Mohamed v Minister for Immigration & Anor [2009] FMCA 118 (19 February 2009)

Last Updated: 26 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOHAMED v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 118

MIGRATION – Review of Migration Review Tribunal decision – Tribunal decision invalid – whether Court can review the delegate’s decision considered – applicant abandoning judicial review but seeking time to make a spouse visa application.

Migration Act 1958 (Cth), ss.66, 430, 477

Mohamed v Minister for Immigration & Anor [2008] FMCA 1633

Applicant:

WALID MOHAMED

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2451 of 2008

Judgment of:

Driver FM

Hearing date:

19 February 2009

Delivered at:

Sydney

Delivered on:

19 February 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms R Francois

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The Court declares that the applicant’s application to the Migration Review Tribunal dated 18 June 2008 has been finally determined by the Tribunal.
(2) Subject to order 1 made on 4 December 2008, the application to the Court filed on 22 September 2008 is otherwise dismissed.
(3) Order 2 shall take effect on 1 March 2009.
(4) There be no order as to costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2451 of 2008

WALID MOHAMED

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I dealt with this matter on 4 December 2008 and made the following interlocutory orders:
   • 1. A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal signed on 18 August 2008.
   • 2. The applicant has leave and liberty to file and serve on the respondents an amended application no later than 31 December 2008 seeking review of the decision of the delegate made on 16 May 2008.
   • 3. If an amended application is filed and served on the respondents in accordance with order 2, the parties are to file and serve any additional affidavit or other material on which they wish to rely, together with an outline of legal submissions and list of authorities no later than 30 January 2009.
   • 4. The hearing of this matter be adjourned for further directions or hearing as appropriate at 10.15am on 19 February 2009.
   • 5. Costs of today’s hearing are costs in the proceedings.
2. I published my reasons reported as Mohamed v Minister for Immigration & Anor [2008] FMCA 1633. The matter comes before me today pursuant to order 4 made by me at that time.
3. Since then, the Minister has filed supplementary submissions directed to the amended application that I gave the applicant the opportunity to file and serve. The submissions are short and I incorporate both paragraphs of them in this judgment:
   • On 4 December 2008 this Court, inter alia, granted leave to the Applicant to file an amended application seeking review of the delegate’s decision made on 16 May 2007.
   • This Court does not have jurisdiction to review the delegate’s decision due to the operation of section 477 of the Migration Act 1958 [(Cth) (“the Migration Act”)]. Even assuming in the Applicant’s favour that an amended application seeking review of the delegate’s decision is taken to have been filed on the date of the original application, the original application to the Federal Magistrates Court was filed on 22 September 2008. The Applicant’s letter to the Court dated 25 November 2008 discloses that he received actual notification of the delegate’s decision on 29 May 2008. The 84 day period from 29 May 2008 expired on 21 August 2008. Accordingly, the Federal Magistrates Court has no jurisdiction.
4. I have before me as evidence[1] the letter referred to in submissions. Relevantly, the applicant states in that letter:
   • I now advise the Court that I lodged the original of the letter from the Department with my application to the Migration Review Tribunal. I did not keep a copy of this letter. I recall that the Department letter and Record of the decision arrived in a registered post envelope which I picked up at Lakemba post office. I have searched my correspondence thoroughly but have not been able to find that envelope. As I recall, when I came home in the afternoon of Wednesday May 28, I had a notice from the Post Office in my letterbox in my flat that there was a letter waiting for me. I went to the post office the following day and collected the letter after signing for it.
5. It is important to bear in mind that we are, in this case, dealing hypothetically with a decision of the delegate rather than a Tribunal, hence the relevant legislative provision would seem to be s.66 rather than s.430 of the Migration Act. Nevertheless, having regard to the terms of s.477 of the Migration Act and the reasoning of the Full Federal Court in SZKNX v Minister for Immigration [2008] FCAFC 176, in particular at [25], and reasoning by analogy, there would seem to be a serious issue to be resolved about the competence of an application to review the decision of the delegate if made at this time.
6. I referred to the issue as a hypothetical one. That is because no application has been filed pursuant to order 2 made by me on 4 December 2008.
7. The applicant wrote to the Court by letter dated 29 December 2008 and that letter has been filed in the court registry. With the agreement of the parties, I received it as evidence. The applicant relevantly states in that letter that he has been unable to secure another sponsor that would have enabled him to pursue the class of visa the subject of the decision of the delegate. I understand that the applicant has decided not to seek to challenge the delegate's decision having regard to that inability. That is on the basis that it would be futile to review the delegate's decision in circumstances where the applicant is unable to satisfy a relevant visa criterion. The applicant has been frank and honest and practical in expressing that view.
8. The applicant goes on to state that he expects shortly to be in a position to lodge an application for a spouse visa. He states that his long-standing de facto partner's divorce has come through and that, at the time of writing his letter, he was expecting his own divorce papers to arrive from Italy last month. He expected then to marry and afterwards lodge a spouse visa application. He attached documents to support that intention. The applicant told me today from the bar table that his Italian divorce papers have not yet arrived but he expects to receive them next week, in other words, by the end of the month.
9. Counsel for the Minister made submissions as to the orders that the Court should make in the circumstances. The Minister seeks a declaration that the applicant's application to the Migration Review Tribunal (“the Tribunal”) dated 18 June 2008 has been finally determined by the Tribunal. That order is sought in order to clarify the applicant's eligibility for a bridging visa. The order is sought without prejudice to the applicant's right to seek and obtain a bridging visa based upon any proceedings in a court. The Minister also seeks an order that, subject to order 1 made by me on the last occasion, the application before the Court be otherwise dismissed.
10. For his part, the applicant sought an order of the Court requiring the Minister's Department to consider his proposed spouse visa application.
11. Counsel for the Minister effectively stands as sentinel before the temple of black letter law. For his part, the applicant makes an appeal to love. I am reminded of the beautiful words in St Paul's first letter to the Corinthians, Chapter 13:
    • If I speak in the tongues of men and of angels, but have not love, I am a noisy gong or a clanging cymbal. And if I have prophetic powers, and understand all mysteries and all knowledge, and if I have all faith, so as to remove mountains, but have not love, I am nothing. If I give away all I have, and if I deliver my body to be burned, but have not love, I gain nothing.
    • Love is patient and kind; love is not jealous or boastful; it is not arrogant or rude. Love does not insist on its own way; it is not irritable or resentful; it does not rejoice at wrong, but rejoices in the right. Love bears all things, believes all things, hopes all things, endures all things.
    • Love never ends; as for prophecies, they will pass away; as for tongues, they will cease; as for knowledge, it will pass away. For our knowledge is imperfect and our prophecy is imperfect; but when the perfect comes, the imperfect will pass away. When I was a child, I spoke like a child, I thought like a child, I reasoned like a child; when I became a man, I gave up childish ways. For now we see in a mirror dimly, but then face to face. Now I know in part; then I shall understand fully, even as I have been fully understood. So faith, hope, love abide, these three; but the greatest of these is love.
12. The Court will not compel the Minister to consider the applicant’s proposed spouse visa application, but it can facilitate the making of it. The Court declares that the applicant’s application to the Migration Review Tribunal dated 18 June 2008 has been finally determined by the Tribunal. Subject to order 1 made on 4 December 2008, the application to the Court filed on 22 September 2008 is otherwise dismissed. That order shall take effect on 1 March 2009.
13. The Minister seeks scale costs of $5,000 in consequence of the dismissal of the application. The applicant referred to his financial and personal difficulties and what he saw as important elements of the history of this matter. The relative success of the parties has been mixed. The applicant obtained the writ of certiorari he has sought but was otherwise unsuccessful. I found that the Tribunal made the right decision for the wrong reasons. It was the applicant's choice to pursue his review application to the Tribunal and his judicial review application to this Court. He has acted responsibly in electing not to take up the opportunity afforded to him to continue to agitate the decision of the delegate. That has probably saved some time and costs.
14. Having regard to the applicant's partial success, and his responsible attitude in the litigation, I have come to the view that costs of the application before me should lie where they fall. I will order that there be no order as to costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 February 2009

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[1] Exhibit R2