Sahib v Minister for Immigration
[2010] FMCA 925
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAHIB v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 925 |
| MIGRATION – Review of decisions – Migration Review Tribunal – visa – subclass 457 visas. |
| Federal Magistrates Court Rules 2001, r.16.05(2)(a) Legislative Instruments Act 2003, s.12 Migration Act 1958 (Cth), ss.504 and 505 Migration Regulations1994 (Cth), cl.457 Migration Amendment Regulations 2007 (No.5) |
| Hu & Anor v Minister for Immigration [2007] FMCA 1710; (2007) 214 FLR 296 |
| Applicant: | MOHAMED SATHAKATHULLA SINTHAMATHER SAHIB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 68 of 2010 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 21 October 2010 |
| Date of Last Submission: | 21 October 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 21 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Ms Symons |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application filed on 15 September 2010 be dismissed.
The applicant pay the respondent’s costs fixed at $1600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 68 of 2010
| MOHAMED SATHAKATHULLA SINTHAMATHER SAHIB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal (‘MRT’) made on 23 December 2009. The applicant sought a work visa pursuant to clause 457 of the Migration Regulations 1994. The MRT concluded that the applicant did not fulfil the relevant requirements. There were a number of issues with respect to sponsorship for the applicant to come to Australia as a chef. However, the key factor in this case relates to his English language skills.
The applicant’s case was based on the proposition that, as at the time he applied for his visa and at the time of the delegate’s decision, the regulations were such that he would have not have had any difficulty with the English language criteria, as it was not then in force. By the time that the Tribunal decided the case, it is clear that the English language requirement was in force.
Despite having had a number of different tests, the applicant’s score on the relevant testing method was no higher than 3.
At the time of the Tribunal’s decision, the test required a score of at least 5 for the grant of a visa. Therefore, the applicant did not satisfy that criteria at the time of the MRT’s decision.
The applicant also raised a number of difficult questions with respect to the Minister’s power to make retrospective regulations under ss.504 and 505 of the Migration Act 1958. These issues are difficult in light of the general presumption that laws are not intended to be retrospective, and the lack of clear words in ss.504 or 505 with respect to delegated power to make retrospective regulations. The issues are further complicated by the potential operation of s.12 of the Legislative Instruments Act 2003. This provision preserves the rights of a person, as at the date of registration of a legislative instrument, if the effect of the regulation would be to “disadvantage that person.” These issues are explored in some detail by Smith FM in Hu & Anor v Minister for Immigration [2007] FMCA 1710, decided on 3 October 2007. However, the starting point in this case is to identify the relevant regulations that applied as at the date of the visa application.
In the Migration Amendment Regulations 2007 (No.5), being Select Legislative Instrument 2007 No. 190, the criteria for subclass 457 visas was altered to include the English language proficiency requirement. Regulation 2 provided that Schedule 6 (which contains the English language requirement) commenced on 1 July 2007. The effect is that, as at the date of the applicant’s application for a visa, he required an IELTS test average band score of more than 4.5. As set out in the reasons for the MRT’s decision, the applicant did not attain a score above 3 in any of his tests (see paragraphs 15, 19, 23, and 24).
In these circumstances, no question of retrospective operation of the Regulations could be said to have disadvantaged the applicant. If it were the case that the Regulations as amended after his application did not apply as a matter of law, his application would nonetheless have failed on the terms of the Regulations applicable at the time he applied for his visa.
In the circumstances of this case, I must therefore dismiss the applicant’s application on the basis that, on any view of the law, on the facts as found by the Tribunal he could not have satisfied the criteria for the grant of the visa sought.
[Further argument ensued with respect to costs]
Costs
The applicant made an application for costs with respect to this matter. There are also orders that costs of the proceedings commenced as an appeal in the Federal Court are included in this application. The matter has had a somewhat chequered history. The applicant did not attend in June, and orders were made, simply dismissing the matter and granting the respondent the scale fee of some 5800-odd dollars.
The applicant then sought to appeal. He was quite properly referred back to this Court to apply to reopen and set aside the order made in his absence, as is available under r. 16.05(2)(a) Federal Magistrates Court Rules 2001, so that the matter could be dealt with on its merits. The orders in the Federal Court provided that the costs of that event follow the event in this Court. The applicant has been back, having had a substantive hearing on the merits of the matter and has failed. It is appropriate that the applicant pay the costs of the proceedings.
I take into account that he is a man without means. However, that of itself is not a basis for not ordering costs in proceedings of this type. The real issue is what is a reasonable amount of costs to order, given the nature of the proceedings and the events that have occurred. Looking at the file and the detail of the matter, it appears that the amount fixed on the last occasion, being simply in accordance with the scale, whilst appropriate for the average matter, was somewhat generous when one sees the actual work undertaken in this matter.
To this extent, if needed, I would have considered setting aside the orders and making further ones with respect to costs generally. However, it seems that the matter is more conveniently dealt with by making an ‘in globo’ finding with respect to costs and making an adjustment in the orders with respect to the current application. The cost of the solicitor appearing in the Federal Court to effectively send a misguided applicant back to the appropriate court were very modest and, in the context of the details of this case and the work it required, are more than adequately covered by the scale fee.
The costs of today are certainly further fees for the solicitor and the barrister, which I accept are at $600 for the solicitor and $1000 for the barrister, on reasonable assessment of actual expenses and are well within the scale. Looking at the matter as a whole, I am persuaded that the applicant should pay the respondent’s costs fixed at $1600 in addition to the costs order that I made on the previous occasion.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 29 November 2010
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