Yusuff v Minister for Immigration
[2003] FMCA 265
•2 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YUSUFF v MINISTER FOR IMMIGRATION | [2003] FMCA 265 |
| MIGRATION – Application for review of decision of Migration Review Tribunal – Application dismissed. Migration Act 1958 (Cth), ss.29(1), 30, 31, 474 Migration Regulations (1994), Reg 2.02, 2.03, 832.211, 832.211(1), 832.211(2), 832.212, 151.211(2)(a), 151.211(3), 151.211(2), 151.21, 832.212(5)(b), 8.3.212(5)(a), 8.3.2.212(4), 8.3.2.212(5)(a), 8.3.212(2), 832.12.1, 832.12.1(2)(4)(5) Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 |
| Applicant: | MOHAMMED ATIK YUSUFF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ1275 of 2002 |
| Delivered on: | 2 July 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 25 June 2003 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Applicant appeared in person |
| Counsel for the Respondent: | Ms H Riley |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
ORDERS
THAT the Application filed 22 November 2002 be dismissed.
THAT the Applicant pay the Respondent’s costs fixed in the amount of $5,800.
IT IS CERTIFIED THAT pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable to brief an advocate in this matter.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ1275 of 2002
| MOHAMMED ATIK YUSUFF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant entered Australia on 13 October 2000 as the holder of a Short Stay (Visitor) (class TR) sub class 676 visa with his wife and three children. His sub class 676 visa was valid to 13 January 2001. The applicant and his family overstayed their visitors visas thereby becoming unlawful non citizens. The applicant and his family were subsequently granted bridging visas with the condition they depart Australia by 16 August 2001. On 16 August 2001 the applicant applied for a special Eligibility (Residence) (class AO) sub class 832 (Close Ties) visa. A delegate of the respondent ("the Minister") refused this application on 11 April 2002. Thereafter the applicant applied to the Migration Review Tribunal ("the Tribunal") for a review of this decision. The Tribunal affirmed the primary decision on 30 October 2002. The applicant then filed an application to review in the Federal Court on 22 November 2002. On 16 December 2002 Gray J, transferred the application to the Federal Magistrates Court.
Background
The applicant is a national of Fiji born on 6 May 1959. He first visited Australia in 1981 and again in 1995. He next entered Australia on
13 October 2000 as the holder of a Short Stay (Visitor) visa.
The legislative framework
At the time the visa application was lodged Special Eligibility (Residence) (class AO) contained two sub classes, sub class 832 (Close Ties) and sub class 831 (Prospective Marriage Spouse). The only sub class in respect of which the applicant has claimed is sub class 832.
Section 29(1) of the Migration Act 1958 (Cth) ("the Act") empowers the Minister to grant a non citizen permission, to be known as a visa, to travel to and enter Australia and/or remain in Australia. Section 30 provides for both permanent and temporary visas. Section 31 provides the classes of visas. Regulation 2.02 of the Migration Regulations 1994 ("the Regulations") describes sub classes of visas. Pursuant to the Act, the Regulations may prescribe criteria for a visa of a specified class. Regulation 2.03 refers to the prescribed visa criteria as either the primary or secondary criteria set out in the relevant part of schedule 2 of the Regulations. These in turn specify criteria to be satisfied at the time of application and at the time of decision.
The relevant time of application criteria for the sub class 832 visa are found in sub clause 832 of schedule 2 to the Regulations. Sub clause 832.211 provides as follows:
(1)the applicant meets the requirements of sub clause (2) or (3);
(2)an applicant meets the requirements of the sub clause if the applicant:
.....
(b) is not the holder of a substantive visa .....
Further time of application criteria are found in sub clause 832.212 which provides:
(1)"If the applicant meets the requirements in subclause 832.212 (2), the applicant meets the requirements of subclause (2), (4) or (5).
(2)A person meets the requirements of this subclause if he or she last entered Australia before 1 January 1975.
(3)……
(4)An applicant meets the requirements of this subclause if the applicant;
(a)Has turned 18; and
(b)Ceased to hold an entry permit or a substantive visa before turning 18; and
(c)Before turning 18, spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia.
(5)An applicant meets the requirements of this subclause if he or she satisfies:
(a)Schedule 3 criterion 3002; and
(b)The criteria set out in Subdivision 151.21".
The schedule 3 criterion 3002 (referred to in sub clause 832.212 (5)(a), is as follows:
"The application was made validly within 12 months after the relevant day (within the meaning of sub clause 3001(2)".
The term "relevant day" is defined in sub clause 3001(2):
"For the purposes of sub clause (1) and of clause 3002, a relevant day in relation to an applicant is:
......
(c) if the applicant;
i)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
......
(i)the last day when the applicant held a substantive or criminal justice visa; or".
The criteria set out in subdivision 151.21 (referred to in 832.212(5)(b)), are as follows:
151.211
(1)"The applicant meets the requirements of subclause (2) or (3).
(2)An applicant meets the requirements of this subclause if the applicant;
(a)Spent the greater part of his or her life before the age of 18 in the migration zone as an Australian permanent resident; and
(b)Did not at any time acquire Australian citizenship; and
(c)Has maintained business, cultural or personal ties with Australia; and
(d)Has not turned 45 at the time of application.
(3)An applicant meets the requirements of this subclause if the applicant:
(a)Has completed at least 3 months continuous Australian defence service; or
(b)Was discharged before completing 3 months of Australian defence service because the applicant was medically unfit for service, or further service, and became medically unfit because of the applicant’s Australian defence service."
The Tribunal's decision
The Tribunal found that the applicant complied with the time of application criteria in sub clause 832.211(1) having met sub clause 832.211(2) in that he did not hold a substantive visa at the time of application. The Tribunal then noted that in order to satisfy the criteria specified in sub clause 832.12.1 the applicant must meet the requirements of sub clause (2), (4) or (5).
The Tribunal found:
b)the applicant did not satisfy sub clause 8.3.212(2) as he last entered Australia after 1 January 1975;
c)the applicant did not satisfy sub clause 8.3.212(4), as although he had turned 18 he had not ceased to hold a substantive visa before he turned 18, nor had he spent any part of his formative years in Australia;
d)the applicant did not satisfy sub clause 8.3.212(5), as he had not been the holder of a substantive visa for more than 12 months at the time of application, and had not spent the greater part of his life before the age of 18 in Australia as a permanent resident.
In concluding that the applicant had not satisfied criterion 3002 that the applicant was not the holder of a substantive visa for more than 12 months at the time of application, the Tribunal erred. Criterion 3002 refers to the making of the application within 12 months of the relevant day. It does not require the applicant to have held a substantive visa for 12 months before application.
The relevant law
The present application is affected by the privative clause contained in section 474 of the Migration Act 1958 (the Act). The High Court held in Plaintiff S157/2002 v. Commonwealth of Australia (2004) HCA2; (2003) 195 ALR 24 and Re Minister for Immigration and Multicultural and Indigenous Affairs ex parte applicants S134/2002 (2003) HCA 1; (2003) 195 ALR 1, in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith; S157/2002 at (76) and applicants S134/2002 at (15).
The decision in S157/2002 overrules NAAV v. Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449; it does so necessarily in relation to the Tribunal's obligation to record procedural fairness and in relation to the way in which NAAV found that s.474 had expanded the jurisdiction of the Tribunal.
An administrative Tribunal exceeds its part and thus commits a jurisdictional error of if it identifies a wrong issue, asks itself the wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that it affected the exercise or purported exercise of the Tribunal's power; Craig v. South Australia (1995) 184 CLR 163. Per McHugh, Gummow and Hayne AJ at 179; and Dranichnikov v. Minister for Immigration and Multicultural Affairs (2003) HCA 26.
The applicant's case
The applicant appeared for himself. He contended that the Tribunal had erred in concluding his case was without merit because its decision was made on an incorrect basis, namely that he was not the holder of a substantive visa for more than 12 months at the time of application when criterion 3002 did not require that he held a substantive visa for 12 months before application.
The respondent's case
The respondent conceded that the Tribunal had erred on the basis described. However, it was submitted on behalf of the Minister that the Tribunal's error was of no consequence to the decision. First, it was contended that falling into an error of law which does not in turn cause the Tribunal to identify a wrong issue, ask itself a wrong question, ignore relevant material or rely on irrelevant material does not cause jurisdictional error. It is only if the error involved in the decision was such that absent the error the decision may have been different, that relief might be available (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 306).
Secondly the respondent submitted that it was clear that despite the error made by the Tribunal the applicant's case could not have succeeded. He could not satisfy sub clause 8.3.212(2) because:
a)he did not last enter Australia before 1 January 1975;
b)he could not satisfy the cumulative requirements of sub clause 8.3.212(4), in particular (4)(b), because he did not cease to hold a substantive visa before turning 18, nor for that matter (4)(c), which requires him to have spent, before turning 18, the greater part of his formative years in Australia.
Finally he could not meet the cumulative requirements of sub clause 8.3.212(5)(a) (which the Tribunal wrongly found he had not satisfied), but not (5)(b). Sub clause 8.3.212 requires that (5)(a) and (5)(b) be satisfied. It was submitted that the applicant cannot satisfy sub clause 832.212(5)(b). This sub clause requires him to satisfy the requirements of sub division 151.21. Sub clause 151.211(1) requires that the applicant satisfy the requirements of sub clause 151.211(2) or (3). 151.211(3) required the applicant to be in the Australia Defence Services which he could not satisfy nor could he satisfy sub clause 151.211(2)(a) because he has not spent the greater part of his life before the age of 18 in the migration zone as an Australia permanent resident. Thus, the Minister contended that the application could not succeed and thus no error arises.
Conclusion
In my view the respondent's argument is clearly correct. The one error relied upon by the applicant did not effect the decision of the Tribunal as the applicant could not fulfil the other criteria required. There is thus no jurisdictional error involved and the application must fail.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 2 July 2003
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