Saeed v Minister for Immigration & Citizenship
[2008] FMCA 1619
•2 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAEED v MINISTER FOR IMMIGRATION | [2008] FMCA 1619 |
| MIGRATION – Review of decision by a delegate of the Minister for Immigration and Citizenship – whether delegate’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.51A; 51A(1); 57(3); 474; pt.2 div.3 sub-div.AB; pt.8 div.2 Migration Regulations 1994, sch.2 |
| Minister for Immigration and Multicultural Affairs vLay Lat (2006) 151 FCR 214 |
| Applicant: | AMIRA SAEED |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | SYG 2306 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 2 December 2008 |
| Date of last submission: | 2 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Mr R. Liu, Christopher Levingston and Associates |
| Counsel for the Respondent: | Ms S. Sirtes |
| Solicitors for the Respondent: | Ms. N. Johnson, Sparke Helmore |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2306 of 2008
| AMIRA SAEED |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of a delegate of the Respondent (“the Delegate”) dated 16 July 2008.
The applicant is a 24 year old married woman and mother who is a citizen of Pakistan (“the Applicant”).
On 13 November 2007, the Applicant lodged an application for a Skilled – Independent visa (Class VE Subclass 175) (“the Visa”) with the Department of Immigration and Citizenship (“the Department”) under the Act. This application included her spouse and infant son.
On 14 November 2007, the Applicant’s husband provided a number of documents in support of the Applicant’s application.
On 16 April 2008, the Department wrote to the Applicant requesting further information and documents and requiring the Applicant to respond within 28 days.
On 14 May 2008, the Applicant’s husband responded to the Department’s request and provided further documents.
On 23 May 2008, the Department sent to the Applicant a “final request” for outstanding documents requiring the Applicant to respond within 28 days.
On 4 June 2008, in response, the Applicant’s husband provided further documentation, including the Applicant’s passport and the passports of her husband and son.
On 16 July 2008, the Delegate refused the Applicant’s application for the Visa.
On 4 September 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The Delegate’s decision
The Delegate noted in the decision record that the Applicant was assessed against the criteria for all subclasses of visa within Class VE.
On 16 July 2008, the Delegate refused the Applicant’s application for the Visa on the basis that the Applicant did not meet the requirements of clause 175.211 under Part 175 of Schedule 2 of the Migration Regulations 1994.
The Delegate noted the following in the decision record:
“Australian immigration officers in Pakistan conducted checks against your claim for work experience as a Cook at 7 Brothers Hotel and Restaurant. The following adverse information was discovered during the course of these checks:
– No Employee Records where (sic) on the premises
– DIAC Staff were advised that a woman has never worked in the kitchen
I have now reviewed all of the employment evidence relevant to your claimed employment with 7 Brothers Hotel and Restaurant for the period 01 March 2006 to 13 November 2007. My conclusion is that I am not satisfied with your claimed employment in this period.
Serious consequences have been raised in the process of this Department attempting to verify your claims, and in my assessment I can not find your employment claims to be adequately substantiated.
I have considered the documents that you have provided, and the information available on your file, and I conclude that the evidence of employment provided with your application and submitted to Trades Recognition Australia (TRA) to obtain a favourable skills assessment, is false or misleading.
I therefore find that you do not meet the requirement at clause 175.211 of the Migration Regulations 1994, because of the use of this qualification was false or misleading in a material particular.”
The proceeding before this Court
The Applicant was represented before this Court by Mr Karp, of counsel.
Mr Karp confirmed that the only ground relied upon by the Applicant is ground 2 of the application, expressed as follows:
“In the absence of a statutory duty to give to the Applicant ‘natural justice’, the decision maker failed to comply with the natural justice hearing rule.
Particulars.
The decision maker initiated checks to verify the applicant’s claims for work experience and became seized of adverse information which was not communicated to the Applicant so as to accord with the requirement for her to have the benefit of the natural justice hearing rule.”
Mr Karp conceded that, in accordance with his written submissions, this Court is bound by the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Multicultural Affairs vLay Lat (2006) 151 FCR 214 (“Lay Lat”) in relation to the application of natural justice to the Delegate’s decision, having regard to ss.51A and 57(3) of Part 2 Division 3 Subdivision AB of the Act.
Relevantly, s.51A(1) of the Act is as follows:
“(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.”
Relevantly, s.57(3) of the Act is as follows:
“(3) This section does not apply in relation to an application for a visa unless:
(a) the visa can be granted when the applicant is in the migration zone; and
(b) this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.”
However, Mr Karp made a formal submission to this Court that Lay Lat was wrongly decided in that it held that Part 2 Division 3 Subdivision AB provided a comprehensive procedural code containing detailed provisions for procedural fairness but excluding the common law natural justice hearing rule.
Mr Karp conceded that in circumstances where this Court is bound by Lay Lat, the Court must dismiss the proceeding before it on the basis that, applying Lay Lat, it must conclude that the decision of the Delegate is not affected by jurisdictional error and is therefore a privative clause decision.
For the sake of completeness, and with the agreement of counsel for the Respondent, I set out below the full written submissions of counsel for the Applicant as follows:
“Jurisdiction of the Court
1.The decision under review is that of a delegate of the respondent, dated 16 July 2008, to refuse a sub class 175 (skilled independent) visa. A decision to refuse to grant that sub class of visa is not reviewable by the Migration Review Tribunal pursuant to s 338 Migration Act, read with Migration Regulation 4.09. In particular, the application does not come within s 338(7A) because the applicant was not the holder of a sub class 444 visa, and so does not come within Sch. 2 clause 175.411 of the Migration Regulations.
2. The decision under review is therefore not a primary decision as defined in s 476(4) Migration Act.
3. Nor does the delegate’s decision come within any of the other exceptions to the jurisdiction of this Court stated in s 476(2) Migration Act. The Court therefore has jurisdiction pursuant to s 476(1).
The application for an extension of time
4. As noted above, the decision was made on 16 July 2008. It was communicated to the applicant via email on or about that date. The application to this Court was made on 4 September 2008; about 50 days after the applicant received her decision. The applicant therefore needs an extension of time pursuant to s 477(2). That extension is available, “in the interests of the administration of justice”. Stone J in Fisher v MIAC [2007] FCA 591 at [35],
“[That] requirement would involve consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success.”
5. Inherent in a consideration of the legal merits of the application is the animating principle of judicial review – that of keeping administrative action within the confines of the law (Re Refugee Review Tribunal; ex parte Aala [200] 204 CLR 82, 103-4, 107-8 per Gaudron and Gummow JJ).
6. Pending further evidence of the reason for the delay in filing proceedings, I will proceed to canvas the merits of the application.
The merits of the application
7. The applicant’s application for a sub class 175 visa was made on her behalf by her husband, Mohammed Saeed, on 14 November 2007 (CB 1-20). One of the criteria to be satisfied at the time of the application was that the applicant was employed in a skilled occupation for at least 12 of the 24 months immediately proceeding the application for the visa (sub clause 175.211(a)).
8. On 16 April 2008 the Adelaide Skills Processing Centre of the Department wrote back, requesting further information (CB 21-25). Mr Saeed wrote back providing documentation on 13 May 2008 (CB 26-74), including evidence of employment (CB 32, 58-62). A further request for information was made on 23 May 2008 (CB 75-78), to which Mr Saeed replied on 29 May 2008 (CB 79-105).
9. That was the last exchange of correspondence until the delegate’s decision was made on 16 July 2008. The following appeared in the body of the delegate’s reasons,
“Australian immigration officials in Pakistan conducted checks against your claim for work experience as a Cook at 7 Brothers Hotel and Restaurant. The following adverse information was discovered during the course of those checks:
· No Employee Records where (sic) on the premises
· DIAC staff were advised that a woman has never worked in the kitchen
I have now received all the employment evidence relevant to your claimed employment with 7 Brothers Hotel and Restaurant from 1 March 2006 to 13 November 2007. My conclusion is that I am not satisfied with your claimed employment in this period.
Serious concerns have been raised in the process of this Department attempting to verify your claims, and in my assessment I can not find your employment claims to be adequately substantiated.”
10. The information in the possession of the Department, and derived from the “checks” conducted by Australian immigration officials in Islamabad, was not disclosed to Ms Saeed. This is prime facie a breach of natural justice.
11. It may be conceded that the information obtained by the Department and used to reject the application does not come within s 57 because of s 57(3). The next question is; does s 51A Migration Act apply to this information?
12. Section 57 is the only part of Subdivision AB of Part 3 of the Act that deals with the disclosure of information to applicants. The Full Court in Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214, after noting a number of conflicting single judge authorities on the meaning of ss 51A(1), 357A(1) and 422B(1), said,
63 We do not propose to repeat or analyse the division of opinion as to the ambit of the provisions which is revealed in those authorities. The differing views are fully set forth in the passages from the judgments to which we have referred.
64 It is true that the words "in relation to the matters it deals with" might be thought to be ambiguous or, perhaps, as Heerey J said in VXDC, obscure. However, reference to the Explanatory Memorandum and the Second Reading Speech makes it plain that s 51A and the related provisions of the Act, were intended to overcome the effect of the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 ("Miah").
65 Heerey J set out in VXDC at [23] – [25] the relevant passages from the majority judgments in Miah and the salient portions of the Explanatory Memorandum and the Second Reading Speech. The words "exhaustively state" are, as Heerey J pointed out, picked up in the Explanatory Statement from the majority judgments in Miah. We agree with the observation at [30] in VXDC that the drafters of the Explanatory Statement and the Minister could hardly have made the intention of the 2002 amendments any clearer.
66 What was intended was that Subdivision AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.
67 Other aspects of the common law of natural justice, such as the bias rule are not excluded; see VXDC at [27].
68 The intention to exclude the common law rules in the present case is especially plain when s 51A(1) is read with s 57(3). The Legislature could hardly have intended to provide the full panoply of common law natural justice to visa applicants who are required to be outside Australia when the visa is granted, while conferring a more limited form of statutory protection upon onshore applicants.
69 Counsel for the respondent submitted that the words "in relation to the matters it deals with" mean that the decision-maker must, in each case, consider whether there is an applicable common law rule of natural justice and then examine the provisions of subdivision AB to see whether it is expressly dealt with.
70 We reject this submission. As was said in VXDC at [31], the decision-maker is likely to be a person without legal qualifications. Parliament could not have intended that "the uncertainties of the common law rules were in some unspecified way and to some unspecified extent, to survive."
13 This Court is bound by Lay Lat.
14. I formally submit that Lay Lat was wrongly decided, and I do so on the basis of Gray J’s remarks in Antipova v Minister for Immigration (2006) 151 FCR 480, at [97],
97 To the extent to which Lay Lat might be taken to be authority on the meaning and effect of s 357A of the Migration Act, it does not bind me to hold that MsAntipova’s only entitlement to procedural fairness is to be found in the meagre provisions of Div 5 of Pt 5 of the Migration Act. In my view, to the extent that it suggests that s 422B excludes all principles of procedural fairness, other than those found in Div 4 of Pt 7 of the Migration Act, VXDC is fundamentally wrong. The obiter remarks in Lay Lat are entitled to great respect, appearing as they do in a considered judgment of a Full Court, but I cannot bring myself to accept that they are correct. For the reasons I gave in Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 170 at [28], I remain of the view that the words ‘in relation to the matters it deals with’, appearing in each of ss 51A, 357A and 422B of the Migration Act are intended to qualify the words preceding them, and to reduce what would otherwise be the absolute effect of those exclusionary words. If this were not the case, the words ‘in relation to the matters it deals with’ would be otiose, and it is not to be supposed that Parliament intended to enact meaningless, surplus words in a crucial amendment. The words are not the ‘plain words of necessary intendment’ required to exclude the requirements of procedural fairness. See Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ, and the authorities there cited. It is highly unlikely that Parliament had in mind all of the myriad ways in which procedural fairness, a concept the content of which is dependent on the circumstances of each case, could arise.
15. In my (formal) submission neither s 57 nor any other provision of Subdivision AB of Part 3 “deals(s) with” the provision or disclosure of adverse information to off shore applicants, and therefore, on a plain reading of s 51A, that section does not preclude the application of common law procedural fairness to this applicant.”
Conclusion
The Delegate’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 2 December 2008
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