FEDERAL COURT OF AUSTRALIA

Benissa v Minister for Immigration and Citizenship [2011] FCA 291

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

introduction

1    This is an appeal from a judgment of a federal magistrate ([2010] FMCA 657) in which the learned Federal Magistrate dismissed the appellant’s application for judicial review. The Federal Magistrate reviewed a decision of the Migration Review Tribunal (the “Tribunal”) which confirmed the refusal by a delegate of the Minister to issue a temporary visa to the appellant. The Federal Magistrate found no reviewable error in the decision of the Tribunal.

2    For the reasons which follow, I have determined to dismiss the appeal because the appellant has not substantiated its allegations that the decision of the Federal Magistrate is infected with any appealable error.

3    Whilst the circumstances of this case reveal no legal error, what they do reveal is bureaucratic inefficiencies and a lack of benevolence which would raise the concern of most fair-minded observers. Those concerns may well be addressed by an application made directly to the first respondent (“the Minister”) under s 351 of the Migration Act 1958 (Cth) (“the Migration Act”). That however is a matter entirely for the Minister.

adjournment

4    This appeal was adjourned when first brought on for hearing in order that I consider written submissions and determine whether the appeal should be further adjourned pending the making by the Minister of any decision pursuant to s 351 of the Act. By that section, the Minister is empowered, if the Minister considers it in the public interest to do so, to substitute a decision made by the Tribunal with a decision more favourable to a visa applicant. The Minister is empowered to do so whether or not the Tribunal had the power to make that other decision.

5    The underlying question at the heart of the controversy of which this appeal forms part, is the appellant’s entitlement (if any) to stay in Australia. That question is unlikely to be finally resolved until the application made by the appellant under s 351 is determined to finality. In that context, there is a question as to the utility of this Court resolving the challenge to the correctness of the Tribunal’s decision in circumstances where the Minister may accede to the application made under s 351. There is no doubt that the application made to the Minister and any consideration or determination of that application by the Minister has no bearing on the just resolution of this appeal according to law. Nevertheless, there may well be occasions where it is appropriate for the Court to adjourn an appeal such as this for a limited period in order to give the Minister an opportunity to consider the application made. If the determination of that application was favourable to an appellant, the need for an appeal to be pursued would evaporate with consequential savings to both the parties and the judicial and administrative resources of the Court. So much would be consistent with the objectives specified in s 37M of the Federal Court of Australia Act 1976 (Cth).

6    Having considered the submissions presented to me on the question of an adjournment, on 16 February 2011, I determined to reconvene the further hearing of the appeal. I did so because by that time some two months had elapsed since the appellant had made his s 351 application. There had been no decision of the Minister and there was no evidence as to the likelihood of when a decision might be made. I took into account that the power in s 351 is permissive and non-compellable. If I had been persuaded that a further short adjournment may have led to a consideration and determination by the Minister of the application under s 351, I may have acceded to further time being provided. However, in the absence of a likelihood that a decision by the Minister was imminent, it seemed to me that the duty of the Court to determine the appeal in a timely manner took precedence over the benefits which a further adjournment may have brought to the efficient disposition of the appellant’s claims.

background

7    The appellant is a national of Ghana who entered Australia on 13 March 1997 as the holder of a visitor’s visa.

8    On 11 August 2007, the appellant lodged an application for a Cultural/Social (Temporary) (Class TE), subclass 428 visa. The application sought a temporary two year visa in order for the appellant to undertake activities with a religious organisation. On that day, the appellant was granted a bridging visa permitting him to remain in Australia until his application was determined and any review dealt with. The delegate refused the appellant’s application on 15 September 1997. That refusal decision was the subject of a letter dated 16 September 1997.

9    At some point, the Minister’s Department determined that the notification provided by the letter of 16 September 1997 was invalid and accordingly re-notified the appellant by letter of 19 May 2009 of the refusal decision made by the delegate. Whilst it is not clear why the Department re-notified, the Tribunal assumed (and probably rightly so) that the Department came to the view that the notification letter of 16 September 1997 was invalid on the basis of the reasoning of this Court in Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308. The judgment in Srey was delivered on 12 November 2003.

10    It is not clear why the Department did not act on the refusal decision between 16 September 1997 and when Srey was published. There was nothing in the material before the Tribunal to explain that inaction nor the inaction between November 2003 and 19 May 2009.

11    What the material does reveal is that for about 12 years since making his visa application, the appellant stayed in Australia, worked here, paid taxes and participated in social, religious and charitable activities. There is no suggestion that his stay was unlawful or that he was wilfully involved in avoiding contact with the Department. At his hearing before the Tribunal, the Tribunal accepted that the appellant had made every effort to stay in contact with the Department.

12    Having received the notification of 19 May 2009 the appellant took up the only option suggested to him by the notification letter, to challenge the refusal decision made 12 years earlier before the Tribunal.

13    As might be obvious, life had moved on for the appellant in the 12 years or so since the refusal decision. The circumstances relevant to the grant of the temporary visa application made in 1997 had evaporated. That application was based upon the appellant’s claim to have sponsorship of a religious organisation at that time.

14    The appellant now seeks permanent residency but has yet made no application. As I understand it, to some extent, his capacity to make an application for permanent residency is restricted, including because of the fact of the refusal decision. It is in those circumstances that the appellant has made his application to the Minister pursuant to s 351 of the Migration Act.

decision of the migration review tribunal

15    On 1 September 2009 the Tribunal wrote a letter to the appellant, pursuant to s 359A of the Migration Act, inviting the appellant to comment on information which it considered would be the reason or part of the reason for its decision to uphold the decision under review. The Tribunal confirmed that the appellant had applied for a subclass 428 religious worker visa and noted in its letter that, at the time of the decision, subclause 428.222 of Schedule 2 to the Regulations required that:

1.     the applicant is sponsored by religious organisation in Australia to undertake work in Australia that directly serves the religious objectives of the organisation;

2.     the sponsorship has been approved by the Minister; and

3.     the sponsorship fee prescribed in reg 5.38 of the Migration Regulations 1994 has been paid.

16    The Tribunal stated in its letter that:

…if the Tribunal finds that, at the time of the decision, you do not have an approved sponsorship from a religious organisation it will have no option but to affirm the decision under review.

17    A Tribunal hearing was conducted on 13 October 2009. The appellant conceded at the hearing that he did not have the required sponsorship.

18    The Tribunal found that the appellant did not satisfy the requirements of subclause 428.222 on the basis that he did not have the requisite sponsorship. The Tribunal noted that the appellant had asked the Tribunal to have regard to his personal circumstances over the last 12 years. However, the Tribunal stated that it was unable to take account of such matters and they were solely within the purview of the Minister as provided by s 351 of the Migration Act.

19    On 16 October 2009, the Tribunal affirmed the decision under review.

Decision of the Federal magistrates court

20    On 23 June 2010 the appellant filed an amended application for review of the Tribunal’s decision in the Federal Magistrates Court of Australia.

21    The grounds of the appeal were as follows:

1.     The Tribunal has erred jurisdictionally by denying the appellant procedural fairness & natural justice by its failure to acknowledge how the decisions in MIMA v SINGH [2000] FCA 377 and CHAN TA SREY v MIMA (2003) FCA 1292 and particularly the decision in “SREY” (according to the Tribunal) impacted on a decision alleged to have been made on 15/09/1997 that caused the respondent to notify the appellant more than 12 years later.

2.     The Tribunal erred jurisdictionally by denying the appellant procedural fairness and natural justice by its failure to acknowledge the delay of more than 12 years since the lodgement of the application on 11th August 1997 and its notification on 19th May 2009, and its effect on denying the appellant a fair hearing and in relation to the relevant criteria applicable to that subclass of     visa that was applied for.

3.     The Tribunal has erred jurisdictionally by acting on the notification dated 19th May 2009 which was an invalid notification for the following, among other reasons:

(a)     There is no record of the date of the dispatch of that notification in the Court Book.

(b)    Assuming it was dispatched on 19th May 2009, the calculation of the number of days before which an application for review can be made is incorrect (22 days). Section 66(2)(d)(ii) of the Migration Act.

(c)     The notification fails to specify the reasons as to why the appellant is notified 12 years later (please see paragraph 4 of the Tribunal’s decision at page 109 CB which says “The department determined that the notification of the primary decision maker was ‘SREY’ affected”. The Tribunal has not disclosed this information to the self represented appellant.

(d)    No decision record accompanies the notification, as seen from the CB, a clear breach of section 62(2)(c) of the Migration Act.

(e)    No MRT brochure accompanies the notification, also seen from the CB, a clear breach of section 66(2)(d) of the Migration Act as to who can apply for review.

(f)     The notification has not specified the refusal criteria, a breach of section 66(2)(a) of the Migration Act.

(g)     The day when the notification says that the appellant’s bridging visa will expire has been incorrectly calculated as the 29th day (please see page 24 of the CB).

22    The learned Federal Magistrate found, in respect of Ground 1, that the Tribunal did not err. The invalidity of the original 1997 notification and the subsequent valid re-notification on 19 May 2009 were the responsibility of the Minister and had no impact upon the decision of the Tribunal.

23    In respect of ground 2, the Federal Magistrate similarly stated that the delay in the notification of the delegate’s decision did not in any sense impact on the fairness of the hearing conducted by the Tribunal.

24    The Federal Magistrate at [18]-[22] distinguished the present case from NAIS & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 470 which was relied upon by the appellant, along with s 359 of the Migration Act, to argue a denial of procedural fairness. The delay in notification of the decision did not amount to a delay within the Tribunal’s own functions as had been the case in NAIS. On the same grounds at [23] the argument relying on s 353 was dismissed. The application to the Tribunal was lodged in May 2009, heard before the Tribunal on 13 October 2009 and the decision handed down on 16 October 2009. The Federal Magistrate held at [21] that this illustrated that “[T]here was no delay within the Tribunal’s own functions.”

25    The Federal Magistrate found that s 359 imposed no obligation on the Tribunal in the circumstances to elicit information and that the s 359A letter had made it clear to the appellant that the result of him not having a sponsor religious organisation was that the Tribunal would have to affirm the decision under review.

26    In response to the appellant’s multiple allegations of a denial of natural justice made by reference to the transcript of proceedings before the Tribunal, the Federal Magistrate found that none of the passages referred to indicated any denial of natural justice as the Tribunal could only deal with the application that was before it, an application for a religious worker visa. Therefore, none of the appellant’s activities in the Australian community were relevant. A religious worker visa has specific criteria which, it was found by the Tribunal, the appellant failed to meet especially as he did not have a sponsor religious organisation at the time of his application which was a central requirement of such a visa.

27    In respect of ground three the Federal Magistrate found:

(a)    According to the relevant statutory provisions there was no need for particular evidence about the notification letter’s actual dispatch date;

(b)    Although there was an error in the notification sent to the appellant (being one day in the period specified), such an error was not material to the Tribunal’s conduct of the review, and therefore did not amount to a jurisdictional error (SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129);

(c)    The Tribunal’s decision was unaffected by the significant delay of the Department in notifying the appellant of the delegate’s decision. Whilst the Tribunal did say in its reasons for decision that the original notification was Srey affected, the Tribunal was not obliged to explain to the appellant how Srey might have impacted on the notification and, if anything, this was a matter for the Department to explain;

(d)    The notification letter stated that the reasons for the decision were attached. It was incumbent on the appellant to establish that he did not receive the enclosed material, or that the notification was otherwise invalid. There was no evidence to that affect;

(e)    The Federal Magistrate at [51] and [52] rejected the argument that it did not suffice that the reasons for the refusal decision were not attached to the notification. The Federal Magistrate said that if there was such an error it had no adverse consequences for the appellant.

28    On 31 August 2010 the learned Federal Magistrate dismissed the Appeal.

appeal to the federal court

29    On 4 October 2010 the appellant filed a notice of appeal in this Court, appealing from the whole of the judgment of the Federal Magistrates Court. The grounds of appeal are identical to the grounds of appeal relied on in the Federal Magistrates Court with additional grounds at 1b, 2b, and 3b as follows:

1b.    When the learned Federal Magistrate said “there was no impact on the decision of the Tribunal as a result of those decisions. The Tribunal’s decision is contained within itself and the lapse of time did not impact on the Tribunal’s decision” is a clear indication that this ground has not been addressed.

2b.    It is again clear that this ground has been misinterpreted by the learned Federal Magistrate for amongst other things, the learned Federal Magistrate erred in saying

1.    That the decision in NAIS v The Minister reported in 228 CLR 470 “concerned a very different set of circumstances”.

2.    Sections 353 and 359 of the Migration Act has no application to this case, to a self represented applicant before the Tribunal.

3.    Passages in the transcript of evidence before the Tribunal seemed to the learned Magistrate “to indicate that there was any denial of natural justice in this case”.

3b.     The learned Magistrate has erred in her application of SZOFE v The Minister 2010 FCAFC 79 [sic] in dealing with section 62 of the Migration Act and her explanation as to other grounds namely paragraphs 3 (c), (d), (e), (f) and (g).

30    On the appeal, the appellant was legally represented. The grounds specified in the notice of appeal were pressed in a general way but without the appellant substantiating that the Federal Magistrate had erred. Rather than seeking to demonstrate error in the approach of the Federal Magistrate, the submissions largely sought to identify unfairness in the way in which the Tribunal had dealt with the matter. In that respect, the appellant submitted that s 353(1) of the Migration Act required the Tribunal to act fairly in the performance of its function. It was suggested that the Tribunal had not acted fairly because it had failed to acknowledge the 12 year delay, explain the reasons for the delay and provide an opportunity for the appellant to obtain an alternative sponsor. Those submissions are misconceived.

31     Firstly, s 353(1) requires that the Tribunal, in carrying out its functions, provide a mechanism of review that is fair, just, economical, informal and quick. The function of the Tribunal was to review the delegate’s decision to refuse the visa application made by the appellant. That is the only function that the Tribunal was required to perform. It was no part of the Tribunal’s function to provide general assistance to the appellant, including by taking some action to address the consequences for him of the delay in the communication of the refusal decision. The Tribunal’s function was to determine whether at the time of its review, the appellant had an approved sponsorship from a religious organisation. By its letter of 1 September 2009, the Tribunal made it clear to the appellant in advance of the hearing that he had to show he had sponsorship at the time of the Tribunal’s consideration of his application. Insofar as s 353 of the Migration Act required the Tribunal to carry out its functions fairly, it did so in this respect. Given that the Tribunal needed to be satisfied that a sponsor existed at the time that the Tribunal was reconsidering the application, the issue of delay was not relevant to the criteria which the Tribunal was required to apply.

32     I should add that whilst the appellant contended a breach of procedural fairness in the Tribunal’s approach, none is made out. It is not part of the appellant’s case that he was denied the opportunity to put his case to the Tribunal or that the Tribunal determined the matter on some basis upon which he was not given the opportunity to state his case: VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 at [26].

33    In relation to ground 3b, no error has been demonstrated in the application of SZOFE by the Federal Magistrate and, for the reasons given by the Federal Magistrate in relation to ground 3 of the notice of appeal before the Magistrate, that ground was correctly rejected.

34    Lastly, the appellant was given leave to raise a further ground of appeal. The appellant contended that the Tribunal erred because it did not have a valid application for a visa before it. The basis for the asserted invalidity is unclear although the argument seems to be that the appellant had not paid the relevant fee and a valid application could not have been made without the sponsorship required being in existence at the time of the application. The need for sponsorship at the time of the making of an application is disputed by the Minister as was the need for the appellant to have paid any fees for the application to have been valid. I do not however need to determine those matters. The further ground is misconceived. The appellant’s case is not assisted by demonstrating a jurisdictional error of the kind here advanced. Even if I was convinced of an error of that kind (which I am not), I would not on that basis quash the decision of the Tribunal and remit the matter to be re-determined. If there were no valid application for a visa, there would be nothing for the Tribunal to re-determine.

35     For all of those reasons, it is necessary that the appeal be dismissed and it follows that the appellant should pay the first respondent’s costs of the appeal.

Associate:

Dated:    30 March 2011