Zeini v Minister for Immigration - [2010] FMCA 604

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZEINI v MINISTER FOR IMMIGRATION

[2010] FMCA 604

MIGRATION – Review of a decision of a delegate of the Minister – applicant withdrawing visa application – delegate thereafter having no jurisdiction to determine the application.

Migration Regulations 1994 (Cth)

Applicant:

HAYYAN ZEINI

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG 1214 of 2010

Judgment of:

Driver FM

Hearing date:

10 August 2010

Delivered at:

Sydney

Delivered on:

10 August 2010

REPRESENTATION

Counsel for the Applicant:

Mr M Cockburn

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The Migration Review Tribunal is deleted as the second respondent.
A writ of certiorari issue, quashing the decision of the Minister’s delegate dated 13 January 2010.
The first respondent is to pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1214 of 2010

HAYYAN ZEINI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application to review a decision of a delegate of the Minister not to grant the applicant a temporary business long-stay visa. The proceedings had commenced in the form of a show cause application filed on 1 June 2010 seeking review also of a decision of the Migration Review Tribunal (“the Tribunal”) made on 30 April 2010 on review from the decision of the delegate. However, the applicant now relies upon an amended application filed on 30 July 2010 which, despite some ambiguity, is directed solely at the decision of the delegate.
The applicant is a citizen of Syria who applied for the visa on 23 December 2009. The decision of the delegate was made on 13 January 2010. The delegate made the decision essentially on the basis that the applicant’s suggested sponsor, BH Supplies Pty Limited, was refused approval as a business sponsor on 13 January 2010 and so the applicant failed to satisfy clause 457.2234 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”) applying the criteria for the class of visa he sought. I understand that the same delegate made both decisions and that the decision on the sponsorship was made prior to but on the same day as the decision on the visa application.
The application is supported by an affidavit by Mr Zeini made on 30 July 2010. I received that affidavit with the exception of paragraph 10. I also have before me as evidence the court book filed on 28 June 2010.
Both parties have made written and oral submissions.
The applicant’s contentions are wide-ranging but to a substantial degree those submissions are protective in the event that the principal argument advanced by him does not succeed. That principal argument is that the delegate had no jurisdiction to make a decision on the visa application because the visa application had been withdrawn. Section 49 of the Migration Act 1958 (Cth) (“the Migration Act”) provides that:
(1)   An applicant for a visa may, by written notice given to the Minister, withdraw the application.
(2)   An application that is withdrawn is taken to have been disposed of.
(3)   For the purposes of sections 48 and 48A, the Minister is not taken to have refused to grant the visa if the application is withdrawn before the refusal.
(4)   Subject to the regulations, fees payable in respect of an application that is withdrawn are not refundable.
Section 47 provides that:
(1)   The Minister is to consider a valid application for a visa.
(2)   The requirement to consider an application for a visa continues until:
(a)    the application is withdrawn; or
(b)    the Minister grants or refuses to grant the visa; or
(c)    the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
There is no dispute in the present case that the applicant made a valid application for a visa. The issue is whether the application was withdrawn, in which case there was nothing for the delegate to consider. The applicant completed a form of visa application which is reproduced in the court book from page 1 through to page 13 with supporting documentation following. The application form contains two relevant questions:
17. If the sponsorship or nomination application is refused or withdrawn, do you wish to withdraw your visa application?
18. If you answered ‘Yes’ to Question 17 and you have paid the Visa Application Charge do you wish to seek a refund of it?
Question 17 invited the applicant to state whether if the sponsorship or nomination application is refused or withdrawn he wished to withdraw his visa application. If the answer to that question was “no” the form advised the applicant that a decision would be made on the application. If the answer to that question was “yes”, the form advised the applicant that the case would be considered closed and all review rights would be foregone. While an applicant could otherwise give written notice of withdrawal, because sponsorship and related visa applications are commonly considered on the same day by the same delegate, answering question 17 on the visa application form will often be the only effective means for an applicant to give written notice of withdrawal in consequence of an adverse sponsorship decision.
Question 18 called for an answer only if the applicant had answered “yes” to question 17 and sought a refund of the application charge. In the present case, the applicant did not answer “yes” or “no” to question 17 but answered “no” to question 18.
In his decision the delegate found (court book page 43):
The applicant elected not to withdraw the application if the sponsorship or nomination application was refused or withdrawn.
That finding is problematic in several respects. First, an applicant does not have to elect not to withdraw an application before a decision is made on the visa application. The application form invites an election but the scheme of the legislation is that an application which is not withdrawn needs to be considered. There is no evidence supporting the delegate’s finding that the applicant elected not to withdraw. On a generous interpretation this may be taken to be a finding that the applicant had not elected to withdraw.
The question of whether an applicant has withdrawn a visa application is, in my view, a jurisdictional fact because where a withdrawal is made there is nothing to consider and the delegate could do nothing further with the application.
In my view, if an applicant answers “yes” to question 17 on the visa application form, whether or not he or she answers question 18, then the visa application must be taken to have been withdrawn if the sponsorship or nomination application is refused or withdrawn, assuming no other indication is given by the applicant of his or her intentions. Likewise, if an applicant answers “no” to question 17 and no other indication of the applicant’s intentions is given, a decision-maker is entitled to proceed on the basis that there has been no withdrawal of the application and proceed to make a decision. The difficulty arises where in the present case no answer is given to question 17 but an answer is given to question 18.
In my view, where question 18 is answered and no answer is given to question 17 it is open to a decision-maker to proceed on the basis that notice of withdrawal has been given. I do not think it is open to a decision-maker to make the opposite conclusion because question 18 only calls for an answer if the answer to question 17 is “yes”. The actual intention of the applicant is not clear from the form itself although the applicant did communicate to the Tribunal on the review application what his intention was in a letter dated 11 March 2010 (reproduced at court book, pages 69 to 72).
In circumstances where a decision-maker is unsure of his or her jurisdiction to make a decision there must be an obligation on the decision-maker to do something to determine his or her jurisdiction. That was not done effectively. In my view, confronted with the completed application form as it was, at best the delegate could only have concluded that his jurisdiction needed to be clarified. The preferable view is that by answering “no” to question 18 the applicant was taken to have answered “yes” to question 17, although that question was not in fact answered. It follows that the applicant sufficiently communicated an intention to withdraw the visa application if the sponsorship or nomination application failed and when that occurred there was no application continuing for the delegate to consider.
I conclude that the delegate acted without jurisdiction and the decision on the visa application is a nullity.
I will order that a writ of certiorari issue, quashing the decision of the Minister’s delegate dated 13 January 2010.
The applicant seeks costs in consequence of the success of the application. The applicant’s actual costs are approximately $6,000. The applicant would be content with scale costs. The Minister seeks a discount of costs on the basis that it was unclear, until the hearing, whether the application was solely directed to the decision of the Tribunal and also noting the range of issues raised in the amended application and the supporting submissions. My view is that the arguments put on behalf of the applicant could certainly have been put more simply, although the applicant was not to know what view the Court would take on the jurisdictional fact of whether the application had been withdrawn or not before the delegate.
While I was in some doubt until the hearing today whether the decision of the Tribunal was still in contest, it appeared to me more likely than not that the amended application was directed solely to the decision of the delegate. I accept that the Minister has been put to some trouble and expense in dealing with the amended application which has proven unnecessary and some greater clarity and simplicity could have been achieved in order to reduce costs. I will order that the first respondent is to pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 12 August 2010