TAUBALE v Minister for Immigration
[2006] FMCA 387
•21 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAUBALE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 387 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a long stay visitor visa – MRT found that the applicant was not a genuine visitor – no reviewable error found – application dismissed – observations on the ambiguity in the relevant regulations and the applicant’s desire to remain in Australia permanently. |
| Migration Act 1958 (Cth), s.375A Migration Regulations |
| Minister for Immigration v SGLB (2004) 207 ALR 122 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 |
| Applicant: | SEMISI TAUBALE |
First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG304 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 21 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2006 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms R Pepper |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The Migration Review Tribunal be joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
CORRECTED JUDGMENT
All references to the Refugee Review Tribunal (“the RRT”) have been replaced with the Migration Review Tribunal (“the MRT”).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG304 of 2004
| SEMISI TAUBALE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 16 January 2004. The decision was notified to the applicant by letter of the same date. The MRT affirmed a decision of a delegate of the Minister not to grant the applicant a long stay visitor visa. The background facts are set out in the Minister's written submissions filed on 17 March 2006. I adopt as background paragraphs 3 to 15 of those written submissions:
The applicant, a citizen of Fiji, entered Australia initially on 7 November 1999 on a visitor visa to attend a wedding and visit his sister. He was granted a further visitor visa in January of 2000. Before that visa expired the applicant applied for the visa the subject of these proceedings.
The visa application which was made on 20 April 2000 was initially lost by the Department and was not rediscovered until 6 May 2002 whereupon a delegate of the first respondent made the decision to refuse to issue the visa.
The delegate refused the visa on the basis that the delegate was not satisfied that the applicant had adequate funds or an airline ticket in accordance with the requirements of subclause 686.211(b)(i) of the Migration Regulations 1994 (Cth) (“the Regulations”) (court book, page 3).
Legislative Framework
The legislative framework relevant to these proceedings is found at court book, pages 3 and 56-57 and in Division 5 of the Migration Act 1958 (Cth) (“the Migration Act”).
Proceedings before and decision of the MRT
On 31 May 2002, the applicant lodged an application for review with the MRT of the Department’s decision (the application is located at court book, pages 5-8). In the application the applicant claimed that he was not requested to provide evidence of personal funds or airline tickets at the time he lodged the application for the visa.
At the hearing before the MRT on 18 November 2003 (court book, page 35), the applicant stated that (court book, pages 53[19]-54[22]):
·he had been residing with his sister and her husband and that his sister had been supporting him during his time in Australia, and moreover, that some of his uncles and cousins in Fiji had given him money;
·in 2000 when he applied for the visa he had wanted to care for his sister’s son and to watch the Olympics. He stated that he had only wanted to stay 6-12 months;
·he wanted to stay in Australia to assist his sister;
·he had no immediate family ties or commitments to Fiji, he had no health insurance, his airline ticket had expired and he had been made redundant from his employment in Fiji in 1998 and had not worked since. While he owned a house in Suva, he rented it out to his cousin;
·his sister had been ill with a brain tumour which had been operated upon in September of 2002, but after 6 months rest she had returned to work; and
·his sister needed him to stay and care for her son.
The MRT found that at the time of the application for the visa the applicant sought to remain in Australia as a visitor and did have access to sufficient funds, and that therefore, subclause 686.211 had been satisfied (court book, page 54[24]).
However, the MRT found that the applicant had failed to fulfil the legislative criteria required to be satisfied at the time of the decision, as prescribed by subclause 686.221(2), (3) or (4) of the Regulations. This was because on the evidence before it:
a)the MRT was not satisfied that that the applicant intended a genuine visit because he had no incentive to return to Fiji and it was clear that both the applicant and his sister preferred that he remain in Australia (court book, page 55[29]); and
b)although his sister has a chronic medical condition, she had returned to work and there was nothing to indicate that he was required to stay to assist her or his nephew, rather he simply preferred to do so (court book, page 55[30]).
Thus because the applicant was not a genuine visitor because he did not satisfy the criteria in subclause 686.221(2)(c), (3)(b) and 4(g) (court book, page 55[31]).
While this alone was sufficient to affirm the delegate’s decision, the MRT went on to find that the applicant did not have access to sufficient financial support (no health cover, no airline ticket and only $3,000 in funds) for the intended visit. Therefore, the applicant did not satisfy subclause 686.221(2)(a) because he did not fulfil the criteria in subclause 686.211 (court book, page 56[36]).
The MRT further found that the applicant did not satisfy subclause 686.221(3)(c) because his emotional links with his family in Australia, his desire to assist his sister and the lack of work in Fiji did not amount to “compelling personal reasons” (court book, page 57[39]).
Finally, the MRT held that the applicant did not satisfy the criteria in subclause 686.221(4)(d) because the applicant had conceded he was able to leave Australia (court book, page 57[42]).
Accordingly, the MRT stated that given the findings it had made it had “no alternative” but to affirm the decision under review (court book, page 57[43]).
The applicant relies upon his amended application filed on 26 July 2004. Given the somewhat obscure terms in which that amended application is expressed, and given the terms of the MRT decision and the length of time that has elapsed since it, I explored with the applicant during the course of today's hearing whether he wished to continue with his judicial review application or discontinue it and seek a permanent residence visa. The applicant took some time to consider his options and initially indicated that he wished to discontinue. The Minister opposed the granting of leave. During the course of argument, the applicant finally elected to continue with his judicial review application.
Ms Pepper, for the Minister, deals with the judicial review application in paragraphs 16 to 25 of her written submissions. I agree with those submissions and adopt them for the purposes of this judgment:
In his application the applicant discloses four largely unparticularised grounds of review. These are:
a)“lack of bona fides” on the part of the MRT in making its decision;
b)breach of procedural fairness;
c)that the decision of the MRT was so irrational or illogical that there was a failure to exercise jurisdiction; and
d)a failure to exercise jurisdiction by reason of the MRT’s failure to give proper and adequate reasons.
Each is dealt with in turn.
Malafides
The three particulars given by the applicant do not, it is submitted, reveal that the MRT has acted in bad faith. Rather, when read in context, the three extracts demonstrate that the MRT sought to give the applicant the benefit of the doubt at every available opportunity, however, for the reasons summarised above it was unable to be satisfied of the requisite statutory criteria pursuant to the Regulations at the time of the decision.
As any fair reading of the decision of the MRT demonstrates, at all times the MRT acted honestly and genuinely in undertaking the task before it and absent any cogent evidence of bad faith on the part of the MRT, this ground of review must be rejected.
Breach of procedural fairness
Section 375A(1) of the Act has no application to these proceedings, and therefore, the requirements of common law natural justice have not been legislatively displaced. However, the applicant does not provide any details of how it is alleged that the MRT denied him procedural fairness. To the contrary, a reading of the totality of the MRT’s decision and reasons reveals that the MRT discussed with the applicant the gravamen of the relevant statutory and policy criteria it was required to assess in reaching its decision and that the applicant was given the opportunity to comment both orally and in writing (court book, page 35.8) on them, which he did (see for example, court book, pages 37-43)
There being nothing else on the face of the MRT’s decision giving rise to a breach of procedural fairness, this ground of review ought to also be dismissed.
Irrationality/illogicality
Again no particulars are given as to how the MRT’s reasoning is said to be irrational, illogical or not based on findings or inferences of fact supported by logical grounds (see Minister for Immigration v SGLB (2004) 207 ALR 122; Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59).
To the contrary the findings of the MRT were, it is submitted, rational, logical and supported by the evidence before it. Indeed much of the evidence the MRT used to affirm the decision under review came directly from concessions made by the applicant at the hearing. Absent any further details, this ground should also be dismissed.
Failure to exercise jurisdiction occasioned by failure to give adequate reasons
In its decision the MRT appears to have considered all the relevant material, has set out the relevant legislation and properly considered the evidence before it. Thus there being no basis for this ground of review it must be rejected.
Summary
The applicant essentially seeks to take issue with what are factual findings of the MRT. To review the decision of the MRT on this basis would amount to the Court engaging in merits review, especially given that there is no evidence that the MRT did anything other than exercise its power in a bona fide way: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272.
Conclusion
For the reasons given above the MRT’s decision is not, it is submitted, infected with jurisdictional error and the decision of the MRT is a privative decision. Accordingly, the application should be dismissed with costs.
Beyond that, there are some observations that I consider can appropriately be made about this matter. The first is that the applicant has been in this country for approximately six years. He has, by effluxion of time, in effect obtained the long stay visa he was seeking. If he adheres to the pursuit of a long stay visitor visa it is, in my view, unlikely that he would obtain a favourable outcome even if jurisdictional error in the decision of the MRT could be demonstrated. This suggests to my mind that a remittal of this matter to the MRT even in the event of jurisdictional error would probably be futile.
During the course of argument about the possibility of the application being discontinued, the applicant told me openly and frankly from the bar table that he would like if possible to remain in Australia permanently. I encouraged him to consider that option. While I cannot and should not express any view on the entitlement of the applicant to receive a permanent residence visa, the length of time he has already been here, his apparently blameless record since he has been here, and the compassionate circumstances surrounding his desire to be here may all be relevant matters that could be taken into account.
Secondly, the decision by the MRT that the applicant lacked, at the time of decision, sufficient funds to support himself may well have been factually wrong. The simple effluxion of time since the MRT decision indicates that that factual decision could have been wrong. However, even if a factual error had been made by the MRT on that issue, which has not been established, that would not of itself point to a jurisdictional error. Apart from anything else, the finding by the MRT on the ability of the applicant to maintain himself was not determinative. The decision of the MRT turned upon the finding (court book, page 955, paragraph 31) that the applicant was not, at the time of the decision, a genuine visitor.
Thirdly, there is ambiguity in the relevant criteria. Regulation 686.221(2)(c) at the relevant time set out the relevant criterion that the applicant satisfies the Minister that the expressed intention of the applicant only to visit Australia is genuine. That criterion could have one of two meanings. It could mean that the applicant must satisfy the Minister that he or she intends only to visit Australia temporarily. Alternatively, it could mean that the applicant must satisfy the Minister that he or she does not intend to visit any country other than Australia. It is likely, especially by reference to the Ministerial directions, that the former interpretation was intended. It is unfortunate, however, that the regulation is expressed in unhelpfully vague terms.
Finally, I note that the applicant assured the MRT that although he wished to remain in Australia as long as he was permitted to do so, he would abide by any visa conditions imposed on him, including the duration of that visa. This is dealt with by the presiding member at paragraph 41 of her decision in the last sentence (court book, page 57). The presiding member appears to have accepted at face value that assurance. The presiding member appears not to have expressly taken that assurance into account in dealing with subparagraphs 686.221(2)(c), (3)(b) and (4)(g) of the regulations upon which the MRT decision turned.
Ms Pepper submits that the assurance, if taken into account, could not have assisted the applicant because it underscores his desire to remain in Australia indefinitely. On the other hand, the assurance might have been taken to assuage any concern that the applicant presented an overstay risk.
On balance, in my view, the assurance should have been taken into account. Although the assurance appears not to have been expressly dealt with in terms in relation to the question of whether the applicant was or was not a genuine visitor, on a beneficial reading it appears to have been encompassed in what is set out in paragraph 29 of the MRT reasons (court book, page 955).
I find that there is no jurisdictional error in the decision of the MRT. The decision is therefore a privative clause decision. The application must be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $5,000. That is based on an estimate of the Minister's actual costs of $6,500. I am satisfied that $5,000 has been properly and reasonably incurred on behalf of the Minister when assessed on a party and party basis. The applicant was concerned about his capacity to pay and indicated he might wish to pay by instalments. That is a matter that he can raise with the Minister's legal advisers.
I will order that the Migration Review Tribunal is joined as the second respondent to the application. The application is dismissed. The applicant is to pay the first respondent's costs and disbursements of and incidental to the application fixed in the sum of $5,000.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 15 May 2006
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