SINGH v Minister for Immigration
[2005] FMCA 1886
•19 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1886 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of an entry permit on age grounds – inability of applicant to satisfy a mandatory criterion – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.359A Migration Regulations 1994 |
| Chan Ta Srey v Minister for Immigration [2003] FCA 1292 |
| Applicant: | AVTAR SINGH |
First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG3291 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 19 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2005 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Mr A Markus Australian Government Solicitor |
ORDERS
The applicant’s application for an adjournment is refused.
The judicial review application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3291 of 2005
| AVTAR SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Migration Review Tribunal (“the MRT”). The decision was made on 19 September 2005 and notified to the applicant by letter dated the same day. The RRT affirmed a decision of a delegate of the Minister made on 5 December 1994.
The delay between the delegate's decision and the MRT decision is initially surprising. It appears, however, from the book of relevant documents, which I received as evidence, and information provided to me by Mr Markus from the bar table, that there was a problem with notification to the applicant of the delegate's decision. When that problem came to light within the Minister's Department the Department decided that the applicant should have the benefit of the decision of Grey J in Chan Ta Srey v Minister for Immigration [2003] FCA 1292. He was accordingly permitted to apply for review of the delegate's decision, which he did. That application was received on 21 June 2005 by the MRT. The background facts relevant to this matter are otherwise set out in the Minister's submissions. I adopt as background paragraphs 1-16 of those written submissions:
The applicant seeks review of a decision of the MRT handed down 19 September 2005, affirming a decision of the delegate of the Minister made on 5 December 1994 to refuse the applicant’s application for a Transitional Permanent visa (formerly a Special Permanent Entry Permit) and a Highly Qualified On-Shore (permanent) Entry Permit.
Background
The applicant is a national of India who arrived in Australia on 8 August 1991, having been granted a visitor visa on 23 July 1991 [court book, page 15].
On 1 August 1994 the applicant lodged an application for a Special Entry Permit (Class 816 or 818) with the Department of Immigration and Ethnic Affairs [court book, pages 1-31].
On that application form at question nine (9), the applicant was asked to provide his date of birth. That question also stated:
If you were born before 1 November 1948, you are not eligible to apply as a main applicant. Do not continue. [court book, page 1]
The applicant’s date of birth is listed at question 9 as “4 / 7 / 44” (4 July 1944) [court book, page 1].
On 5 December 1994 the Minister’s delegate refused to grant the applicant a Special (permanent) Entry Permit and a Transitional Permanent Visa [court book, pages 37-41].
On 20 June 2005 the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) re-notified the applicant of the delegate’s decision [court book, page 48].
On 21 June 2005 the applicant sought review of the delegate’s decision in the MRT [court book, pages 49-53].
By way of letter dated 19 August 2005, the MRT invited the applicant to give evidence and present arguments in support of his claims at hearing [court book, pages 56-57].
By way of letter dated 25 August 2005, the MRT invited the applicant to comment on particulars of any information that the RRT considered would be the reason, or a part of the reason, for affirming the decision under review, in accordance with s.359A(1) of the Migration Act 1958 (“the Migration Act”). That letter invited the applicant to comment on:
the information that at the time you made the application for the visa on 29 July 1994 you were over the age of 45. [court book, pages 61-62]
On 29 August 2005 the applicant attended a hearing in respect of his application [court book, page 63].
At the MRT hearing the applicant confirmed that his date of birth was 4 July 1944, that being the date of birth on his passport and visa application [court book, page 71].
The MRT made its decision on 19 September 2005, affirming the decision of the delegate not to grant the applicant a Special (permanent) Entry Permit and a Transitional Permanent Visa [court book, pages 68-72]. This decision was handed down and notified in writing to the applicant on 19 September 2005 [court book, pages 66‑67].
MRT Decision
In its reasons for decision the MRT noted as follows:
a)the prescribed criteria to be satisfied before a Class 816/818 entry permit could be granted were set out in Parts 816 and 818 of Schedule 2 of the 1993 Migration Regulations (“the Migration Regulations”);
b)at the time of application, the prescribed criteria for the grant of Classes 816 and 818 contained the following necessary criterion [court book, page 70]:
Part 816 of Schedule 2, Migration Regulations 1994:
816.721 (1) The applicant is:
(a) a person who:
(i) had not turned 45 before 1 November 1993; and
(ii) …
Part 818 of Schedule 2, Migration Regulations 1994:
818.721 (1) The applicant is:
(a) a person who:
(i) had not turned 45 before 1 November 1993; and
(ii) …
c)the entry permit application and passport both indicated that the applicant was born on 4 July 1944, in which case the applicant would have been aged 49 on 1 November 1993 [court book, page 72];
d)the affidavit at court book, page 33 and education document at court book, page 36 indicated that the applicant’s date of birth was 4 July 1945, in which case the applicant would have been aged 48 on 1 November 1993 [court book, page 72].
Accordingly the MRT found that the visa applicant failed to meet the requirement of subparagraph 816.721(1)(a)(i), which was a mandatory requirement for the grant of a subclass 816 entry permit. The MRT also found that the applicant failed to meet subparagraph 818.721(1)(a)(i), a mandatory requirement for the grant of a subclass 818 entry permit.
Therefore the MRT found it had no alternative but to affirm the decision under review as the applicant did not meet the mandatory requirements for either of the entry permit subclasses.
The applicant relies upon his judicial review application filed on 13 October 2005. That application asserts jurisdictional error but provides no particulars. In oral argument the applicant sought an adjournment in order to obtain legal representation. He showed me documents which satisfied me that he had approached the New South Wales Bar Association for assistance. He has apparently heard nothing from the Bar Association.
Mr Markus, however, told me that he understood that the Bar Association was not in a position to assist the applicant. I considered whether I should grant the request for an adjournment to permit the applicant to seek legal representation. I decided that the interests of justice did not require it. The applicant's concern (as explained to me by him) is not with the decision of the MRT the subject of these proceedings. His concern is with the inadequacies of notice of the delegate's decision. He sees that inadequacy as having deprived him of the opportunity of altering his circumstances which might have given him the opportunity to apply for a different class of visa.
That is beyond the scope of these proceedings. The facts are that the applicant did not, could not and cannot qualify for the class of visa which he sought. The RRT made no error in dealing with the review application. Even if some error had been identified, and it has not been, it would be futile to grant prerogative relief given that the applicant cannot qualify because of his age.
Because the decision of the RRT is free from jurisdictional error I must dismiss the judicial review application. I will so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $4,000. I accept that those costs have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. The applicant pointed to his inability to pay costs while he is detained. That, however, goes to his ability to pay the costs not the question of whether an order should be made. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 21 December 2005
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