FEDERAL COURT OF AUSTRALIA

SZJOH v Minister for Immigration & Citizenship [2008] FCA 274

MIGRATION – Migration Act 1958 (Cth) – review of decision of Migration Review Tribunal – bridging visa - failure to satisfy requirements – provision of information by Tribunal – the need for a meaningful opportunity

Migration Act 1958 (Cth), s 359

Migration Regulations 1994 (Cth)

Coulton v Holcombe (1986) 162 CLR 1 followed

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 cited

SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 followed

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26, 235 ALR 609 followed

SZJOH v MINISTER FOR IMMIGRATION & CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

NSD 2366 OF 2007

FLICK J

6 march 2008

SYDNEY

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.  The Appellant to pay the costs of the First Respondent of and incidental to the appeal.

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

REASONS FOR JUDGMENT

1                     On 22 November 2006 the now Appellant lodged an application for a bridging visa. That application was refused on 7 December 2006 and the now Appellant lodged an application for review with the Migration Review Tribunal on 28 December 2006.

2                     The Migration Review Tribunal on 19 June 2007 affirmed the decision not to grant a Bridging A (Class WA) visa. The Federal Magistrates Court dismissed an application seeking to impugn the Tribunal decision: SZJOH v Minister for Immigration & Citizenship [2007] FMCA 1978. The Appellant now appeals to this Court.

3                     It is also relevant to note that the now Appellant had previously sought review by the Refugee Review Tribunal of a decision refusing to grant a protection visa. The application for a protection visa had been made in January 2006 and refused in April 2006. The Refugee Review Tribunal on 5 October 2006 dismissed the application for review upon the basis that it had no jurisdiction. The application had been lodged outside the prescribed time. On 24 October 2006 the now Appellant sought judicial review of that decision of the Tribunal. This appeal was dismissed by the Federal Magistrates Court on 15 December 2006: SZJOH v Minister for Immigration & Multicultural Affairs [2006] FMCA 1890.

4                     It is considered that the appeal must be dismissed for the reasons previously given by both the Migration Review Tribunal and the Federal Magistrates Court.  The Grounds of Appeal seek to characterise the errors as being errors of law, jurisdictional error and procedural fairness.  There is also a ground which asserts that the Federal Magistrate did not apply Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. The grounds are expressed in the most general terms but content may be given to them if reference is made to the reasons for decision of the Tribunal and the Federal Magistrate.

5                     The Appellant’s written submissions filed in this Court also make a submission as to a breach of s 359A of the Migration Act 1958 (Cth).

6                     It is considered that each of the Grounds of Appeal should be dismissed as should the submission in respect to s 359A.

7                     There has been no jurisdictional error and no error of law, either on the part of the Tribunal or the Federal Magistrate.

Non-compliance with the Migration Regulations 

8                     Provision is made in the Migration Act 1958 (Cth) for the grant of a visa: s 65. Section 73 provides for the grant of a “bridging visa”, provided an applicant satisfies criteria which may be prescribed by regulation: s 31(3). Failure to satisfy those criteria requires a refusal of the application: SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] per Ryan, Jacobson and Lander JJ.

9                     For present purposes, the regulations of relevance may be found in Schedule 2 to the Migration Regulations 1994 (Cth), being regulations 010.211 and 010.221. Those regulations relevantly provide as follows:

010.21       Criteria to be satisfied at the time of application.

010.211    (1) The applicant meets the requirements of subclause (2), (3), (4), (5) or (6).

(2) An applicant meets the requirements of this subclause if:

(a)  the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and

(b) that application has not been finally determined;…

                                …

 (3) An applicant meets the requirements of this subclause if:

…

(c) at the time of that application, he or she held a Bridging A (Class WA) or Bridging B (Class WB) visa; ….

…

 (4) An applicant meets the requirements of this subclause if:

 …

(b) he or she has not applied for a Protection (Class AZ) or Protection (Class XA) visa; …

…

(5)   An applicant meets the requirements of this subclause if:

(a) the applicant has made a valid application for:

[specified visas]…;

…

(6)   An applicant meets the requirements of this subclause if:

(a) the applicant has made a valid application for:

…[specified visas]; and

…

010.22       Criteria to be satisfied at the time of decision.

010.221     The applicant continues to satisfy the criterion set out in clause 010.211.

10                  For the reasons given by the Migration Review Tribunal, the Appellant does not satisfy Clauses 010.211(2), (3), (4), (5) or (6). The now Appellant did not satisfy Clause 010.211(2)(b) as his application for a protection visa had been “finally determined” at the time of his application in November 2006. That phrase is further defined by s 5(9) of the Migration Act 1958 (Cth). In the circumstances of the present case, the application for the protection visa had been “finally determined” as the delegate had refused the application and there had been no review “instituted as prescribed” within the meaning of s 5(9)(b). The Appellant did not satisfy cl 010.211(3)(c) as he was not the holder of a bridging visa A or B; he did not satisfy cl 010.211(4)(b) as he had applied for a protection visa; and there was no evidence that he had applied for a class of visa prescribed by cl 010.211(5)(a) or (6)(a).  

Randhawa?

11                  The decision of the Full Court in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 is a decision as to the definition of a “refugee”. Its relevance to the present proceedings, other than an impermissible attempt to now recanvass the earlier unsuccessful claims for a protection visa, is not apparent.

An Invitation to Comment: Section 359A

12                  The written submission on the part of the Appellant that there has been a breach of s 359A is also rejected. If the submission is to be construed as an application for leave to amend the Notice of Appeal to raise an additional ground of appeal, the application for leave is refused.  It was not an argument raised before the Federal Magistrate and no explanation has been advanced as to why the argument should now be entertained: Coulton v Holcombe (1986) 162 CLR 1.

13                  A letter was in fact forwarded to the Appellant pursuant to s 359A inviting him to comment on the matters therein set forth. The letter is that dated 12 April 2007 and provided in relevant part as follows:

You are invited to comment, in writing, on the following information:

·         When you applied for the Bridging A visas on 22 November 2006, your application for substantive visas (ie Protection visas) had been finally determined.

This information is relevant because it may indicate that you do not meet the requirements of cl. 010.211(2)(b).

·         When you applied for judicial review of the decision in relation to your protection visas on 24 October 2006, you did not hold Bridging A visa or a Bridging B visa.

This information is relevant because it may indicate that you do not meet the requirements of cl. 010.211(3)(c).

·         You applied for Protection visas in Class XA on 18 January 2006.

This information is relevant because it may indicate that you do not meet the requirements of cl 010.211(4)(b).

·         You had not made valid applications for a subclass of a visa prescribed by cl 010.211(5)(a).

This information is relevant because it may indicate that you are unable to meet the requirements of cl. 010.211(5)(a).

·         You had not made valid applications for a subclass of a visa prescribed by cl 010.211(6)(a).

This information is relevant because it may indicate that you are unable to meet the requirements of cl. 010.211(6)(a).

·         At the time of the Tribunal’s decision, the judicial review of a decision in relation to your application for Protection visas has been completed and there is no evidence that the decision has been appealed.

This information is relevant because it may indicate that you do not meet the requirements of cl. 010.211(3)(d) and therefore cl. 010.221.

If the intent of the letter was to invite comments from the Appellant in relation to the matters raised, it is (with respect) far from satisfactory. The letter, not surprisingly, has all the hallmarks of being written by a person with experience and detailed and extensive knowledge of the Migration Act and Migration Regulations. But it is a letter written to a non-lawyer and a person (at the very least) not fluent or conversant with the English language. Nowhere in the letter is there a reference to the clauses referred to being provisions to be found in the Migration Regulations. The origin or source of the clauses referred to would remain a mystery to the reader. Nowhere in the letter are the provisions of those clauses of the Regulations set forth, and a copy of the Regulations or an extract is not annexed.  Those with access to the three volumes of the current Migration Regulations may also experience difficulty in finding the clauses of present relevance. Even an educated person may well have difficulty in making any meaningful comment in such circumstances. A letter inviting a person to comment upon undisclosed provisions is, it is considered, not much of an “invitation to comment”.

14                  Comfort was sought to be drawn by the Respondent Minister in a submission that the matters in respect of which comment was sought was not “information” within the meaning of s 359A and that, accordingly, an invitation need not have been sent at all. That submission may well be correct. It may well be that the matters set forth are more in the nature of the thought processes or reasoning of the Tribunal: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18], 235 ALR 609 at 616 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. But, insofar as the Appellant is concerned, such subtleties do not deny the fact that he would have received the letter and read that it was forwarded to him in an attempt to “ensure both a fair and speedy review process.” The letter previously stated:

The Migration Act 1958 (the Act) contains provisions intended to ensure both a fair and speedy review process. These include opportunities for review applicants to respond to material before the Tribunal, as well as limits on further opportunities if there is a failure to provide comments within a specified period.

Section 359A of the Act states that the Tribunal must explain, and invite comments on, ‘particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.’

If a letter in the form of that forwarded to the Appellant is to be sent, it is considered at a minimum that the letter should identify the source of the requirements being set forth and either extract the relevant provisions or annex a copy of the relevant Regulations. The bona fides of the author of the letter are not in question. What is in question is whether such matters as were disclosed in the letter put the recipient in a position where he could meaningfully contribute to what was held out as a “fair and speedy review process”. 

15                  Such deficiencies in the letter, however, do not advantage the Appellant, even if a breach of s 359A is made out and even if leave to raise the matter had been permitted. The simple fact is that he cannot bring himself within regulation 010.211 of Schedule 2 to the Migration Regulations and leave to amend should thus be refused. Any relief would have been refused as a matter of discretion: cf SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [27]–[29], 235 ALR 609 at 618–19 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.  In the present case, the refusal of leave to amend and the refusal of relief, even if a breach be established, is an exercise of discretion that “is proper, prudent, economical and just”: [2007] HCA 26 at [87] per Kirby J.  

16                  None of the Grounds of Appeal is made out.

17                  Accordingly, the appeal must be dismissed. An award of costs is always discretionary but there is no reason why the usual approach to the award of costs should not apply.

Orders

18                  The orders of the Court are:

1.    Appeal dismissed.

2.    The Appellant to pay the costs of the First Respondent of and incidental to the appeal.

Associate:

Dated:         6 March 2008