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MIGRATION - Review of Migration Review Tribunal decision - refusal of a business visa - applicant found to be ineligible by reference to prescribed criteria - no reviewable error found - application dismissed.

Nawajh v Minister for Immigration [2002] FMCA 374 (14 November 2002)

Nawajh v Minister for Immigration [2002] FMCA 374 (14 November 2002)
Last Updated: 9 June 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAWAJH v MINISTER FOR IMMIGRATION
[2002] FMCA 374



MIGRATION - Review of Migration Review Tribunal decision - refusal of a business visa - applicant found to be ineligible by reference to prescribed criteria - no reviewable error found - application dismissed.



Applicant:
RAKESH NAWAJH



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ766 of 2002



Delivered on:


14 November 2002



Delivered at:


Sydney



Hearing date:


14 November 2002



Judgment of:


Driver FM



REPRESENTATION

Counsel for the Applicant:


Mr C R de Robillard



Solicitors for the Respondent:


Mr Z Chami

Clayton Utz



ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ766 of 2002

RAKESH NAWAJH


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This ex tempore judgment relates to an application to review a decision of the Migration Review Tribunal ("the MRT") made on 20 June 2002 concerning a decision of a delegate of the respondent Minister to refuse to grant a temporary business entry class UC visa. The original application filed on behalf of the applicant did not set out grounds of review, although it is apparent that the applicant was exercising the Court's jurisdiction under the Migration Act 1958 (Cth) ("the Migration Act") and s.39B of the Judiciary Act 1903 (Cth).

2. The applicant was self represented, but Mr de Robillard appeared today for him. I granted leave for the application to be amended to insert grounds of the application and particulars of those grounds. The grounds of the application as argued today are that the decision of the MRT lacked bona fides in that the MRT failed in a duty to consider Mr Nawajh's application in accordance with the provisions of s.349 of the Migration Act. As matters transpired in argument, Mr de Robillard expanded those grounds to include an argument that the MRT breached two inviolable preconditions on the exercise of its power in the Migration Act, those being contained in s.353(2)(b) of the Act and also in s.65.

3. The background facts and circumstances are set out both in the decision of the MRT (from court book, page 59) and also in written submissions prepared on behalf of the respondent Minister. The facts are important. I adopt paragraphs 1.1 through to 1.7 of the respondent's written submissions. I will recite those paragraphs.

4. On 5 April 2000 the applicant was granted a long stay visitor class TN subclause 686 visa (court book, pages 34 and 61). On 9 June 2000 the applicant allegedly applied for a medical treatment class UB subclass 675 visa (court book, pages 14.61, 1-9). I should say in that regard that Mr de Robillard disputes whether the application made was one for a medical treatment visa.

5. On 30 June 2000 the visa applicant was granted a medical treatment class UB subclass 675 visa (court book, pages 13 and 34). On 28 September 2000 the applicant lodged an application for a long stay temporary business subclass 457 visa (court book, pages 15-25). On 13 October 2000 a departmental delegate refused the grant of the subclass 457 visa on the basis that the applicant did not satisfy clause 457.211 of schedule 2 to the Migration Regulations 1994 (Cth) ("the Migration Regulations) (court book, pages 36-41).

6. On 7 November 2000 the applicant sought review by the MRT of the delegate's decision made on 13 October 2000 (court book, pages 42-46). On 20 June 2002 the MRT affirmed the delegate's decision refusing the grant of a subclass 457 visa. The MRT did so on the same basis that the delegate refused the grant of the visa, namely the applicant failed to meet clauses 457.211 of schedule 2 to the Migration Regulations (court book, pages 59 to 64).

7. It is plain from the reasons for decision of the MRT that the MRT based its decision on the terms of clause 457.211 of schedule 2 to the Migration Regulations. That regulation provides that it is a necessary, but not sufficient, criterion for the grant of a business visa of the kind sought by the applicant, that the applicant satisfy one of the paragraphs of the regulation. Those paragraphs deal with various kinds of visas that an applicant needs to hold at the time of application for the business long stay visa or, alternatively, a kind of visa last held by an applicant if the applicant did not hold a substantive visa at the time of the application for the business visa.

8. The problem that the applicant faced both before the delegate and before the MRT was that the applicant held a substantive visa at the time of his application for the business visa and that it was not one of the kinds of substantive visa that the applicant needed to hold at the time of his application. Both the delegate and the MRT found that, in those circumstances, the applicant did not meet the prerequisite for the grant of the business visa he sought. Accordingly, the MRT confirmed the decision of the delegate. At paragraph 29 of the MRT decision, the presiding member makes this clear where he says:

As the visa applicant does not hold a substantive visa and as the last substantive visa held by the applicant was not of a kind listed in 457.211(a) or (c), he was unable to satisfy the criterions specified in clause 457.211. The decision of the delegate is correct.

9. The manner of expression of the presiding member may simply reflect that at the time the MRT made its decision, the applicant no longer held a substantive visa, but clearly at the time the applicant applied for the business visa he did hold a substantive visa which was a medical treatment visa. The time of application for the business visa was the critical time for consideration of the matter by the decision maker. Accordingly, while one may criticise the manner of expression in paragraph 29 of the MRT decision, it seems that on the face of the legislation, both the decision of the delegate and the decision of the MRT were correct in law.

10. Mr de Robillard, however, submits that the matter is not so simple. He submits first, that the MRT illegitimately based its decision upon guidelines rather than upon the legislation. Mr de Robillard took me to paragraph 28 of the MRT decision where the presiding member referred to PAM 3 which guideline relevantly states that certain visa holders are ineligible for the class 457 visa sought by the applicant. Among those visa holders said by the guideline to be ineligible are holders of a class 675 visa, which was the class of visa held by the applicant at the time of the relevant visa application.

11. It is apparent from the decision as a whole that the MRT applied the legislation and not simply the PAM guideline. The MRT is entitled to have regard to guidelines provided that it does not slavishly follow a guideline that does not accord with the legislation. In this case, the guideline provides a shorthand guide to the operation of the legislation. I see no inconsistency between the relevant guideline and regulation 457.211. Accordingly, I see nothing in paragraph 28 of the MRT decision that would invalidate the decision.

12. Mr de Robillard also took me to paragraph 22 of the MRT decision where the presiding member said:

The issue for consideration by the Tribunal was whether or not grounds exist for the refusal of the visa applicant's Subclass 457 visa, pursuant to the visa applicant not meeting the requirements of clause 457.211 of Schedule 2 of the Migration Regulations.

13. Mr de Robillard submitted that this paragraph indicated that the MRT had misunderstood its function. Its function was not to find a reason to refuse the visa application, but to consider afresh whether or not the visa sought should be granted.

14. Mr Chami, for the Minister, responded that paragraph 22 simply reflected the fact that the MRT was reviewing a decision of a delegate. Accordingly, the MRT needed to consider whether the decision of the delegate was or was not correct. The paragraph, in Mr Chami's submission, did not indicate any misunderstanding of the performance of the MRT's role.

15. I accept the submission of Mr Chami. Again, while one may quibble with the manner of expression of the presiding member it is not a proper approach to review a tribunal decision to comb through the decision in an attempt to find particular words or particular expressions to find fault with. Paragraph 22 simply reflects the fact that the MRT was reviewing a decision of the MRT and needed to consider whether or not that decision was correct.

16. It is important that the MRT not view its function too narrowly. The function of the MRT is to stand in the shoes of the original decision maker and to make the correct or preferable decision. It is not dealing with an appeal in the same way as a court. Viewed as a whole, however, I conclude that the MRT did not misunderstand its role.

17. Mr de Robillard also took me to paragraph 8 of the MRT decision, where the presiding member described the manner in which the hearing was conducted. The hearing was conducted by telephone, the applicant was not represented and subsequent to the hearing, reasons were provided. I see nothing untoward in that paragraph. It is both common and proper for hearings to be conducted by telephone or by video link and it is also common and proper for reasons to be provided subsequent to the hearing of the matter by a tribunal.

18. Mr de Robillard also took me to paragraph 26 of the MRT decision where the presiding member referred to a statement provided by the applicant in support of the review application. The presiding member quotes the statement as drawing attention to what the applicant says was an error in the provision of a medical treatment visa rather than some other form of visa. By this stage it was apparent to the applicant that the granting of the medical treatment visa presented a problem in terms of his eligibility for a business visa. Mr de Robillard submitted to me that the MRT should have and failed to investigate the circumstances of the grant of the medical treatment visa and, while mentioning the matter raised by the applicant, took it no further and simply applied the strict terms of the relevant regulation.

19. Mr de Robillard submitted that the claim having been made by the applicant that a mistake had been made, there was an obligation on the MRT to investigate the circumstances and provide some form of effective relief. This is an issue of substance requiring consideration. I accept as a general principle that s.353(2)(b) places an obligation on the MRT to act fairly in the interests of justice and to consider the merits of the case. The MRT is not simply an automaton applying the strict terms of the legislation. Opinions vary on the extent to which decision makers should go beyond the specific issue before the MRT and in particular whether decision makers are under any obligation to deal with matters more broadly than the specific issue put before the decision maker for resolution.

20. In this case, the matter before the MRT for resolution was whether the applicant should be granted the class of business visa he sought. The MRT had not been asked to review the previous grant of the medical treatment visa. Nevertheless, the applicant asserted that he was disadvantaged by the grant of the medical treatment visa and that the visa had been mistakenly granted.

21. The court book contains the application (allegedly for the medical treatment visa) at page 1. The first page of the application in paragraph 8 makes clear that the application covers three kinds of visa: a short stay tourist visa, a long stay tourist visa and a medical treatment visa. Somebody has underlined the words "medical treatment". It is not clear who. At page 3 of the court book there appears a letter from the applicant's solicitors in support of his visa application. On page 2 of that letter (court book, page 4) the solicitors state that the applicant seeks an extension of stay on the grounds of his wife's medical treatment. It is apparent from the material in the court book that the applicant's wife suffered from a serious medical condition which required treatment in terms of surgery and post-operative treatment. The letter goes on to say that the applicant would need to be in and out of Australia on regular intervals to manage his family business and to take care of his children in Fiji. In the circumstances, the applicant sought a multiple re-entry visa.

22. In my view, the application and supporting letter from the solicitors reasonably presented to the Migration Department an application for a medical treatment visa. Mr de Robillard took me to the criteria for the grant of a medical treatment visa in regulation 675.212 or generally .21. Regulation 675.216 provides that if the application is made in Australia the grant of the visa must not result in the applicant being authorised to remain in Australia for more than three consecutive months as the holder of one or more visitor visas.

23. Mr de Robillard put to me that that criterion rendered the applicant ineligible for the grant of the medical treatment visa, although he would otherwise have satisfied paragraph 4 of regulation 675.212 given that he was providing support to his wife at the time of her medical treatment. Mr Chami did not concede that the applicant was ineligible for the medical treatment visa.

24. In my view, no firm conclusion can be drawn as to whether the applicant was eligible or not. He had been in Australia for more than three consecutive months, given that he arrived in Australia on 20 May 2000. However, the letter from the solicitors clearly indicated that he wished to enter and leave Australia possibly on numerous occasions in order to take care of his affairs in Fiji. In the circumstances, I am unable to conclude that the applicant would necessarily have been disqualified from the grant of a medical treatment visa by reason of being in Australia for more than three consecutive months following the grant of the visa.

25. Another issue relevant to consideration of this point is whether the MRT could have granted any effective relief even if it had decided to inquire into the circumstances of the grant of the medical treatment visa. As I have already noted, the issue for determination by the MRT was whether the applicant qualified for the class of business visa he sought. If, hypothetically, the MRT had made inquiry and had come to a view that the medical treatment visa should not have been granted it is questionable what the MRT could have done about it.

26. The MRT could not simply substitute another form of visa retrospectively. If the MRT had cancelled the medical treatment visa, assuming it had the power to do so, the applicant would have been left with no visa at all at the time of the MRT decision . If the MRT had found, assuming it was empowered to do so, that the grant of the medical treatment visa was a nullity, the applicant would have been left with no visa at the time of his application for the business visa.

27. Mr de Robillard took me to the decision of the High Court of Australia in Minister for Immigration v Bhardwaj [2002] HCA 11, in particular at paragraphs 46 to 48, 51, 52, and 58. In that case, the High Court found that a decision is valid until such time that it is found to be invalid, but if it is found to be invalid by reason of jurisdictional error then the decision is a nullity.

28. Applying that legal finding to the circumstances of this case, if some further inquiry had been made by the MRT leading to a conclusion that there was a jurisdictional error in the grant of the medical treatment visa, the proper finding would have been that the decision to grant medical treatment visa was a nullity with the result that the applicant would have held no visa at the time he applied for the long stay business visa. I do not see how such a finding could have assisted the applicant. In the circumstances, I conclude that there is no basis to find that the MRT was bound to make further inquiry into the matters raised by the applicant.

29. The decision under review is a privative clause decision and therefore the matter needs to be considered in the light of the privative clause in s.474(1) of the Migration Act. The grounds of review advanced by Mr de Robillard today were a lack of good faith and a breach of an inviolable precondition to the exercise of power. Lack of bona fides can be established by circumstances leading to a conclusion that there was some dishonesty in the decision under review. I have, however, not been presented with anything that would persuade me that there was anything dishonest in the decision of the MRT.

30. Recently, both the Federal Court and this Court, in particular in the matter of NAOS v Minister for Immigration [2002] FMCA 265 have found that capriciousness in a decision may also constitute a lack of bona fides. There is, however, nothing to persuade me that the decision of the MRT was capricious. The MRT was simply applying the relevant law to the application before it. The result of that application of the law was a hard one for the applicant in that if he had acted differently at the time of the application for the medical treatment visa he may have at least satisfied the initial criterion for the provision of a business class visa. One may criticise the strict application of the legislation, but that is the way the legislation is framed. The MRT was not capricious in applying the law as it stood.

31. I am, therefore, not satisfied that the decision of the MRT was made in bad faith. Neither am I satisfied that the decision of the MRT breached an inviolable precondition on the exercise of power by the MRT. The MRT was required by s.65 of the Migration Act to achieve a degree of satisfaction necessary for it to grant or refuse the visa sought. The MRT referred to the relevant legislation, in particular regulation 457.211, which was the applicable and relevant regulation. That in itself was sufficient to enable the MRT properly to reach the necessary level of satisfaction to confirm the decision of the delegate to refuse the visa.

32. The MRT was also required by s.353(2)(b) to consider the application on its merits and to act with substantial justice. It was open to the MRT should it have wished to do so to make further inquiry into the complaints made by the applicant about the grant of the medical treatment visa. The MRT could probably have provided no effective relief itself but it might have been able to provide some guidance to the applicant as to how he might act in order to overcome the problem or it might have made some recommendation to the Minister that the Minister consider exercising his broader powers to provide some form of relief to the applicant. The MRT did not do that and in my view it goes beyond the requirements of s.353(2)(b) to suggest that it should have.

33. The matter before the MRT was the application for the business visa and the obligation in s.353(2)(b) relates to the determination of the proceedings before the MRT. The MRT acted properly in the disposition of that application. While it was open to the MRT to go further in the pursuit of fairness and justice I do not see in s.353(2)(b) an obligation on the MRT to do so.

34. Accordingly, I find that no breach of s.353(2)(b) has been established. In the circumstances, I will dismiss the application.

35. On the question of costs, Mr Chami has sought an order for costs and Mr de Robillard has not opposed an order in general terms. I have commonly awarded costs somewhere between $3,500 to $4,500. A strict application of the fixed event based costs scale in the rules of this Court would almost certainly lead to a costs order of the higher amount. It is for that reason that I do not simply make an open-ended order for cost,s but proceed to fix the amount.

36. Mr Chami has indicated that an order for costs in the sum of $4,000 would be appropriate. Mr de Robillard has indicated that that amount might be regarded as somewhat excessive. The amount of preparation required in this case seems to me to be no more than average in terms of the material appearing in the court book. The case was not particularly simple but neither was it particularly complex. The Minister reasonably required representation today by an advocate.

37. Those considerations lead me to conclude that an award of costs of something less than $4,000 would be appropriate in the circumstances of this case. I will therefore order that the applicant pay the respondent Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 7 June 2004
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