FEDERAL COURT OF AUSTRALIA

Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684

IN THE MATTER OF AN APPLICATION FOR WRITS OF CERTIORARI AND PROHIBITION AGAINST THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS OF THE COMMONWEALTH OF AUSTRALIA AND MR DAVID THOMAS, SITTING AS THE MIGRATION REVIEW TRIBUNAL AND MS REGINA PERTON, IN HER CAPACITY AS SENIOR MEMBER OF THE MIGRATION REVIEW TRIBUNAL; EX PARTE SUMUDU CHETHANA BATUWANTUDAWA

V 199 of 2003

GRAY J

2 JUNE 2003

MELBOURNE

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The application for enlargement of the time limited by O 55 r 17 of the High Court
Rules to apply for a writ of certiorari be refused.

2.         The application be dismissed.

3.         The applicant pay the respondents’ costs of the proceeding.

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

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This proceeding was remitted to this Court from the High Court of Australia by order made on 7 February 2003.  It was listed for a directions hearing before Marshall J on 24 April 2003.  On that date, Mr Knowles, the solicitor who has appeared before me today for the respondents, also appeared.  There was no appearance on behalf of the applicant.  His Honour made orders for the filing and service of a court book by the first respondent and for the fixing of another directions hearing before the docket judge.  His Honour also reserved the costs of that directions hearing.  The matter was then placed in my docket and a directions hearing was fixed for today. 

2                     The solicitors for the respondents then forwarded to the Court consent orders signed by them on behalf of the respondents and by the applicant.  In order to determine whether I should make the orders by consent I examined the file in the proceeding.  I decided at that point not to make the consent orders and caused my associate to direct a letter to the applicant, informing her that I had decided not to make the orders.

3                     The letter, which is dated 28 May 2003, informed the applicant that I would consider the question whether I would grant an enlargement of the time fixed for making of the application under the High Court Rules today, and would not be disposed to grant an enlargement of time unless it was clear to me there was a case on the merits.  The letter invited the applicant to attend this directions hearing and to address the question of the merits of her proceeding.  The applicant has failed to appear today.  Mr Knowles has invited me to refuse to grant an enlargement of time on the basis that the proceeding has no chance of success, and to dismiss the proceeding here and now.

4                     The proceeding was filed in the High Court on 19 July 2002.  A number of documents were filed on that day.  Among them was an affidavit, plainly drawn by or with the assistance of a legal practitioner, although the practitioner involved is not identified in that or any of the other documents.  In the documents, the applicant applied for an extension of time. 

5                     The affidavit sets out the following timetable.  On 30 June 1998, the applicant applied to the first respondent, the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, “the Minister”), for a visa of the kind known as a General (Residence) (Class AS) visa, subclass 805 (“a subclass 805 visa”).  On 10 August 1998, a delegate of the Minister refused to grant that visa.  The decision of the delegate was affirmed by a review officer from the Migration Internal Review Office on 8 September 1998.  The applicant then applied to the Immigration Review Tribunal on 29 September 1998.  Owing to changes in the legislation, that tribunal ceased to exist on 31 May 1999.  The application for review was deemed to be an application properly made to the Migration Review Tribunal (“the Tribunal”), pursuant to s 41(1) of the Migration Legislation Amendment Act (No 1) 1998 (Cth).  On 20 June 2000, the Tribunal, constituted by one of the second respondents to this proceeding (the other second respondent is the current Principal Member of the Tribunal), made a decision that the applicant did not meet the requirements for a subclass 805 visa.  The reasons for decision of the Tribunal are annexed to the affidavit of the applicant.  It can therefore be seen that more than two years elapsed before the applicant applied to the High Court.  During that time, on 29 June 2000, the applicant requested the Minister to exercise his discretion in her favour under s 351 of the Migration Act 1958 (Cth) (“the Migration Act”).  The Minister gave a decision on 8 July 2002, refusing to exercise that discretion.

6                     Exhibited to the applicant’s affidavit was a draft order nisi that she presented to the High Court, setting out the relief that she sought and the grounds on which it was sought.  The relief sought was, first, a writ of prohibition directed to the Minister, prohibiting him from proceeding further with the proceeding in the Migration Review Tribunal and, second, a writ of certiorari, removing into the High Court to be quashed the decision made by the Tribunal on 20 June 2000 and the refusal of the Minister to exercise his discretion.  The third respondent is the current Senior Member of the Tribunal.  By reason of s 476(2) of the Migration Act, this Court has no jurisdiction in respect of a decision of the Minister under s 351 of the Migration Act.  To the extent to which it related to that decision, the application could not have been remitted to this Court.  I was informed by Mr Knowles that, by agreement between the parties, the applicant had abandoned the application, to the extent to which it sought relief in relation to the Minister’s decision.

7                     The challenge to the Tribunal’s decision was said to be made on a number of grounds, which were stated in broad terms and without particulars.  There was even an attempt to rely upon grounds in the now repealed Pt 8 of the Migration Act.  There was a request for an enlargement of the time limited by the High Court Rules.  Two things are notable about the draft order nisi.  One is the absence of any request for mandamus that, if the applicant had succeeded, might have resulted in a redetermination of her application for the visa.  The other is the attempt to prohibit the now completed proceeding in the Migration Review Tribunal.

8                     The time limited by the rules of the High Court for an application for certiorari is fixed by O 55 r 17 of those rules.  An application must be made not later than six months after the date of the decision concerned.  Of course, that is subject to the general power in O 60 r 6 of the High Court Rules to enlarge any of the time appointed by the rules.  It falls to this Court to exercise that power of enlargement, if it is to be exercised, as a result of the remittal of the proceeding to this Court.

9                     So far as the delay between the decision of the Tribunal and the commencement of proceedings is concerned, the only explanation given in the affidavit of the applicant involves her attempt to procure a favourable decision from the Minister, pursuant to s 351 of the Migration Act.  I note that the pursuit of that course by the applicant would have tended to suggest that the applicant was prepared to accept as correct the decision of the Tribunal, and that she did not intend to avail herself of the machinery that then existed under the Migration Act to seek judicial review, or to seek remedies from the High Court, in relation to it.  It seems to me that, to await the decision of the Minister under s 351 and then to attempt to seek relief in the High Court in relation to the decision of the Tribunal, was to take inconsistent courses. 

10                  The affidavit of the applicant also contends that, if an extension of time is granted, it will cause no prejudice to the respondents, and that she believes that it is in the interests of justice.  Mr Knowles has not contended that there would be prejudice.  The question whether an enlargement of time is in the interests of justice depends upon whether it is open to the applicant to challenge successfully the decision of the Tribunal.  It is that question that I invited her to argue today and she has not done so.

11                  I have looked at the statement of reasons for decision of the Tribunal with some care.  I note that the Tribunal dealt separately with each of the criteria laid down in item 805 in Sch 2 to the Migration Regulations 1994 (Cth) that might possibly have been applicable to the applicant.  In its reasons, the Tribunal noted that item 805.213(2) related to applicants covered by a labour agreement, and found that there was no evidence that a labour market agreement of the kind required existed.  The Tribunal directed its attention also to subitems (3) and (4) of item 805.213, relating to applicants covered by approved employer nominations, and found that no such nomination had been obtained.  It then turned its attention to subitems (6) and (7) of item 805.212, as to which it said:

“20.     Regulation 805.212 (6) requires that the visa applicant produce written testimony given by an Australian citizen, an Australian permanent resident, an eligible New Zealand citizen or an Australian organisation having a national reputation in relation to a profession, occupation or other activity as to the visa applicant’s standing in that profession, occupation or activity.  The visa applicant has provided written testimonials in regard to the quality of her teaching qualifications and character, but her standing in the professions of teaching or airline ticketing have [sic] not been addressed.  Since the visa applicant has not provided such written testimony the Tribunal is not satisfied that the visa applicant meets the requirements of subclause 805.212 (6). 

21.       Subclause 805.212(7), while requiring similar evidence of distinguished talent, does not include the requirement for testimony from a third party.  The visa applicant must demonstrate an exceptional record of achievement in her occupation, and that she would be an asset to the Australian community, and that she would have no difficulty in obtaining employment or becoming established independently in Australia.  PAM3 describes benefit to the Australian community as to the betterment of the community economically, socially or culturally, by introducing and transferring new skills or significantly raising local standards. The Macquarie Dictionary (2^nd revised edition 1988) defines ‘exceptional’ as ‘forming an exception or unusual instance, unusual, extraordinary’.

22.       The Tribunal notes that although the visa applicant claims to have ‘vast experience in international airline ticketing’, her diploma in airline ticketing is the only evidence she provides to substantiate this claim.  She has not submitted any evidence of having been employed in this field.  The visa applicant holds a one-year diploma from a Sri Lankan ‘Ladies College’.  No evidence has been proffered that the diploma is recognised in Australia, or as a teaching qualification within the State of Victoria where the visa applicant resides, or by the Montessori teachers in Victoria.  This doubt is reinforced by the applicant’s statement in her letter dated 21 May 2000 that ‘There is also a shortage of untrained childcare workers.  If you allow my general residence (permanent) visa to stay in Australia I would be able to do either occupation.’  Nor is there substantial evidence that the visa applicant has taught ‘many private students’ as she states.  The fact that the visa applicant may be a competent, honest, meticulous, loyal and hard working pre-school teacher is not sufficient to meet the provisions.  Given the standards of subclause 805.212 (6) as an approximate guide the Tribunal is not satisfied that the visa applicant meets the requirements of subclause 805.212 (7).”

12                  For those reasons, the Tribunal was not satisfied that the visa applicant met all the criteria for the grant of the visa sought in her application.  It therefore affirmed the decision to refuse the grant of the visa.

13                  In that reasoning, it is not apparent to me that there is anything that might be described as a jurisdictional error, or an error of law, such as might entitle the applicant to the relief sought in relation to that decision.  I am therefore of the view that she ought not to be granted an enlargement of time to challenge the decision of the Tribunal.

14                  I note that the claim in the draft order nisi for prohibition is limited to the matter designated by its proceeding number in the Tribunal.  The Tribunal has completed its dealing with that proceeding.  There is nothing left to prohibit.

15                  For those reasons, it seems to me that the proceeding ought not to be allowed to occupy any further time.  To the extent to which the applicant requires an enlargement of time under the High Court Rules I would refuse it.  The consequence will be that the proceeding must be dismissed.

16                  The orders that I make, then, will be that:

1.         The application for enlargement of the time limited by O 55 r 17 of the High Court
Rules to apply for a writ of certiorari be refused.

2.         The application be dismissed.

3.         The applicant pay the respondents’ costs of the proceeding.

Associate:

Dated:              7 July 2003