AJP20 v Minister for Immigration

[2020] FCCA 166

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJP20 v MINISTER FOR IMMIGRATION [2020] FCCA 166

Catchwords:
MIGRATION – Review of a decision of a delegate – refusal of a bridging visa – applicant unable to make a valid visa application without the consent of the Minister – error made by delegate but relief refused on the basis of futility.

Legislation:

Migration Act 1958 (Cth), ss.5AA, 37A, 46A, 46A, 91K, 91X, 474(2)

Migration Regulations 1994 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Kumar v Minister for Home Affairs [2019] FCCA 1505
Raihan v Minister for Home Affairs [2019] FCCA 2721
Re Refugee Review Tribunal: Ex Parte Aala (2000) 2041 CLR 82 at 109

Applicant: AJP20

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: SYG 1894 of 2019

Judgment of: Judge Driver

Hearing date: 30 January 2020

Delivered at: Sydney

Delivered on: 30 January 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:              Mr L. Leerdam of Mills Oakley

ORDERS

1. A preliminary hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) be dispensed with.

2. Having regard to the possible application of s.91X of the Migration Act 1958 (Cth), the applicant is to be allocated a pseudonym.

3. The Court directs that the name of the applicant is not to appear on the transcript of the proceedings.

4. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

5. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $3,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1894 of 2019

AJP20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL SERVICES

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Background

1. This is a novel case.  The applicant seeks judicial review of a decision of a delegate of the Minister (delegate).  The decision was made on 28 June 2019.  The delegate found that the applicant’s application for a bridging visa E was invalid.  Background facts relating to this matter are conveniently set out in the Minister’s outline of legal submissions filed on 22 January 2020. 

2. On 28 March 2013, the applicant arrived in Australia at Darwin by boat.

3. On 7 December 2017, the applicant was granted a Humanitarian Stay (Temporary) (Subclass 449) visa which was valid until 14 December 2017. At the same time the applicant was granted a bridging visa.

4. On 22 May 2019, the applicant made an application for a bridging visa E and on 28 June 2019, an officer of the Minister’s Department found that the application was invalid as it did not meet s. 46A of the Migration Act 1958 (Cth) (Migration Act).

5. Section 46A provides as follows:

   (1) An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:

   (a)     is in Australia; and

   (b)     either

   (i)      is an unlawful non-citizen; or

   (ii)     holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purpose of this subparagraph.

   Note:     Temporary protection visas are provided for by subsection 35A(3)

   (1A)Subsection (1) does not apply in relation to an application for a visa if:

   (a)     either:

   (i)      the applicant holds a safe haven enterprise visa (see subsection 35A(3A)); or

   (ii)     the applicant is a lawful non-citizen who has ever held a safe haven enterprise visa; and

   (b) the application is for a visa prescribed for the purpose of this paragraph; and

   (c)the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purpose of this paragraph.

   (2) If the Minister thinks that this is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of the class specified in the determination.

6. Section 5AA of the Migration Act (which commenced on 1 June 2013) provides the following definition of an unauthorised maritime arrival:

   (1) For the purposes of this Act, a person is an unauthorised maritime arrival if:

   (a)     the person entered Australia by sea:

   (i)    at an excised offshore place at any time after the excision time for that place; or

   (ii)     at any other place at any time on or after the commencement of this section; and

   (b) the person became an unlawful non-citizen because of that entry; and

   (c) the person is not an excluded maritime arrival.

7. Finally, Subdivision AJ of Division 3 of Part 2 (Subdivision AJ) if the Migration Act provides the following:

   91H Reason for this Subdivision

   This subdivision is enacted because the Parliament considers that a non-citizen (other than an unauthorised maritime arrival or a transitory person) who holds a temporary safe haven visa, or who has not left Australia since ceasing to hold such a visa, should not be allowed to apply for a visa other than another temporary safe haven visa. Any such non-citizen who cease to hold a visa will be subject to removal under Division 8.

   Note:     for temporary safe haven visas, see section 37A.

   91J Non-citizens to who this Subdivision applies

   (1) This Subdivision applies to a non-citizen in Australia at a particular time if, at that time, the non-citizen:

   (a) holds a temporary safe haven visa; or

   (b) has not left Australian since ceasing to hold a temporary safe haven visa.

   (2) This Subdivision does not apply to an unauthorised maritime arrival or transitory persons.

   Note:     Unauthorised maritime arrivals are covered by section 46A and transitory persons are covered by section 46B.

   91K Non-citizens to who this Subdivision applies are unable to make valid application for certain visas.

   Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application.

   91L Minister may determine that section 91K does not apply to a non-citizen

   (1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 91K does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given.

   (2) The power under subsection (1) may on be exercised by the Minister personally…

8. The decision of the Departmental officer in the present case is a privative clause decision as defined by s.474(2) of the Migration Act. Section 474 operates to prevent the judicial review of all decisions under the Migration Act except those vitiated by jurisdictional error.

9. These proceedings began with a show cause application filed on 25 July 2019.  The applicant continues to rely upon that application.  The grounds in it are:

   Ground One:

   The respondent has failed to apply the correct test pursuant to Sub section 41(2A) of the Migration Act 1958 (Cth).

   Particulars:

   In dealing with the Applicant’s claims under sub section 41(2A) of the Migration Act 1958 (Cth), the delegate of the minister explicitly failed to disaggregate the statutory formulae under regulation 2.05(4).

   Ground Two:

   The respondent denied procedural fairness to the applicant.

10. In addition to the short affidavit accompanying the application, I have before me as evidence the court book filed on 26 August 2019 and the affidavit of Charlotte Elizabeth Saunders made on 18 October 2019. Ms Saunders is a solicitor employed in the Minister’s firm. She deposes as to the applicant’s movement records. She further deposes that the Minister has not used his power under s.91L of the Migration Act in respect of the applicant.

11. The applicant has not to this point applied for a protection visa.  He told me, however, that he came to Australia from Bangladesh to escape a political problem and that that political problem prevents his return to Bangladesh.  In a general sense, he seeks to engage Australia’s protection obligations to him, if any.  With that in mind, I directed that he be allocated a pseudonym by the registry.

12. The applicant’s circumstances are highly unusual.  Although he arrived by boat with other persons seeking protection, he did not apply for a protection visa.  He was, instead, granted a short term temporary safe haven visa.  A bridging visa accompanied that visa.  Both of those visas have expired.  Although, for a period of approximately two years, the applicant held no visa, he has not been in detention for a significant period of time. 

13. The applicant is now seeking a legitimate pathway to Australia’s protection. As I explained to the applicant, it appears that he has two options available to him. The first is to apply for another temporary safe haven visa. I am told that the class of visa allocated to the applicant in 2017 still exists. It appears that the applicant does not require the Minister’s permission to apply for a further such visa. It also appears that the applicant cannot apply for any other form of visa, including a bridging visa, unless the Minister is persuaded to lift the bar under s.46A of the Migration Act.

14. The circumstances of the case are, as I have already noted, novel.  With that in mind, I dispensed with the need for a show cause hearing and, with the agreement of the parties, proceeded directly to a final hearing.  The applicant was, unsurprisingly, not in a position to address the extremely technical legal issues arising in the case.  There is a dearth of authority available although similar circumstances were dealt with by Judge Vasta last year in the case of Raihan v Minister for Home Affairs[1] and Kumar v Ministerfor Home Affairs.[2]

    [1] [2019] FCCA 2721

    [2] [2019] FCCA 1505

15. The Minister’s analysis is that the delegate’s decision proceeded on the basis of an incorrect understanding of the legislation but it would be futile to remit the matter to the Minister’s Department because the same outcome would necessarily be reached, albeit by a different route.  I agree with and accept the Minister’s submissions.   

16. The Minister concedes that the Departmental officer’s notification that the bridging visa E application was invalid due to the applicant being an unauthorised maritime arrival and thus being unable to meet s.46A was incorrect.

17. The applicant is not an unauthorised maritime arrival as he arrived in Darwin on 28 March 2013 which was not an excised offshore place. Furthermore, as this was prior to 1 June 2013, the applicant was not an unauthorised maritime arrival by virtue of s.5AA(1)(a)(ii).

18. Accordingly, s.46A(1) cannot prevent the applicant from lodging a visa application.

19. Notwithstanding, the applicant was granted a Humanitarian Stay (Temporary) (Subclass 449) visa on 7 December 2017 and accordingly, the Subdivision AJ of the Migration Act applied to the applicant:

    a)subdivision AJ applies to a non-citizen who holds a temporary visa to travel to, enter and remain in Australia to be known as a temporary safe haven visa;

    b)pursuant to s.37A(1), there is a class of temporary visas to travel to, enter and remain in Australia since ceasing to hold a temporary safe haven visa;

    c)regulation 2.01(2) of the Migration regulations 1994 (Cth) identifies if the class of visas provided for by the Migration Act and identifies Humanitarian Stay (Temporary) (Subclass 449) as a temporary safe haven visa;

    d)accordingly, as the applicant previously held a Humanitarian Stay (Temporary) (Subclass 449) visa which ceased and did not leave Australia since that time, Subdivision AJ applies to the applicant.

20. As Subdivision AJ applies to the applicant, the applicant is prevented from applying for a visa other than a temporary safe haven visa by virtue of s.91K of the Migration Act. In these circumstances, the Minister submits, and I accept that, despite the Departmental officer’s error in identifying the applicant as an unauthorised maritime arrival, it would be futile to remit the application for a bridging visa for reconsideration where the applicant is nonetheless prevented from making a valid visa application by s.91K.[3]

    [3] Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 at 109

21. The Minister otherwise contends that the grounds pleaded do not reveal any jurisdictional error. I agree.

22. I conclude that although the decision of the delegate is affected by error, which probably goes to jurisdiction, it would be futile to remit the case to the Minister’s Department for further consideration.  Rather, the applicant’s future is in his own hands.  I have explained his options to him.

23. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

24. In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the sum of $3,200. The applicant did not wish to be heard on costs.

25. I will order that the applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,200.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  4 February 2020