Sayed v Minister for Immigration
[2006] FMCA 936
•13 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAYED & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 936 |
| MIGRATION – Visa – Migration Review Tribunal – application for review of MRT decision not to grant a bridging A visa to the applicants – where applicants sought special leave to appeal to the High Court – where applicants claim that their appeal was out of time due to a registry error – because appeal was filed out of time applicants’ bridging A visa was not continued – applicants were granted a bridging E visa – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.475A |
| First Applicant: | MOHAMMED FAROOQUE SAYED |
| Second Applicant: | NASRIN MOHAMMED FAROOQUE SAYED |
| Third Applicant: | NIDA MOHAMMED FAROOQUE SAYED |
| Fourth Applicant: | FAIQ MOHAMMED FAROOQUE SAYED |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 341 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 June 2006 |
| Date of Last Submission: | 13 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2006 |
REPRESENTATION
| The Applicants: | Appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The First and Second Applicants are to pay the First Respondent’s costs fixed in the sum of $2,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 341 of 2006
| MOHAMMED FAROOQUE SAYED |
First Applicant
| NASRIN MOHAMMED FAROOQUE SAYED |
Second Applicant
| NIDA MOHAMMED FAROOQUE SAYED |
Third Applicant
| FAIQ MOHAMMED FAROOQUE SAYED |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is rather unusual and arises out of an unfortunate circumstance so far as the applicants are concerned. It is an application for review of a decision of the Migration Review Tribunal. A decision was made on 20th January 2006 affirming a decision of a delegate of the Minister finding that the visa applicants are not entitled to the grant of bridging A (class WA) visas.
The facts appear from the tribunal's reasons for decision, particularly paras. 11, 12 and 13 which appear on page 56 of the Court book. In summary, the applicants, who are a husband, wife and children, entered Australia on a subclass 676 visa on 9th January 2003.
On 7th February they were granted bridging A visas, these were renewed on 6th February 2004.
The visas expired on 24th March 2005 and since then the applicants have held bridging E visas on the basis of the application for review to the Tribunal.
The applicants had been granted bridging A visas on the basis of their application for a protection visa which was lodged on 7th February 2003. The application was refused and the Refugee Review Tribunal affirmed the delegate's decision on 5th November 2003.
The applicants then sought judicial review and were unsuccessful by means of a decision handed down on 24th February 2005.
The applicants then sought special leave to appeal to the High Court and their application was made on 1st April 2005.
The reason for not granting bridging A visas was that the statutory time limit for appealing a decision of the Full Federal Court to the High Court of Australia is 28 days. As the applicants had not lodged their appeal within 28 days they did not meet reg. 010.211(3) (b) (i).
The applicants sought a review of that decision to the Migration Review Tribunal.
The facts caused some sympathy from the Tribunal as was set out in paragraph 23 of the findings, which appears at page 57. The applicant had attempted to lodge a valid application for special leave to the High Court of Australia within the time prescribed by the regulation. Regrettably he had been unable to do so. The circumstances are set out in paragraphs 15 and 17 of the Tribunal decision which appear on pages 56 and 57 of the Court book.
The applicant had attended the High Court registry within time.
He had completed the necessary documentation for an application for special leave to appeal to the High Court. The counter clerk, however, rejected the application and provided further documentation which needed to be filled in. They did that and were told that they then required an affidavit and a notice of appeal. They returned with this documentation and were then told that the original advice they had received was incorrect and that the documents they had originally prepared were the appropriate ones.
The difficulty arose for the applicant concerned public holidays in Easter. His documents had been refused before Good Friday and after he returned on the appropriate business day it was after Easter Monday. By then he was out of time.
The difficulty that arises for the applicant is that the applicant has certainly been granted a bridging visa but it is a bridging E visa and not a bridging A visa. The difference between the two is that with a bridging A visa, the applicant is entitled to work whereas a bridging E visa does not come with that condition.
As a result, due to the change in the applicant's visa status he does not have an entitlement to work and he was therefore dismissed from his employment for not having a work visa. This has caused him and his family a significant degree of financial hardship.
The applicant seeks the issue of a bridging visa that carries a condition that the applicant has permission to work rather than the bridging visa upon which he and his family are currently on.
At the beginning of the hearing I did point out to the applicant that the issue of the visa is not a matter that the Court can directly attend to and it follows that the Court must consider whether or not a jurisdictional error has appeared in the Tribunal's decision.
The applicant has made written submissions pointing out his plight and the fact that his difficulty arises from incorrect procedures allegedly followed at the High Court registry, depriving him of his chance to obtain the appropriate visa. His application for leave to appeal which was finally filed was in fact dismissed by the High Court of Australia on 4th August 2005.
I am mindful of the matters set out in submissions prepared by the lawyers for the Minister. In my view the submission contains a correct summary of the law. As the judicial review proceedings in respect of the applicant's claim for a protection visa were dismissed on appeal on 24th February 2005 the bridging visas that the applicants held, namely bridging A (class WA) visas ceased 28 days after the completion of the judicial review proceedings. That means that the bridging visas ceased on 25th March 2005.
Had the applicants been able to lodge their application for special leave prior to that time, they would have been entitled to further bridging A visas. Unfortunately they did not lodge the application for special leave to the High Court until 1st April 2005.
Item 010.211(3)(b)(i) provides that:
The visa applicant must have applied for judicial review 'within statutory time limits' -
And item 010.211(3) (c) provides that:
At the time of that application the visa applicant must hold a bridging A (class WA) or a bridging B (class WB) visa.
The Tribunal acknowledged in its decision that the applicants had maintained that they attempted to file an application for special leave within the statutory time limits for such an application. If the application for special leave had been accepted prior to
25th March 2005 the applicants would still have been holding bridging A (class WA) visas.
The fact remained that the application for special leave was not filed until 1st April 2005 by which time the applicants no longer held bridging A (class WA) visas. Therefore, while the MRT expressed sympathy for the applicants' situation it found that they did not satisfy item 010.211(3) (c).
I am satisfied that there is no error in the Tribunal's analysis of the relevant criteria for the grant of a bridging A (class WA) visa.
Whilst the applicants say that it was the High Court that incorrectly rejected their documents when they attempted to file them prior to
1st April 2005, it does not mean however that the tribunal erred in its decision.
The Tribunal has no discretion in these circumstances. It can only deal with the facts as they appear and for whatever reason the application for special leave to appeal to the High Court was not filed within 28 days.
In any event there is further argument raised by the respondent which has been described as the utility argument. It might perhaps be described, with respect, as a “futility argument”. The applications in these proceedings are applications for a protection visa. Bridging A (class WA) visas can only be granted while the application is being determined as set out in item 010.211(2) or while any judicial review or other review proceedings in relation to a decision to refuse to grant such a visa are not yet completed. I refer to item 011.211(3).
The judicial review proceedings in respect of the applicants' application for protection visa were concluded when the High Court refused their application for special leave on 4th August 2005.
The utility argument is that there is no utility in maintaining these proceedings because the applicants clearly do not now satisfy the requirements for the grant of a bridging A (class WA) visa. In other words, as the application for protection visas has been subject to judicial review and those proceedings have been determined in any event the applicants can no longer claim that they satisfy the requirements for the grant of a bridging A visa.
It is hard not to have some sympathy for the applicants but I note that the error on the part of the counter clerk at the High Court registry that they allege was not an error that led to their application for special leave not to be dealt with. It was dealt with and regrettably it was refused. The error of the counter clerk, as set out by the applicant, went to the question of the time in which the judicial review proceedings took place, so that there was a hiatus between the handing down of the Full Federal Court decision and the application for special leave to the High Court of Australia.
Because of this hiatus caused by a combination of incorrect advice on the applicants' case and also public holidays, led to a gap of time in which the bridging A visas expired. When the application for special leave was accepted by the High Court the applicants no longer held a bridging A visa, they could only get a bridging E visa, which does not carry a right to work.
In any event, the judicial review proceedings are completed and were completed when the High Court handed down its decision. There is no error on the part of the Migration Review Tribunal and whilst it is clear that the applicant as a result of not being able to work over that period of time has suffered financial hardship, it is not a matter for which the Court has a remedy. The application must be dismissed.
I note that the fourth applicant is a child and an order for costs is not sought against him. The amount of costs which are sought, $2,800.00, is clearly appropriate. I note that the family is suffering a considerable amount of financial hardship and I note that even though the daughter is now an adult she has played no separate part in these proceedings.
I will make an order for costs I am reluctant to make an order for costs in respect of the daughter but I will, however, order that the 1st and 2nd applicants pay the 1st respondent's costs in the sum of $2,800.00 and in the circumstances I will allow eight months to pay.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 26 June 2006
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