Sikinairai v Minister for Immigration

[2007] FMCA 1882

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIKINAIRAI & ORS v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1882

MIGRATION – Delay of four years – delay excessive – no arguable case – application dismissed.

Migration Act 1958 (Cth), ss.351, 359A, 360
Federal Magistrates Court Rules 2001, r.44.12

First Applicant: ALUMECI SIKINAIRAI

Second Applicant: MANASA LOVODUA

Third Applicant: KELEPI LOVODUA

Fourth Applicant: JOSAIA LOVODUA

Fifth Applicant: USAIA LOVODUA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG 1758 of 2007

Judgment of: Turner FM

Hearing date: 7 November 2007

Date of last submission: 7 November 2007

Delivered at: Sydney

Delivered on: 26 November 2007

REPRESENTATION

Solicitors for the Applicant: Mr R. Turner of Parish Patience

Solicitors for the Respondents: Ms D. Watson of Australian Government Solicitor

ORDERS

1. The application is dismissed pursuant to Rule 44.12(1)(a).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1758 of 2007

ALUMECI SIKINAIRAI

First Applicant

MANASA LOVODUA

Second Applicant

KELEPI LOVODUA

Third Applicant

JOSAIA LOVODUA

Fourth Applicant

USAIA LOVODUA

Fifth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 25 June 2001, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicants Family (Residence) (Class AO) visas.

Background to proceedings

1. The first-named applicant is the primary applicant in these proceedings (“the applicant”). Her husband (the second-named applicant) and their three children are the remaining applicants in the application.

2. On 26 February 1999 the applicants lodged an application for a Family (Residence) (Class AO) visa (subclass 806), or ‘carer’ visa, on the basis that the first applicant was a ‘special need relative’ (CB 17). The application was refused on 22 April 1999 by a delegate of the first respondent, as the first applicant’s brother failed to meet the minimum impairment rating for the requirements for a carer (CB 52, 53, 59).

3. An application for review of the decision of the delegate was lodged with the Migration Internal Review Office on 19 May 1999 (“MIRO”) (CB 79). The MIRO ceased operations on 31 May 1999, and the application was subsequently transferred to the Migration Review Tribunal on 1 June 1999 (CB 91).

4. On 25 June 2001 the Tribunal affirmed the decision of the delegate not to grant the applicants Family (Residence) (Class AO) visas (CB 114). The applicant then sought the Minister’s intervention pursuant to s.351 of the Migration Act 1958 (Cth) (“the Act”) (CB 129), which was refused on 25 September 2002 (CB 132).

5. In 2002 the applicant lodged, and was refused, a protection visa application (affidavit of Alumeci Lovodua, affirmed 1 February 2007, p.3). The applicant then sought the Minister’s intervention twice, and was refused on both occasions.

6. On 2 February 2007 the applicant filed an application with the High Court of Australia, seeking judicial review of the decision of the Migration Review Tribunal signed on 25 June 2001. By order of Justice Heydon on 25 May 2007, the matter was remitted by consent to this Court.

Issues for determination

1. The issues before the Court are as follows:

   ·Whether the delay by the applicant is unreasonable;

   ·Whether an enlargement of time to take the proceedings would prejudice the first respondent;

   ·Whether the application raises an arguable case.

The application

1. In her application, the applicant set out the following grounds:

   (1)The second defendant failed to give the plaintiffs an opportunity to appear before the Tribunal to give evidence as required by s.360(1) of the Migration Act 1958.

   Particulars

   (a)The invitation purportedly sent to the plaintiffs pursuant to that subsection was not sent to the address that the plaintiffs had notified to the second respondent for service of notices.

   (b)The mere sending of the invitation was not sufficient to discharge the MRT’s obligations under s.360 of the Migration Act 1958.

   (2) The second defendant failed to disclose to the plaintiffs information that was required to be disclosed to the plaintiffs pursuant to s.359A of the Migration Act 1958 and common law procedural fairness.

   Particulars

   (a)Information from Health Services Australia to the effect that Mr Powasa Gutabua was not so seriously incapacitated to meet the requirements of needing a carer.

   (b)The invitation purportedly sent to the plaintiffs pursuant to that section was not sent to the address that the plaintiffs had notified to the second respondent for service of notices.

Findings of the Court in relation to the application to enlarge time and the grounds in the application

1. According to the evidence given by the applicant, she attended at the Tribunal on 25 June 2001 when her decision was handed down and a copy given to her. She obtained advice and took various steps available to her from then until 25 September 2002, when her application to the Minister was refused. No further action was taken until 16 November 2006, when the applicant’s new solicitor wrote to the Migration Review Tribunal asking it to “confirm that decision N99/03674 is a nullity and to vacate it accordingly” (CB 133). That request was refused by letter dated 22 December 2006 (CB 140). The application for an order to show cause was filed in the High Court on 2 February 2007, which remitted the proceedings, including any question of enlargement of time to this Court for determination. There was therefore a period of 4 years between 25 September 2002 and 22 December 2006 where the applicant took no steps to seek a review in this matter, other than obtaining advice on 3 November 2006 (affidavit of Alumeci Lovodua, affirmed 1 February 2007, para.16).

2. The first respondent opposes the applicant being allowed to take her proceedings. According to the affidavit of Bernadette Mary Ruddy (filed 25 July 2007 on behalf of the first respondent), it is not now possible to ascertain from the Tribunal’s records when the relevant change of address was provided to the Tribunal. It is said that allowing the proceeding to continue would disadvantage the first respondent; the Court agrees. The Court finds that the delay of 4 years by the applicant is unreasonable and rejects the application.

3. The matter was listed also for the applicant to demonstrate an arguable case. According to the applicant’s evidence, she advised the Tribunal by telephone of a new address for service in January 2001. The documents before the Court show that the applicant advised the Tribunal of a new and different residential address on 10 February 2001 (CB 103). It is to be noted that the letter is signed by the applicant and by a Mr Hanlen, who provided his own address in that letter. It is clear from the letters at CB 106, 108 and 110 that they were sent to the latest residential address provided by the applicant.

4. The Court finds that there is not an arguable case that the Tribunal did not comply with s.359A or s.360(1) of the Act, or that it denied the applicant natural justice. Correspondence was sent to the applicant at the latest address notified by her. Any failure to receive the correspondence, to respond, or to attend, was due to the conduct of the applicant.

5. The application is dismissed pursuant to Rule 44.12(1)(a).

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Turner FM

Acting Associate:  M Giang

Date:  26 November 2007