Nian v Minister for Immigration

[2006] FMCA 705

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NIAN v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 705

MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application as failing to disclose an arguable case.

FederalMagistrates Court Rules 2001 (Cth)
Migration Act 1958, s.359A

In the matter of Antonios Toufic Akly, unreported, Migration Review Tribunal, (5 April 2006)

Applicant: MING JIN NIAN

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG512 of 2006

Judgment of: Driver FM

Hearing date: 16 May 2006

Delivered at: Sydney

Delivered on: 16 May 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms L Gazi

INTERLOCUTORY ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondents costs and disbursements of and incidental to the application, in the sum of $2,500, in accordance with rule 44.15(1) and item 1(a) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG512 of 2006

MING JIN NIAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application under the Migration Act 1958 (Cth) (“the Migration Act”) for an order to show cause why relief should not be granted in relation to a decision of the Migration Review Tribunal (“the MRT”). The MRT decision was made on 18 January 2006 and the applicant asserts notification of it on 21 January 2006. The show cause application was filed on 17 February 2006, and on that basis I find that the application was filed within time.

2. The applicant seeks review of a decision of the MRT affirming a decision of a delegate of the Minister to cancel the applicant's tourist visa.  The cancellation decision was made on the basis that the applicant had breached a no work condition on his visa.  It is apparent from the MRT decision that the cancellation decision came about as a result of a visit by departmental compliance officers at a building site.  The departmental officers claimed to have observed the applicant working as a bricklayer on the construction site.  The applicant denied that he was working and explained that he was simply observing the construction work out of interest. 

3. When this matter first came before me on 21 March 2006 it was not apparent to me that the show cause application disclosed an arguable case.  With that in mind, I made orders for a show cause hearing to be conducted before me today.  I also made orders for the filing of the book of relevant documents by the Minister.  That occurred on 21 April 2006.  I today received that book as evidence.  On the first court date I also gave the applicant the opportunity to file and serve an amended application and additional evidence.  He has, however, elected to rely upon his original application and supporting affidavit as filed.  The difficulty with that application is that it simply contests the merits of the MRT decision.  As I explained to the applicant during the course of oral argument, I am unable to deal with the merits of the MRT decision.

4. In his oral submissions this morning the applicant made clear that he believes that the Minister’s delegate and the MRT both made the wrong decision.  He considers that he has been treated unfairly and that he has been innocently caught up in an operation in which it appears a number of other illegal workers were apprehended at the building site.  He was assisted in court this morning by his brother, who also made a short oral submission.  The gist of that submission is that the MRT decision is legally incorrect as it was not supported by evidence.

5. It is noteworthy that this case depended upon observations and opinions by departmental inspectors. To that extent, the evidence was either circumstantial or opinion based. There was no evidence that established conclusively that the applicant had been engaged in employment at the construction site. On the other hand, the MRT was understandably reluctant to accept the applicant's explanation that he had entered the construction site, apparently without permission, simply to observe the construction work as an exercise in curiosity. The decision ultimately turned upon whether the MRT believed the statements by the departmental officers or the applicant. The presiding member chose to believe the departmental officers. The decision was open upon the evidence. Because the decision essentially turned upon the observations and opinion of the departmental officers, there was an obligation to disclose that information to the applicant under s.359A of the Migration Act. That obligation was met by a letter dated 31 October 2005 (reproduced at court book, pages 22 and 23). The applicant made a written response to that invitation (court book, pages 36 and 239). The response was taken into account by the MRT.

6. I can see no possibility of jurisdictional error being established in this case.  It does not follow that the correct or preferable decision has necessarily been made.  However, any further action to deal with that issue is for the Minister, not for me.  The risks associated with decisions made upon opinions formed by departmental inspectors on a limited factual basis have recently been graphically illustrated by a decision of the MRT.  I refer to the decision of Antonios Toufic Akly made on 5 April 2006 by Presiding Member Cipolla (MRT case reference N05/00964).  The observations by Presiding Member Cipolla in that case, in particular at paragraph 68, should serve as a warning to the Minister's Department.  It is a matter for the Minister to consider whether any further consideration of the merits of this case should be made. 

7. In the absence of any arguable case of jurisdictional error I should dismiss the application before me, and I so order.

8. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the FederalMagistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). The applicant is concerned about his ability to pay costs and remains concerned about the merits of the decision against him. Costs should nevertheless follow the event. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application in the sum of $2,500, in accordance with rule 44.15(1) and item 1(a) of Part 2 of Schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  23 May 2006