Ahmad v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1039 (6 August 2004)

FEDERAL COURT OF AUSTRALIA

Ahmad v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1039

MUNIR AHMAD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1036 of 2004

LINDGREN J
6 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1036 OF 2004

BETWEEN:	MUNIR AHMAD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	6 AUGUST 2004
WHERE MADE:	SYDNEY

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	NSD 1036 OF 2004

BETWEEN:	MUNIR AHMAD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	6 AUGUST 2004
PLACE:	SYDNEY

1 Munir Ahmad appeals from a decision of Raphael FM in the Federal Magistrates Court of Australia delivered on 10 June 2004. Although I say ‘appeal’, the learned Federal Magistrate dismissed the application before him as one which disclosed no reasonable cause of action under Part 13, rule 13.10(a) of the Federal Magistrates Court Rules 2001 (Cth) and, in those circumstances, Mr Ahmad needs leave to appeal which he has not sought. Nonetheless, I will call Mr Ahmad ‘the appellant’.

2 In fact, the respondent Minister filed a notice of objection to competency on 28 July 2004 stating that the judgment of Raphael FM was an interlocutory judgment and under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), leave to appeal was required but had not been obtained.

3 Treating the present appeal as an application for leave to appeal, I ask myself whether leave to appeal should be granted. I think it clear that it should not be because an appeal would be doomed to fail.

4 The background facts can be stated briefly. The following account of them is based on the reasons for decision of Raphael FM. The appellant arrived in Australia on a business (long stay) visa on 9 September 2000. That visa expired on 8 September 2002. Since that time the appellant has held a bridging visa granted on the basis of an application which he made on 5 September 2002 for a temporary business entry (class UC) visa.

5 On 23 April 2003 a delegate of the Minister (respectively ‘the Delegate’ and ‘the Minister’) refused to grant the temporary business entry (class UC) visa on the ground that the appellant did not have an approved business sponsor. The reason for this was that the appellant's previously approved business sponsor had withdrawn its sponsorship of the appellant on 9 April 2003 - 14 days prior to the Delegate's decision.

6 The appellant applied to the Migration Review Tribunal (‘the Tribunal’) for a review of the Delegate's decision. The appellant was represented by solicitors and there was correspondence between them and the Tribunal. The course of that correspondence is referred to in the reasons for judgment of Raphael FM. On 21 January 2004 the Tribunal wrote requesting the appellant to comment upon certain information, being information which the Tribunal considered would be the reason or part of the reason for affirming the Delegate's decision. That request for comment was made under s 359A of the Migration Act 1958 (Cth) (‘the Act’). The information referred to was that another sponsor of the appellant, a company called Fobupu Pty Limited trading as ‘Pak Tandoori Restaurant’, was approved as a standard business sponsor on 20 January 2003 valid for 12 months. That approval, it will be observed, expired by 21 January 2004, the day on which the Tribunal wrote its letter. In fact, the approval had expired on the preceding day, 20 January 2004.

8 The Tribunal wrote to the solicitors advising that a hearing would take place on 16 February 2004. The solicitors replied on 11 February 2004 indicating that the appellant would not be attending the Tribunal hearing and noting that the Tribunal would ‘proceed to make a decision to affirm the decision under review’. In fact the solicitors indicated that the appellant required that a decision be made for the purposes of any request to the Minister under s 351 of the Act.

9 The Tribunal proceeded to determine the matter on 8 March 2004. It affirmed the decision under review on the basis that the appellant had at that time no current sponsor, a necessary criterion for a subclause 457 visa: see subclause 457.223(4) of Schedule 2 to the Migration Regulations 1994 (Cth). In its conclusions the Tribunal stated that the appellant's proposed employer had not renewed its business sponsorship so that the appellant did not have an approved business sponsor at the time of the decision, as required by subclause 457.223(4).

10 The appellant appeared before the Federal Magistrates Court in person and the matters to which I have referred above were put to him. He said he had nothing to say in relation to them and told the Federal Magistrate that he should proceed to make his decision. Raphael FM did so, noting that there was no indication that the Tribunal had fallen into jurisdictional error. Indeed, the learned Federal Magistrate noted that the appellant, through his solicitors, had ‘consciously promoted the very decision he [sought] to have reviewed’.

11 Before me today the appellant has said that he can point to no error in the decision or reasons of the Federal Magistrate. (I should note that again today the appellant is not legally represented.) In his notice of appeal which commenced this present proceeding, no grounds of review are stated. However, the appellant has handed up a written submission and a letter dated 4 August 2004 from ‘Pak Tandoori Restaurant’. The letter refers to matters irrelevant to the present appeal. However, the written submission does make a point. It asserts that the approved SBS sponsorship of Fobupu Pty Limited, trading as ‘Pak Tandoori Restaurant’, was submitted to the Tribunal on 7 January 2004, that as at that date the approval was valid until 20 January 2004, that the Tribunal did not give its decision until 8 March 2004 by which time the approval had expired (on 20 January 2004), and that it should be inferred that by not taking its decision at some time between 7 January 2004 and 20 January 2004 the Tribunal had acted in bad faith.

12 The first thing to be said about this is that it is mere speculation. Secondly, the submission of bad faith was never advanced before the Federal Magistrates Court of Australia. Thirdly, the learned Federal Magistrate was not required to find that there was anything untoward or calling for an explanation in the fact that the Tribunal did not take a decision within the 13-day period from 7 to 20 January 2004. Fourthly, bad faith is not lightly to be found.

13 In my opinion an appeal would be doomed to fail and leave to appeal should be refused with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Solicitor for the Respondent:	Ms Kristy Alexander, Australian Government Solicitor

Date of Hearing:	6 August 2004

Date of Judgment:	6 August 2004.