Tanddy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 29 (30 January 2004)

JUSTICE TANDDY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 547 of 2003

MANSFIELD J
30 JANUARY 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.547 OF 2003

BETWEEN:	JUSTICE TANDDY APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	30 JANUARY 2004
PLACE:	ADELAIDE

1 This is an application to quash a decision of the Migration Review Tribunal (the Tribunal) given on 30 April 2003. The Tribunal affirmed a decision of a delegate of the respondent given on 12 December 2001 that the applicant is not entitled to the grant of a Temporary Business Entry (Class UC) Subclass 456 (Business (Long Stay)) visa (the visa).

2 The applicant applied for the visa on 6 July 2001. On 24 October 2003 the respondent by motion sought an order summarily dismissing the application under O 20 r 2 of the Federal Court rules on the ground that the application had no prospect of success. That motion was heard on 18 December 2003. On the motion, I dismissed the applicant’s application. This judgment includes the reasons for that decision. I also made an order that the applicant pay to the respondent costs of the application.

3 At the time the respondent also sought an order that the solicitor for the applicant pay the respondent’s costs of the application, or alternatively pay those costs from 5 August 2003 (being two months after the filing of the application). Submissions on that issue have since been exchanged. This judgment deals also with that application.

4 It is plain that the application should not be summarily dismissed except in the very clearest of cases. The power to summarily dismiss an application should be exercised with great caution and only when it is clear that there is no real question to be tried. See generally Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Salemi v MacKellar (No 1) [1976] HCA 45; (1976) 137 CLR 388, Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598.

5 To address the respondent’s contention that there is plainly no prospect of the application succeeding, it is necessary to identify the basis of the Tribunal’s decision, and the grounds upon which the applicant sought to quash it. Counsel for the applicant acknowledges that, under the relevant provisions of the Migration Act 1958 (Cth) (the Act), the jurisdiction of the Court is relevantly confined to that available under s 39B of the Judiciary Act 1903 (Cth), so the decision of the Tribunal can only be quashed if its decision was made by reason of jurisdictional error on its part.

6 The visa is one of the prescribed classes of visa under s 31 of the Act. Relevantly, Regulation 2.03 of the Migration Regulations provides for certain criteria to be satisfied in respect of a particular visa application before the visa sought can be granted. If the specified criteria are not satisfied in the view of the decision-maker (whether the delegate or, on review the Tribunal), the decision-maker is required by s 65 of the Act to refuse the application. If they are satisfied in the mind of the decision-maker, the decision-maker is required by s 65 of the Act to grant the application.

7 Relevantly for present purposes cl 457.22 prescribes criteria to be satisfied for the grant of the visa at the time of the decision of the delegate, and on review the Tribunal. Clause 457.223(1) in Sch 2 to the Regulations requires the applicant to meet the requirements of one of a series of subclauses. It was not in issue that the subclause which the applicant claimed to meet so as to be eligible for the visa was subcl (4). Clause 457.223(4) relevantly provides:

8 The proposed employer of the applicant was not however an approved business sponsor. The Tribunal notified the applicant of that difficulty. On 11 February 2003 a hearing was conducted, in which the applicant indicated he was working and would seek a new sponsorship. The Tribunal allowed him extra time for his then employer to lodge a standard business sponsorship and nomination. The applicant on 25 February 2003 wrote to the Tribunal. He indicated that a decision had been made by his then employer to undertake his sponsorship, and he asked for a further extension ‘to give me enough time to lodge these papers without rushing my employers’. By letter of the following day, 26 February 2003, the Tribunal indicated that it would allow the applicant a further month from the date of that letter to provide evidence of lodgment of the application for approval as a business sponsor. Presumably the Tribunal had in mind that, depending upon the progress of such application, the visa application might be further adjourned pending its outcome. Nothing further was heard from the applicant. The month passed. On 30 April 2003 after the effluxion of yet a further month, the Tribunal reached a conclusion.

9 As the applicant’s employer had not been approved as a business sponsor, the applicant did not meet the relevant criteria for the visa specified in cl 457.223(1) and (4) of Sch 2 to the Regulations. Consequently, as required by s 65 of the Act, the Tribunal affirmed the decision of the delegate not to grant to the applicant the visa.

10 The Tribunal’s decision was quite straightforward. Having allowed the applicant time to respond to its concern that there was no authorised business sponsor supporting his application, and having heard nothing further from the applicant, it simply found that the specified criterion was not met. It was therefore obliged by s 65 of the Act to affirm the decision not to grant to him the visa.

11 The application under s 39B of the Judiciary Act 1903 (Cth) sought orders quashing that decision. The identified grounds are general in nature, and do not contain any particularity. In this matter, following the notice of motion, the solicitor for the applicant presented a proposed amended application for review. It slightly refined those general grounds and included particulars of them. The particulars are confined to whether or not the applicant was accorded procedural fairness in the conduct by the Tribunal of its review. The respondent does not dispute that the Tribunal was obliged to accord procedural fairness to the applicant in the conduct of its review, or that the failure to do so may give rise to jurisdictional error on its part: see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (Plaintiff S157/2002).

12 The particulars refer to the applicant’s work history, and his request for an extension of time to secure an employer to provide a standard business sponsorship and nomination in support of his application. They refer to the course of communications, as recorded in the Tribunal’s reasons, without indicating any dispute about them. They then assert that the extension of one month granted by the Tribunal on 26 February 2003 was not adequate in the circumstances, because the applicant to the Tribunal’s knowledge had only recently changed employer, and it was or should have been clear to the Tribunal that the process of that employer securing approval as a business sponsor would take longer than one month. Consequently, it is contended, the Tribunal by not granting the applicant an extension of time greater than one month denied him procedural fairness. It is also asserted that the Tribunal failed to accord him procedural fairness by not inquiring from him at the expiration of the month extension which it had allowed why he had not met the one month extension deadline. As noted, the Tribunal made no such inquiry but allowed yet a further month to elapse before making its decision.

13 The applicant also filed an affidavit sworn on 15 December 2003. It refers consistently to the history of his communications with the Tribunal, to the circumstances in which he had no business sponsor and the arrangements he was making to secure one. Additionally it provides an explanation of why the documents were not lodged within the one month deadline. He says:

He asserts that the business sponsorship approval of his current employer was procured only in early December 2003.

14 I do not think those matters are arguably capable of demonstrating a failure on the part of the Tribunal to afford procedural fairness to the applicant. It responded to his request for an extension of time in appropriate terms. It did not fail to accord him the opportunity to be heard. It was within his entitlement to approach the Tribunal for a further extension of time within the one month period which had been allowed, or indeed at any time up to the time of its decision. His misunderstanding as to whether he had such an entitlement to seek a further extension of time is not one which indicates any failure on the part of the Tribunal to accord him procedural fairness. In addition, his letter to the Tribunal of 25 February 2003 did not indicate to the Tribunal in any event that a prolonged extension of time would be necessary. That letter informed the Tribunal that the sponsorship form was in the hands of the owners of his then employer, and that a decision had been made by that employer to support him by sponsoring him. It said that as soon as the paperwork was returned, it would be lodged. He therefore sought an extension of time to lodge the papers when they were returned without rushing his employer. He did not suggest the process would be prolonged. Had the documents been lodged by his employer, and copies provided to the Tribunal, it may have acted differently. As it was, in my judgment the Tribunal was quite entitled, without failing to accord procedural fairness to the applicant, to regard the elapse of time after his request of 25 February 2003 and before its decision, in the light of the extension of time which it gave him, as indicating that he was not going to respond. The Tribunal did not require the approval to be lodged but to be informed as to the papers which had been lodged in support of the employer’s request to be an approved business sponsor. There is no evidence, furthermore, upon which in the circumstances it can be asserted that it was clear to the Tribunal from any communication made by the applicant, or in any other way, that the one month extension of time which it granted was inadequate.

16 The application by the respondent that the solicitor for the applicant pay her costs of the application in any event does not routinely come to be allowed simply by reason of the failure of the application itself.

17 In this instance the application was made a little over one month after the decision of the Tribunal, and on the very margins of the 28 day time limit arguably permitted under s 477(2) of the Act. It is of course plain that, in the case of jurisdictional error, that time limit will not apply. Jurisdictional error means that there has been no valid decision of the Tribunal. However, the time at which this application was instituted was not long after the decision of the High Court in Plaintiff S157/2002 and at a time when it was not inappropriate for the solicitor for the applicant to take the view that it was desirable to bring any proceedings promptly if that could be done. The prompt institution of the application also may have been prompted by the desire to secure a further bridging visa for the applicant, rather than for him to be taken into immigration detention under s 189 of the Act and to be removed from Australia under s 198 of the Act.

18 The respondent accepts that the solicitor for the applicant was instructed to commence proceedings at the time he did, and is instructed to have maintained them. There has been no waiver of privilege by the applicant. Consequently, it is not clear what if any advice was given by the solicitor for the applicant to the applicant at the time the proceedings were instituted, although I infer from the very general nature of the matters expressed in the application that any advice was somewhat superficial in any event. What is plain, however, is that the matter which the applicant wished to ventilate to support the claim of jurisdictional error on the part of the Tribunal concerned the process of its decision-making. It is not uncommon in such circumstances for the investigation of the process of its decision-making to be quite complex. It is unclear what passed between the applicant and the solicitor for the applicant at or about the time the application was issued. There may have been communications which indicated that there would be a need for further investigation of his claim. There may have been some indication as to further communications. It is simply not clear. But given that, in this matter, I do not think it was inappropriate to endeavour to issue the proceedings within 28 days of notification of the Tribunal’s decision, and in the light of the nature of the complaint about the Tribunal’s decision-maker which is now made, I am not persuaded that it was inappropriate for the solicitor for the applicant to have instituted the proceedings on relatively limited information with a view to preserving the applicant’s position. He may indeed have given some, or considerable, advice at the time. I do not know. I am not satisfied that, at the time the proceedings were issued, there was a serious failure on his part to give reasonable attention to the relevant law and facts. That is the foundation of the respondent’s claim for costs, and I do not think in this instance that it is made out. That is so notwithstanding that the affidavit of the solicitor for the applicant accompanying the application, purporting to comply with O 4 r 6 of the Federal Court Rules, did not set out the material facts upon which the application was based.

19 There was relative inactivity or total inactivity apparently in the matter then until the notice of motion of 24 October 2003. The reason for that inactivity is explained in Kumar v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) at [30-33]. I will not repeat that material. Nor will I repeat my consideration of the principles guiding the exercise of the Court’s power to make an order that the costs of a proceeding be paid by a solicitor for one of the parties or by another third party, which are there discussed. I adopt those principles and apply them in this instance.

20 Once the notice of motion was issued, within a relatively short time, instructions were obtained. The applicant instructed the solicitor for the applicant to maintain the application. Again, I do not know whether advice was given by the solicitor for the applicant to the applicant about his prospects of success. He may have done so. If he gave advice, it may have been proper. He may have rated the prospects of success in the application as very small. Notwithstanding that, if the applicant instructed him to proceed, in my judgment it was not delictual on his part to have continued to present such argument as was available to the applicant in the circumstances. He did so in an efficient manner. As I am not persuaded that the solicitor for the applicant gave no or incorrect advice to the applicant either initially, or following the motion for summary judgment, there remains a possibility that he did so and that the applicant persisted with his instructions to maintain the application notwithstanding having been told that the prospects of success were very limited. Consequently, on the material before me, the foundation for the respondent’s claim – that the solicitor for the applicant failed in a timely manner to seriously address the investigation of facts and the provision of advice to the applicant – is not made out.

21 There is a further reason why the application for costs against the solicitor for the applicant should fail. The power to make such an order is compensatory. It is not clear that the respondent has been put to costs improperly by reason of any serious failure on the part of the solicitor for the respondent to give reasonable attention to the relevant facts and the law either at the time the proceedings were instituted or subsequently. It is only speculative that the solicitor for the applicant gave no attention to the facts and the law and no advice to the applicant. If he did so, as he may have done, the fact that the application was pursued indicates the real possibility that even if the solicitor for the applicant had declined to act for him, the applicant would have instituted or maintained the application as a litigant in person. The respondent would then have incurred the same, or more, costs as she has incurred.

22 Accordingly I do not consider in this instance that it is appropriate that there should be any order for costs against the solicitor for the applicant.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Applicant:	M W Clisby

Solicitor for the Applicant:	M W Clisby

Counsel for the Respondent:	Mr K Tredrea

Solicitor for the Respondent:	Sparke Helmore

Date of Hearing:	18 December 2003

Date of Judgment:	30 January 2004

(i)	a pre-qualified business sponsor; or
(ii)	a standard business sponsor; and

Federal Court of Australia

Tanddy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 29 (30 January 2004)