Bae v Minister for Immigration and Border Protection

[2015] FCA 45

FEDERAL COURT OF AUSTRALIA

Bae v Minister for Immigration and Border Protection [2015] FCA 45

Citation:	Bae v Minister for Immigration and Border Protection [2015] FCA 45
Appeal from:	Bae v Minister for Immigration & Border Protection [2014] FCCA 1397
Parties:	JAEMIN BAE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:	NSD 733 of 2014
Judge:	GLEESON J
Date of judgment:	5 February 2015
Catchwords:	MIGRATION – appeal from decision appeal from Federal Circuit Court decision dismissing application for judicial review of Migration Review Tribunal decision – refusal to grant Resolution of Status (Residence) (Class BL) (subclass 851) visa – appeal dismissed
Legislation:	Migration Act 1958 (Cth) ss 31(1), 65(1), 357A Migration Amendment Regulations 2008 (No. 5) (Cth) cl 4(2) Migration Regulations 1994 (Cth) Sch 2 cl 851.221
Date of hearing:	7 November 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	27
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms B Griffin of Australian Government Solicitor
Solicitor for the Second Respondent:	The second respondent filed a submitting notice save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 733 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

JAEMIN BAE
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	GLEESON J
DATE OF ORDER:	5 FEBRUARY 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 733 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

JAEMIN BAE
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	GLEESON J
DATE:	5 FEBRUARY 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from the decision of a judge of the Federal Circuit Court (“FCC”) dismissing his application for judicial review of a decision of the Migration Review Tribunal (“Tribunal”): Bae v Minister for Immigration & Border Protection [2014] FCCA 1397. The Tribunal’s decision was to affirm the decision of a delegate of the Minister not to grant the appellant a Resolution of Status (Residence) (Class BL) (subclass 851) visa (“Subclass 851 visa”).

   Background facts

2. The salient facts are not easy to piece together, no doubt because of the passage of time since the appellant applied for the Subclass 851 visa in 1998.

3. The appellant is a male citizen of Korea, born in November 1960. In November 1987, that is almost 30 years ago, he arrived in Australia on a UA-H33 (student) visa. It is not clear when that visa expired, but it may have been as early as early 1988.

4. Between at least 1990 and 1998, and subsequently, the appellant made various unsuccessful attempts to obtain visas.

5. On 30 March 1998, the appellant applied for a Resolution of Status (Temporary) (Class UH) (subclass 850) visa (“Subclass 850 visa”) and the Subclass 851 visa. The visa application is not before the Court.

6. According to the decision record of a delegate of the Department of Immigration and Citizenship (“Department”) dated 31 March 2011 recording the decision not to grant the Subclass 851 visa, the appellant’s application for the Subclass 850 visa was deemed invalid, and the appellant was advised of this in a letter dated 1 April 1998. These facts are not disputed.

7. I was told from the Bar table that it did not come to the Department’s attention until late 2010 that no decision had been made in relation to the application for the Subclass 851 visa.

8. However, the appellant was not informed of the delegate’s March 2011 decision until about April 2012, because the Department first sent notification of the decision to an address which was not the appellant’s current address

9. The stated reason for the delegate’s decision was that, as the appellant was not the holder of a Subclass 850 visa at the time of the decision and had never held a Subclass 850 visa, he failed to meet the requirements of clause 851.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Regulations”).

10. The appellant does not dispute that the delegate correctly identified a requirement under the Regulations for granting a Subclass 851 visa or that he failed to satisfy that requirement.

11. On 27 April 2012, the appellant applied to the Tribunal for a review of the March 2011 decision.

12. On 12 April 2013, the Tribunal wrote to the appellant informing him that it had considered the material before it but was unable to make a favourable decision on that information alone, and inviting him to give oral evidence at a hearing on 28 May 2013.

13. On 28 May 2013, the Tribunal conducted its hearing and, by letter dated 29 May 2013, informed the appellant that it had decided to affirm the decision under review. The Tribunal gave the following reasons:

    (1)The appellant failed to meet the requirements of clause 851.221;

    (2)The submissions made to the Tribunal concerning “the eternal life and other matters” had no bearing on the Tribunal’s finding that the appellant did not meet one of the requirements for the grant of the Subclass 851 visa.

14. On 26 June 2013, the appellant applied to the FCC for judicial review of the Tribunal’s decision. The grounds of review, as amended by affidavit dated 15 October 2013, were:

    1.Invalidity of human created groundless any law

    2.Denial of natural justice (fact finding error by the member).

15. On 1 July 2014, the primary judge dismissed the appeal for the following reasons:

    (1)The first ground did not raise any arguable case for relief, or any error capable of review by the FCC;

    (2)The appellant did not meet a mandatory criterion for the grant of a Subclass 851 visa, in that he failed to meet the requirements of clause 851.221 because he did not hold a Subclass 850 visa at the time of the decision and had never held a Subclass 850 visa;

    (3)The second ground of appeal was an application of the primary submission that all laws created by humans are invalid, which had been rejected; and

    (4)There was no evidence of any denial of natural justice within the meaning of s 357A of the Migration Act 1958 (Cth) (“Act”).

    Statutory framework

16. By s 65(1) of the Act, if satisfied of a number of matters including that the criteria for the visa prescribed by that Act or the Regulations have been satisfied, the Minister is to grant a visa.

17. Section 31(1) of the Act provides that there are to be prescribed classes of visa.

18. As at 31 March 2011, the Resolution of Status (Residence) (Class BL) visa was no longer a prescribed class of visa, as a result of amendments made by the Migration Amendment Regulations 2008 (No. 5) (Cth) (“2008 regulation”). However, by cl 4(2) of the 2008 regulation, the relevant amendments to the Regulations did not apply in relation to an application for a Resolution of Status (Residence) (Class BL) visa that was made, but not finally determined (within the meaning of s 5(9) of the Act) before 9 August 2008.

19. The appellant did not dispute that the criteria for a Resolution of Status (Residence) (Class BL) (subclass 851) visa as at 31 March 2011 included the criteria in clause 851.22 in Schedule 2 to the Regulations in the following terms:

    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.

20. This is the form of clause 851.22 immediately prior to the making of the 2008 regulation.

    Grounds of appeal

21. The stated grounds of appeal are:

    1.Denial of natural justice

    2.Invalidity of Human Created Any Law

    Appellant’s submissions

22. The appellant provided detailed written submissions. In summary, he argued that Australian migration law is “contrary to… universal truths”. As “evidence” in support of the first ground of appeal, he referred to the defective nature of migration law. The appellant complained that the decision of the primary judge was “not based on the real fact or the truth or evidence that exist in the nature”. Finally, the appellant submitted “I will be very happy indeed if I restore my freedom, liberty and native sovereignty after breaking current deadlock situation caused by a certain ‘compassion’ from unknown past time”.

23. At the hearing, the appellant was assisted by a Korean interpreter but did not seek to say anything in support of his appeal.  The appellant confirmed that factual statements made by the Minister from the Bar table were correct.

    Consideration

24. The underlying difficulty for the appellant is that he did not hold a Subclass 850 visa at the time that his application for the Subclass 851 visa was considered, and he had never held such a visa.  Accordingly, he is not entitled to a Subclass 851 visa.

25. The appellant does not dispute that this is the position under the Act and the Regulations.

26. Once the appellants’ written submissions are considered, it is apparent that his complaint of a denial of natural justice is, in truth, a complaint about the unjustness of the laws which operate adversely to him. The same applies to the second ground of appeal. The grounds of appeal do not identify any legal error or any error on the part of the primary judge.

27. Accordingly, the appeal must be dismissed.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.

Associate:

Dated:        5 February 2015