FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2002] FCA 502

MIGRATION – application for review of a decision of Migration Review Tribunal affirming a decision of the Minister’s delegate to refuse a Change in Circumstance (Residence) (Class AG) visa – whether Migration Review Tribunal erred in concluding there was no evidence that applicant had a sense of identity with Australia – whether Migration Review Tribunal erred in considering and applying government policy – whether error of fact or law – application futile

ADMINISTRATIVE LAW – judicial review – privative clause decision – application for order of review sought writs of certiorari, mandamus and prohibition – application not in accordance with Form 5 of Federal Court Rules – application did not specify s 39B Judiciary Act 1903 (Cth) as legislative basis of Court’s jurisdiction – whether application competent – whether application was made “under” s 39B Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth) s 474(1), 474(2), 476, 477, 477(1), 477(2)

Judiciary Act 1903 (Cth) s 39B

Domicile Act 1982 (Cth) s 8

Migration Regulations 1994 (Cth) Schedule 2 cl 833.212

Federal Court Rules O 54, 54A, 54B

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 considered

Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167 applied

NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 applied

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 referred to

Yong v Minister for Immigration & Multicultural Affairs (1997) 75 FCR 155 considered

Minister for Immigration & Multicultural Affairs v “B” (2000) 105 FCR 304 considered

NACA v Minister for Immigration & Multicultural Affairs  [2002] FCA 63 considered

NABM v Minister for Immigration & Multicultural Affairs [2002] FCA 335 referred to

KASHMIR SINGH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1385 OF 2001

HELY J

24 APRIL 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant is a citizen of India who was born on 10 November 1981.  He arrived in Australia on 24 October 1996 by boat without a passport and without a visa or entry permit.  The applicant was 14 years old when he arrived in Australia.

2                     On 15 May 1997 the applicant lodged an application for a protection visa.  The application disclosed that he was a citizen of India at birth and that he did not hold any other citizenship.  The applicant was seeking protection in Australia so that he did not have to go back to India.  The application also disclosed that the applicant had not applied for refugee status in any country other than Australia; that the applicant was not in contact with relatives in his home country or any other country; that the applicant had not returned to his home country since arriving in Australia; and that the applicant did not receive and was not entitled to a pension or any regular income from any country.  The application for a protection visa was refused by the Minister’s delegate on 27 June 1998 and that decision was affirmed by the Refugee Review Tribunal (“RRT”) on 15 March 1999.

3                     The applicant turned 18 on 10 November 1999.  Thereafter the applicant lodged an application for a Change in Circumstance (Residence) (Class AG) visa.  The application is stamped as having been lodged with the Department of Immigration & Multicultural Affairs (“DIMA”) on 15 December 1999, but is referred to in various departmental documents as having been lodged on 21 December 1999.  Nothing turns upon this discrepancy in the dates.  The home address of the applicant, as stated in the application, was 1/29C Great Western Highway, Parramatta.  The form also nominated the name and address of the migration agent who lodged the application on the applicant’s behalf, and requested that correspondence be sent both to the applicant and to the migration agent, at the addresses provided.

4                     By letter dated 10 March 2000 the applicant was notified by DIMA that his application had been refused.

5                     On 6 April 2000 the Migration Review Tribunal (“MRT”) received an application from the applicant for review of that decision.  The application gave the applicant’s residential address as 1/29C Great Western Highway, Parramatta.  The form of application indicated that MRT correspondence would be sent to the residential address unless a different address for service was provided on the form.  The question: “Why do you think the decision you are seeking to have reviewed was incorrect” was answered : “Submission will be sent on [sic] due course”.

6                     On 8 April 2000 MRT wrote to the applicant (and a copy of the letter was sent to his migration agent) advising that any documents or written arguments he wished MRT to consider, which had not already been given to DIMA or MRT, were to be sent to MRT within 21 days of the letter.

7                     On 4 July 2001 MRT again wrote to the applicant at his residential address.  A copy of the letter was again sent to the migration agent.  The letter invited the applicant to provide the following information:

·                    “Details of your family composition, including full names, dates of birth and current residential addresses.

·                    Evidence of your connection with your home country.

·                    Evidence of your employment history in Australia.

·                    Evidence of ownership of any personal assets in Australia.

·                    Evidence that you have close family members or close friends in the nature of family, who are permanent residents or citizens and who reside in Australia.

·                    Any other information you feel may help the Tribunal to come to a decision in your case.”

The letter notified the applicant that he had “a total of 35 days from the date of this letter to respond”.  The letter also stated, in bold type:

“If the Tribunal does not receive the requested information within the period allowed, it may, under s 359C of the Act, make a decision on the review without taking any further action to obtain the information.  In addition, you will not be entitled to appear before the Tribunal.”

8                     As at 5 September 2001, the applicant had not provided any information in response to MRT’s request.  On 5 September 2001 MRT affirmed the decision under review, finding that the applicant was not entitled to the grant of a Change in Circumstance (Residence) (Class AG) visa.

9                     In its decision, MRT noted that at the time when the visa application was lodged, Change in Circumstance (Residence) (Class AG) visas contained only one subclass: subclass 833 (Certain Unlawful Non-Citizens).  One of the criteria to be satisfied at the time of application for a grant of a subclass 833 visa is clause 833.212 of Schedule 2 to the Migration Regulations 1994 (Cth), which reads as follows:

“833.212         An applicant meets the requirements of this clause if he or she:

(a)               has turned 18; and

(b)               before turning 18, ceased to hold a substantive visa; and

(c)                immediately before ceasing to hold a substantive visa, did not hold a Subclass 771 (Transit) visa; and

(d)               before turning 18, spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia.”

10                  MRT found that the applicant met subclauses (a) and (c) of the criteria.  MRT also found that the applicant would meet subclause (b), but only if the fact that the applicant had never held a visa was sufficient to establish that, before turning 18, the applicant “ceased to hold a substantive visa”.  On the assumption that subclause (b) should be so construed, MRT proceeded to consider the requirements of subclause (d).

11                  MRT noted that the expression “formative years” is not defined in the legislation.  However, the policy in PAM 3 provides decision-makers with guidelines as to the meaning and effect of that expression.  MRT set out those guidelines, one of which is that officers should keep in mind that a person’s “formative years” may be taken to mean those years in which they formed a sense of identity and their connection with a place in the world.

12                  MRT then said:

“20.     The visa applicant arrived in Australia by boat in October 1996 when he was 14 years old.  He does not appear to have departed Australia since then.  The visa applicant stated that he arrived in Australia as an unaccompanied minor.  He did not have anyone to return to as his parents were both missing.  He did not have any relatives to support him.  There is no information before the Tribunal in respect to the visa applicant’s sense of identity or any ties with the Australian community.

21.              As noted earlier, the Tribunal sought to obtain further information which the Tribunal considered to be such that might have assisted to ascertain whether the applicant satisfies the criteria for the grant of the visa.  However, neither the visa applicant nor his agent replied to the Tribunal’s request.”

Based on the evidence available to it, MRT was not satisfied that the requirements of subclause (d) were met.

13                  On 3 October 2001 the applicant lodged with the Court an Application for an Order of Review of that decision.  The application was on Form 56, which is the form prescribed for an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and under the Migration Act 1958 (Cth) (“Migration Act”) (Orders 54 and 54B).  Those Orders were noted on the application.  The Federal Court Rules prescribe that an application under s 39B of the Judiciary Act 1903 (Cth) (“Judiciary Act”) should be made substantially in the form numbered 5: Order 54A.

14                  The application does not expressly state the legislative basis of the Court’s jurisdiction to entertain it although the grounds specified in the application echo the grounds of review contained in the former s 476 of the Migration Act.

15                  The grounds of the application are:

“1.       Procedure required by the Act are not observed.

Particulars

I was not notified of the Tribunal’s Decision at my correct address despite Of change of address on the prescribed form which resulted me [sic] being deprived of my right to a hearing of the matter at the tribunal.  The decision was handed down in my absence whitout [sic] notifying me therefore I believe that the tribunal did not fulfil it’s [sic] obligation and made error on the decision.

2.                  The decision involved an error of Law being an error involving an interpretation of the Law or application of the Law to the facts.

Particulars

I have developed significant ties with Australia since arrival at the age of 14 And become a part of the Mainstream Australian Society, which I did not have before and I was not able to form a sense of identity that I have been able to form after arriving in Australia therefore I meet the criterion of the regulation and making a decision in my absence and in the absence of the evidence, unfairly refused my application without hearing what I had to say.”

16                  The relief sought in the application is an order that:

“The decision of the Tribunal be set aside and remitted to the Tribunal and order of reconsideration according to Law (sic).”

17                  If and insofar as the application is an attempt to invoke the provisions of the former s 476 of the Migration Act, the attempt is misconceived having regard to the introduction of the new Part 8 into the Migration Act with effect from 2 October 2001, even if the decision sought to be reviewed was made prior to that date.

18                  In order to apply to the Federal Court for review of a decision of MRT, the application must now be brought pursuant to s 39B of the Judiciary Act, and within the period specified in s 477 of the Migration Act.  That avenue of review is severely circumscribed by the operation of s 474(1) of the Migration Act, which is a privative clause provision which applies to privative clause decisions referred to in s 474(2).

19                  On the morning of the hearing Mr Newman, the solicitor for the applicant, sought to file in Court an Amended Application for an Order of Review in which he claimed a writ of certiorari quashing the decision of MRT handed down on 5 September 2001; a writ of mandamus requiring MRT to determine the application for a visa made on 21 December 1999 according to law; and a writ of prohibition preventing the respondent from taking any action upon the decision of MRT handed down on 5 September 2001.  The Amended Application is not substantially in accordance with Form 5 in the first schedule of the Federal Court Rules as is required by Order 54A, nor does the Amended Application specify the Judiciary Act as the legislative basis of the Court’s jurisdiction to entertain the Amended Application.

20                  Under the heading “Details of Claim” in the Amended Application, the following appears:

“On the grounds that the Tribunal failed to consider the effect of the Domicile Act (Cth) 1892 (sic) and inferences which ought to have been drawn from his previous protection visa application, the applicant claims”

the writs earlier referred to.

21                  Counsel for the Minister opposed the application for leave to file the Amended Application upon the grounds that the period specified in s 477 of the Migration Act had expired, and the Federal Court is precluded by s 477(2) of the Migration Act from making an order allowing, or which has the effect of allowing, an applicant to lodge an application under s 39B of the Judiciary Act in respect of a privative clause decision outside the period specified in s 477(1).

22                  With the concurrence of both parties, the hearing of the case proceeded upon the basis that the parties would, in their final submissions, address what might be called the “merits” of the Amended Application, as well as whether the applicant should have leave to file it.  Ground 1 of the original application was abandoned, and as I understood it, ground 2 of the original application was persisted in only if leave to file the Amended Application was declined.

The merits of the Amended Application

23                  In Mr Newman’s submission, MRT should have taken into account both the fact of the protection visa application, and answers given by the applicant to questions in that application, as indications that the applicant had a sense of identity with Australia.  Mr Newman submitted that:

·        it was “open to MRT” to conclude that the application was an expression of the applicant’s identity with Australia;

·        MRT failed to take these matters into account, hence it had not discharged its obligation to consider and apply government policy in the making of its decision;

·        MRT’s finding that “there is no information as to his sense of identity or any ties with the Australian community” was therefore wrong, and erroneous in point of law; and

·        As the MRT’s decision involves an error of law it is not a privative clause decision within the meaning of s 474(2) of the Migration Act, hence the privative clause contained in s 474(1) of that Act is of no application.

24                  These submissions fail for a number of reasons.  First, neither the fact that the applicant applied to DIMA for a protection visa, nor the answers to questions contained in the application form, went to the question as to whether the applicant had a sense of identity with, and connection with, the Australian community.  The fact that a person does not wish to return to his country of origin because of a fear of persecution if he were to return, does not establish that the applicant has a sense of identity with, or connection with, Australia.

25                  Second, MRT addressed the government policy contained in the PAM 3 guidelines.  It recited the guidelines, and for the reasons given in par 20 of its decision concluded that there was nothing put before MRT to establish that the applicant had a sense of identity with the Australian community.  That does not mean that MRT overlooked the protection visa application.  The case file relating to that application was before MRT .  The inference is at least equally open that MRT regarded the matter on that file as of being of no relevance to the issues which it had to determine.

26                  Third, even if MRT came to a wrong conclusion in this respect, any error was of a factual character, rather than an error of law.  Whether an applicant satisfies par (d) of clause 833.212 involves questions of fact, questions of judgment and questions of degree which were matters for MRT to determine. 

27                  Fourth, even if the decision of MRT was infected by an error of law, the decision was nonetheless a privative clause decision in terms of s 474(1) of the Migration Act.  Whilst Mr Newman submitted that a decision which is wrong in law is not a “decision” for the purposes of the Migration Act, no authority was cited in support of this proposition.  The applicant’s solicitor has referred me to Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, a decision of the House of Lords.  In Anisminic, the House of Lords held that the word “determination” in s 4(4) of the Foreign Compensation Act 1950 (UK) should not be construed as including everything which purported to be a determination but was not in fact a determination because the relevant decision-making body had misconstrued the relevant provision that defined its jurisdiction.  However, it is difficult to see how Anisminic applies in the context of the present case, especially in light of the recent decision of Mansfield J in Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167.  In that case, the applicant sought orders under s39B of the Judiciary Act declaring that a decision of a delegate of the Minister made under s131 of the Migration Act was invalid and of no effect, and sought to set aside that decision. At par [30], his Honour said:

“Section 474(2) defines a privative clause decision as one made “under” the Act.  However, in the particular circumstances, I do not consider it helpful to take the view that a decision which is made without compliance with the procedure in s 129(1) of the Act is not a decision “under” the Act because it is only a purported decision under the Act.  That would give s 474(1) little practical effect, as that approach would expose many decisions under the Act to review where the procedures prescribed were not complied with.  I do not consider that that result was intended by Parliament.  To the extent that the applicant, through his counsel, so contended I reject that submission.  Counsel for the applicant did not explore the full purport of the observations of Gaudron and Gummow JJ in Darling Casino at 635 adverting to the expression “under” an enactment as distinct from the expression “under or purporting to be under” the enactment.”

I was also referred by the applicant to R v Commissioner of Police for the Northern Territory; Ex parte Holroyd (1965) 7 FLR 8, without a reference to the relevant passages of the decision on which the applicant sought to rely and without an explanation of its relevance to the present case.

28                  In NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 Tamberlin J found that the RRT made an error which could have affected the outcome of the case because it bore directly on the question whether there were grounds, based on past persecution, for the applicant believing that there was a real risk of persecution if returned to his country of origin.  His Honour said at par [38]:

“The task is then to apply s 474 to the present case.  There is nothing in this case to indicate that the decision to refuse a visa was not made bona fide in an attempt to exercise the power conferred, namely to decide whether the applicant had the necessary requirements to be granted a protection visa.  The decision relates to the subject matter of the legislation, namely the refusal of a protection visa.  The determination is reasonably referable to the function assigned to the RRT and there is no suggestion of any constitutional invalidity in the decision of the RRT.  Nor is there any basis to suggest that the RRT was not in fact satisfied that the applicant was not a refugee, nor was there any inviolable provision or essential condition going to jurisdiction which was breached by the RRT in reaching its conclusion.  I therefore consider that the error which I have found in the RRT decision is within the protection afforded to the RRT decision by s 474.”

29                  Those observations are applicable, mutadis mutandis, to the circumstances of the present case. 

30                  Finally, no attempt was made by the applicant’s solicitor to establish that any error was a jurisdictional error or that it was otherwise within the Hickman principles: R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.  This ground on which review is sought is without substance.

31                  The applicant also submits that “a whole body of law” has been overlooked by MRT.  The “body of law” said to have been overlooked by MRT is the Domicile Act 1982 (Cth).  Section 8 of that Act provides, insofar as is currently relevant, that a person is capable of having an independent domicile if he has attained the age of 18 years.  Given that the question for MRT was whether the applicant, before turning 18, spent his formative years in Australia, the relevance of this “body of law” is not apparent, nor was this obscurity cured by anything put by Mr Newman in his submissions.

32                  I would therefore refuse leave to file the Amended Application on the ground of futility.  For the reasons already given, ground 2 in the original application is also without substance.  The original application should be dismissed.

Whether the Amended Application was otherwise competent

33                  Section 477 provides, insofar as is currently relevant, that an application to the Federal Court under s 39B of the Judiciary Act in respect of a privative clause decision must be made to the Federal Court within 28 days of the notification of the decision.  Section 477(2) provides that the Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subs (1) outside the period specified in that subsection.

34                  Counsel for the Minister, Mr Lloyd, submits that the original application to the Court was not an application under s 39B of the Judiciary Act, and that the grant of leave to lodge an amended application seeking to invoke s 39B is proscribed by s 477(2).

35                  Mr Lloyd referred me to the decision of the Full Federal Court in Yong v Minister for Immigration & Multicultural Affairs (1997) 75 FCR 155, and to the decision of Wilcox J in Minister for Immigration & Multicultural Affairs v “B” (2000) 105 FCR 304, which establish that if the application before the Court was competent, then the Court could allow amendments to be made to the application even though the making of a fresh application at this point was time-barred.  Mr Lloyd did not seek to challenge those decisions, and he accepted that if the original application was capable of being characterised as an application under s 39B of the Judiciary Act so as to enliven the Court’s jurisdiction, then the Court was empowered to permit an amendment to be made to the application outside the period prescribed by s 477.

36                  Mr Lloyd also drew my attention to the decision of Conti J in NACA v Minister for Immigration & Multicultural Affairs  [2002] FCA 63.  The circumstances of that case are close to the present.  The case involved an application before the Court for a review of a decision of the RRT.  From the terms of the grounds on which review of the decision was sought, Conti J deduced that the application had been made purportedly, albeit erroneously, pursuant to the now repealed provisions of s 476 of the Migration Act, without regard to the enactment of Part 8 in its present form.  The applicant did not seek to amend his application in order to seek review pursuant to s 39B of the Judiciary Act.  Accordingly, Conti J concluded that the application was incompetent by reason of its failure to enliven the Court’s jurisdiction to hear the matter pursuant to s 39B.  At par [8] of the judgment his Honour said:

“Even if I were to grant leave to the Applicant to make an application for review pursuant to s 39B of the Judiciary Act, any such application would be well outside the 28 day mandatory period in which an application for review must be filed: see s 477 of the Act.  It is clear from the Act that there is no discretion to extend such 28 day period.”

That decision was referred to by Beaumont J in NABM v Minister for Immigration & Multicultural Affairs [2002] FCA 335 at par [47].

37                  Section 39B of the Judiciary Act invests the Federal Court with jurisdiction with respect to any matter:

·        in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; or

·        arising under any laws made by the Parliament subject to exceptions which have no current relevance.

38                  How then, does one determine whether the original application to this Court was an application “under s 39B of the Judiciary Act”?  Mr Lloyd accepted, correctly, that whether the application was instituted on Form 5 or Form 56 cannot be determinative of that question.  He also accepted, correctly, that the fact that the application does not refer in terms to s 39B is also not determinative of that question.  In Mr Lloyd’s submission, the question is one of characterisation, and whether the application is properly characterised as being one “under” s 39B of the Judiciary Act, is essentially a question of fact.  Here, the following facts, in combination, lead to the conclusion that the original application was not an application “under” s 39B:

·        the application was made on Form 56, that being a form prescribed for the purposes of applications made under the Migration Act;

·        the form of application does not refer to s 39B;

·        the grounds on which review is sought are grounds which were available under the former s 476 of the Migration Act; and

·        the orders sought could have been made under the previous s 481 of the Migration Act, and at least in terms, they do not pick up any of the writs referred to in s 39B(1) of the Judiciary Act.

39                  Section 477 of the Migration Act has as its focus the time in which an application must be made to the Federal Court in relation to a privative clause decision, rather than the form in which such an application is required to be cast.  In my view, it is at least reasonably arguable that s 477 should be construed as requiring that when s 39B is the source of the Court’s jurisdiction to grant relief in respect of a privative clause decision, the application to the Federal Court must be made within the time prescribed.  In the present case, s 39B is the source of the Court’s jurisdiction, because it is the only provision under the umbrella of which the applicant’s complaint, as articulated in the application, could be remedied if the complaint were made out.  The failure to fill in the right form, and the other matters identified by counsel for the Minister, are procedural irregularities, rather than matters which go to the competency of the initial application.

40                  It is not necessary for me to determine whether this argument is correct, or whether I agree with the observations of Conti J in NACA v Minister for Immigration & Multicultural Affairs referred to above, in order to determine the present case.  It will be apparent from what I have said that, with respect, I have reservations on that question.  This question might be of critical importance in some other case in which the issue will be more fully argued.  It is better for me not to express a concluded view on the question when it is not necessary for the disposition of the case before me.

41                  The application should be dismissed with costs.

Associate:

Dated:              24 April 2002