SZBJP v Minister for Immigration

[2006] FMCA 1715

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBJP v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1715

MIGRATION – Review of decision by Migration Review Tribunal – practice and procedure – respondent’s application for summary dismissal pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 – whether Migration Review Tribunal had jurisdiction to review delegate’s decision where visa with mandatory condition granted.

Migration Act 1958 (Cth), ss. 338; 347; 348
Federal Magistrates Court Rules 2001, r.44.12

Applicant: SZBJP

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: SYG2456 of 2006

Judgment of: Emmett FM

Hearing date: 13 November 2006

Date of last submission: 13 November 2006

Delivered at: Sydney

Delivered on: 13 November 2006

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: Ms B. Rayment, Sparke Helmore Lawyers

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2456 of 2006

SZBJP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this Court be dismissed on the basis that it has not raised an arguable case for the relief claimed. The application is made pursuant to r.44.12 of the Federal Magistrates Court Rules 2001. 

2. The applicant filed an application on 1 September 2006 seeking judicial review of a decision of the Tribunal dated 3 August 2006 in respect of which the applicant was notified on 8 August 2006.  

   
   

   That application relies on the following grounds:

   “1. The Migration Review tribunal in it’s decision has mentioned that MRT has no jurisdiction about this application. But I believe MRT has jurisdiction, can consider applicants protection visa claim where applicant’s persecuted his own – family and community for his belief in – Christianity.

   2. The Migration Review Tribunal failed to – put the adverse materials to me and to – enable me to have an opportunity to submit my explanations. If I would be given the opportunity it could have led to different decision by – the tribunal.

   3. Migration Review Tribunal failed to exercise – its jurisdiction for it’s failure to take into – consideration of my written submission regarding the persecutions I experienced in Bangladesh for my belief in Christianity.”

3. On 18 October 2006, the first respondent filed a response which sought the relief referred to above.  On 19 October 2006, directions were made by me granting the applicant leave to file and serve an amended application, together with any evidence by way of affidavit by

   
   

   6 November 2006.  The applicant filed an amended application on

   
   

   6 November 2006 and the grounds relied upon are in the following terms:

   “1. That the decision involved a jurisdictional error of law being an error of law involving an – incorrect interpretation of the applicable law to the facts of the cases found by the – Migration Review Tribunal.

   2. The Tribunal decision was unjust and was made without taking into account the full gravity of the applicant’s – circumstances and the consequences – of the claim.

   3. The tribunal did not provide me, an opportunity to make comments on material which – the tribunal relied on its decision. The tribunal took irrelevant considerations to decide the – applicant’s case.

   4. The Tribunal decision was an Improper exercise of the power conferred by the Migration Act. There – was no evidence or othere (sic) material to justify the – making of the decision.”

4. The first respondent read the affidavit of Bernadette Marie Rayment sworn 18 October 2006 in support of her application this morning.  That affidavit annexed the procedural history of litigation by the applicant before this Court in relation to a decision by the Refugee Review Tribunal (“the Tribunal”) dated 12 August 2003 which affirmed a decision of the delegate to refuse a protection visa to the applicant. 

5. The affidavit also annexes a copy of the Tribunal’s decision dated

   
   

   3 August 2006, being the subject of the proceedings before this Court.  The applicant’s application to the Tribunal for review of the decision of a delegate of the first respondent, filed by the applicant on 19 June 2006, does not disclose any grounds of review.

6. The Tribunal decision noted that a Bridging E (Class WE) visa with condition 8101 had been granted to the applicant by way of a decision of a delegate of the first respondent, dated 20 January 2006.  Condition 8101 prevented the applicant from working and is a mandatory condition of a Bridging E (Class WE) visa (see clause 050.612A of the Regulations).  

7. The Tribunal noted in its decision that it formed a preliminary view that it did not have jurisdiction because the Tribunal does not have the power to review visa conditions.  The Tribunal noted that it wrote to the applicant on 26 June 2006 inviting submissions on the issue. 

8. The Tribunal noted the applicant’s response provided by letter dated

   
   

   31 July 2006 and set out the text of the applicant’s letter as follows:

   “The applicant’s letter stated, among other things:

   “I have read your letter and I have found a lot of reasons why the Tribunal should consider my appeal. I applied to the Minister on 29 December 2005 for work rights. The Minister considered my application and issued work rights on 20 January 2006. I have no idea why the Department of Immigration cancelled my work rights and changed my visa conditions. My work rights were granted by the Minister, I believe the Department does not have the legal power to reverse the Minister’s decision. I believe the Migration Review Tribunal can exercise its power to get back my work rights and change the visa status.””

9. In its decision the Tribunal stated that the Tribunal only has jurisdiction if an application is properly made under s.347 of the Migration Act 1958 (the “Act”) for review of a Tribunal reviewable decision under s.348 of the Act. Section 338 of the Act sets out the various decisions reviewable by the Tribunal. None of the sub-sections contained in s.338 contemplate a situation where a visa in fact has been granted to an applicant for review.

10. The Tribunal found that the delegate’s decision to grant a Bridging E (Class WE) visa is not a Tribunal reviewable decision within the meaning of ss.338 and 347 of the Act. For that reason, the Tribunal concluded that it did not have jurisdiction to entertain the applicant’s application.

11. The applicant referred the Court to another earlier decision of the Migration Review Tribunal in which he was also the applicant. However, the Migration Review Tribunal, in that case, in a decision, dated 5 August 2004, was reviewing a decision of a delegate refusing to grant the applicant a Bridging E (Class WE) visa.  In those circumstances, the Tribunal plainly has jurisdiction to review the delegate’s decision.

12. However, in the proceeding before this Court; the conclusion made by the Tribunal that the application for review before it was not a Tribunal reviewable decision was based on the fact that s.338 of the Act did not include a circumstance where a visa had been granted. Section 347 of the Act makes it clear that the Tribunal can only review “MRT reviewable decisions”.

13. It is apparent from ss.338 and 347 of the Act that the Tribunal does not have jurisdiction to entertain an application for a review of a decision to grant a visa with no work rights. Nor could the Tribunal review the attachment of condition 8101 where that condition was mandatory to the type of visa granted to the applicant.

14. Accordingly, the Tribunal did not have jurisdiction to review the delegate’s decision granting the applicant a Bridging E (Class WE) visa. Nor did it have jurisdiction to consider conditions mandatory to that visa.

15. Ground 3 of the applicant’s amended application contended that he was not provided an opportunity to make comments on material on which the Tribunal relied in its decision.  However, I note that the Tribunal wrote to the applicant on 26 June 2006 inviting submissions on the issue of whether or not the Tribunal had power to review visa conditions and the Tribunal noted and set out an extract from the applicant’s letter in response, as referred to above. 

16. The other grounds contained in the applicant’s amended application do not contain any particulars and are mere assertions of error. 

17. Similarly, the applicant’s application filed on 1 September 2006 does not contain any particulars and makes assertions in similar terms. 

18. In the circumstances the applicant’s proceeding before this Court has no reasonable prospects of success.  Neither the application nor the amended application raises an arguable case for the relief claimed.

19. Accordingly, the proceeding before this Court is dismissed. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  21 November 2006