Pheng v Minister for Immigration and Multicultural Affairs

Case [2000] FCA 1124

FEDERAL COURT OF AUSTRALIA

Pheng v Minister for Immigration & Multicultural Affairs [2000] FCA 1124

MIGRATION – application for review of purported decision of the Immigration Review Tribunal – whether an application for review of a decision of the Migration Internal Review Office can properly be said to have been before the Immigration Review Tribunal – competency of applicant – whether application made by visa applicant’s sponsor - spouse to the Migration Internal Review Office to review decision of a delegate of the respondent refusing visa applicant’s Class AS General (Residence) visa application constitutes a valid application, the refusal of which is capable of being reviewed by the Immigration Review Tribunal

Migration Act 1958 (Cth) ss5, 337(a), 338(1), 339, 340(1), 341(4), 346(1)(a), 347, 475, 476

Migration Legislation Amendment Act (No 1) 1998 (Cth)

Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446 followed

Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 followed

Le Tran Thuy v Minister for Immigration and Multicultural Affairs [1999] FCA 1598 followed

SOKYET PHENG v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 702 of 1999

MARSHALL J

MELBOURNE

15 AUGUST 2000

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 702 of 1999

BETWEEN:

SOKYET PHENG
APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

15 AUGUST 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs, including reserved costs.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 702 of 1999

BETWEEN:

SOKYET PHENG
APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

MARSHALL J

DATE:

15 AUGUST 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The applicant, Ms Sokyet Pheng, has applied for a review by the Court of what she alleges to be a decision of the Migration Review Tribunal (“the MRT”) of 18 November 1999.

    Factual background

  2. Ms Pheng is a citizen of the Kingdom of Cambodia. She entered Australia on 25 August 1997 on a visitor visa. On 26 October 1997, Ms Pheng married Mr Nivo Uch. Mr Uch is an Australian citizen.

  3. On 2 December 1997, Ms Pheng applied for a Class AS General (Residence) visa on account of her marriage to Mr Uch. On 4 March 1999, a delegate of the respondent decided to refuse the application.

  4. On 29 March 1999, an application for a review of the delegate’s decision was lodged with the Migration Internal Review Office (“the MIRO”). The relevant form stated that the person applying for the review was Mr Uch. The form was signed by Mr Uch and dated 26 March 1999. The application to the MIRO was accompanied by a payment of $500 for which a receipt was issued to Mr Uch by the respondent.

  5. By letter dated 6 April 1999, the MIRO wrote to Ms Pheng acknowledging the receipt of “(y)our…

Details
AGLC
Pheng v Minister for Immigration and Multicultural Affairs [2000] FCA 1124
Case
[2000] FCA 1124
Decision Date

CaseChat Overview and Summary

In Pheng v Minister for Immigration and Multicultural Affairs, Ms Sokyet Pheng, a Cambodian citizen, sought judicial review of a decision by the Migration Review Tribunal (MRT) to refuse her application for a visa review. Ms Pheng had entered Australia on a visitor visa and married an Australian citizen, Mr Nivo Uch, subsequently applying for a residence visa. Her application was refused, and Mr Uch, acting as her sponsor, applied for a review by the Migration Internal Review Office (MIRO). However, MIRO found that Mr Uch had no standing to apply for review, and Ms Pheng's bridging visa was deemed invalid. Consequently, Ms Pheng sought review by the MRT, which similarly found that it had no jurisdiction to review the decision, as the initial application for review had been improperly made by Mr Uch.

The court had to determine whether the MRT's decision was legally sound. The primary issue revolved around the statutory requirement that only the non-citizen subject to the visa refusal decision could apply for internal review, as outlined in sections 339(2)(a) and 340 of the Migration Act. Given that Mr Uch did not have standing to apply for review, the court needed to assess whether the MRT had jurisdiction to review the delegate's decision. The transitional provisions of the Migration Legislation Amendment Act (No 1) 1998 (Cth) were also considered, as they affected the timing and applicability of review rights. The court highlighted that the mandatory nature of the proper application for internal review was firmly established in previous cases, such as Tabet v Minister for Immigration and Multicultural Affairs and Kirk v Minister for Immigration and Multicultural Affairs.

The court concluded that the MRT's decision was correct, as there was no proper application for review made within the stipulated timeframe, and the statutory requirement for the non-citizen to apply for review was not satisfied. The court dismissed Ms Pheng's application and ordered her to pay the respondent's costs, including reserved costs. The judgment underscored the necessity for precise compliance with statutory requirements for visa review and highlighted the consequences of procedural errors, while also noting the unfortunate circumstances leading to Ms Pheng's predicament.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs, including reserved costs.

Background

Background to the litigation

The applicant, Ms Sokyet Pheng, has applied for a review by the Court of what she alleges to be a decision of the Migration Review Tribunal (“the MRT”) of 18 November 1999.Factual background Ms Pheng is a citizen of the Kingdom of Cambodia. She entered Australia on 25 August 1997 on a visitor visa. On 26 October 1997, Ms Pheng married Mr Nivo Uch. Mr Uch is an Australian citizen. On 2 December 1997, Ms Pheng applied for a Class AS General (Residence) visa on account of her marriage to Mr Uch. On 4 March 1999, a delegate of the respondent decided to refuse the application. On 29 March 1999, an application for a review of the delegate’s decision was lodged with the Migration Internal Review Office (“the MIRO”). The relevant form stated that the person applying for the review was Mr Uch. The form was signed by Mr Uch and dated 26 March 1999. The application to the MIRO was accompanied by a payment of $500 for which a receipt was issued to Mr Uch by the respondent. By letter dated 6 April 1999, the MIRO wrote to Ms Pheng acknowledging the receipt of “(y)our application for the review of a Migration Act decision …” and stating, inter alia, as follows:“A preliminary assessment of your eligibility to seek a review has been undertaken, however, it may not be possible to make a final assessment until all papers relating to the original application have been obtained. Should it be found that you are ineligible to seek a review of the refusal decision, you will be advised as soon as possible.” On 15 April 1999, a MIRO review officer, Ms Grau, wrote to Ms Pheng in the following terms:“I refer to the application lodged by your spouse on 29 March 1999 for a review of a decision made under the Migration Act 1958.I have written to your spouse and advised him that his application for review of your visa refusal was ineligible for review because he does not have a right to apply for review of your decision. There is no power for this office to review your spouse’s review application.You as the primary applicant had a right of review in respect of a refusal of your visa grant, but the time has now expired for you to now lodge an application for review.Your bridging visa is now invalid and your lawful status in Australia has ended. You must attend the Dandenong Immigration office immediately to arrange departure and regularise your status in Australia. Your file has been transferred to the Compliance Section of the Department’s Dandenong Office for their appropriate action.” On the same day, Ms Grau wrote to Mr Uch saying as follows:“I refer to your application lodged on 29 March 1999 for a review of a decision made under the Migration Act 1958.Part 5 of the Migration Act defines a reviewable decision as a decision to refuse to grant a non-citizen a visa. Section 337(a) allows review of decision to refuse to grant a visa to a person who made an application in the migration zone. Section 339(2)(a) states that such an application for review may only be made by the non-citizen who is the subject of that decision.On 4 March 1999 a decision was made to refuse to grant a Class TK and Class AS visa to Sokyet Pheng. This application was lodged in Australia while the applicant, Ms Pheng was in the migration zone. The refusal decision is therefore eligible for review but the person with the right of review is the primary applicant, Ms Pheng.In this case the MIRO application was lodged by you, the sponsor. It was not lodged or signed by the primary applicant, Ms Pheng.Accordingly, I am satisfied that you as the sponsor are ineligible to apply for review of the refusal of a visa to Ms Pheng. Your review application is ineligible for review and this office has no power under the regulations to review this decision. I have arranged a refund of the review fee paid, which will be forwarded to you as soon as possible.You should advise your spouse, Ms Pheng that because this review application is ineligible that her bridging visa is invalid and her lawful status in Australia has ended. Ms Pheng must attend the Dandenong Immigration office immediately to arrange departure and regularise her status in Australia. Ms Pheng’s file has been transferred to the Compliance Section of the Department’s Dandenong office for their appropriate action.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On the same day, Ms Grau wrote to Mr Uch saying as follows:“I refer to your application lodged on 29 March 1999 for a review of a decision made under the Migration Act 1958.Part 5 of the Migration Act defines a reviewable decision as a decision to refuse to grant a non-citizen a visa. Section 337(a) allows review of decision to refuse to grant a visa to a person who made an application in the migration zone. Section 339(2)(a) states that such an application for review may only be made by the non-citizen who is the subject of that decision.On 4 March 1999 a decision was made to refuse to grant a Class TK and Class AS visa to Sokyet Pheng. This application was lodged in Australia while the applicant, Ms Pheng was in the migration zone. The refusal decision is therefore eligible for review but the person with the right of review is the primary applicant, Ms Pheng.In this case the MIRO application was lodged by you, the sponsor. It was not lodged or signed by the primary applicant, Ms Pheng.Accordingly, I am satisfied that you as the sponsor are ineligible to apply for review of the refusal of a visa to Ms Pheng. Your review application is ineligible for review and this office has no power under the regulations to review this decision. I have arranged a refund of the review fee paid, which will be forwarded to you as soon as possible.You should advise your spouse, Ms Pheng that because this review application is ineligible that her bridging visa is invalid and her lawful status in Australia has ended. Ms Pheng must attend the Dandenong Immigration office immediately to arrange departure and regularise her status in Australia. Ms Pheng’s file has been transferred to the Compliance Section of the Department’s Dandenong office for their appropriate action.” On 29 April 1999, solicitors acting for Ms Pheng wrote to the Immigration Review Tribunal (“the IRT”) (which later became the MRT). The letter made the following salient points:· the application to the MIRO was prepared “in error” with the sponsor as the applicant;· at the time of the lodging of the application, no mention was made of its invalidity; and· advice of its invalidity was not given until after the expiry of the time limit for Ms Pheng to make an application to the MIRO. On 18 November 1999, the Deputy Registrar of the MRT wrote to Ms Pheng in the following terms:“I refer to the application lodged on 5 May 1999.On 15 April 1999, the Migration Internal Review Office (MIRO) informed your spouse that he had no standing to apply to MIRO for review. On the same date, you were informed of this and that you, as the visa applicant had the right of review in respect of a refusal of your visa grant, but the time had expired for you to now lodge an application for review.It is clear that MIRO had no power to review the primary decision, it follows that the MRT similarly had no power as well. Therefore, I regret to inform you that the application has been finalised as ineligible for review and the application fee of $850.00 will be refunded as soon as possible.”

Ratio Decidendi

Legal Principle Established

The transitional provisions of the Migration Legislation Amendment Act (No 1) 1998 (Cth) (“the 1998 Act”) had the effect of deeming a properly made application to the IRT before 1 June 1999 to be an application to the MRT from that date.Consideration Ms Pheng did not make an application to the MIRO in accordance with s339 of the Act. Mr Uch purported to make the application when he did not have the requisite standing to do so. There was no jurisdiction in accordance with s340 of the Act for a review officer to make a decision to review the decision of the delegate. Consequently, there was no IRT reviewable decision for the purposes of s346 of the Act and no application could be made under s347 of the Act to review the delegate’s decision. The transitional provisions of the 1998 Act had no relevant application. As there was nothing properly before the IRT in respect of Ms Pheng before 1 June 1999, there could be nothing before the MRT on or after that date. The mandatory nature of the requirement to properly apply for an internal review of a delegate’s decision is accurately reflected in the judgment of Mansfield J in Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446 at 450-455 and also in the judgment of Lehane J in Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 at 102. It is strictly unnecessary to deal with the respondent’s submission that the letter from the Deputy Registrar of the MRT did not constitute a decision of the MRT. However, having read the judgment of Branson J in Le Tran Thuy v Minister for Immigration and Multicultural Affairs [1999] FCA 1598 especially at par [15] thereof, I have no reason to doubt the correctness of that submission. Consequently, if the letter of the Deputy Registrar was a “decision”, it was not a judicially reviewable decision under s476 of the Act. The objection to competency having been made out, there is no need to consider the grounds of review raised by Ms Pheng.Comment It is most unfortunate that the respondent did not notify Ms Pheng before the time expired for her to lodge an application in her name for the MIRO to review the decision to refuse to grant her the relevant visa. Most unfortunately, this is a case where the respondent’s officers’ lack of alertness, efficiency and/or courtesy resulted in Ms Pheng being placed in a difficult position. I strongly recommend that if there is any possible way whereby the respondent could see fit to allow Ms Pheng to make a further application for a visa, that course should be embarked on. If that is not possible, this case is illustrative of the need for legislative reform in this area.Order The order of the Court is as follows:1. The application be dismissed.2. The applicant pay the respondent’s costs, including reserved costs.