BACH v Minister for Immigration - [2005] FMCA 392

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BACH v MINISTER FOR IMMIGRATION

[2005] FMCA 392

MIGRATION – VISA – Bridging visa – Migration Review Tribunal – application for review of decision of the MRT not to grant a Bridging E (class WE) visa to the applicant – applicant a citizen of Pakistan.

PRACTICE & PROCEDURE – Applicant referred to by a pseudonym to comply with s.91X of the Migration Act 1958 – applicant’s name not to be published where the proceeding relates to the applicant’s capacity as a person who applied for a protection-related visa.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.91X, 475A

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZENN v MIMIA [2005] FMCA 158
Doe v MIMIA [2004] FMCA 818

Applicant:

BACH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 3314 of 2004

Delivered on:

16 March 2005

Delivered at:

Sydney South

Hearing date:

16 March 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr McInerney

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs of this application fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3314 of 2004

BACH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application before the court is an application for review of a decision of the Migration Review Tribunal. That decision was made on 1 November 2004. It affirmed a decision of the delegate of the Minister, that the Applicant was not entitled to the grant of a Bridging E (class WE) visa, and affirmed the decision of the delegate not to request a security.
The Applicant has brought an application under section 39B of the Judiciary Act, under section 475A of the Migration Act, seeking judicial review of that decision. The grounds that he gives, or that he gave, as at 11 November, when he filed his application, were that he was a Pakistani citizen, had a valid ongoing judicial review in the Federal Magistrates Court against the RRT decision for his protection visa, and had been detained for almost seven months. He had applied four times for the bridging visa with the Department of Immigration, Multicultural and Indigenous Affairs, as well as in the Migration Review Tribunal.
The ground of his application is that the MRT has made what it says is a biased decision every time in favour of the Department of Immigration, Multicultural and Indigenous Affairs. He has applied four times to the Department for a bridging visa. Each time, after the refusal from the Department, he has applied for a review in the MRT.
Each time the MRT has affirmed the decision of the Department. He said that the MRT has failed to make an independent decision. He says that his elder brother and his family, all of them Australian citizens, live in Sydney and they are keen to support him in all aspects, including accommodation, food and other daily expenses. They are also ready to put up a sufficient and affordable amount of $15,000 as a bond to comply with all the conditions on the visa. His brother and his family could not afford more than that amount because they are working‑class citizens, and they have their own family commitments. He said that he does not have any assets or resources.
At the same time his debt to the Commonwealth is increasing because of the detention costs. He's also complained that his physical and emotional status is deteriorating because of the conditions in detention. He said:
I don't see any point to keep me for an uncertain period of time when I am ready to comply with all of the conditions.
The Applicant is a citizen of Pakistan. He has been in Australia since 27 December 1987, as the holder of a temporary entrant permit. He has a lengthy history of applying for visas, and having those visas refused.
He has been an unlawful non‑citizen, remaining in the country without being in possession of a valid visa. It was whilst he was in employment that he was taken into custody, and has been held in immigration detention.
On 18 October 2004, whilst he was in detention, he applied for a Bridging E (Class WE) visa. On 20 October 2004 a delegate of the Respondent refused to grant that visa. On 21 October 2004 he applied to the tribunal for a review of that decision. The tribunal listed the matter for hearing at an earlier date, and on 1 November 2004 the tribunal affirmed the decision under review, finding that he was not entitled to the grant of a Bridging E (Class WE) visa, and affirmed the provision under review not to request a security from the Applicant.
The Applicant submits that the tribunal unlawfully affirmed the decision under review. He says the tribunal observed the Applicant for a Bridging E visa must satisfy the primary criteria set out in part 050 of Schedule II of the Regulations, both at the time of application and at the time of decision.
He says that the criteria which he was required to meet were that; (1) he was an unlawful non‑citizen; (2) he had made an application, or would apply within a period allowed by the minister (the tribunal) for a substantive visa of the kind that could be granted if the applicant was in Australia and; (3) that he had an outstanding application for merits or judicial review in relation to a substantive visa.
He said the tribunal was satisfied that he had made a valid application for a bridging visa. He is an unlawful non‑citizen. He points out that the tribunal was satisfied that he was not an eligible non‑citizen of the kind set out in sub‑regulation 2.20(7) to (11). He had lodged an application for a judicial review of a substantive visa refusal in the Federal Magistrates Court on 2 July 2004 and, therefore, met subclause 050.212(3)(a), and that application had not been finalised.
Since the tribunal hearing, the application was heard and dismissed by the Federal Magistrates Court. I do not have those papers before me. The Applicant has indicated that he has lodged an appeal to the Federal Court, against the decision of the Federal Magistrates Court, and that application is for hearing on 7 April this year. That is approximately in three weeks time.
He sets out, in his submission, that he has satisfied clause 050.212 at the time of his application and at the time of his decision. He said that there were two issues which remained for the tribunal to determine; (a) if he were released from detention would he abide by any conditions imposed ‑ he says the answer is yes; (b) whether the decision not to request a security to ensure that he would remain in contact with the Respondent's department if his judicial review application was successful. He said the answer to that is also yes.
He said the tribunal turned on the final matter for its consideration; that is, whether to request a security and, if so, the amount of security to request. He says that there are no significant risks that he would remain in the community unlawfully. He points out the following things: he had been employed by the New South Wales Police Force since August 1996; he was a trusted clerical officer in the police force, and did not have any criminal record in Australia. He said he arrived in Australia on December 1987. He was a national of Pakistan, who has lived in the Australian community for nearly 18 years. He has been an honest, peaceful and contributing member of the community. He said he would comply with conditions 8401, 8505 and 8506.
He said that he would like to pay a security bond. He noted that other detainees from other countries had been released from the detention centre with security bonds. He referred to a gentleman from South Africa, who was released on a $3,000 bond. He referred to Islanders who were released on $5,000 bonds; two British nationals were released on $5,000 bonds, and an Indonesian national was released without security by the Migration Review Tribunal. He, like the Applicant, was working when he was apprehended by the Department of Immigration, Multicultural and Indigenous Affairs.
The Applicant points out that there is a guideline called the MSR388, but that is a guideline that was never passed in Parliament, and he asks how it is that the Department can request such a high security. He points out that he has been now detained for a period of some 273 days.
Mr McInerney, of counsel, has pointed out the two matters which required consideration. He set out, quite correctly in my view, the first matter was whether if the Applicant was released from detention, he would abide by any conditions imposed. The second was whether the decision not to request a security to ensure that the Applicant would abide by the conditions of the visa was appropriate and, if not, what amount should be sought.
Mr McInerney submitted, as to the first matter, the tribunal was not satisfied that the Applicant would remain in contact with the Respondent's department if his judicial review application was unsuccessful, but rather considered that there was a significant risk that he would remain in the community unlawful. The tribunal was not, therefore, satisfied that the Applicant would comply with conditions 8401, 8505 and 8506. It followed, therefore, that the tribunal found that the Applicant did not meet clause 050.223.
On the question of whether to request a security, and, if so, the amount of security to request ‑ Mr McInerney submitted that the evidence showed that at most a security of $15,000 could be provided on behalf of the Applicant, but the tribunal was not satisfied that the provision of that sum would be a sufficient incentive for the Applicant to comply with his visa conditions, and the tribunal confirmed the decision not to request a security.
The summary of the Respondent's argument is, in short, that the tribunal has made adverse findings of fact in respect to the Applicant's claim. The tribunal was satisfied that there was a significant risk that the Applicant would remain in the community unlawfully, and was not therefore satisfied that the Applicant would comply with the conditions, and the tribunal was not satisfied that the provision of the sum of $15,000 by way of security which, on the evidence, was the maximum which could be offered in support of the Applicant's visa application, would be a sufficient incentive for the Applicant to comply with those conditions.
Mr McInerney submitted that those adverse findings of fact made by the tribunal were open on the material before it, and that there was no error of law in the tribunal's decision. He submitted that the tribunal properly understood the task that he was to carry out, and performed that task according to the law, and accordingly he submits no jurisdictional error is disclosed in the reasons of the tribunal, or the procedures followed by it.
The Applicant is not legally represented, and he has appeared from immigration detention today. He has queried the legitimacy of the guidelines in MSR388, as that is neither legislation nor a regulation that has been passed by parliament. The answer to that is quite simple: it does not have to be, it is a guideline, it is a Departmental guideline, for the benefit of officers of the Department, and it is purely that. All it does is set out for officers of the Department, things that should be taken into account. It is not, in my view, evidence of any jurisdictional error.
The reference to the fact that other detainees have been released from detention on relatively small security bonds is purely a matter of fact. Determination of matters of fact is solely the function of the tribunal. That is well established by authority, including Wu Shan Liang v The Minister for Immigration and Ethnic Affairs, and a variety of other decisions.
What that means is that an assessment of whether the Applicant would comply with those conditions is solely a matter of consideration of factual issues. As such, there is no scope for the court to substitute those findings with its own findings, because a finding as to the credibility of an applicant, and the finding as to a factual matter, is entirely the function of the tribunal, provided, however, that the tribunal understands the task before it, deals with the Applicant in a way consistent with procedural fairness, and deals with the Applicant in a way that does not deny him natural justice, as well as observing the other, what are known as the Hickman conditions.
Now, it may well be that a court would think that an assessment of the Applicant at this stage, for a relatively short time ‑ until his appeal is heard by the Federal Court ‑ would be more likely than not to comply with conditions, provided those conditions were sufficiently onerous and restrictive, but that is not a task for the court. The court does not have the power to substitute its own view for the decision maker, provided that the decision maker has approached that task without falling into jurisdictional error.
In my view, whether or not the Applicant is likely to comply with those conditions is purely a matter for the tribunal, and no jurisdictional error has been determined.
I turn now to the other issue, the question of security. In my view, it is open for the court to find there has been a jurisdictional error, although I hasten to say that such a finding will be of relatively little benefit to the Applicant. It will not be so much a victory as a hollow one.
The reasons as to why I am satisfied that there is a judicial error in the question of security is that I am not of the view that the tribunal approached that task with an understanding of what the task was.

A failure to understand a task given to the tribunal can well be jurisdictional error.
At page 262 of the court book, in paragraph 10, the tribunal refers to the fact that the delegate was not satisfied that the visa applicant would abide by the conditions that would have been imposed on the visa if one were granted. Of course, that is a matter that the tribunal has considered, and that is a matter where I have already ruled that the tribunal has acted in an appropriate way and there is no jurisdictional error.
The next sentence, however, is where the tribunal says, and I quote:
No amount of security would have satisfied the delegate that the visa applicant would do so.
The tribunal must therefore consider whether it is satisfied that the visa applicant will abide by the conditions, if any are imposed, on a visa, and whether security should be required for compliance with those conditions and, if so, how much that security should be.
That, of course, does set out an understanding of the task given to the tribunal. As to the question of security, however, if it had been the case that the tribunal had done nothing more than to say that no amount of security would have satisfied the tribunal, that may well have been an error, but that is not a point upon which this case turns.
In paragraph 62 on page 269 the tribunal said:
The visa applicant does not meet clause 050.223. The tribunal must consider whether the payment of a security would provide the added assurance necessary that the visa applicant would abide by visa conditions. The visa applicant has also made an application for review of the decision relating to the security.
The tribunal goes on to say in paragraph 63:
As discussed in applicant VAAN, the amount of security must not be excessive, but it must be set at a sum to ensure compliance, and be a reasonable assurance that there will be compliance.
The tribunal went on to consider that the Applicant could provide, at most, a security of $15,000, to be provided by a member of his family. The tribunal went on to say that:
The tribunal is not satisfied that the provision of this sum would be a sufficient incentive for the visa applicant to comply with visa conditions. The tribunal considers that a high security would be needed to provide a reasonable assurance of compliance. Since the visa applicant does not have access to funds to provide a high security, the appropriate decision is to affirm the decision not to request a security.
To my mind that statement contains an error, and indicates a misunderstanding by the tribunal of the task before it. It is not sufficient, in my view, to say "Oh, there is a need for a high security, the Applicant can only raise $15,000, and that is not enough." The tribunal must either form a view that no security, or that no amount of security, will, taking all the circumstances into account, be sufficient and, therefore, that it is inappropriate for a visa to be issued at all as the security, any amount of security, would not be sufficient, or, if satisfied that a high amount of security would be appropriate, the tribunal must, to my mind, indicate what that amount of security would be. It does not mean that the tribunal, as was raised in the decision ‑ quite properly by the tribunal ‑ in Applicant VAAN (2001) v Minister of Immigration Multicultural Affairs [2002] FCA 197.
The tribunal cannot or must not set an amount of security at some absurdly excessive size that no‑one in the situation of the Applicant could expect to reach it. But the tribunal must do more than say "Well, a high security would be necessary, and $15,000 is not enough." The tribunal must give some indication, if not down to the last dollar, as to what it considers would be an appropriate security in the circumstances. By not doing so ‑ by, in effect, declining to make a finding of security at all ‑ the tribunal has fallen into error by finding that no security would be appropriate virtually by default.
As I said, this is, perhaps, a hollow victory for the Applicant because the court does not have the power to order his release from detention today. The court does not have the power to grant the Applicant a visa. The court only has the power to make orders in the nature of certiorari and mandamus to send the matter back to the tribunal for reconsideration on that point.
The likelihood that the tribunal would be able to consider that point relating to the security by the time the Federal Court hears, or the Full Court of the Federal Court hears his appeal against the substantive application on 7 April, is almost non‑existent. The Applicant would still have to face the problem that the tribunal formed the view, and in my opinion, without falling into error, that the applicant would be unlikely to comply with any conditions imposed upon him.
In all of the circumstances, it appears to me that the Applicant's victory is a hollow one and, as such, for me to make an order in the nature of certiorari, and for me to make an order in the nature of mandamus, send the matter back to Migration Review Tribunal for consideration on one point, will grant the applicant no relief at all. In effect, it will not release him from detention on a visa, on a bridging visa, which is what he seeks.
In the circumstances, it is not, therefore, appropriate for me to exercise my discretion in favour of the Applicant. There's one other matter, however, to which I do wish to refer, and that is the fact that the Applicant has complained more than once of an ill effect on his health by having spent the amount of time in detention that he has.
I have previously indicated in a decision of SZENN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 158, that where a person is in immigration detention, the Respondent has an obligation to see that the person receives necessary medical attention. If this Applicant is in a situation where he requires medical treatment, he should get it.
As I said in SZENN (supra), if he is suffering from depression, then it is up to the Respondent to see that he has treatment for that depression whilst he remains in detention. It should be clear that people who are held in immigration detention have a right to expect reasonable medical and psychological treatment for any injuries or illnesses from which they suffer. I hold by that point now.

I have also noted that the Applicant has applied for protection visa and, of course, he is entitled to not having his name published under the provisions of section 91X of the Migration Act. To my mind, as I have said in a number of decisions, including Doe v Minister for Immigration [2004] FMCA 818, that obligation remains and as the Applicant has been an applicant for a protection visa, and is still appealing a decision, the court must not publish in electronic form or otherwise, in relation to a proceeding, the Applicant's name.
Accordingly I propose that the court documents relating to this applicant will be referred to him by code name, the code name of which is BACH, so the proceedings, when the orders come out, the proceedings will be headed "BACH v The Minister for Immigration Multicultural and Indigenous Affairs."
Those are the reasons why I have declined to exercise my discretion in the Applicant's favour. Those are the reasons why I have decided that the application still must be dismissed. I dismiss the application.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 31 March 2005