Szczepaniak v Minister for Immigration and Multicultural Affairs

[2000] FCA 1191

FEDERAL COURT OF AUSTRALIA

Szczepaniak v Minister for Immigration & Multicultural Affairs [2000] FCA 1191

EUGENIUSZ SZCZEPANIAK V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO N293 OF 2000

JUDGES:      BEAUMONT, NORTH and GYLES JJ
DATE:           24 AUGUST 2000
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N293 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	EUGENIUSZ SZCZEPANIAK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BEAUMONT, NORTH & GYLES JJ
DATE OF ORDER:	24 AUGUST 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

Appeal be dismissed, with costs.

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	N293 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	EUGENIUSZ SZCZEPANIAK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BEAUMONT, NORTH & GYLES JJ
DATE:	24 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. In order to understand the issues arising in this appeal from an order of a Judge of the Court dismissing an application for judicial review, reference should first be made to the history of the matter as follows:

   ·The appellant is an Australian citizen.  He arrived in Australia in August 1980, and acquired Australian citizenship in September 1983.  The appellant’s wife and daughter subsequently joined him, in 1995.

   ·The appellant’s only son, Mr Robert Wieslaw Szczepaniak, remains in Poland.  In June 1997, Mr R W Szczepaniak made an application at the Australian Embassy in Warsaw for a “Preferential Relative (Migrant) (Class AY) Subclass 104 – Preferential Family” visa.  The appellant sponsored the application.  Mr R W Szczepaniak then informed the Department that he had married in 1985; that he had a daughter, born on 3 November 1987; that he had separated from his wife in 1991; that they had divorced in 1996; that his former wife had daily care, control and custody of his daughter; and that he had limited access only to his daughter.

   ·In August 1997, the appellant’s application was refused on the basis that his daughter met the definition of a “non-dependant child”, and therefore Mr R W Szczepaniak was unable to satisfy the criteria specified in Migration Regulations 1.15 and 104.211(2)(a) for the grant of a preferential family visa subclass 104.

   ·The appellant then made several representations to the Department, the Minister and the Prime Minister, but there no application was made for the review of the decision made in August 1997.

   ·On 18 July 1998, the Minister wrote to the appellant, pointing out that his discretionary power to intervene in individual cases was subject to certain limitations, including where a case has already been reviewed by some review authority, and that, in the circumstances of this case, the Minister had no power to consider the appellant’s request for intervention.  The letter went on:

   “The option remains for your son to lodge a fresh application for migration to Australia, either on the same or different grounds.  In the event that the application is again refused, he will have the option of seeking a review of the decision.”

   ·A new application was then lodged, on the same basis as earlier, in July 1998.  The application was once again refused, and Mr R W Szczepaniak was notified of that decision by letter dated 23 September 1998.

   ·On 30 September 1998, the appellant lodged an application for internal review of the decision with Migration Internal Review Office (MIRO).  By letter dated 10 March 1999, the Review Officer at MIRO informed the appellant that he had decided to affirm the original decision.

   ·The appellant wrote again to the Minister, requesting his intervention on humanitarian grounds.  By letter dated 28 April 1998, Senator Patterson (Parliamentary Secretary to the Minister) responded on the Minister’s behalf, informing the appellant that, as he had a further right of appeal to the Immigration Review Tribunal (“the IRT”), it was not appropriate for the Minister to intervene.

   ·On 4 May 1999, the appellant applied to the IRT for review.  As at 31 May 1999, the appellant’s application was transferred to the newly established Migration Review Tribunal (“the MRT”).  The MRT held a hearing in respect of the application and subsequently published its decision on 20 September 1999.  The MRT concluded that the daughter of Mr R W Szczepaniak is a “non-dependant” child for the purposes of Regulation 1.15 of the Migration Regulations, and that, accordingly, the application must fail for the reasons given in Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474.

   ·On 14 October 1999, the appellant filed an application in this Court for an order of judicial review.  The application identified the decision sought to be reviewed as “MRT decision 20 of September 1999 The Tribunal affirms the decision under review to refuse to grant the visa appellant a Preferential Relationship (Migrant) Class AY Subclass 104 Preferential Family Visas or any other visas of the same class”.

   ·The application went on to state:

   “The applicant is aggrieved by the decision/conduct/proposed conduct/failure because –

   ‘My son lodged his first application for immigration to Australia in 1997.
   Based on the information sheet (Form 957i, issued before March 1998) he believed he had sufficient grounds for a positive reply.
   As it turned out the information was not clear and it did not keep me and my son away from lodging an application form and avoiding unnecessary expenses such as: travelling, applications fee as well as lost hope, change for the wose in my health and humiliation from Warsaw’s Australian Embassy staff.
   (my son was subject to humiliating meddlesome inquires)
   I wonder whay Australian Embassy staff in Warsaw made believe that they do not know immigration rules, whay did they accept his an application, and whay did they called him for an interview?
   Was it for his advantage, disadventage or bribe?’

   Then, on that part of the application form where an applicant is to state the orders claimed, the father wrote the following material:

   “In result of evidence of abusing of power by Department of Immigration and infringement of human rights, I demand compensation for all my and my son measurable and incommensurable losses (about $200,000,- or let my son reunite with family in Australia.”

   ·Before the final hearing at first instance, the matter came before the primary Judge for directions on 5 November 1999. During a lengthy directions hearing, the appellant (who at all times has been unrepresented) was advised of the limited role of the Federal Court in reviewing decisions under Part 8 of the Migration Act 1958 (“the Act”). Directions were also given, inter alia, that the appellant file and serve any amended application on or before 17 December 1999.  No amended application was filed.

   ·At the hearing before the primary Judge, the appellant did not submit that the Tribunal had made any reviewable error in the course of making its decision.  The learned trial Judge took the appellant’s application to be for the Court “to express a view on whether the information sheet [provided to visa applicants] at the relevant time was or was not defective”.

   ·His Honour held that his jurisdiction was limited to reviewing the decision of the Tribunal on 20 September 1999 and, in particular, did not extend to expressing a view on the subject sought to be raised by the appellant.  His Honour noted that the appellant acknowledged that, so far as they went, the Tribunal’s reasons contained no error.

   ·On 31 March 2000, the appellant filed an application for an extension of time to file and serve a notice of appeal, together with a draft notice of appeal.  As the application was lodged within time for lodging a notice of appeal, it is accepted by the Minister, correctly, that an appeal lay as of right.

   ·The appeal was then fixed for hearing before a Full Court on 23 August 2000.

   ·The matter was listed before a Deputy Registrar for an appointment to settle the appeal book index on 16 May 2000.  The respondent’s solicitor provided a “master copy” of the appeal book (with index as settled by the Registrar) to the appellant to copy, file and serve by 20 June 2000, in accordance with the directions of the Registrar.

   ·However, appeal books were not filed within time or at all.  On 28 July 2000, the matter was re-listed before Beaumont J, who ordered the appellant to file and serve the appeal books within 14 days.  They were never filed.

   ·On 14 August 2000, Beaumont J reserved liberty for the respondent to file and serve a notice of motion returnable on 23 August 2000 seeking dismissal of the appeal for want of prosecution.  Such a notice of motion was filed, with a supporting affidavit, on 16 August 2000.

   ·The notice of motion and appeal were heard by us on 23 August 2000, when judgment was reserved.  Although no appeal books were available, in accordance with directions given at the Full Court Callover in June 2000, both parties provided the Full Court with written arguments.

   CONCLUSIONS ON THE MOTION AND ON THE APPEAL.

2. Given the foregoing history, the appellant has failed, in our view, to prosecute his appeal with due diligence, in repeatedly failing to comply with orders and directions of the Court in relation to the filing and service of appeal books.  This would have been a sufficient ground to dismiss the appeal.  However we need not pursue this avenue since we have come to the view that the appeal should be dismissed on substantive grounds.  There is no reasonable basis for it.  No error by the primary Judge has been identified, or even alleged.  Rather, the appeal seems designed to get the respondent to answer certain questions. 

3. In our view, the appeal is fundamentally misconceived. The appellant not only does not claim any error in the decision at first instance, he does not, as we followed the argument, even take issue with the decision of the MRT. On the contrary, he accepts the correctness of that decision. As has been noted, the appellant’s real complaint relates to what he claims was misleading conduct by the Department in not advising him or his son that his son’s application could not succeed in his particular circumstances; thereby causing them to incur various expenses, as well as to lose what he claims were expectations raised by the Department. Even if there was any substance in the appellant’s complaints, such questions, as the primary Judge held, are not matters that the Court can entertain in an application for judicial review under the Migration Act. The Federal Court’s jurisdiction in such proceedings is limited to an inquiry as to whether the decision under review is attended by reviewable error of the kind specified in s 476(1) of the Act. The application did not, in truth, identify any relevant ground of judicial review. Moreover, the Court’s powers to order relief in a judicial review application under the Act are limited by the terms of s 481 of the Act, and do not include a power to make orders by way of compensation.

4. It follows that the appeal should be dismissed with costs.  In the circumstances, there is no need to make any order on the respondent’s motion for summary dismissal.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:             24 August 2000

Solicitor for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 August 2000
Date of Judgment:	24 August 2000