FEDERAL COURT OF AUSTRALIA Takli v Minister for Immigration & Multicultural Affairs [2000] FCA 1186 MIGRATION – objection to competency of application for order of review – review sought of decision of Refugee Review Tribunal – application lodged later than twenty-eight days after notification of decision MIGRATION – objection to competency of application for order of review – review sought of decision of Minister under s 417 of Act – decision not judicially-reviewable MIGRATION – bridging (general) visa – review of decision of Migration Review Tribunal – whether criterion that security has been lodged, if asked for, satisfied at time of visa application – consent by Minister to setting aside of decision. WORDS & PHRASES – "at time of application" Federal Court Rules, O 54 r 2(1), O 54A r 3(2), O 54B r 2(1), First Sch fm 56 Migration Act 1958 (Cth), ss 5(1), 269, 417, 475(1)(b), 475(2)(e), 476, 478(1)(b), 486 Migration Regulations 1994 (Cth), Sch 2 Subclass 050, cl 050.214 Migration Regulations 1989 (Cth), regs 34A(1), 131A(1)(g) Savouts v Minister for Immigration & Multicultural Affairs [2000] FCA 1059, followed Kovalev v Minister for Immigration & Multicultural Affairs [2000] FCA 557, referred to Yong v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 176, applied McCarthy v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 204, referred to Arkan v Minister for Immigration & Multicultural Affairs [2000] FCA 1134, referred to RICARDO TAKLI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N700 of 2000 KATZ J SYDNEY 23 AUGUST 2000 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N700 of 2000 BETWEEN: RICARDO TAKLI APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: KATZ J DATE OF ORDER: 23 AUGUST 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Migration Review Tribunal's decision of 7 June 2000 be set aside and the matter to which that decision related be referred to it for further consideration. 2. The application be otherwise dismissed as incompetent. 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 N700 of 2000 BETWEEN: RICARDO TAKLI APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: KATZ J DATE: 23 AUGUST 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 There is before the Court an application for an order of review. The application was lodged by the applicant, Mr Ricardo Takli, on 3 July 2000, while he was in immigration detention. Mr Takli made his application on a copy of form 56 of the First Schedule to the Federal Court Rules ("the FCRs"). That form is intended to be used for applications made under: s 476 of the Migration Act 1958 (Cth) ("the Act") (see O 54B, subr 2(1), of the FCRs); the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the JRA") (see O 54, subr 2(1), of the FCRs); and the JRA together with s 39B of the Judiciary Act 1903 (Cth) (see O 54A, subr 3(2), of the FCRs). Mr Takli, whose first language is not English (he is Palestinian), seems plainly to have completed the copy of the form without the benefit of legal assistance. 2 Form 56 begins relevantly by requiring an applicant who is seeking review of a decision to specify that decision. The form also contains the following note: "If an application for review under the Migration Act 1958, the applicant must indicate the date the applicant was notified of the decision…." 3 Immediately after that note on the copy of the form completed by Mr Takli, there appeared the following handwritten material: "Notification of Migration Review Tribunal was Dated:- 6 [sic] the June 2000 AND The Ministers letter section 417:- 14th June:- RRT = 13 January 2000 AND MRT The 6the [sic] June 2000." 4 I infer two things from the material which I have just quoted. 5 First, Mr Takli was seeking by his application to invoke the jurisdiction conferred on this Court by s 486 of the Act. That jurisdiction is one "with respect to judicially-reviewable decisions". 6 Secondly, Mr Takli was seeking to invoke that jurisdiction with respect to three separate decisions. In chronological order, they were: first, a decision of the Refugee Review Tribunal ("the RRT"), said to have been notified to him on 13 January 2000; secondly, a decision of the Migration Review Tribunal ("the MRT"), said to have been notified to him on 6 June 2000; and, thirdly, a decision of the Minister for Immigration and Multicultural Affairs ("the Minister") under s 417 of the Act, said to have been notified to him on 14 June 2000. 7 The Minister, who is the sole respondent to Mr Takli's application, did not dispute that, by that application, Mr Takli was seeking review of all three of the decisions to which I have just referred. The Minister did, however, object to the competency of Mr Takli's application, at least in so far as it sought review of the first and third of those three decisions. 8 That objection to competency must be upheld. 9 As to the first of the three decisions, that of the RRT, said to have been notified to Mr Takli on 13 January 2000, decisions of that Tribunal do fall within the definition of "judicially-reviewable decisions" for the purpose of s 486 of the Act: see par 475(1)(b) of the Act. Accordingly, s 486 of the Act confers jurisdiction on this Court with respect to them. 10 However, par 478(1)(b) of the Act requires an application for review of such a decision to be lodged within twenty-eight days of the applicant's being notified of the decision. That provision has been construed as denying to this Court jurisdiction to entertain an application under the Act for review of a decision, even if "judicially-reviewable", if that application is lodged out of time: see my decision in Savouts v Minister for Immigration & Multicultural Affairs [2000] FCA 1059 (4 August 2000, unreported), [23]-[24]. As is apparent on the face of Mr Takli's application for an order of review, in so far as that application seeks review of the RRT's decision, it was lodged out of time. (It will be recalled that the date said in the application to be that of notification of the RRT's decision was 13 January 2000, while the date of lodging of the application was 3 July 2000). To that extent, therefore, the application was incompetent. 11 As to the third of the three decisions, that of the Minister under s 417 of the Act, in discussing the reviewability of that decision, it is convenient first to set out the relevant provisions of that section: "(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the [Refugee Review] Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. …. (7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances." 12 In Mr Takli's case, the decision of the RRT said to have been notified to him on 13 January 2000, with which decision I have already dealt above, was one to affirm a decision of a Ministerial delegate to refuse to grant to Mr Takli a protection visa for which he had applied. Following that decision, Mr Takli, on 24 May 2000, requested the Minister to exercise his power under subs 417(1) of the Act to substitute for the RRT's decision a decision granting a protection visa to Mr Takli. 13 On 14 June 2000, the Minister replied personally to Mr Takli, saying, "Thank you for your letter of 24 May 2000 requesting that I consider exercising [sic] my ministerial discretion under section 417 of the Migration Act 1958. Under this section of the Act, I may substitute for a decision of the Refugee Review Tribunal, a decision which is more favourable to the applicant if I think it is in the public interest to do so. Your request for the exercise of my power under section 417 was referred to me. However, I have decided not to consider exercising my power in your case. Thank you for bringing this matter to my attention." 14 Paragraph 475(2)(e) of the Act provides relevantly that a decision of the Minister not to consider the exercise of his power under s 417 of the Act is not a judicially-reviewable decision. It therefore follows that, to the extent to which Mr Takli's application sought review of the Minister's decision communicated by his letter of 14 June 2000, that application was incompetent. 15 I turn now to the remaining decision specified in Mr Takli's application, that of the MRT, said to have been notified to Mr Takli on 6 June 2000. That decision was one to affirm a Ministerial delegate's decision to refuse to grant to Mr Takli a Bridging (General) visa for which he had applied on 29 May 2000. 16 As to the MRT's decision, the Minister has taken no jurisdictional objection to its being reviewed (nor, I add, does it appear to me that one is available). Indeed, far from taking any jurisdictional objection to that decision's being reviewed, the Minister has invited me to set it aside and to refer the matter to which it related to the MRT for further consideration. I have decided (compare Kovalev v Minister for Immigration & Multicultural Affairs [1999] FCA 557 (French J, 6 May 1999, unreported)) to act on that invitation by the Minister. I will give below my reasons for doing so. If not identical, those reasons are at least substantially similar to what I understand to have been the Minister's reasons for inviting me to make the orders to which I have just referred. 17 Criteria for the grant to a person of a Bridging (General) visa are set out in that Part of Sch 2 to the Migration Regulations 1994 (Cth) ("the Regulations") which is headed "Subclass 050 Bridging (General)". Within that Part are a number of criteria to be satisfied "at time of application" for a Bridging (General) visa. In particular, cl 050.214 provides, as a criterion to be satisfied at time of application, that "[a] security has been lodged by the applicant, if asked for by an officer authorised under section 269 of the Act …." Section 269 of the Act, referred to in cl 050.214, provides in part, "(1) An authorized [sic] officer may require and take security for compliance with the provisions of this Act or the regulations or with any condition imposed in pursuance of, or for the purposes of, this Act or the regulations: (a) by a deposit of cash, Treasury Bonds or negotiable instruments, together with a memorandum of deposit in a form approved by the Minister; or (b) in accordance with a form of security approved by the Minister. (2) A security given in accordance with a form approved by the Minister shall, without sealing, bind its subscribers as if it were sealed and, unless otherwise provided in the security, jointly and severally and for the full amount. (3) Whenever a security under this Act is put in suit, the production of the security without further proof shall entitle the Commonwealth to judgment for their stated liabilities against the persons appearing to have executed the security unless the defendants prove compliance with the conditions of the security or that the security was not executed by them or release or satisfaction." In subs 5(1) of the Act, "authorised officer" is defined as meaning, "when used in a provision of this Act", "an officer authorised in writing by the Minister or the Secretary for the purposes of that provision". 18 As I understand cl 050.214 of Sch 2 to the Regulations, the clause looks to a time before the point in time at which the application for a Bridging (General) visa is made and requires consideration in the first instance of the question whether an officer authorised under section 269 of the Act asked the individual concerned during that pre-application time for security of the type mentioned in that section. If an officer did so, then the clause next requires consideration of the question whether the individual concerned lodged that security. If the individual concerned did so, then the criterion prescribed by cl 050.214 of Sch 2 to the Regulations has been satisfied at time of application. 19 An analogy to cl 050.214 of Sch 2 to the Regulations may be found in the provisions discussed in Yong v Minister for Immigration and Ethnic Affairs (1994) 54 FCR 176 (Moore J). The Migration Regulations 1989 (Cth) provided generally in subreg 34A(1) that an applicant for an entry permit was required to satisfy the prescribed criteria in relation to the entry permit at the time of application. Paragraph 131A(1)(g) of those same Regulations prescribed as a criterion in relation to a particular type of entry permit that "the applicant has been nominated by" a particular type of nominator. Moore J discussed (at 180-81) the issue "whether it is necessary for the applicant to have been nominated at the time the application is made" and concluded (at 181) that it was necessary. In doing so, his Honour rejected a submission that the criterion could be satisfied by a nomination made after the time of the application. Moore J's conclusion on the point was afterwards approved by a Full Court of this Court: see McCarthy v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 204 at 212 (Spender, RD Nicholson and Merkel JJ) 20 It is apparent from an examination of the MRT's statement of findings and reasons in the present matter that it did not interpret cl 050.214 of Sch 2 to the Regulations as requiring consideration in the first instance of the question whether an officer authorised under s 269 of the Act had asked Mr Takli, at a time before the point in time at which he made his application for a Bridging (General) visa, for security of the type mentioned in s 269 of the Act. The MRT's interpretation of the clause thus enlivened the ground of review prescribed by the first limb of par 476(1)(e) of the Act. 21 According to the MRT's statement of findings and reasons, "[13] Documents on the DIMA file disclose the Applicant's migration history and background to be as set out in the following paragraphs. … [26] On 29 May 2000, the Applicant lodged an application for a Bridging E Visa. [27] On 29 May 2000, the Applicant representative [sic] had a conversation with a Detention Review Officer and was informed by that officer that a security of $10,000 was required…. On file is a filenote of the Detention Review Officer dated 29 May 2000." 22 It is plain that the file note being referred to in the passage which I have just quoted from the MRT's statement of findings and reasons was one which said the following: "I received a fax from Ricardo TAKLI. It was an application for Bridging Visa E. Advised Ricardo TAKLI of his conditions of release on his Bridging Visa E. These were explained to him by phone. The conditions were ... 2) $10,000.00 bond lodged with the Commonwealth Bank." The file note identified its author as "Joey Grima for Henri Legeret", the latter being, it appears from other material before me, a detention review officer. (I may add here, however, that there was no material before me which established that Mr Legeret was an officer authorised in writing by either the Minister or the Secretary for the purposes of s 269 of the Act, nor did the MRT refer in its statement of findings and reasons to the existence of any such material before it.) It is apparent from Mr Grima's file note that Mr Legeret's conversation with Mr Takli regarding security had occurred after Mr Takli had applied for a Bridging (General) visa. 23 Later in its statement of findings and reasons, the MRT continued, "[32] The Tribunal when considering whether or not criterion 050.214 has been satisfied must do so in light of Tutugri v Minister for Immigration & Multicultural Affairs ((1999) FCA 1785, 17 December 1999) [reported in (1999) 95 FCR 592]. The facts of Tutugri differ from the present review in that the Detention Review Officer, in this review, clearly requested a surety [sic] be lodged. However, in his judgment[,] Lee J. puts the duty of the Tribunal in this manner: [42] It is to be noted that the Tribunal did not ask whether the applicant satisfied that requirement at the time of application…. Obviously the applicant did satisfy that criterion at the date of application. He had not been asked to lodge a security by an officer authorised under s 269 of the Act. … … [33] … A security was requested at the time of application under subclause [sic] 050.214. No such security was lodged by the Applicant and, therefore, the Tribunal must find that the criterion was not satisfied. [34] The Tribunal finds that, at the time of the application[,] a security was requested by an officer authorised under section 269 of the Act and the security requested was not lodged by the Applicant. Therefore, the Tribunal has no option other than to find that at the time of application … the Applicant has not met this criteri[on] in subclause[ ] [sic] 050.214." 24 I will leave aside for present purposes the fact that, as I have already mentioned, there was no reference by the MRT in its statement of findings and reasons to the existence of any material on the basis of which it could have concluded that Mr Legeret was an officer authorised by either the Minister or the Secretary under s 269 of the Act. 25 I will also leave aside for present purposes the fact that there appears to have been before the MRT no material which established that, in his conversation with Mr Takli, Mr Legeret had required security of either of the two types mentioned in pars (a) and (b) respectively of subs 269(1) of the Act (each of which involves the use of a particular form approved by the Minister). 26 However, for the MRT to conclude that Mr Legeret's statement to Mr Takli, as recorded in Mr Grima's file note, coupled with Mr Takli's subsequent failure to lodge a $10,000 bond with the Commonwealth Bank, meant that, at the time of his application for a Bridging (General) visa, Mr Takli did not satisfy the criterion specified in cl 050.214 was obviously to interpret that criterion in a manner which ignored its retrospective character. 27 Finally, I should mention the ex tempore reasons for judgment of Tamberlin J in Arkan v Minister for Immigration & Multicultural Affairs [2000] FCA 1134 (11 August 2000, unreported). His Honour there rejected an urgent application for interlocutory relief in which one of the applicants' grounds of challenge to a decision of the MRT refusing their applications for Bridging (General) visas was "that the decision is erroneous because as a matter of fact the security was not asked for prior to the application having been made" (see at [11]). His Honour concluded (at [11]) that that ground of review must fail, simply because "[t]his is a pure question of fact namely: what was the point of time at which the request was made?" I find nothing in his Honour's reasons in Arkan which affects my view as to the correct construction of cl 050.214 of Sch 2 to the Regulations. 28 I will therefore order, as invited by the Minister, that the MRT's decision of 7 June 2000 be set aside and that the matter to which that decision related be referred to it for further consideration. Otherwise, I will dismiss Mr Takli's application as incompetent. As Mr Takli did not seek costs, in so far as he had succeeded in his application for an order of review, and as the Minister did not seek costs, in so far as he had succeeded in his objection to competency, I will make no order as to the costs of the proceeding. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz. Associate: Dated: 23 August 2000 The applicant appeared in person. Solicitors for the Respondent: Blake Dawson Waldron Date of Hearing: 22 August 2000 Date of Judgment: 23 August 2000