Rasova v Minister for Immigration
[2004] FMCA 730
•3 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RASOVA & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 730 |
| MIGRATION – Review of MRT decision affirming a delegate’s refusal – no grounds. |
Migration Act 1958 (Cth); ss 47, 338, 349, 351, 368
High Court Rules 1952; O.55, r.30, O.55, r.17, O.60, r.6
Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2
Hari Das & Anor, Ex parte – Re MIMA & Anor M47/2001 (28 November 2002)
Applicant M216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931
Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67
Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576
Batuuwantudawa; Re [2003] FCA 684
| First Applicant: | MESULAME RASOVA |
| Second Applicant: | PEGGY SOPHIE TIKOTIKOCA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 858 of 2003 |
| Delivered on: | 3 November 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 31 May 2004 |
| Judgment of: | Bennett FM |
REPRESENTATION
| The Applicant appearing in person |
| Counsel for the Respondent: | Ms MacDonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Applications be dismissed.
That the Applicants pay the Respondent’s costs fixed at $6,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 858 of 2003
| MESULAME ROSOVA |
First Applicant
And
| PEGGY SOPHIE TIKOTIKOCA |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Mesulame Rasova (the first applicant) has made an application along with another applicant, his spouse Peggy Sophie Tikotikoca, seeking a review of a decision by the Migration Review Tribunal (the MRT) made on 16 June 2000 whereby it was decided that the first applicant is not entitled to a change of circumstance (residence) (class AG) visa, subclass 833.
Parties
There is no issue taken in relation to the number of applicants, which are the first applicant and his spouse, nor is any issue taken with the fact that a number of respondents have been named in the proceedings. I am satisfied that the first applicant is the appropriate party and that in the proceedings as they now appear before this court it is unnecessary to consider further the validity or otherwise of joining the second respondents who are named as the Migration Review Tribunal and the senior member of the Migration Review Tribunal.
The first applicant appeared in person. Ms J MacDonnell, of counsel, appeared for the respondent. The application by the second applicant rises or falls on the same basis as that of the first applicant.
Proceedings
The proceedings before this court originally commenced on 6 August 2002 by way of an application for an Order Nisi in the High Court of Australia in which the first applicant sought writs of prohibition and certiorari. Those proceedings were transferred to the Federal Court of Australia by order of Hayne J made on 7 February 2003.
By order of Finkelstein J made on 4 August 2003, the proceedings were transferred from the Federal Court of Australia to this court.
Documents relied upon
On 15 September 2003 the first applicant filed submissions in support of an application for an enlargement of time in which to bring the proceedings. In addition, the applicant relied upon his contentions of fact and law filed 30 October 2003 and the amended order nisi filed on 28 January 2003.
The respondent relied upon the contentions of fact and law filed on
22 December 2003.
Applicant’s oral submissions
As indicated, the applicant appeared in person. His oral submissions were to the effect that he and his family wish to remain in Australia where his children will have a “better life”. His grandfather is deceased and his grandmother is elderly, 87 years old. The first applicant said that, if he and is family is forced to return to Fiji, they will “have no one, we would be lost”.
Background
The first applicant is 34 years old. He was born in Fiji on 8 January 1970. The first applicant arrived in Australia on 15 July 1995 as the holder of a short stay (visitor) (class TR) visa, subclass 676 authorising him to remain in Australia until 19 July 1995. He departed on 18 July 1995.
The first applicant last entered Australia on 24 December 1996.
The first applicant was accompanied by his spouse and eldest child, Ilisapeci Luveni Rasova, who was born in Fiji on 2 August 1995.
The first applicant and his family were authorised to remain in Australia until 24 March 1997.
The first applicant and his family did not depart Australia within the period of their authorised stay. Therefore the first applicant ceased to hold a substantive visa on 24 March 1997.
On 24 April 1997 the first applicant lodged an application for a protection visa. That application was refused on 23 December 1998. The first applicant did not seek a review of the delegate’s refusal to grant a protection visa. The first applicant and his family remained in Australia.
A second child was born to the first applicant and his spouse (a daughter, Theresa Ash Leba Rasova) on 24 February 1998.
On 25 March 1999 the first applicant lodged an application to remain in Australia permanently on the basis of a change in circumstance (residence) (class AG) visa on the grounds of being a “Certain Unlawful Non-citizen”. The first applicant’s spouse and 2 children were listed as family members who were also applying. That application was sent to the Department of Immigration & Multicultural Affairs under cover of a letter from the first applicant’s then solicitors, Erskine Rodan & Associates, dated 4 March 1999 which said, amongst other things –
It is recognised that this application does not satisfy criteria for the grant of a visa sub-class 833. However, this application is necessary in order to eventually make an application to the Minister under Section 351 of the Migration Act, following an application to the Immigration Review Tribunal.
The delegate of the first respondent refused to grant a visa on
16 February 2000. On 9 March 2000 the first applicant applied to the MRT for a review of the delegate’s decision to refuse a visa. The MRT made a decision on 16 June 2000 affirming the delegate’s decision.
On 27 June 2000, Mr Simon Crean MP requested the Respondent Minister use his discretion to substitute a decision more favourable to the first applicant than the decision of the MRT made on 16 June 2000. By letter dated 4 July 2002 from the respondent to the first applicant, the first applicant was advised –
You requested that the Minister consider exercising his discretion under section 351 of the Migration Act 1958. Under this section of the Act, the Minister may substitute for a decision of the Migration Review Tribunal, a decision more favourable to the applicant where he considers it is in the public interest to do so.
Your case was referred to the Minister. However, on 4 June 2002, he decided not to consider exercising his power in your case.
I now ask that you contact the nearest Regional Office of this Department to discuss your status in Australia.
Material submitted on behalf of the first applicant to the MRT states that from the age of 2 years the first applicant was raised by his grandparents in Fiji and separately from his parents and siblings. He has no contact with his father. Since the first applicant has been in Australia, he and his family
“have been able to spend [time] in Australia with his mother and siblings [and have] restored this relationship that was forced to wane during his childhood. Further, Mr Rasova is for all intents and purposes a remaining relative, as his family in Fiji are not in contact with him and offer no support, should he be forced to return. In Australia, he has the loving support of his mother, brother and sister.”
Prior to leaving Fiji in 1996, the first applicant worked for an airline and his spouse worked as a travel agent. Peggy Tikotikoca was
22 years old when she last entered Australia. For the last 5 and a half years that the family has been in Australia. They have been supporting themselves financially through paid employment “and have never been dependent upon the Australian government for any benefits.”
Finally, it was submitted on behalf of the first applicant that –
…the Tribunal’s function is to do more than consider the criteria of the visa application before it. In a case it is intended shall go before the Minister seeking his intervention in the public interest, the Minister himself has clearly stated that the Tribunal’s function extends to considering his Guidelines and to referring a case to him if it falls within those Guidelines.
Statutory scheme
Section 368 of the Migration Act 1958 provides that the MRT must prepare a written statement that sets out the MRT’s decision, reasons for decision, findings on any material questions of fact and the material and evidence upon which such findings were based. The MRT’s statement of decision and reasons is 15 paragraphs in length. Before reaching its decision, the MRT recites the relevant criteria applicable to a visa application of the kind applied for by the first applicant. It is appropriate to set out those findings which, in turn, provide a reference to appropriate regulations. The MRT found as follows:-
10. In order to succeed in an application for a visa under the Regulations, it is necessary for the Visa Applicant to satisfy all of the criteria for its grant. Section 48 of the Act applies to the Visa Applicant, his spouse and the eldest of the two children as they do not hold a substantive visa and have been refused a substantive visa since last entering Australia. Section 48 prevents persons from making further applications, except in the prescribed classes set out in regulation 2.12. The only subclass in Change in Circumstance (Residence) (Class AG) that could be considered are subclass 802 (Child), 804 (Aged Parent), Family (806) and 883 (Certain Unlawful Non-Citizens).
11. Subclass 833 requires the Visa Applicant to satisfy regulation 833.21 at the time of application. As the Visa Applicants are subject to section 48, they must meet regulation 833.211(d), which requires them to meet the requirements of regulation 833.212 since last applying for a substantive visa. Regulation 833.212(b) provides that an applicant must have ceased to hold a substantive visa before turning 18 and regulation 833.12(d) provides that an applicant must “before turning 18, [have] spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia.” As the visa applicant was aged 26 and his spouse was 22 when they arrived in Australia they did not cease to hold substantive visas before they turned 18. The eldest child was aged one year when she first entered Australia and she is yet to attain the age of 18 years. Accordingly the Visa Applicants do not satisfy subclauses 833.212 (b) and (d) and therefore do not qualify for the visa.
12. The visa applicants are entitled to be considered for other subclasses in Class AG. As the visa applicant, his spouse and child are not, and have never been, a dependent child of an Australian citizen or Australian permanent resident or eligible New Zealand citizen, the tribunal finds that the Visa Applicants do not meet the requirements of a subclass 802 (Child) visa. They are not and have never been an aged dependent relative, an orphan relative, remaining relative or special need relative of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen and so are ineligible for a subclass 806 (Family) visa. Further, they cannot meet Schedule 3, criterion 3002 which requires an applicant to have applied for a subclass 804 visa or a subclass 806 visa within 12 months of ceasing to hold a substantive visa. The Tribunal therefore finds that the Visa Applicants do not meet the requirements of any of the subclasses in visa Class AG.
13. The Visa Applicant made submissions requesting that the Tribunal refer the matter to the Department of the attention of the Minister for Immigration and Multicultural Affairs as a unique or exceptional case pursuant to the Ministerial Guidelines of 31 March 1999 concerning section 351 of the Act. This case is not unique or exceptional, but in any event the course suggested falls outside the jurisdiction of the Tribunal in respect of the review decision in question and accordingly no reference to the submissions is made in this Statement of Decision and Reasons.
Enlargement of time
The first matter to be determined is the application for an enlargement of the time in which the application for prerogative writs could have been made. In this case, the applicant applied for a writ of prohibition to stop the respondent from further proceeding with the matter. Application was also made for a writ of certiorari to quash the MRT’s decision as matter of ancillary relief. Given that the MRT has completed its function under Part 5 of the Act, prohibition was a curious choice. I accept the submission of the respondent to the effect that the more appropriate application was for a writ of certiorari to quash the MRT’s decision and mandamus to have the matter reconsidered.
In this matter the decision of the MRT was made on 16 June 2000. The application for certiorari was made on 6 August 2002 and an amended order nisi was filed on 28 January 2003.
There is no relevant time limit for an application for prohibition. An application for mandamus would have been out of time because such an application must be made within 2 months of the failure to exercise jurisdiction, or such further time as allowed by the Court under special circumstances: High Court Rules 1952, O.55 r.30. The application for certiorari is out of time because it was not made within 6 months of the date of the MRT’s decision: High Court Rules, O.55 r.17. The High Court has power to enlarge this time under O.60 r.6. The application remitted to the Federal Court remains subject to the time limits prescribed by the High Court Rules: See Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Hari Das (High Court of Australia, transcript, 28 November 2002); Applicant M216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931 at [22].
I accept the respondent’s submission that the principles applicable to applications for the enlargement of time under the High Court Rules were considered by McHugh J in Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67.
i)The grant of an enlargement of time is not automatic.
ii)A ‘case would need to be exceptional’ before the time for commencing proceedings was enlarged by many months.
iii)An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties, having regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension.
iv)The Court may take into account the explanation for the delay in commencing proceedings, and the applicant’s prospects of success in the proceedings.
v)The constitutional writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions.
In Re Commonwealth of Australia & Anor; Ex parte Marks, McHugh J said:
As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy. “[t]he rules of court must prima facie be obeyed”. The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court.
The first applicant’s case as put in his contentions of fact and law was that the applicant seeks to challenge for judicially reviewable error the respondent’s refusal in 1998 of his application for a protection visa, as described above. That was a refusal by the delegate which was not taken on review to the MRT.
As to the MRT’s decision in respect of which the first applicant seeks prerogative writs, the application filed in the High Court on 6 August 2002 and amended on 29 January 2003 and the supporting affidavit are deficient in that they do not identify anything in relation to the decision of the MRT or the proceedings before the MRT that identifies any reviewable legal error. I invited the applicant at trial this afternoon to put to me anything that might assist in identifying a legal error, but apart from his oral submissions which I have summarised above, he was not able to expand upon his application and affidavit.
It was submitted on behalf of the respondent that the applicant’s case had no prospect of success and, therefore, the application for an extension of time must fail because it is not “necessary to do justice to the parties”.
Counsel for the respondent conceded that, notwithstanding the concession made on behalf of the applicant that “this application does not satisfy criteria for the grant of a visa sub-class 833”, the respondent was still obliged to consider and assess the first applicant’s application.
The gist of the applicant’s case is that the Tribunal should, at the time it exercised its powers of review pursuant to s.338 of the Migration Act, have identified facts in the first applicant’s case which might have given rise to the exercise by the Minister of his discretion pursuant to s.351 of the Migration Act. That later section enables the respondent Minister, if he thinks it is in the public interest to do so, to substitute for the decision of the MRT under s.349 another decision more favourable to the first applicant.
It is noted that the MRT’s powers on the review are set out in s.349 of the Act. Those powers include the powers and discretions conferred by the Act on the “person who made the decision”, in this case the delegate. In this case, the respondent conceded that the visa application was a valid application. Pursuant to s.47 of the Act, the Minister is to consider a valid application for a visa but “for the avoidance of doubt is not to consider an application that is not a valid visa application”. Section 368 of the Act provides that once the MRT has made a decision it must prepare a written statement which sets out the decision, reasons for decision, findings on any material questions of fact and which refers to evidence or other material on which findings of fact were based. What is conspicuously absent from these provisions is any obligation or duty on the MRT to consider the incidence, much less the exercise, of the Minister’s powers under s.351 of the Act.
Section 351 of the Act provides:-
(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
(2) In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.
(3) The power under subsection (1) may only be exercised by the Minister personally.
(4) If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the decision of the Tribunal; and
(b) sets out the decision substituted by the Minister; and
(c) sets out the reasons for the Minister's decision, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest.
(5) A statement made under subsection (4) is not to include:
(a) the name of the applicant; or
(b) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.
(6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision is made between 1 January and 30 June
(inclusive)
in a year—1 July in that year; or
(b) if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
It was also submitted by the first applicant that the delay in his application for constitutional writs was occasioned by, and explicable in terms of, his application made on 28 July 2000 to the Minister under s.351 which he was notified had been refused on 28 July 2000.
It was submitted by Ms MacDonnell of counsel that the first applicant’s request of the Minister to substitute a more favourable decision than that of the MRT was a tacit acceptance of the correctness of the MRT’s decision. Furthermore, it was submitted that the first applicant took a course which indicated his acceptance of the MRT’s decision and he must accept the consequence of that delay: see Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at [9]. This approach of
Von Doussa J was adopted by Gray J in Batuuwantudawa; Re [2003] FCA 684 at [9] when His Honour said that –
“to await the decision of the Minister under s.351 (the equivalent provision to s417 for the Migration Review MRT) and then to attempt to seek relief in the High Court in relation to the decision of the MRT, was to take inconsistent courses”
I accept the respondent’s submission in that regard.
The respondent’s further submissions in opposition to an enlargement of time being granted to the first applicant were:-
b)There is a public interest in the finality of litigation challenging the validity of public acts or decisions: As McHugh J noted in Re Commonwealth of Australia; Ex parte Marks: ‘Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision’:
c)In this case, the application for certiorari is more than 19 months out of time;
d)If the applicant were to seek and obtain leave to amend his application to seek an order of mandamus, his application would be more than 23 months out of time.
e)The applications do not show an arguable case for the relief sought because there is no substance to any of the grounds.
Ms MacDonnell, of counsel, for the respondent Minister, has submitted to me that the application must be dismissed as no reviewable legal error has been disclosed. I agree. The findings by the MRT were reasonably open to it on the material before it and there was no duty or obligation for the MRT to isolate considerations relevant to the Minister under s.351 of the Act.
I am satisfied that the MRT made no legal error going to jurisdiction in coming to its decision.
In addition, the decision of the MRT was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the Migration Act 1958 (Cth) and related to the powers conferred on the MRT. I find that the decision of the MRT is a privative clause decision, having regard to the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2.
In the circumstances, I will dismiss the applications. It is appropriate that the applicant’s pay the respondent’s costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Bennett FM
Associate: R. Campbell
Date: 3 November 2004
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