THOMPSON v Minister for Immigration
[2009] FMCA 1023
•16 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THOMPSON & ORS v MINISTER FOR IMMIGRATION | [2009] FMCA 1023 |
| MIGRATION – Refugee Review Tribunal – practice and procedure – application for interrogatories – whether it is appropriate and in the interests of justice to administer the proposed interrogatories – whether delegate obliged to give reasons – if the delegate is not obliged to give reasons, whether it is appropriate in the interests of justice to give leave to administer interrogatories that seek these reasons. |
| Federal Magistrates Act 1999 (Cth), s.45 Migration Act 1958 (Cth), ss.66, 66(3) Migration Regulations 1994 (Cth), regs.1.12, 1.12(e)(ii), sch.2 |
| First Applicant: | SONIA THOMPSON |
| Second Applicant: | ONESIMUS THOMPSON |
| Third Applicant: | QUENTIN REYNOLD PEACOCK |
| Fourth Applicant: | ALVANUS FELIX THOMPSON |
| Fifth Applicant: | MOSES WILLIAMS |
| Sixth Applicant: | EUSTACE OLU THOMAS |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 1807 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 16 October 2009 |
| Date of Last Submission: | 16 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 16 October 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Jones |
| Counsel for the Respondent: | Mr D. Godwin |
| Solicitors for the Respondent: | Ms K. Hooper, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1807 of 2009
| SONIA THOMPSON |
First Applicant
| ONESIMUS THOMPSON |
Second Applicant
| QUINTIN REYNOLD PEACOCK |
Third Applicant
| ALVANUS FELIX THOMPSON |
Fourth Applicant
| MOSES WILLIAMS |
Fifth Applicant
| EUSTANCE OLU THOMAS |
Sixth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
The applicants in these proceedings are seeking judicial review of a decision of a delegate of the first respondent (“the Delegate”), dated 3 July 2009, refusing them secondary class VE visas. The applicants submit that they are “usually resident in the family head’s household”, being the primary visa applicant, and so fall within the definition of “members of the family unit” contained in reg.1.12 of the Migration Regulations 1994 (Cth). The Delegate found they did not fall within this definition of members of the family unit and refused them secondary visas on that basis.
By an application in a case filed on 22 September 2009 the applicants sought leave to administer interrogatories to the respondent in relation to the Delegate’s decision. The application was supported by the affidavit of Michael Terence Jones affirmed 22 September 2009 in the following terms:
“On 22 September 2009 I, Michael Terence Jones, of 1st floor, 299 Elizabeth St, Sydney in the State of New South Wales, solicitor, do solemnly and sincerely declare and affirm:
1. I am the solicitor of the Applicant.
2. I have examined the Court documents filed by the Respondent on 4 September 2009.
3. The issue in this case is whether the Minister’s delegate misunderstood or misapplied the law in respect of the term “usually resident in the family head’s household” in the applicable Regulation.
4. In my view it would be likely to contribute to the fair and expeditious conduct of the proceedings if the Applicants were permitted to require the Respondent to answer the following interrogatories:
(i) Did the delegate find that the Applicants were not usually resident in the household of Mr Cecil Marke?
(ii) If the answer to (i) is “yes”, on what specific evidence did the delegate rely in making his finding?
(iii) If the answer to (i) is “yes”, what relevance, if any, did the delegate attach to the fact that the Applicants and Mr Marke gave different residential addresses?
(iv) If the answer to (i) is “no”, what was the reason for the delegate’s finding that the Applicants were not members of Mr Cecil Marke’s family unit?”
The application is opposed by the first respondent.
Mr Jones submitted that s.45 of the Federal Magistrates Act 1999 (Cth) permits the administering of interrogatories in certain circumstances, and that the circumstances of this case demand that it is both appropriate and in the interests of justice that the interrogatories proposed be administered. Section 45 of the Federal Magistrates Act 1999 (Cth) is as follows:
“FEDERAL MAGISTRATES ACT 1999 - SECT 45
Interrogatories and discovery
(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2) In deciding whether to make a declaration under subsection (1), the Federal Magistrates Court or a Federal Magistrate must have regard to:
(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b) such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant.”
Mr Jones also tendered the bundle of relevant documents in support of the application, that bundle being marked Exhibit 1A on the applicant’s application in the case filed on 22 September 2009. At the heart of Mr Jones’ submission is that the Delegate erred by misinterpreting the meaning of the expression “usually resident in the family head’s household” in reg.1.12(e)(ii) of the Migration Regulations 1994 (Cth). The interrogatories seek to elicit from the respondent the reasons why it would appear that the Delegate concluded that the applicants do not meet the requirement for the grant of any subclasses within the VE class and are not members of the family unit of a person who holds a class VE visa.
It is common ground between the parties that criterion 175.412 of Schedule 2 of the Migration Regulations 1994 (Cth) applies in this case. That is, that “… each applicant included in the application must be outside Australia when the visa is granted.”
Counsel for the first respondent, Mr Godwin, referred the court to s.66 of the Migration Act 1958 (Cth) which states relevantly as follows:
“MIGRATION ACT 1958 - SECT 66
Notification of decision
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
…
(c) unless subsection (3) applies to the application--give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
…
(3) This subsection applies to an application for a visa if:
(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and
…” (emphasis added)
RECORDED : NOT TRANSCRIBED
Section 66 provides that an applicant for such a visa be notified of a decision of the Minister, in this case the Delegate, and must give written reasons for that decision unless s.66(3) applies to the application.
Subsection (3) states, as referred to above, that it applies to an application for a visa if “the visa is a visa that cannot be granted while the applicant is in the migration zone”.
Mr Godwin submitted that, in those circumstances, there was no obligation for the Delegate to give written reasons and it would be inappropriate to make the orders sought by the applicant that interrogatories be administered, essentially with the effect of providing those reasons.
Mr Jones submitted that it is for that very reason that interrogatories ought be administered because no reasons have been provided for the administrative decision made by the Delegate and there is no prohibition preventing the Delegate providing those reasons.
However, in my view, where the Delegate is not obliged to give written reasons it would not be appropriate to compel the respondent to answer interrogatories that had the effect of providing reasons.
Accordingly, the application in a case filed on 22 September 2009, is dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 28 October 2009
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