Prasad v Minister for Immigration

[2007] FMCA 2147

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PRASAD v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2147

MIGRATION – MRT decision – application to Tribunal to review detention after invalid notice automatically cancelling visa – no jurisdiction in Tribunal – no arguable case for relief in relation to Tribunal’s decision – application dismissed at show‑cause hearing.

Education Services for Overseas Students Act 2000 (Cth), s.20
Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), ss.116, 137J(2), 338, 476, 476(1)

Shao v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 157 FCR 300
Uddin v Minister for Immigration [2005] FMCA 841

Applicant: AMRISH PRASAD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3193 of 2007

Judgment of: Smith FM

Hearing date: 19 December 2007

Delivered at: Sydney

Delivered on: 19 December 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr J Pinder

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed. 

2. The applicant must pay the first respondent’s costs in the sum of $2,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3193 of 2007

AMRISH PRASAD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. In this case, the Minister submits that Mr Prasad’s application to review a decision of the Migration Review Tribunal lacks any arguable merit, and that it should be dismissed under r.44.12(1)(a).

2. Mr Prasad came to Australia and studied under a student visa, which was granted on 28 March 2001 and was of a fixed duration expiring on 31 March 2003. Before that date was reached, he was served a notice purporting to be under s.20 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”). If valid, it had the effect of cancelling his visa by force of s.137J(2) of the Migration Act 1958 (Cth). The circumstances of the giving of the notice, its contents, and how it was acted upon within the Department of Immigration, are not shown in the evidence before me. However, Mr Prasad asserts, and it is not disputed by the Minister, that he was taken into detention at some point by the Department of Immigration, relying upon the legal effectiveness of the notice as an operative cancellation of his visa.

3. The period and circumstances of his detention are unclear on the evidence before the Court, but it appears that at some point he was told that he was liable for detention costs of $2061.40.  However, by letter dated 7 August 2006, Mr Prasad was told by an officer in the Finance Policy section of the Department of Immigration that his debt had been waived because:  

   Your case was affected by the decision in Uddin v Minister for Immigration [2005] FMCA 841 (7 June 2005). This decision addressed the incorrect application of section 137J of the Migration Act 1958 by this Department.  We regret any inconvenience this may have caused you. 

4. In Uddin a formal defect in the form of notice under s.20 of the the ESOS Act was identified, and was held to have rendered the notice legally ineffective. The consequence was that a visa current at the date of the notice was not cancelled by operation of law under s.137J(2), but continued to run its full course unless the Minister or a delegate exercised the statutory power of cancellation under s.116 of the Migration Act. In the present case, there is no evidence that any s.116 decision was made in respect of the applicant’s student visa.

5. The operation of these provisions has been the subject of many decisions, including the recent judgment of Lander J in Shao v Minister for Immigration & Multicultural & Indigenous Affairs (2007) 157 FCR 300. At [55] Lander J clearly rejected the contention that “any administrative decision of any kind is made when s 137J applies by reason of a notice having been given under s 20 of the ESOS Act to a non‑citizen. There is no administrative decision to be made”. 

6. Assuming the correctness of the Department’s concession that, in fact, Mr Prasad’s student visa was never cancelled by operation of s.137J, it continued in effect until it expired in March 2003.  After that date, his continued lawful presence in Australia is accounted for by a series of bridging visas which he was granted, consequential upon his making an application for a protection visa. That application was refused on 7 October 2004, and the delegate’s decision was affirmed by the Refugee Review Tribunal in a decision handed down on 23 December 2004.  The validity of the RRT’s decision was upheld by Driver FM on 6 September 2006, and an appeal to the Federal Court was discontinued by Mr Prasad on 14 February 2007.  It would appear that Mr Prasad then sought to remain in Australia, by lodging further applications which carried an entitlement to further bridging visas. 

7. On 12 February 2007, he filed with the Migration Review Tribunal an application which did not clearly identify a decision for review by the Tribunal. However, on its only possible construction, which was the construction taken within the Tribunal, it requested the Tribunal to review decisions made in relation to his 2001 student visa.  There was no evidence before the Tribunal, and it is not contended to the Court, that there was any other visa in relation to which a decision was made which Mr Prasad sought to have reviewed. 

8. From Mr Prasad’s submissions to the Tribunal, it concluded that he was seeking to have it review the circumstances in which he was taken into detention as a result of the Department’s reliance on the invalid s.20 notice from his education provider. I think that was a reasonable understanding by the Tribunal on the material presented by Mr Prasad. The Tribunal wrote to him on 8 May 2007, suggesting that the application appeared to be outside the jurisdiction of the Tribunal. It then made a decision to that effect on 6 July 2007, which was posted to the applicant on 10 July 2007 and again on 4 October 2007.

9. In its decision the Tribunal referred to the heads of its jurisdiction to entertain applications for review under s.338 of the Migration Act. It went through those heads of jurisdiction, and noted that none of them covered any administrative action which Mr Prasad sought to have reviewed by it. It is unnecessary for me to repeat its analysis, which is not challenged by Mr Prasad.

10. The Tribunal explained that there was no decision of an administrative character made to cancel Mr Prasad’s student visa. There was no decision refusing to grant a visa of any class reviewable by the Migration Review Tribunal. In particular, if Mr Prasad was seeking to have the Tribunal review the effect of s.137J(2) on his student visa, there was no jurisdiction to do that since “cancellations of this kind do not involve decisions and are therefore not MRT‑reviewable decisions”.  As I have indicated above, in my opinion, the Tribunal’s conclusion in that respect was undoubtedly correct, and has the support of authority including the decision of Lander J which I have quoted above. 

11. On 15 October 2007 Mr Prasad filed his application in this Court invoking its jurisdiction under s.476(1) of the Migration Act. The Court’s jurisdiction is limited to judicial review of a “migration decision”, which is defined as a decision, or purported decision, made or required to be made, under a provision of the Migration Act, except some excluded classes of such decisions.

12. The application identifies as its subject matter, the decision of the Migration Review Tribunal dated 6 July 2007 being its decision declining jurisdiction. It is clear that a review of the legality of that decision is a matter which can be brought before this Court under s.476, and if the Tribunal wrongly declined jurisdiction Mr Prasad would be entitled to a writ of mandamus to compel it to exercise the jurisdiction wrongly declined.

13. The application was listed at a first court date before me on 6 November 2007, at which time Mr Prasad’s attention was drawn to my doubts whether he had any arguable case for relief under s.476. He was then given further opportunity to obtain legal advice and to file an amended application, and his application is listed today to consider whether he had raised an arguable case for relief.

14. He has not filed an amended application, but has filed an affidavit setting out his “grounds of appeal”. This complains that the Tribunal did not invite him to a hearing, nor address his grievances arising from the invalid s.20 notice. It also appears to complain about an exercise of power under s.116, however, as I have indicated there is no evidence that this power has ever been exercised or purported to be exercised by the Minister.

15. For the reasons which I have given above, I consider that the Tribunal’s opinion that it did not have jurisdiction to entertain the application filed by Mr Prasad was undoubtedly correct, and he has shown no arguable basis for seeking relief by way of writ of mandamus directed to the Migration Review Tribunal. There is no arguable basis to show an obligation on the Tribunal to afford Mr Prasad a hearing and to consider his grievances about his detention.  I therefore consider that it is appropriate to dismiss the present application under Rule 44.12(1)(a) on the ground that no arguable case for the relief claimed has been shown.

16. It is unclear to me whether Mr Prasad may have any cause of action in relation to his grievances arising from his immigration detention. Even if he does, then this Court would not have jurisdiction to grant any remedy, in the absence of any migration decision which is reviewable by it under s.476 of the Migration Act. It is open to Mr Prasad to take further advice on whether he has any remedies, whether of an administrative or litigious nature in relation to his detention. What is clear to me, is that his present application cannot be made the vehicle for such a claim.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  14 January 2008