49
[11] court book, page 50.9
[12] court book, pages 56-64
[13] court book, page B 63.7
[14] court book, page 67
[15] court book, pages 69-72
[16] court book, page 71
[17] court book, page 84
[18] court book, page 84.9
[19] court book, pages 159-164
I also have regard to the statement of background facts contained in paragraphs 1 to 7 of the applicants’ written submissions which is consistent with the above statement.
The applicants rely upon their amended application filed on 16 January 2006. That contains the following grounds. First, the applicants made a valid application for a sub-class 856 visa prior to the 22 November 2001 deadline and that visa application is yet to be determined by a delegate of the Minister. That visa application should proceed to be considered on its merits. Secondly, in the alternative, the MRT failed or constructively failed to exercise its jurisdiction under the Migration Act 1958 (Cth) (“the Migration Act”).
The particulars of the first ground are that the applicants made a valid application for a sub-class 856 visa on a date on or between 12 and 22 November 2001 and that visa application is yet to be determined by a delegate of the Minister. That visa application should proceed to be considered on its merits. As to ground 2, the particulars are, first, that the MRT failed to consider and determine a material claim made by the applicants, being that the sub-class 856 visa application had in fact been validly lodged in time on or before the 22 November 2001 deadline and, secondly, that the MRT failed to issue a notice under s.359A of the Migration Act as required in relation to the information that was the reason or part of the reason for affirming the delegate’s decision under review, being information that the computer record on the Department's file indicated that the MRT decision to set aside the cancellation had an effect date of 20 November 2001 or that the computer record was updated on that date to record the said MRT decision.
It is apparent that I am invited first to resolve a factual dispute between the parties as to when the applicant applied for his visa or in the alternative to find that the exercise of power by the MRT miscarried both because the MRT failed to consider constructively the claim made by the applicant and secondly because the MRT failed to meet its disclosure obligation under s.359A.
On the state of the evidence it is difficult to make any reliable finding of fact as to when a valid visa application was made. The assertions on behalf of the applicant changed somewhat between the time they were initially made to the Minister's delegate and the time when the assertions were made to the MRT. In substance, the applicant’s assertion is that he attempted to present his visa application but the Minister's department declined to accept it on the erroneous basis that no record of the decision of the MRT revoking the cancellation of the earlier visa held had been received.
Mr Lloyd, for the Minister, submits forcefully that an adverse inference should be drawn that evidence from either the applicant or his migration agent would not assist him, as despite an opportunity to lead such evidence, none has been presented. On the other hand, the Minister concedes that the finding by the MRT that the relevant visa application was that made on 3 December 2001[20], is plainly wrong because the cheque tendered in support of that application was dishonoured. I accept that submission.
[20] see paragraph 22 of the MRT decision – court book, page 163
In my view, it is unnecessary for the Court to make any factual finding as to when the applicant first validly applied for the visa he was seeking. As will become apparent from my reasons for that view, I cannot accept the applicant's assertion that there was a constructive failure on the part of the MRT to consider his claim in the terms that that assertion was put. In my view, it is tolerably clear in the face of the MRT decision that the claim was indeed considered and that the applicant was given the benefit of the doubt. That interpretation of the MRT decision flows from what is set out in paragraph 14 of the MRT decision[21] when read with the balance of the decision. The MRT was entitled to consider that applicant's claims as if they were true without making any positive factual finding and that is what the MRT did. The claims were, therefore, considered. However, they were not considered properly in the sense that the consequence of the hypothetical acceptance of the claims was not understood.
[21] court book, page 161
The MRT presiding member appears to have been led astray in adopting the reasoning of the Minister's delegate reproduced in paragraph 14 of the decision. The MRT may also have been led astray by the submissions made on behalf of the applicant by his migration agent. Those submissions concentrated on the assertions that the applicant lost an opportunity to re-present his application by reason of the conduct of the Minister's Department. The proper analysis was that, if the applicant’s claims were to be accepted as true, the logical conclusion, on whichever formulation of the claims one wanted to take, was that he had made a valid application before 22 November 2001. Once that claim was treated as if it was true, it logically follows that it was unnecessary for the applicant to re-present his application. He had already made one. Having made a valid application, the Minister was bound to consider it.
The whole analysis in the MRT decision is based on a false premise that there was an obligation on the applicant to re‑present his application, even assuming that his claims were true. In order to correctly deal with the matter it was necessary for the MRT to look beyond the claims that were presented on behalf of the applicant by his migration agent. The issue was sufficiently clear in this case that an obligation arose for the MRT to consider more thoroughly than the agent did the legal consequence of acceptance of those claims, see Htun v the Minister for Immigration [2001] FCA 1802 at paragraph 13. See also Dranichnikov v Minister for Immigration [2003] HCA 26 at [88].
In my view, the exercise of power by the MRT miscarried because the presiding member misunderstood the legal consequence of treating the applicant's claims as if they were true. Having accepted those claims as if they were true, the presiding member was bound to consider the visa application as if it had been made within time. That the presiding member failed to do and the failure establishes a jurisdictional error. The applicants are entitled to relief in the form of constitutional writs of certiorari quashing the MRT decision made on 12 November 2003 and mandamus requiring the MRT to reconsider the matter according to law. I will so order.
It is unnecessary to consider the asserted breach of s.359A.
On the question of costs, the applicants seek an order for costs in the sum of $5,000 on the basis that costs should follow the event. The Minister resists any order for costs against her and submits through Mr Lloyd that the Minister should receive an order for costs thrown away by reason at least of the amendment of the judicial review application which, as matters have turned out, in its terms failed. The critical point, in my view, is that the applicants have succeeded on a point which eluded the MRT and the migration agent and eluded the legal representatives of the applicants and the Minister until today. The judicial review application, while advancing a ground that is, on a generous view, wide enough to encompass the basis upon which the applicants ultimately succeeded, did not advance particulars on which they succeeded. It is true that the judicial review application was very substantially amended during the course of the proceedings and that the application in its original form was of little if any assistance to the applicants. That is certainly not the fault of the applicant’s current legal advisers. The Court was assisted by counsel's submissions if not by the detail of the judicial review application. Overall, in these circumstances, the appropriate outcome in my view would be to require the parties to bear their own costs. The order that I will make will be that there be no order as to costs.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 3 February 2006
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