SZDSJ v Minister for Immigration
[2005] FMCA 160
•9 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDSJ v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 160 |
| MIGRATION – IRT decision on Class 816 visa – seven years delay in applying for judicial review – jurisdictional error conceded – relief refused. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 474(1), 483A
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)
Ali v Minister for Immigration [2004] FMCA 674
Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132
Azacon v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 257
Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489
Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
R v Australian Broadcasting Tribunal; ex parte Fowler and Ors (1980) 31 ALR 565
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Re Minister for Immigration and Multicultural Affairs, ex parte Miah (2001) 206 CLR 57
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82
Subraju v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 313
Tanchiatco v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 298
Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 222
| Applicant: | SZDSJ |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS MIGRATION REVIEW TRIBUNAL |
| File No: | SYG 1615 of 2004 |
| Delivered on: | 9 February 2005 |
| Delivered at: | Sydney |
| Hearing Date: | 9 February 2005 |
| Judgment of: | Smith FM |
REPRESENTATION
| Counsel for the Applicant: | Mr N J Dobbie. |
| Solicitors for the Applicant: | Parish Patience Immigration. |
| Counsel for the First Respondent: | Mr T Reilly. |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the first respondent’s costs in the sum of $5,000.
FEDERAL MAGISTRATES |
SYG 1615 of 2004
| SZDSJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS MIGRATION REVIEW TRIBUNAL |
Respondents
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of a tribunal which has been abolished, the Immigration Review Tribunal. That Tribunal on 6 September 1996 decided to affirm a decision of a delegate, which had been affirmed by an intermediate review body called MIRO, refusing the applicant a Special (Permanent) Class 816 and/or 818 entry permit or its equivalent visa.
These classes of entry visa provided special concessionary visas which were introduced into the Migration Regulations in 1993. I described their background in Ali v Minister for Immigration [2004] FMCA 674 (“Ali”) at [10], and shall not repeat what I said. I shall also return to Ali in relation to other aspects of the present case.
The regulations governing these visas gave rise to numerous legal points and a body of Federal Court cases concerning the proper construction of the visa criteria and procedures for determining eligibility. In Ali I referred to litigation conducted between 1994 and 1998 concerning the language test criteria to be met at the time of decision. Other cases were also brought during that period, which concerned criteria requiring skills qualifications to be met at the time of application.
In the present case the applicant did not claim the skills required to get a 818 class visa, but sought to establish eligibility for a class 816 visa. One of the criteria to be met was, under Reg.8.16.721(2), that on
1 November 1993:
(b) The applicant:
(i) …, or
(ii) held an overseas trade qualification, or had work experience, that is assessed as meeting Australian education or training standards for that trade:
(A) by the Department of Industrial Relations, or
(B) if that Department is unable to make an assessment, by the State or Territory authority that the Minister decides is appropriate, or
(C) if neither that Department nor that State or Territory authority is able to able to make an assessment, by the Minister.
At the time when the present Tribunal had to address this criteria, an interpretation had been provided by Moore J on 31 July 1996 in Subraju v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 313 at 317, where his Honour held that the expressions 'trade qualification' and 'work experience' were limited to trade skills which could be gained by on the job training as an apprentice. His Honour said of the reference to “work experience”: "It concerns work experience for 'that trade', that is a trade to which there might exist 'a trade' qualification". The Tribunal in the present case applied his Honour's interpretation, as it was bound to do, and rejected a claim by the applicant that he had overseas work experience that could be assessed by the Tribunal as “meeting Australian education or training standards for that trade”.
The applicant had put forward a history of work in Malaysia as a medical representative for many years for Atlantic Laboratories Public Ltd, selling drugs and medicines to pharmacies, general practitioners and hospitals. He also pointed to some experience in Australia as a machine operator in the textile and confectionary industries. The Tribunal, applying Moore J's decision concluded:
The occupation of Medical Representative in Australia is not one which requires a 'trade certificate', neither is it one where trade skills might be gained on the job training as an apprentice. Instead ASCO lists the qualifications for a trade representative (pharmaceuticals) (ASCO code 6201-35) as three years of previous experience as a registered nurse, or medical technical officer, or technician (none of these occupations require 'trade certificates') plus three to six months on the job training.
The Tribunal applied similar reasoning in relation to the applicant’s Australian work experience, and affirmed the refusal of the visa. Its decision was made on 6 September 1996 and posted to the applicant on that day. The applicant does not claim that there was any delay in his receiving a copy of that decision. I shall return later to consider his explanations for not challenging the decision until May 2004.
Subsequent to Moore J's decision and the present Tribunal decision, further litigation concerning the effect of reg 816.721(2)(b)(ii) occurred. On 20 August 1997, Branson J published a judgment in Tanchiatco v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 298. She said:
the better view of clause 816.721(2)(b)(ii) is that an applicant meets the requirements of subcl (2) if he or she, at the relevant date, had, in a trade, work experience that is assessed as meeting Australian education or training standards for that trade.
So construed, the trade in question need not be one in respect of which overseas trade qualifications might be held. Nonetheless, it must be one in respect of which Australian education or training standards can sensibly be identified.
Her Honour's construction received the approval of a Full Court in a judgment delivered on 26 February 1999 in Azacon v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 257 at [6].
The Minister now concedes in the present proceedings that the Tribunal did not apply the correct interpretation as subsequently found by the Full Court, and that its application of Moore J’s interpretation involved an error of law which materially affected its decision. The Minister concedes that it is possible that, if the Tribunal had applied Branson J’s interpretation, it might have reached a decision favourable to the applicant. It is not conceded that it would have reached a decision favourable to the applicant, and on the evidence before me I certainly cannot form that view.
The Minister further concedes that the Tribunal's error would be regarded as jurisdictional error within the principles applicable to the interpretation of "privative clause decision” in s.474 of the Migration Act (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, and subsequent cases including Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 at [42-62]).
The bar on relief provided by s.474(1) would apply to the present proceedings concerning the 1996 Tribunal decision, notwithstanding that this provision was only introduced with effect from 2 October 2001. This is the effect of the transitional provision in cl.8(2)(a) of Sch.1 to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), in circumstances where no previous application for judicial review had been lodged prior to its commencement.
However, as I have indicated the Minister concedes that jurisdictional error occurred, and that therefore, on the interpretation taken in Plaintiff S157(supra) and notwithstanding s.474(1), the Court has jurisdiction under s.483A of the Migration Act and s.39B of the Judiciary Act 1903 (Cth) to give the relief sought in the present case. This is an order for the issuing of writs of certiorari and mandamus directed at the successor Tribunal requiring it to undertake a further consideration of the applicant's application for review. The applicant also seeks a writ of prohibition against the Minister giving effect to the prejudiced tribunal decision.
The issue which was argued before me concerned whether relief should be refused in the discretion of the Court, taking into account the applicant’s delay in commencing the present proceedings.
This issue raises two considerations which have been identified by the High Court. On the one hand is the principle to which Gaudron J refers in Re Minister for Immigration and Multicultural Affairs, ex parte Miah (2001) 206 CLR 57 at [106]: “Although relief by way of prohibition under s 75(v) of the Constitution is discretionary, the guiding principle is that “[t]hose exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers” (also see McHugh J [152] and Kirby J at [215-222], and Kirby J in Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [140]). These statements suggest a prima facie entitlement to judicial recognition of a failure validly to exercise a power given to an administrator.
The principle is, however, qualified, as Gaudron J's statement indicates, by a discretion to refuse relief notwithstanding the identification of jurisdictional error. Guidance on the circumstances where this should be exercised is found only in general statements confirming that the Court may refuse relief if an applicant is "guilty of unwarrantable delay” so as to “make it just” that relief by way of mandamus should be withheld (c.f. R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400; see also R v Australian Broadcasting Tribunal; ex parte Fowler and Ors (1980) 31 ALR 565 at 570), and that delay may make it “the proper approach” to refuse relief by way of prohibition and certiorari (c.f. Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194, adopted by Gaudron and Gummow JJ in Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [51-3] with whom Gleeson CJ and Hayne J agreed, and by Kirby J at [148-9]. See also the discussion of Merkel J in Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 222 at [28]-[31]).
Further insight into how delay should be addressed is difficult to find in the authorities, but in my view an important consideration explaining the reason why the Court is concerned about delay was identified by McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-6: “Where an applicant seeks the issue of constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases.” (applied in Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132), and cited in Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489).
I have myself applied this consideration as swaying the balance against refusing relief, in a case where there had been exceptional delay in seeking judicial review of a decision on a class 816 visa which the Minister conceded was invalid by reason of an error of law revealed by subsequent judicial cases (see Ali, cited above). In that case, I did not consider that delay was acceptably explained by the applicant pursuing other avenues for obtaining Australian residence through applications for different classes of visa. Although my judgment has been taken on appeal, I propose to follow the approach I took in that case.
The circumstances in the present case do have some differences from Ali, and I must consider the explanation given by the present applicant for his more than seven years delay in commencing any proceeding challenging the legality of the present decision of the Immigration Review Tribunal. This is contained in four paragraphs of an affidavit upon which he was not cross-examined:
1. My appeal with the IRT was rejected in 1996. I was then advised by my migration agent Mr Laba Sarkis of Laba Migration Agency to join in the class action brought about by Messrs. Parish Patience Immigration Lawyers. The case was Maria Macabenta Vs Minister of Immigration. The court found in favour of the Minister in 1998.
2. I was then again advised by the solicitors to join another class action, Lie vs Minister of Immigration and Multicultural Affairs, which was initiated by Messrs. Adrian Joel and Company. It was decided in the High Court in 2002 that each case should be heard separately. In relation to this I filed a separate case in the High Court in 2003. Messrs. Harpers Solicitors handled this case. During this period between my appeal with IRT and prior to this case I was not informed by any my immigration agent or solicitors that there was a legal error in the IRT decision. Therefore I was not aware of the error until earlier this year.
3. I instructed Parish Patience Immigration Lawyers in May 2004 to act in my immigration matters. They considered all my previous applications and advised that they obtained access to my IRT decision on the Internet. They advised me that in their view, the IRT had made an error. I then decided to pursue this matter further.
4. If I was advised of the error in 1996, I would have filed an appeal immediately and there would not have been such a long time lapse. I hope the Court would take into consideration that I was not aware of the error until recently and that the time lapse was not a fault of mine.
On the most favourable reading of this explanation, I think it must be inferred that he did not seek legal advice from his current solicitors, Messrs Parish Patience, Immigration lawyers, or any other lawyer, concerning his rights to challenge the present Immigration Review Tribunal decision until May 2004. If he had sought opinions on this topic at earlier times, and in particular when he was instructing Paris Patience in relation to the Macabenta litigation which is referred to in his affidavit and was described by me in Ali at [21], then he would have been advised that the unsettled state of the law as it stood between 1996 and 1999 allowed a challenge to be commenced. If he had sought their legal advice subsequent to Branson J's decision in Tanchiatco and after the Full Court decision in Azarcon (supra), he would have been advised of prospects of success to the same effect as he was advised in 2004. At all times, the High Court has had Constitutional jurisdiction to entertain the present challenge.
I consider that the applicant’s failure for so many years to seek advice concerning his rights to challenge the decision, and his failure to commence proceedings in that period, is not attributable to any action on the part of anyone other than the applicant himself. Moreover, his failure to consider a challenge to this decision appears to be the result of his deciding to pursue other avenues for residence in Australia, including through litigation employing Messrs Parish Patience and other solicitors. I accept that his failure may have occurred because it did not occur to him to seek relevant legal advice, but in my view this does not provide an acceptable explanation for seven plus years’ delay in challenging an administrative decision.
In the Ali case, Mr Ali sought to explain several years of delay by his pursuit of other litigation involving different classes of visa, including the Macabenta class action. It is plain that those proceedings concerned visas with separate criteria, and which were unrelated to the visas which were the subject of the present matter. Similarly, in Ali and in this case, the pursuit of residence in Australia as a refugee which occupied the applicant in litigation in the High Court in more recent years plainly concerned totally different species of visa.
I adhere to the view I expressed in Ali at paragraph [34]: “I cannot be persuaded that it is in the interests of the proper administration of justice or of good public administration to allow an applicant to hold in suspense over many years an allegation that an Immigration Tribunal has invalidly decided an entitlement under a particular visa application, and then to seek to justify his delay in seeking judicial intervention by pointing to the unsuccessful pursuit of other visa applications.”
I consider the length of time in this case is inherently unacceptable, and that the explanation given for not seeking legal advice in pursuing rights which would have been clearly advised many years ago is not acceptable to the Court as justifying that delay.
Counsel for the applicant attempted to persuade me to overlook the delay and the weakness of the explanation by pointing to a number of considerations, and I have given them serious thought.
He argues that by denying the applicant relief in relation to the Tribunal decision, the applicant loses the opportunity of obtaining a favourable decision from the Tribunal on a class of visa which had been made available to people in his circumstances, and which is now no longer available to him or anyone else. Counsel accepted that the applicant could only point to a possibility of a favourable outcome in that application, but submitted, and I accept, that this was a real possibility on the findings of the previous Tribunal. He also submits that it is still conceivable that a Tribunal could conduct the assessment of the applicant's qualifications as at 1993 which would be required under the regulation. I am ready to accept that it may still be possible to make this decision, although I can see some difficulties facing a Tribunal of fact in that respect. These would include the fact that the Department's file containing the material on which the delegate decided and a record of the delegate's decision was destroyed in May 2002. However, I have weighed carefully the loss of the applicant's right to have a valid consideration of his review application and his potential loss of a right of permanent residence in Australia.
I have also weighed up the second factor that was pointed to by counsel, which was the applicant's significant time spent in Australia pursuing hopes, and perhaps at times expectations, of permanent residence under various visa classes. However, in my view for such expectations to be given substantial weight, they must be pursued expeditiously through whatever administrative and judicial avenues are available to pursue them. In the present case, the avenue of judicial review has not been pursued with the expedition that the Court should insist upon.
Counsel for the applicant sought to diminish the weight of McHugh J's words in Marks (supra) by pointing to the fact that in that case the Court also addressed whether there were arguable grounds for judicial review. He pointed out that in most cases where delay was seen to justify refusal of relief, the Court was able to conclude that merits were also lacking. He distinguished cases involving an application for an extension of time for seeking review, where consideration of delays is given greater weight because the applicant needs to obtain an indulgence from the Court. The present circumstance is the reverse of that. However, he was unable to take me to any case where a delay of the present dimensions has been regarded by a Court as being acceptable, even where no extension of a time limit was required.
Counsel for the applicant urged me to put weight on the fact that jurisdictional error was conceded in the present case, and suggested that the Minister could and should have reviewed all adverse decisions in relation to Class 816 applications after the Full Court gave its interpretation in 1999. However, I do not accept that the Minister was under any such obligation. I consider that any applicant who felt that he had rights arising from the change of interpretation given by the Full Court had full opportunities, within a reasonable time after its judgment in Azarcon, to enforce a reconsideration of previous decision making. As I have indicated, the present applicant failed to avail himself of these opportunities.
Weighing up all the considerations that have been put to me in written and oral submissions, I have decided that in this case the Court should in its discretion refuse to grant the relief sought in the application.
I shall therefore dismiss the application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 22 February 2005
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