NEDELKOV v Minister for Immigration - [2005] FMCA 1287

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NEDELKOV v MINISTER FOR IMMIGRATION

[2005] FMCA 1287

MIGRATION – Family Residence Visa – decision of delegate reviewable by Migration Review Tribunal – no application to the Tribunal – whether Court has power to review primary decision – whether error in decision of delegate in any event – application dismissed.

Migration Act 1958, ss.56, 338(2) 476(1), 476(6)

Abebe v Commonwealth (1999) 197 CLR 510

Applicant:

CVETAN NEDELKOV

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG 1211 of 2004

Judgment of:

McInnis FM

Hearing date:

26 August 2005

Delivered at:

Melbourne

Delivered on:

26 August 2005

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr D. Star

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Amended Application be dismissed.
The Applicant shall pay the Respondent's costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1211 of 2004

CVETAN NEDELKOV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this matter the applicant relies upon an amended application seeking review of a decision of a delegate of the respondent made on 27 March 2002, refusing the grant of a permanent visa class AO family residence to the applicant.
The amended application for an order to review was filed on 10 June 2005. At that time the applicant was represented by solicitors. Since that time, by notice of ceasing to act filed 6 July 2005, the solicitors withdrew. The applicant has thereafter been unrepresented.
Orders had been made, setting out a timetable for the filing of additional material, including the amended application and the supplementary court book or contentions of fact and law. The timetable by consent was altered and orders made on 1 June 2005. There is no issue in this case concerning the notice given to the applicant of this hearing date, and indeed he appears today unrepresented, though with the assistance of an interpreter. Nevertheless he has not filed, despite the orders an outline of facts and contentions in support of his application.
At the commencement of the hearing I asked the applicant whether he was prepared to proceed with the application or whether an adjournment was sought. He candidly acknowledged that he has insufficient financial resources to engage a lawyer and that is why his previous lawyers ceased to act, and otherwise made reference to making contact with the Legal Aid office.
It is apparent to the court that given the significant delay between the date when this matter was fixed for hearing in December 2004 and the hearing date today, that the applicant has been unable to arrange, or does not have the ability to arrange, alternative representation. Given that the previous lawyers ceased to act on 6 July 2005, I had indicated that in the absence of any other material the matter should proceed.
As it happened, no formal application for adjournment was made, though I acknowledge and understand that the applicant has difficulty presenting any submissions in support of his application. Indeed, perhaps not surprisingly, when given the chance to make submissions on his own behalf in response to the respondent's contentions, both in the respondent's written contentions and submissions made today, the applicant sought to refer to factual matters which cause him concern but was not able to advance any further submissions in support of the grounds set out in his amended application.
The amended application in this matter sets out particulars alleging a denial of procedural fairness. It is significant to note in this case, as will be evident from the chronology, that since the decision of the delegate made on 27 March 2002 the applicant, although having an opportunity to seek merits review of that decision by the Migration Review Tribunal, has not sought to do so and instead filed an application in this court on 20 September 2004. Given that that application contained no particulars in support of a grounds review, then it is not surprising that an amended application was filed on 10 June 2005 seeks to refer to a suggestion that the applicant has been denied procedural fairness.
In the amended application the grounds of the application specifically claim as follows:-
“1. The officer of the respondent's Department who made the decision fell into jurisdictional error in making the decision in denying procedural fairness to the applicant.
Particulars
(a). An officer of the respondent's Department wrote to the applicant himself personally in connection with his application for the visa and said that the claim by the applicant's sister ‘that she requires a special need relative should be supported by a professional medical opinion, preferably by way of report from the treating doctor, or at least, a background report from a social worker. The report should provide all of the following information:
·The nature of the disability or prolonged illness and when it was diagnosed;
·Current treatment (if any) of the disability or illness;
·Prognosis and future treatment (if any);
· Whether the medical opinion supports a view that the patient is in need of assistance (and if so, of what kind); and whether the medical opinion supports a view that the assistance needed (if any) is of a substantial and continuing nature (and, if so, why?).
…
… you must also provide evidence that you are both willing and able to provide substantial and continuing assistance. …
and the applicant submitted a medical report in response to this invitation, but the officer who made the decision concluded that:
‘the evidence before me is insufficient for me to be satisfied that the nominator suffers from 'death, disability, prolonged illness or other serious circumstances' within the meaning of the migration regulation 1.03" (CB42)’
and that
‘I am unable to be satisfied on the existing evidence that the nominator has a need for 'permanent or long‑term assistance' and that the applicant is capable of providing 'substantial and continuing existence (CB 42)’
without informing the applicant that although he had submitted a medical report as requested, more evidence than that medical report would be required.”
It is relevant to note the chronology set out accurately in the contentions of fact and law relied upon by the respondent. On 22 November 1997 the applicant arrived in Australia as the holder of a subclass 676 tourist short stay visa, valid for three months from the date of arrival. On 16 February 1998 he was granted a subclass 686 tourist long stay visa, valid to 15 May 1998. He was then granted a further subclass 686 tourist long stay visa on 15 May 1998, which was valid to 22 August 1998. A third subclass 686 tourist long stay visa was granted on 17 August 1998 and it was valid to 22 November 1998.
On 23 November 1998 the applicant applied for permanent residence on the basis of being a special need relative to his sister Rosa Petrovski who is an Australian citizen. On 31 October 2000 the department wrote to the applicant's then migration agent, giving the applicant an opportunity to supply evidence in support of the application. No further material was provided. By further letter dated 9 February 2001 the department wrote directly to the applicant, again giving him an opportunity to supply evidence in support of the application.
In the Court Book there is a medical certificate dated 13 February 2001. That handwritten medical certificate from Dr Romas is set out in the decision record of the delegate. It refers to the problems of the applicant's sister and it is not necessary for the court to set out in detail the contents of that document. The date of that report is significant, in the circumstances. It is a certificate which is clearly dated 13 February 2001 and postdates the date of application and predates the date of decision.
In any event the delegate, as indicated earlier in this judgment, refused to grant a protection visa by a decision dated 27 March 2002. Further, as indicated, the application was subsequently made to this court on 20 September 2004.
In this case the respondent has relied upon a notice of objection to competency filed 14 October 2004. That notice objects to the jurisdiction of this court to try the application for order to review on the following grounds:
“1.The decision of the Respondent dated 27 March 2002 is a primary decision pursuant to sub section 476(6) of the Migration Act 1958.
2.Pursuant to sub section 476(1) of the Migration Act 1958 the Court has no jurisdiction to review a primary decision.
3.Pursuant to sub section 477(1A) of the Migration Act 1958 this application is made out of time.”
It is contended on behalf of the respondent that in this case the decision of the delegate is not affected by jurisdictional error. It is noted that the only particulars of the grounds set out in the amended application referred to in this judgment involves an alleged denial of procedural fairness.
It is argued that procedural fairness was in fact afforded to the applicant by the correspondence which then generated the letter from Dr Romas to which I referred earlier. I accept that that letter inviting the further information was not something required by the Act but rather was sent pursuant to the permissive powers provided under s.56 of the Migration Act 1958 (the Act).
The ground now sought to be relied upon in the amended application in my view is misconceived. I accept, as submitted by the respondent, that in this case there is no statutory or common law requirement upon the delegate of the respondent to inform the applicant that although the medical report had been received, that more evidence than that is required.
It is indeed a matter for the applicant to advance whatever evidence or argument he wishes to advance in support of his contention, in support in turn of the application in this instance. In this application, as indeed in other applications, it is appropriate to acknowledge that that remains the responsibility of the applicant. I accept and apply the decision of the High Court in the matter of Abebe v Commonwealth (1999) 197 CLR 510 at [187].
It is clear to me that on a proper reading of the delegate's decision that account has been taken of the medical report. In the circumstances it is equally clear to me that there was no requirement on the part of the delegate to then provide further information to the applicant in relation to the inadequacy of that medical report.
Hence in my view there is no merit in the ground sought to be relied upon that there had been some error on the basis that the delegate had not informed the applicant that although he had submitted a medical report as requested, more evidence than that medical report would be required. The absence of that information does not in my view, for the reasons stated, constitute denial of procedural fairness.
In the circumstances, as that is the only ground relied upon, there is in my view no material which would suggest that in this instance there has been any jurisdictional error. I accept that in the absence of jurisdictional error the respondent's notice of objection to competency should be upheld.
The decision of the delegate is properly regarded as a primary decision. It is indeed a primary decision within the meaning of s.476(6) of the Act. It is clear that that decision would have been reviewable by the Migration Review Tribunal under Part 5 of the Act, if indeed an application had been made to it. It is what is otherwise described as an ‘MRT reviewable decision’ under s.338(2) of the Act. This court has no jurisdiction to review a primary decision (see s.476(1) of the Act).
It follows for the reasons given that in the circumstances the application as amended should be dismissed with costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 26 August 2005