BAE v Minister for Immigration and BORDER PROTECTION

[2014] FCCA 1397

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAE v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1397

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.31, 65, 338, 357A, 474
Migration Regulations 1994 (Cth), reg.2.01

Applicant: JAEMIN BAE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1445 of 2013

Judgment of: Judge Emmett

Hearing date: 1 July 2014

Date of Last Submission: 1 July 2014

Delivered at: Sydney

Delivered on: 1 July 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Solicitors for the Respondents: Ms Brooke Griffin
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1445 of 2013

JAEMIN BAE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 28 May 2014 and handed down on 29 May 2013 (“the  MRT”).

2. The applicant claims to be a citizen of the Korea and of Buddhist faith.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the MRT’s review and decision.

Background

1. The applicant arrived in Australia in November 1987 having been granted a UA-H33 (student) visa.

2. On 30 March 1998, the applicant made an application for a Resolution of Status (Residence) class BL (subclass 851) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 31 March 2011, the Delegate refused the applicant’s application for a Resolution of Status (Residence) class BL (subclass 851) visa.

4. On 27 April 2012, the applicant lodged an application for review of the Delegate’s decision by the MRT.

5. On 28 May 2013, the MRT affirmed the decision of the Delegate not to grant a Resolution of Status (Residence) class BL (subclass 851) visa.

6. On 26 June 2013, the applicant filed an application in this Court seeking judicial review of the MRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Resolution of Status (Residence) class BL (subclass 851) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations). At the time of the applicant’s application for the grant of a Resolution Status (Residence) Class BL (Subclass 851) visa, the requirements to be satisfied at the time of decision are set out in cl.851.221 of Schedule 2 to the Regulations as follows:

   “851.22 Criteria to be satisfied at time of decision

   851.221 Either:

   (a) the applicant is the holder of a Subclass 850 (Resolution of Status (Temporary)) visa; or

   (b) if the applicant held a Subclass 850 visa that ceased on notification of a decision of the Minister to refuse a Subclass 851 visa – a review officer or the Tribunal has determined that the applicant satisfies the criteria for the grant of a Subclass 851 visa apart from the criterion that the applicant hold a Subclass 850 visa.”

2. Under s.338 of the Act, a decision to refuse to grant a Resolution of Status (Residence) class BL (subclass 851) visa is a decision which may be reviewed by the second respondent.

The Delegate’s decision

1. On 31 March 2011, the Delegate refused the applicant’s application for a Resolution of Status (Residence) class BL (subclass 851) visa on the basis that the applicant did not hold, nor had he ever held, a subclass 850 (Resolution of Status (Temporary)) visa and that, accordingly, the applicant did not meet the requirements of cl.851.221 for the grant of a Resolution of Status (Residence) class BL (subclass 851) visa.

The MRT’s review and decision

1. On 27 April 2012, the applicant lodged an application for review of the Delegate’s decision by the MRT.

2. On 5 June 2012, the applicant provided written submissions and further documents to the MRT.

3. On 12 April 2013, the MRT wrote to the applicant informing him that the MRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 28 May 2013 to give oral evidence and present arguments.

4. On 28 May 2013, the applicant attended the MRT hearing by telephone and gave evidence.

5. The issue before the MRT was whether or not the applicant held or had ever held a subclass 850 (Resolution of Status (Temporary)) visa in order to meet the requirements of cl.851.221 of Schedule 2 to the Regulations.

6. The MRT noted that the applicant had provided to it a copy of the decision of the Delegate. The MRT noted that the Delegate’s decision record indicated that the applicant had previously applied for a Subclass 850 (Resolution of Status (Temporary)) visa, but that application was deemed invalid. There was no evidence before the MRT that the applicant held or had held a Subclass 850 (Resolution of Status (Temporary)) visa. Accordingly, the MRT was not satisfied that the applicant held or had ever held a Subclass 850 (Resolution of Status (Temporary)) visa. The MRT was therefore not satisfied that the applicant met the requirements of cl.851.221 of Schedule 2 to the Regulations.

7. The MRT had regard to the written submissions provided by the applicant on 6 June 2012, however found that they had no bearing on its finding.

8. Having found that the applicant did not satisfy cl.851.221 of Schedule 2 to the Regulations, the MRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Korean interpreter. 

2. On 4 September 2013, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the MRT, unless the Court is satisfied that the MRT’s decision is affected by a mistake going to the jurisdiction of the MRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

3. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

4. The applicant confirmed that he wished to continue with the application for judicial review. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the MRT hearing, as well as submissions in support.

5. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

6. On 13 October 2013, the applicant filed an affidavit affirmed by him, attaching inter alia amended grounds of his application.

7. The applicant confirmed that he relied on the grounds attached to his affidavit filed on 15 October 2013, as follows:

   “My Grounds of Application

   1. Invalidity of Human Created Groundless any Law

   2. Denial of Natural Justice (Fact Finding Error by the Member)

   (Please very kindly refer to my previous submission under title “How to achieve Eternal Life/Nirvana” as a supporting document for my claim and for the convenience of easier understanding of my claim).

   1. Invalidity of human created groundless any law

   In my best knowledge and understanding, in any law to be valid, the law must be based on reasonable facts. However, in my findings, any applied migration related laws to assess my application to the Migration Review Tribunal were not based on reasonable facts but grounded on human’s groundless differentiation or wrongful opinion or illusive perception.

   The reason why any applied migration laws towards my application were intentionally and wrongfully justified but groundless and invalid can be summarised by the followings:

   1) It is constituted by human created words and languages based on groundless differentiation or wrongful opinion or illusive perception towards phenomenal world. Therefore any applied laws are groundless and invalid. For example, here is one red coloured apple. It is a Red Delicious apple and is sold at $3 per kilo at Cole’s supermarket today 14 October 2013.

   The followings are deemed as the facts for human being:

   (1). It is an apple.

   (2). It is a Red Delicious apple.

   (3). It is traded at $3 per kilo at Cole’s supermarket today 14 October 2013.

   “It is a red coloured Red Delicious apple and traded at $3 per kilo at Coles today.” It seems like the facts from a human being’s point of view but has any apple claimed to be called it (as a being) an apple and more specifically a Red Delicious apple? Has any apple also wanted to be traded at $3 per kilo?

   Why has it been named and differentiated as an apple or a Red Delicious or red in colour despite just naturally existing as a being (so called an apple by human) never ever claimed? ‘Today’ never ever claimed for humans to call it today and what it means. But human have created these concepts for their own convenience or need only.

   Contrary to human’s groundless wrongful opinion or differentiation, in reality it (being an apple) is existing as just a being, away from such human’s wrongful opinion or groundless differentiation. All these are illusive human perception.

   Any words or figures or symbols so called ‘it, is, an, apple, a, Red Delicious, red in colour, traded, $, 3, per, kilo, at, Coles, supermarket, today, 14, October, 2013’ and so on and so on any languages were created by this sort of groundless wrongful opinion or differentiation by human being.

   Like this, any facts deemed as the fact for human being are in reality not the real fact but just only human’s wrongful opinion or groundless differentiation or just illusive perception towards any phenomenal world such as the existence of a being (as an apple).

   Therefore any applied laws constituted by human created words and languages are groundless and invalid.

   2). It is contrary to the universal truths ‘always changes’ and ‘no self’. Therefore any applied laws are groundless and invalid.

   Our living phenomenal world ‘always changes’. Therefore there is ‘no self’ in all things. Contrary to these facts, any applied migration law has been set out by human beings. Thus, (the concept of) it has been established its ‘self’ by human being’s same groundless differentiation or wrongful opinion or illusive perception or phenomena. As a result of that, it denies two principles of the universal truths as the facts ‘always changes’ and ‘no self’ in all things.

   This means any applied laws are contrary to these facts. Therefore those are all groundless and invalid.

   3). On the subject of creation of the law, human beings themselves have in fact no selves at all. This means that with no selves (or self) it is impossible to create anything, or any creation by ‘no selves (self)’ is groundless and invalid. Therefore any applied laws created by (selves-less) human beings are groundless and invalid.

   In general human beings think themselves that they have their own ‘selves’ as they did, are doing and will do something by their own will or wish. Such as driving a car or drinking a cup of morning tea or talking with friends with their own language or achieving a good business result by working hard and so on. It is almost impossible to display all of human’s wilful behaviours.

   But were human beings born by their own will or wish? Is any human being getting old by his/her own will or wish? Can any human being escape from so called death?

   We cannot find anyone who was born by his/her own will. We also cannot see anyone not getting old. We cannot meet anyone who never ever died. If there is any real ‘self’ in human being, he/she can escape from birth or getting or dying.

   In this regard, humans have no selves at all in reality despite deluding themselves that they have their own selves.

   Therefore any applied laws created by selves-less human beings are intentionally and wrongfully justified by humans but groundless and invalid.

   As a conclusion, because of above reasons, the Member’s decision affirming not to grant me a Resolution of Status (Residence) visa was a false judgment action towards me based on human created intentionally and wrongfully justified groundless invalid law.

   2. Denial of Natural Justice (Fact Finding error by the Member caused by biased human fixed idea)

   When I lodged my appeal at the Migration Review Tribunal (MRT) in relation to the Department’s refusal of my application for a Resolution of Status (Residence) visa, my claim was that the migration law was ‘defective’ itself by nature as it was contradictory to universal truths and, therefore, refusal was a defective, unjust and unfair judgment toward me.

   Our living phenomenal world ‘always changes’. Therefore there is ‘no self’ in all things. Contrary to these facts as universal truths, migration law has been set out by human beings. Thus migration law has been established its ‘self’ by humans false perception on phenomena. AS a result of that it denies two false principles of universal truths ‘always changes’ and ‘no self’ in all things.

   As an undeniable evidence of migration law itself being defective, I suggested that migration law is constantly changed by constantly changing circumstances since being introduced. If migration law itself has not been being defective by nature, it has not been being changed at all. This clearly shows that it is defective itself by nature.

   Therefore, the following can be summarized as facts:

   (1). Migration law is itself defective by nature and contrary to universal truths ‘always changes’ and ‘no self’ in things.

   (2). As evidence of above, it has been constantly changed by constantly changing circumstances since being introduced.

   (3). In addition to migration law itself being defective, it is in fact invalid. (Please refer to pre-mentioned ‘invalidity of human created groundless any law’)

   If the Member’s statement of decision and reasons, as the requirement for the granting of the Resolution of Status (Residence) visa, the following were the main issues on review:

   * It is the applicant the holder of a subclass 850 (Resolution of Status)  (Temporary) visa or did he hold such a visa that ceased.

   * I had applied for the Subclass 850 visa but my application was deemed invalid by the Department.

   AT the MRT conclusion, it states that given the findings above, the Member has found that I do not meet one of the requirements and the Tribunal affirms the decision not to grant me a Resolution of Status (Residence) (Class BL) visa.

   However, apart from the Member’s statement of findings for the decision and reasons not to grant me a Resolution of Status (Residence) visa, I regard this as a biased ‘finding error’ mainly caused by the Member (as a human)’s common fixed ideas that applied migration law itself not being defective and being valid. But in fact, as mentioned, migration law itself is being defective, groundless and invalid.

   Therefore, the Member’s decision not to grant me a Resolution of Status (Residence) visa was mainly originated from the Member’s biased fact finding errors basically caused by false groundless fixed ideas and lack of understanding of my claim.

   As a conclusion, the decision made by the MRT was defective and invalid. It was denial of natural justice and lack of understanding of my claim.”

8. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1

1. In support of ground 1, the applicant said that all laws created by humans are invalid. I explained again to the applicant that the role of this Court was confined to considering whether or not the decision of the MRT is affected by a mistake which goes to its jurisdiction. The applicant said nothing more in support of ground 1. Plainly, ground 1 does not raise an arguable case for the relief claimed, nor does it raise an error capable of review by this court.

2. The MRT’s decision record noted that a mandatory criterion that must be met at the time of decision is cl.851.221 of Schedule 2 to the Regulations. Clause 851.221 to Schedule 2 of the Regulations requires that the applicant be the holder of a Subclass 850 visa at the time of decision, or if the applicant held a Subclass 850 visa that ceased, the applicant must satisfy the criteria for the grant of a Subclass 851 visa.

3. The MRT found that there was no evidence before it that the applicant had ever held a Subclass 850 visa. The MRT found that the applicant had previously applied for a Subclass 850 visa but that such application was deemed invalid. In the circumstances, the MRT was not satisfied that the applicant was presently the holder of a Subclass 850 visa at the time of decision or that he had ever held a Subclass 850 visa that had ceased.

4. Accordingly, the MRT was not satisfied that the applicant met cl.851.221 of Schedule 2 to the Regulations. That being the only issue before the MRT, it affirmed the decision under review.

5. The MRT noted the applicant’s submission concerning the eternal life and other irrelevant matters which it considered, but found to have no bearing on the MRT’s findings.

6. There is no error in the MRT’s decision to affirm the Delegate’s decision under review. Its findings were open to it on the evidence and material before it and for the reasons it gave.

Ground 2

1. In support of ground 2, the applicant said that the MRT’s decision was defective because the MRT thought that Australian law is flawless and not defective.

2. Plainly such a submission does not demonstrate any error on the part of the MRT. I understand ground 2 to be an application of the applicant’s primary submission that all laws created by humans are invalid.

3. The Delegate’s decision made clear that Item 1216A(3)(d) required the applicant to enter Australia with a valid passport of a specified country and that the applicant did not hold a valid passport in one of the specified countries when he entered Australia. The Delegate found that it was the failure by the applicant to meet Item 1216A(3)(d) of the Regulations that deemed his application for a Subclass 850 visa to be invalid. The Delegate noted that the applicant was advised of that decision by letter dated 1 April 1998. The Delegate found that as the applicant was not the holder, not had he ever held a Subclass 850 visa, he failed to meet the mandatory requirements of cl.851.221 of Schedule 2 to the Regulations at the time of decision.

4. The Delegate’s decision made plain to the applicant the issue in respect of which he sought review by the MRT. The applicant’s submissions in support of his application to the MRT did not make any relevant submission on that issue.

5. By letter dated 12 April 2013, the applicant was invited to appear before the MRT by telephone to give evidence and present arguments relating to the issues arising in his case. The applicant appeared at the MRT hearing by telephone. The only issue that arose on review was whether the applicant was at the time of decision a holder of a Subclass 850 visa or whether he had held such a visa that had ceased. There was no other issue that arose from the Delegate’s decision. The Delegate’s decision was sufficient and no other issue was raised by the MRT. Further, a transcript of the MRT’s hearing attached to the applicant’s affidavit, affirmed 15 October 2013, makes clear that the MRT explained that issue to the applicant.

1. Section 357A of the Act states that Division 5 of Part 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. There is no evidence before this Court to suggest that the MRT failed to comply with Division 5 of Part 5 of the Act in the making of its decision or the conduct of its review.

2. In the circumstances, there has been no denial of natural justice to the applicant.

3. Accordingly, none of the grounds relied upon by the applicant is made out.

Conclusion

1. The MRT made findings based on the evidence and material before it. Those findings of fact were open to the MRT on the evidence and material before it and for the reasons it gave. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

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

Associate: 

Date:  1 July 2014