Knauder v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 449 (1 May 2003)

Last Updated: 13 May 2003

FEDERAL COURT OF AUSTRALIA

Knauder v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 449

MIGRATION - Partner (Residence) Visa - applicant sought an order directing the Migration Review Tribunal ("MRT") to review an adverse decision of the respondent Minister - applicant incarcerated in NSW prison in relation to extradition warrant and unable to lodge application for review to MRT within time limit - time limits no bar to seeking judicial review of original administrative decision - no justiciable error

MIGRATION - applicant unable to rely on s 256 of the Migration Act 1958 (Cth) because he was not at relevant times in immigration detention - no effective policy embodying the spirit of s 256 for persons incarcerated but not in immigration detention - possible need for administrative law reform

Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305, followed

FRANK ANDREAS KNAUDER v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1307 of 2002

MADGWICK J

1 MAY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1307 OF 2002

BETWEEN:	FRANK ANDREAS KNAUDER APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	1 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1307 OF 2002

BETWEEN:	FRANK ANDREAS KNAUDER APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	1 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1 This is an application for judicial review, made pursuant to s 39B of the Judiciary Act 1903 (Cth) and purportedly to s 51 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), which seeks an order directing the Migration Review Tribunal ("the Tribunal") to hear an application for review, which the applicant made to the Tribunal, in respect of a decision by a delegate of the respondent Minister refusing to grant the applicant a Partner (Residence) visa.

2 The application was refused on the basis that the relationship between the applicant and his spouse had broken down. Among other things, the relevant regulation requires that, in addition to being lawfully married, the applicant and the Australian citizen spouse must live together and have an ongoing relationship.

3 The applicant was notified of the delegate's decision by a letter, sending a copy of the decision to his then migration agent on 14 June 2001. However, the applicant did not lodge an application with the Tribunal until 21 December 2001, which he did by way of a letter dated 17 December 2001. He had attended the Tribunal registry to collect the necessary forms to

lodge an application for review. On 9 July 2001, however, he was arrested that same day and was held in a Sydney remand prison in relation to a then existing extradition warrant.

4 It is the applicant's claim that the circumstances of his imprisonment and the lack of legal aid prevented him from lodging an application until he did so. The applicant also claimed that, despite the breakdown of his marriage, he could take advantage of a savings clause designed to protect an applicant who is unable to satisfy the aforementioned condition because of domestic violence. He says that his then wife subjected him to various forms of this, including threats and oral abuse, while he was in prison.

5 The applicant was informed by a letter from the Tribunal dated 30 June 2002, that his application for review had been lodged outside the prescribed period and that the application would accordingly be treated as invalid and would not be accepted. The applicant lodged his application for review with the Court on 9 December 2002. The prescribed period within which the application to the Tribunal should have been lodged was within 21 days of actual notification of the decision.

6 The circumstances of the Tribunal's rejection of the application to it were like those considered in the Full Court in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305, a judgment given on 4 October 2002. In that case, it was held by Merkel J and myself that the function of determining whether an application was validly made to the Tribunal belonged to the Tribunal Members and could not be delegated to an officer in the registry. However, as it was clear, on the evidence in that case, that the application had been lodged outside the prescribed period, the Court held that there would be no utility in remitting the matter to the Tribunal for decision and relief was withheld on discretionary grounds. Insofar as the failure of the Tribunal to consider the validity of the application might have been relied on in this matter, the respondent submits that the present case is indistinguishable from Lee. I agree.

7 Mr Knauder in his written submissions referred to s 256 of the Migration Act 1958 (Cth) ("the Act") which obliges the persons responsible for holding a person in immigration detention to give to such a detained person, upon request, application forms for a visa and to afford him or her all reasonable facilities for making a statutory declaration for the purposes of the Act, or for

related purposes, including obtaining legal advice or taking legal proceedings in relation to the immigration detention.

8 While that section embodies a salutary policy, it cannot be relied upon here because the applicant was not at relevant times in immigration detention. He was being held in relation to an extradition warrant sought by the German government, even though that warrant was later set aside by this Court.

9 In the course of the proceedings before me, the papers suggested that there may have been some lack of procedural fairness in the delegate's dealing with the issue of the breakdown of the relevant marriage relationship. The respondent at my request produced, what I understand the applicant to accept as, all relevant documents for his inspection. I had indicated that it might be possible, if the documents showed an arguable case of denial of procedural fairness, in effect, to convert these proceedings by amendment into a vehicle for the examination of that question. On the materials which I have seen, there does not appear to be an arguable case of such denial and the applicant has made no application to me for amendment of the proceedings.

10 After Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24, it may be arguable, in certain circumstances, that draconic provisions limiting times in which a court may be approached for leave to review administrative action, which operate to prevent even a person who had no chance through no fault of his or her own of complying with those time limits, are invalid. However, the crucial time limit here involves a time limit for administrative review by an administrative tribunal, namely the Migration Review Tribunal, of an earlier administrative decision. However harshly such provisions might operate against some hapless would-be applicants for such administrative review, it is my view that those time limits do not impair their ability to seek judicial review of the original administrative decision. While judicial review, except in rare circumstances, does not focus on the merits of an administrator's decision, it was the purported ouster of the High Court's constitutional jurisdiction to entertain such legal challenges which founded the thinking expressed by the joint majority in S157. However, nothing in that case avails the applicant here.

11 Clearly, the application must be dismissed.

12 The applicant is in something of a desperate position. He has now established a new de facto marriage relationship with an Australian partner and intends to marry. However, he cannot apply for a spouse visa in relation to that relationship unless he does so off-shore. The German government which unsuccessfully sought his extradition will not issue him a passport and so he cannot travel off-shore. He may therefore be in the position where he will be, as it were, de facto, extradited to Germany, despite this Court having relieved him against that government's unsuccessful efforts to extradite him: see Knauder v Moore [2002] FCAFC 404.

13 It is not abundantly clear to me that the applicant did not suffer considerable difficulties in the New South Wales prison in relation to prosecuting his intended appeal to the Tribunal. I should be very surprised if this were the first case in which a person with an arguable case for review on the merits of an adverse visa application decision, found himself or herself in a State gaol, only to find that there was no effective policy embodying the spirit of s 256 of the Act. If it has not already been done, I would commend to the respondent the desirability of trying to put in place, by Commonwealth legislation if need be, arrangements which would see that such effective policies are observed by the relevant State and Territory governments.

14 In the circumstances, despite his lack of success in this Court, I think that the applicant should not be further burdened by a costs order.

15 I will make no such order.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 13 May 2003

Applicant appeared in person.
Counsel for the Respondent:
Solicitor for the Respondent:
Date of Hearing:	1 May 2003
Date of Judgment:	1 May 2003