Tjen v Minister for Immigration - [2005] FMCA 1449

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TJEN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1449

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision to refuse a spouse visa to the first applicant – review of visa refusal – subclass 100 – whether genuine relationship – where first applicant did not reply to invitation to provide information within 28 days.

PRACTICE & PROCEDURE – Discontinuance – where leave to discontinue refused.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.359; 359C; 360
Federal Magistrates Court Rules 2001, R.13.01

First Applicant:

SUAN KIM TJEN

Second Applicant:

RAY TYE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3673 of 2004

Judgment of:

Scarlett FM

Hearing date:

22 September 2005

Date of Last Submission:

22 September 2005

Delivered at:

Sydney South

Delivered on:

22 September 2005

REPRESENTATION

Counsel for the Applicant:

Ms Welshman

Counsel for the Respondent:

Mr Lloyd

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the Migration Review Tribunal be joined as Respondent to the proceedings.
That the application is dismissed.
That the Applicants are to pay the first Respondent’s costs fixed in the sum of $4,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3673 of 2004

SUAN KIM TJEN

First Applicant

And

RAY TYE

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Migration Review Tribunal that was made on 19^th November 2004. The decision of the Tribunal was to affirm the decision of the delegate of the Minister which was a finding that the applicant for a visa was not entitled for the granting of a spouse migrant (class BC) visa.
The first applicant had applied for a visa originally on 3^rd December 1997 on the basis of her spousal relationship with the second applicant who is the sponsoring spouse. He is an Australian citizen born in Australia on 8^th February 1948.
The applicant's subclass 309 visa which she obtained ceased to be in effect on 6^th March 2003 and the applicant has been on a bridging visa since then. That visa was granted on the basis of the application for this visa.
The respondent minister's department sent the applicant a letter inviting to submit documents in relation to her application for a subclass 100 visa. According to the Migration Review Tribunal decision at page 105 of the Court Book, an officer of the department spoke to the second applicant, the sponsoring spouse, on 6^th September 2001 to confirm that he and the first applicant, the applicant spouse, continued to live together, but he was extremely busy with work and had no time to follow up immigration matters. The department sent a final notice to the applicant on 6^th September 2001. An interview was arranged with the department for 9^th November 2001 but neither party attended.

The sponsoring spouse, according to the MRT review, contacted the department to state that he was very busy at work and asked for the interview to be changed to 14^th November 2001.
That was done but neither party attended. On 6^th March 2002 the department refused the visa application. On 3^rd April the first applicant lodged an application for review of that decision. She said that her husband was an accountant and was a busy man and did not have time to attend the interview with the department. On 10^th August 2004 the Tribunal invited the first applicant to give additional information about her relationship with the sponsoring spouse. That invitation had a time limit attached which was not met, although on 15^th November 2004 the Tribunal received four documents from the first applicant which went some way towards meeting her claim. Nothing further has been done and the applicants have sought to discontinue.
I note that the application which was filed on 17^th December 2004 does not set out any grounds whatsoever as to why the orders that were sought should be made. The orders that were sought were that the decision by the MRT be set aside and that the matter be remitted to the MRT for hearing and further decision according to law. This is clearly an application under section 39B of the Judiciary Act as it seeks an order in the nature of mandamus, but there are no grounds provided.
Counsel who has been briefed to appear for the applicants today has not been provided with any instructions as to the substance of the matter any more than she was provided with any instructions as to why the parties sought to discontinue on the morning of the hearing.
In my view, the decision by the Migration Review Tribunal does not bear any evidence of any jurisdictional error and indeed the applicants in their original application, which does not appear to have been prepared with any assistance of counsel, does not contain any grounds. I am unable to identify any jurisdictional error. In my view, the decision is a privative clause decision that attracts the protection of section 474 of the Migration Act. The application is dismissed.
This is an application for costs. The first respondent minister seeks an order for costs. Mr Lloyd of counsel points out that the costs excluding his instructing solicitor's costs of appearing today would amount to some $6,100.00. That amount is opposed by counsel for the applicant.
The first respondent has tendered as exhibit 1 a bundle of documents which represent copies of letters from the first respondent's solicitors to the applicant's solicitors dated 12^th January, 11^th May and

14^th September 2005. The situation appears quite clearly that the applicants through their solicitors have not filed an application specifying the basis upon which the orders are sought, so there is no particularisation. There was an amended application due to be filed and served by 1^st April 2005. It still is not to hand. The letter of

14^th September refers to a conversation with the applicants' solicitor on 12^th September indicating that the applicants' submissions would be filed before 14^th September. There are no submissions to hand.
There is before the Court a relatively short submission from counsel for the first respondent minister pointing out that there is no case to answer, that the applicants need to join the Migration Review Tribunal as a respondent, that the application contains no grounds of review and that the applicant never filed an amended application as required.
It is quite clear that the degree of preparation in this matter has been minimal insofar as the applicants’ case is concerned. It is regrettable that the applicant has taken the step of briefing counsel to appear today to seek leave to discontinue and to oppose a costs order whilst not having the courtesy to provide counsel by way of a brief any relevant instructions. That may well be a not uncommon experience for the newer and younger members of the Bar, but that does not make it satisfactory. It is extremely unfair to counsel; it is very unhelpful to the Court.
Mr Lloyd for the first respondent has made some reference to these proceedings being perhaps similar to proceedings that are an abuse of process. I am not prepared to go so far as to make a finding that these proceedings are an abuse of process, although the Federal Magistrates Court when it does find abuses of processes, which are not unknown in this jurisdiction, takes a very serious view indeed. Had I been satisfied that there was an abuse of process I would have had no hesitation in awarding costs on an indemnity basis.
In my view, this is not such a case, but it is a case for party-party costs. In the circumstances noting that counsel has been briefed and I am satisfied this was an appropriate case for briefing counsel, in my view, I should make an order for costs in the sum of $4,800.00 which I assess on a party-party basis. It is the practice of the Federal Magistrates Court, wherever possible, to assess costs in a fixed and lump sum rather than ordering of costs being assessed or agreed. In my view, it is more useful for practitioners to leave the Court secure in the knowledge that they have a costs order in a specified amount.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 30 September 2005