FEDERAL COURT OF AUSTRALIA

Wijesinghe v Minister for Immigration & Citizenship [2007] FCA 1678

ROHAN NISHNATH WIJESINGHE v MINISTER FOR IMMIGRATION & CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

VID612 OF 2007

MUTHukada anupama perera v MINISTER FOR IMMIGRATION & CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

VID613 OF 2007

JESSUP J

29 OCTOBER 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be treated as though it were an application for leave to appeal.

2.                  The application for leave to appeal be dismissed.

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

THE COURT ORDERS THAT:

1.                  The appeal be treated as though it were an application for leave to appeal.

2.                  The application for leave to appeal be dismissed.

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

REASONS FOR JUDGMENT

1                     On 9 July 2007, Mr Rohan Nishnath Wijesinghe and Ms Muthukada Anupama Perera each filed a Notice of Appeal from a judgment of the Federal Magistrates Court given on 22 June 2007.  By that judgment, the Federal Magistrate, acting under r 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth), dismissed separate applications which had been filed in that court by Mr Wijesinghe and Ms Perera, pursuant to the jurisdiction of that court under s 476 of the Migration Act 1958 (Cth) (“the Act”), for an order that the respondents show cause why a remedy should not be granted in respect of decisions made by the Migration Review Tribunal (“the Tribunal”) on 4 January 2007, in each case to affirm a decision of a delegate of the respondent Minister not to grant a Sri Lankan (Temporary) (Class TT) visa to the appellant concerned. 

2                     Mr Wijesinghe and Ms Perera, to whom I shall refer as the appellants, are citizens of Sri Lanka, and are husband and wife.  They entered Australia on 29 January 1996 under tourist visas.  Each was granted a subclass 435 Sri Lankan visa on 8 February 1996, and again on 17 July 1996.  On 31 July 1997 (the date upon which the visas granted on 17 July 1996 expired), the appellants applied for a further subclass 435 Sri Lankan visa.  Each such application was refused on 7 August 1997 because it was a requirement for the grant of a 435 visa that –

… the applicant entered Australia on or before 1 November 1993 as the holder of an entry permit or an entry visa which had effect as if it were an entry permit. 

Since the appellants did not enter Australia on or before 1 November 1993, their applications for 435 visas were refused. 

3                     There was, thereafter, a substantial interregnum, apparently due to certain proceedings in the High Court.  On 23 November 2005, the appellants were re-notified of the delegate’s decision refusing to grant them visas.  On 13 December 2005, the appellants applied to the Tribunal for a review of the delegate’s decision. 

4                     By correspondence dated 16 October 2006 addressed to each appellant, and acting pursuant to s 359A of the Act, the Tribunal informed him and her as follows:

The Tribunal has information that:

-         You first entered Australia on 29 January 1996 as the holder of a subclass 676 tourist visa.

This information is relevant to the review because it is a requirement for the grant of a subclass 435 Sri Lankan visa that you entered Australia on or before 1 November 1993 as the holder of a visa or entry permit.  The Tribunal will therefore have no alternative but to affirm the decision under review. 

The letter required that any response be received by 22 November 2006, adding that any request for additional time in which to respond would need to include reasons for the extension, and be received before 22 November 2006. 

5                     By correspondence dated 19 November 2006, but received by the Tribunal on 24 November 2006, Mr Wijesinghe, writing on behalf of himself and Ms Perera, said that they were unable to provide any information at that time, because of the hard and restless time which they were experiencing with their baby who had been born on 24 October 2006.  By correspondence dated 29 November 2006 addressed to each appellant, the Tribunal refused the extension of time requested.  Each such letter included the following:

The Tribunal has decided not to grant an extension of time to comment because the visa was refused on the basis that you did not enter Australia on or before 1 November 1993, and the outcome of the Tribunal review would not be affected by any additional information which you may provide. 

6                     Since the appellants had not provided any comments as requested under s 359A of the Act within the time limited by the Tribunal’s letter, the Tribunal took the view that it might make its decision without taking any further action to obtain the appellant’s views, pursuant to s 359C(2) of the Act, and that the appellants were not entitled to appear before the Tribunal, pursuant to s 360(3) of that Act.  The Tribunal proceeded to carry out a review of the decision to refuse the appellants’ applications for visas.  It determined the matter wholly by reference to the requirement that an applicant for a 435 visa must have entered Australia before 1 November 1993, and to what appeared to be the undoubted circumstance that the appellants did not do so.  It held that the appellants did not “satisfy an essential criterion” for the grant of the visas which they sought, and that it had no discretion to take into account their current circumstances in Australia. 

7                     In their applications in the Federal Magistrates Court, the appellants each relied upon the following grounds:

1.                  The Tribunal failed to consider the appellants’ case in accordance with “migration law”;

2.                  the decision of the Tribunal was “made with error of law”;

3.                  the decision of the Tribunal was “made with bias” and “failed to apply natural justice law”.

On 22 March 2007, in each case the respondent Minister filed an application for summary dismissal of the proceeding.  Although that application is not before the court today, the Federal Magistrate dealt with it under r 13.10 of the Federal Magistrates Court Rules, which relevantly mimics s 17A(2) of the Federal Magistrates Act 1999 (Cth).  In each case, the question for the Magistrate was whether the appellant had no reasonable prospect of successfully prosecuting the proceeding.

8                     According to the reasons for judgment of the Federal Magistrate, when the matters came before her, the respondents did not seek to rely upon the grounds set out in their applications.  Rather, they advanced the following contentions:

1.                  that jurisdictional error on the part of the Tribunal was evidenced by a letter apparently sent to Ms Perera on 27 November 2006, in which the Tribunal said that it had –

decided not to grant an extension of time to comment, because the visa was refused on the basis that you did not enter Australia on or before 1 November 2003 …;

2.                  that the appellants were confused by a letter dated 23 November 2005 from the Department of Immigration and Multicultural and Indigenous Affairs sent to Mr Wijesinghe in which it was confirmed that his application for a visa was refused, and in which it was said that the appellants could apply to the Tribunal for a review, during which process “they would have bridging visas”. 

As to the first point, the Federal Magistrate said that the reference to 1 November 2003 was clearly a mistake, and that it was as plain as could be that the Tribunal’s actual deliberations proceeded with respect to a correct understanding of the cut off date set out in the criteria for the grant of a 435 visa, namely, 1 November 1993.  She said that the mistake did not lead to jurisdictional error on the part of the Tribunal.  As to the second point, the Federal Magistrate said that there was nothing in the letter of 23 November 2005 that led to jurisdictional error in the Tribunal’s decision. 

9                     As I have said, the appellants filed Notices of Appeal against the judgment of the Federal Magistrate.  On 24 July 2007, a Registrar of the court made directions for the listing of the appeal and the preparation of an appeal book.  It was also directed that any notice of objection to competency be filed and served within seven days.  There was no such notice.  Counsel for the Minister submitted that each appeal is incompetent in that the judgment of the Federal Magistrate was an interlocutory one pursuant to which an appeal does not lie without the leave of the court or a Judge: see Federal Court of Australia Act 1976 (Cth) s 24(1A).  The appellants, who represented themselves, were unable to assist me with what to them were highly technical issues concerning the question of whether the Federal Magistrate’s judgment was interlocutory.  However, it is well established that an order dismissing a proceeding on a summary basis, in circumstances of the kind which applied before the Federal Magistrate in this case, should be regarded as interlocutory for the purposes of s 24(1A) of the Federal Court Act.  In this respect I refer to Re Luck (2003) 203 ALR 1, to Rana v University of South Australia (2004) 136 FCR 344, and to my judgment in SZKCV v Minister for Immigration and Citizenship [2007] FCA 1201 at [3].

10                  Strictly speaking, in the absence of any application for leave to appeal, I should treat the proceedings before me as purported, albeit incompetent, appeals.  Counsel for the Minister indicated quite properly that his client would have no objection if the purported appeals were treated as applications for leave to appeal and disposed of in accordance with the test referred to by the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-400.  I would be disposed to follow that course, as it would produce the result that the appellants at least have something validly before me which would present them with the opportunity of having the submissions which they made dealt with on their merits.  My reluctance to do so arises from the circumstances of O 52 r 18 of the Rules of Court.  That rule provides for the respondent to an appeal to move for an order dismissing the appeal as incompetent, and that, in the absence of any such motion, if the respondent successfully persuades the court that the appeal is incompetent, he or she is not to have the costs of the appeal, and may be ordered to pay any of the appellant’s costs proved useless or unnecessary as the result of the respondent’s failure to move in accordance with the rule.  If I were to treat the purported appeals as applications for leave to appeal, and then to dismiss those applications, it seems to me that O 52 r 18 would have no operation, and that the applicants, or in this case the appellants, would be exposed to the normal order for costs as unsuccessful parties.

11                  When I raised these issues with counsel for the Minister, he indicated to me that the costs which his client would seek would be, to use his expression, “very limited”, and that it was not a matter of particular importance for his client in the circumstances of this case.  I am disposed to think that for the appellants to have the opportunity for their submissions to be dealt with on their merits is the more important consideration, and I will therefore treat the proceedings as applications for leave to appeal. 

12                  As made clear by the Full Court in Decor Corporation, the first question in a situation such as this is whether the judgment below is attended with sufficient doubt to warrant it being reconsidered by the court exercising appellate jurisdiction.  The submissions made by the appellants were confined to what I might describe as the underlying facts of the circumstances in which they find themselves.  They have been in Australia for a considerable period of time, and they have family here.  It was put to me that if they were required to leave Australia they would in effect have nowhere else to go as they no longer have any family ties in Sri Lanka.  Considerations of this kind, however, were quite outside the reason for which the Tribunal affirmed the decision of the delegate of the Minister.

13                  The visa for which the appellants applied required as an essential condition that any person to whom it was granted have entered Australia before 1 November 1993.  Without considering the personal circumstances of the appellants, including those to which I have briefly referred, the Tribunal ruled that a visa of the kind for which they applied simply could not be granted in their case.  It is clear from the reasons for judgment of the Federal Magistrate that the appellants did not advance before her any argument or proposition as to why the Tribunal had been wrong, much less as to why it had been jurisdictionally wrong in disposing of the matter in the way that it did.  The Federal Magistrate observed, towards the end of her reasons, that the Tribunal had found that the appellants did not satisfy an essential criterion for the grant of the visas which they had sought.  She could find no jurisdictional error in the way the Tribunal dealt with the matter.  As is clear from what I have said previously, the appellants did not attempt to identify any error made by the Federal Magistrate, and did not make any submission to me which to any extent dealt with jurisdictional issues apropos the proceedings in the Tribunal.  In those circumstances, I think this is a clear case, and that the Federal Magistrate’s judgment is not attended with sufficient doubt to warrant its being reconsidered on appeal. 

14                  The question of substantial injustice is less clear.  It is not apparent to me what the longer term consequences of dismissing the appeal would be.  The immediate consequence of course is that the appellants will fail in their jurisdictional challenge to the Tribunal.  I am prepared to accept that the inevitable result of the Magistrate’s disposition of the Minister’s application before her, notwithstanding that it was an interlocutory application, would be that the proceedings as a whole before the Federal Magistrate would fail.  I am also prepared to recognise, although it is not a matter of evidence, that this would have the result that the appellants would not obtain the visas which they sought.  What follows from that is a matter upon which I have neither evidence nor information, although the appellants conducted their case upon the footing that one way or another they would be obliged to leave this country. 

15                  However these somewhat uncertain considerations may be, it is so clear that the Federal Magistrate’s decision was correct, and so obvious that the result of an appeal to this Court could only be to dismiss any such appeal, that in the exercise of my discretion I do not think it is an appropriate case for the grant of leave to appeal. 

16                  I shall order that the appeals be dealt with as applications for leave to appeal, and that those applications be dismissed.  Because the Minister did not file an objection to the competency of the appeal, I shall make no order as to costs.

Associate:

Dated:         29 October 2007