Saleem v Migration Review Tribunal

[2004] FCA 810

FEDERAL COURT OF AUSTRALIA

Saleem v Migration Review Tribunal [2004] FCA 810

MUHAMMAD SALEEM v MIGRATION REVIEW TRIBUNAL AND ANOR
N 1718 of 2003

ALLSOP J
25 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1718 of 2003

BETWEEN:

MUHAMMAD SALEEM
APPLICANT

AND:

MIGRATION REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

25 JUNE 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The first respondent expedite the hearing and disposition of the application for review of the applicant in respect of the decision of the delegate of the second respondent made 27 November 2002.

2.The application in respect of the decision of the delegate of the second respondent made 27 November 2002 be dismissed.

3.The applicant pay the second respondent’s costs of and incidental to the application in relation to the review of the decision of the delegate of the second respondent dated 27 November 2002, including the costs of the hearing on 10 June 2004.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1718 of 2003

BETWEEN:

MUHAMMAD SALEEM
APPLICANT

AND:

MIGRATION REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	ALLSOP J
DATE:	25 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 29 April 2004, I made orders that a writ of certiorari issue to quash the decision of the Migration Review Tribunal (“the Tribunal”) dated 8 October 2003 affirming a decision of a delegate of the second respondent to cancel the applicant’s visa.  My reasons for that order and the associated orders made on that day were published on 30 March 2004. 

2. The background to the matter is contained in my earlier reasons. I do not propose to reiterate any of the factual background.

3. I only dealt with the Tribunal’s decision.  The application before the Court also sought relief in respect of the decision of the delegate.  On 10 June 2004, I heard argument in respect of the delegate’s decision.

4. Two fundamental matters were addressed by the applicant on 10 June 2004.  First, it was said that the delegate had displayed jurisdictional error of a kind similar to that which I found the Tribunal committed, that is, going outside the s 107 notice, thus exceeding the statutorily authorised task.

5. Secondly, it was said that notwithstanding the availability of merits review in the Tribunal upon the re-hearing which it is common ground will take place if I do not set aside the delegate’s decision, I should declare the delegate’s decision to have been reached exhibiting jurisdictional error and I should order certiorari to issue to quash the delegate’s decision in order that the applicant be able to resume his prior status as having a valid visa.  This will enable him to re-enter Australia, it is said.  He left for Pakistan after the Tribunal’s decision.

6. I do not propose to examine in detail the asserted jurisdictional error, though I am far from convinced that it exists.  I propose to deal with the matter on the assumption that there was jurisdictional error in the manner asserted.

7. Parliament has set up a comprehensive scheme of full merits review to the Tribunal. In that review by dealing with the matter de novo the Tribunal will be able to approach the matter afresh and, by a consideration of my earlier reasons, according to an appropriate understanding of the legislative provisions.

8. In NAUV v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 124 the Full Court recognised the general principle enunciated in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501, 508-12 that save in exceptional circumstances prerogative relief will be withheld on discretionary grounds where other suitable remedies are available and have not been used.

9. The Privy Council in Harley Development v Commissioner for Inland Revenue [1996] 1 WLR 727, 735-36 identified a similar principle.

10. Here, the circumstances said to warrant the relief in relation to the delegate’s decision are that it is a decision, which took away a statutory right, or purported to, and the applicant should have his position as a lawful visa holder clarified.  Thus, if the visa is to be cancelled it must, once again, be dealt with by the Minister or her delegate.  Also, the applicant is in Pakistan and wishes to return to Australia where he has business and personal interests.

11. There was evidence led before me from Ms Marina Osmo, the acting District Registrar of the New South Wales Registry of the Tribunal.  She gave evidence of the procedures adopted by the Tribunal.  It was apparent after her cross-examination that she could not say when this matter would be resolved.  However, it can be said that had this application in respect of the delegate’s decision not been brought the processes of the Tribunal would have been underway for some two months.

12. I do not think that there are sufficient reasons here to warrant departure from the usual rule by which I am bound as expressed in NAUV and Boral Gas.  Parliament has set up a full and complete review procedure, which can promptly and effectively rehear the whole of the applicant’s case.  There was no suggestion that there was any incurable injustice likely to be caused by the applicant being in Pakistan.

13. To the extent that it was said that the Tribunal may take as long as it did previously to dispose of the rehearing (10 months) I propose to supplement the orders that I made on 29 April 2004, by ordering that conformably with the due undertaking of its business, the Tribunal, which is the first respondent, expedite the hearing and disposition of the applicant’s application. If any party, including the Tribunal, wishes to contest the making of such an order the matter can be relisted for argument.

14. The orders that I make are:

    1.   The first respondent expedite the hearing and disposition of the application for review of the applicant in respect of the decision of the delegate of the second respondent made 27 November 2002.

    2.   The application in respect of the decision of the delegate of the second respondent made 27 November 2002 be dismissed.

    3.   The applicant pay the second respondent’s costs of and incidental to the application in relation to the review of the decision of the delegate of the second respondent dated 27 November 2002, including the costs of the hearing on 10 June 2004.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            25 June 2004

Counsel for the Applicant:	Mr D Godwin
Solicitor for the Applicant:	Brett Slater
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 June 2004
Date of Judgment:	25 June 2004