Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108
MIGRATION – privative clause - applicant for a Family Residence (Class AO) visa claimed to be both a “remaining relative” and a “special need relative” of an Australian citizen –Migration Review Tribunal (MRT) failed to address whether the applicant qualified as a remaining relative – application of s 474(1) of the Migration Act 1958 (Cth) - whether MRT’s failure amounted to an infringement of an “inviolable limitation” or a “jurisdictional factor” – whether MRT’s decision insulated from jurisdictional error by s 474(1) of the Migration Act.
ZAHID v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 91 OF 2002
SACKVILLE J SYDNEY 10 SEPTEMBER 2002
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 91 OF 2002
BETWEEN:
MOHAMMED ZAHID APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:
SACKVILLE J
DATE OF ORDER:
10 SEPTEMBER 2002
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application be dismissed.
The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 91 OF 2002
BETWEEN:
MOHAMMED ZAHID APPLICANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:
SACKVILLE J
DATE:
10 SEPTEMBER 2002
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE PROCEEDINGS
In these proceedings the applicant, a Fijian national, seeks relief under s 39B(1) of the Judiciary Act 1903 (Cth) (“Judiciary Act”) in respect of a decision of the Migration Review Tribunal (“MRT”) made on 9 January 2002. The MRT affirmed a decision of a delegate of the respondent (“the Minister”), given on 21 December 1999 to refuse to grant the applicant, his wife and son Family Residence (Class AO) visas.
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Zahid v MIMIA [2002] FCA 1108
Case
[2002] FCA 1108
Decision Date
CaseChat Overview and Summary
Zahid v MIMIA concerned the applicant's challenge against the Minister for Immigration and Multicultural and Indigenous Affairs' refusal to grant him a Family Residence (Class AO) visa. The applicant argued that he qualified as a "special need relative" and a "remaining relative" under the Migration Regulations 1994. The applicant's case hinged on his relationship with his mother, who was an Australian citizen, and his sister who resided in Fiji. The key legal issues before the court were whether the applicant met the definition of a "remaining relative" under Regulation 1.15 and whether the statutory time limits imposed by the Migration Act 1958 (Cth) precluded the court from reviewing the decision.
The court held that the applicant did not meet the definition of a "remaining relative" because he usually resided in the same country, Fiji, as his sister, who was an overseas near relative. The court noted that the delegate's decision was based on this interpretation of the regulation. Furthermore, the court found that the statutory time limits under Section 474(1) of the Migration Act precluded the court from reviewing the decision because the applicant had not applied for review within the prescribed period. The court observed that had the Minister's Delegate asked the correct question, as required by the law applicable at the time, the outcome might have been different. However, the court was powerless to intervene due to the statutory time limits.
Accordingly, the court dismissed the application and ordered the applicant to pay the respondent's costs. The court made an observation that the outcome was not consistent with the ideals underlying the concept of the rule of law, and the dictates of fairness. However, the court was bound by the statutory time limits and could not intervene.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
Background
Background to the litigation
Regulation 1.15 defined “remaining relative” as follows:“1.15(1) An applicant for a visa is a remaining relative if the applicant has a relative who:(a)is:(i)a brother, sister or parent; or(ii)…of the applicant; and(b)is:(i)an Australian citizen; or(ii)an Australian permanent resident; or(iii)…; and(c)is usually resident in Australia;unless the applicant is disqualified under subregulation (2).(2) An applicant is disqualified if:(a)the applicant or spouse (if any) of the applicant:(i)usually resides in the same country, not being Australia, as an overseas near relative; or(ii)has had contact with an overseas near relative during a reasonable period preceding the application; or(b)…;(c)….(3) In this regulation ‘overseas near relative’ means a person who is (a)a parent, brother, sister or non-dependent child; or(b)…of the applicant or of the spouse (if any) of the applicant but is not a relative of the kind referred to in sub-regulation (1).”BACKGROUND It is unnecessary to repeat the account of the applicant’s circumstances and of the MRT’s reasons given in the first judgment. Some further background is, however, helpful in addressing the issues raised at the adjourned hearing. The applicant’s claim for a Family Residence (Class AO) visa was initially put forward to the Minister’s delegate on the basis that he was a special need relative. His application form stated that he was applying for what he described as an “806 special need relative” visa. A letter written on his behalf by a migration agent, dated 15 March 1996, stated that the applicant’s“case is based upon the argument that the applicant is a special need relative to his mother who is an Australian citizen”. On 4 July 1997, the applicant wrote to the Department of Immigration and Multicultural Affairs requesting an early decision on his application because of the effect of the delay on his mother’s health. The letter included the following passage:“In view of the time interval since my application was lodged with your department in March 1996, I respectfully request your advice on when we can expect our case to be finalised as I understand that all necessary documents have been lodged, that I meet the Department’s criteria for Special Need relative and the last remaining relative and expect a decision from you in my favour.” (Emphasis added.) On 21 December 1999, the Minister’s delegate advised the applicant that his application for a visa had been refused. The decision record explained why, in the delegate’s opinion, the applicant had not met the definition of “special need relative”. The delegate also briefly referred to other visa categories in the sub-class (806 – Family) for which the applicant had applied, and said this:“At the time of application, the applicant had a sibling resident in the home country of Fiji and therefore the applicant and his spouse are not able to meet the Regulatory definition of a ‘remaining relative’.”This passage shows that the delegate had formed the view that the applicant could not satisfy the definition of “remaining relative” because he was disqualified under reg 1.15(2)(a)(i): that is, the delegate considered that the applicant usually resided in the same country (Fiji), not being Australia, as an overseas near relative (his sister).
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
SACKVILLE J
In my opinion, the appropriate course is to follow the reasoning of the majority in NAAV v Minister unless and until a different view is adopted by the High Court. It follows that the effect of s 474(1) of the Migration Act is that the applicant’s claim for relief pursuant to s 39B(1) of the Judiciary Act must be dismissed.CONCLUSION The application must be dismissed with costs. I add this observation. The applicant has lived in Australia for over seventeen years. Had the MRT taken, say, one instead of two years to deal with his application to review the delegate’s decision (which itself took three and a half years to be made), his application for judicial review would have been instituted before 2 October 2001 and thus not have been affected by s 474(1) of the Migration Act. Under the law applicable at the time the MRT made its decision, as the Minister’s representative conceded, the MRT failed to ask the correct question. Had the MRT asked that question it is not easy to see how the answer could have been unfavourable to the applicant. Yet, unless the High Court takes a different view as to the validity or operation of s 474(1), this Court (or any other court) is powerless to intervene. It is not apparent to me how this result is consistent with the ideals underlying the concept of the rule of law, let alone the dictates of fairness.