Baker v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 28
•17 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Baker v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 28
File number: SYG 3304 of 2019 Judgment of: JUDGE D HUMPHREYS Date of judgment: 17 January 2025 Catchwords: MIGRATION - Administrative Appeals Tribunal – Visitor Visa (class FA) (subclass 600) refusal – whether time taken to make decision constitutes jurisdictional error – no error made out – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 2A. Migration Regulations1994 (Cth) sch 2 Pt 600, cls 600.211, (a), (c) and 600.212. Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Doan v Minister for Home Affairs [2019] FCA 1172
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Palu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1736
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 10 December 2024 Place: Parramatta Solicitor for the Applicant: Self-represented litigant. Solicitor for the First Respondent: Ms Maker (Sparke Helmore Lawyers). Solicitor for the Second Respondent: Submitting appearances, save as to costs. ORDERS
SYG 3304 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AREF BAKER
Applicant
AND: MINISTER FOR IMIMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
17 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to the ‘Minister for Immigration and Multicultural Affairs’.
2.The name of the Second Respondent be substituted to ‘Administrative Review Tribunal’.
3.The application is dismissed.
4.The applicant is to pay the First Respondent’s costs fixed in the amount of $7,467.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
BACKGROUND
The applicant is a citizen of Malta. He last arrived in Australia on 10 December 2017 as the holder of a Visitor visa (class FA) (subclass 600).
On 7 March 2018, the applicant lodged a visa application for another Visitor visa (class FA) (subclass 600) (“Visitor visa”) and sought to satisfy the primary criteria in the Tourist stream. In his visa application, the applicant indicated that he wished to stay for a further three months to 6 June 2018 to strengthen his English and discover more of the landscape.
On 14 March 2018, the Minister’s department requested further information from the applicant including evidence of planned activities and adequate funds or access to adequate funds. There is no evidence that the applicant responded to that request.
On 22 March 2018, a delegate of the Minister refused to grant the applicant a further Visitor visa. On 3 April 2018, the applicant applied to the Administrative Appeals Tribunal (“Tribunal”), as it was then, for merits review of the delegate’s decision.
On 27 November 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant a Visitor visa.
The applicant now appears before the Court for judicial review of the Tribunal’s decision. For the reasons below, the application must be dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal decision is short, spanning some four pages and 30 paragraphs.
The Tribunal provided a background to the application for merits review, and the criteria for the visa the applicant was applying to as set out in pt 600 of Sch 2 to the Migration Regulations1994 (Cth).
At the Tribunal hearing, the applicant was advised that his visa was refused on the basis that he did not provide proof of adequate means to support himself and that questions arose as to whether he satisfied the criteria at cl 600.211. Therefore, the issue before the Tribunal was whether either cl 600.212 and 600.211 were met.
The evidence the applicant gave to the Tribunal is at [12]- [15] of the decision.
The Tribunal considered the applicant’s claims and evidence, namely the copies of bank statements that revealed regular cash deposits made in his account. The applicant conceded that the cash deposits were salary payments for painting work that he undertook, although the applicant was aware his visa conditions did not permit him to work. He submitted that he had to work to support himself. The Tribunal found that the applicant had not complied with the conditions of his bridging visa pursuant to cl 600.211(a).
The Tribunal considered that the applicant had funds to support himself, however the source of this income was through work undertaken in breach of the no work condition on his bridging visa. Therefore, even if the applicant satisfied the conditions of cl 600.212, the circumstances nevertheless called into question whether the applicant would abide by the conditions which a subclass 600 visa would be subject to, if the visa is granted. These conditions included condition 8101 that he must not work in Australia, 8201 that he must not study or engage in training in Australia for more than 3 months, and if it is imposed, condition 8503 that he may not be entitled to a substantive visa other than a protection while visa remaining in Australia.
In considering the applicant’s oral evidence, the Tribunal was satisfied that if the applicant was granted another Visitor visa he would continue to work as he had no other means of financial support. Therefore, the Tribunal was satisfied he would not comply with condition 8101. The applicant had demonstrated a willingness to work in Australia, despite being aware that he was not legally permitted to do so.
The Tribunal was not satisfied the applicant would depart Australia at the end of a permitted stay and found, based on his oral evidence, that he had little incentive to return to Malta. It considered all other relevant matters under cl 600.211(c).
The Tribunal affirmed the decision not to grant the applicant a Visitor visa.
GROUNDS OF JUDICIAL REVIEW
In the application for review filed on 16 December 2019 the applicant sought the following final orders (errors in original):
1.I was waiting for the decision and they took almost 2 years and they refuse it – I didn’t expected
2.after all this time waiting –
3.all what I want to leave in this country in legal way so if I might to come back in the future I can –
The grounds of judicial review stated (errors in original):
1.I have a friend which he offer me his help while I’m waiting a final decision
2.his name [redacted] No. [redacted]
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that the respondent’s written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
The matter was set down for hearing on 10 December 2024 and parties were reminded to comply with the procedural orders of Registrar Van Der Westhuizen of 7 December 2023 which specifically required the applicant to file and serve written submissions 28 days before the hearing.
On 10 November 2024 the applicant emailed the Court and amongst other things, expressed the following:
·The applicant’s original intention in coming to Australia was to discover the country and “strength” his English.
·The applicant applied for a “FA600” visa so that he could study as his original visa conditions did not permit study and work.
·The applicant’s friend allegedly offered to pay all of his expenses but the applicant is unable to prove this as “they only asked for bank statements” which proved that he had enough to study and work.
·The applicant had a relationship with a woman in Australia and he now has a son who is almost four years old. The applicant appealed to the Court that his son is one of the reasons he would like to stay in Australia.
·The applicant would like to stay legally in Australia.
At hearing, the Court received the email sent on 10 November 2024 as the applicant’s written submissions and ordered that they be officially lodged on the Court’s portal.
The applicant told the Court he just wanted to stay in Australia as he is looking for a life in a place where there is peace. He stated he loved Australia and wants to be able to support himself legally. While he is now separated from his former partner, he is able to see his son on a regular basis. His son is now a particular reason why he wants to stay in Australia permanently.
The applicant was reminded that these matters only went to merits review which the Court could not undertake. Asked if there was any legal or jurisdictional error in the Tribunal’s decision he answered ‘No”. He was then asked if he wanted to withdraw his application, and after some discussion told the Court he would rather the Court make a decision.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent construed ground one of the application as the applicant’s complaint that he waited almost two years for the decision and he would like to leave the country legally so he can come back in the future. Ground two is taken to be the friend’s phone number provided by the applicant under the “Grounds of review” section.
The first respondent submitted that, insofar as grounds one and two can be taken to be grounds of review, they lack particulars or further explanations and on that basis are liable for dismissal as provided by the authorities; (see: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] as upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969; Palu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1736 at [32]).
As to ground one, the delay between the filing of the applicant’s application on 3 April 2018 and the Tribunal decision on 27 November 2019 does not give rise to jurisdictional error. It is not clear how this delay demonstrates that the Tribunal went beyond its jurisdiction. Further, the first respondent argues that whilst the Tribunal is required to pursue a review that is “quick”, as required by s 2A of the Administrative Appeals Tribunal Act 1975 (Cth), that requirement is to be viewed as “merely aspirational and does not provide a source of enforceable rights and obligations”, citing Doan v Minister for Home Affairs [2019] FCA 1172 at [49].
There is no evidence before the Court to suggest that the applicant requested or required that his case be expedited, nor that without the alleged delay, the outcome reached by the Tribunal would be different.
The Tribunal decision was made one day after the scheduled hearing which negates any argument that the applicant was denied a proper opportunity to present his case. This ground is an invitation for the Court to engage in impermissible merits review and only demonstrates the applicant’s disagreement with the Tribunal’s adverse findings; (see: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
Ground two is submitted to be “wholly incapable of a beneficial reading” and must therefore fail
The Tribunal’s reasoning on the issues of cl 600.211(a) are cogent and based on the applicant’s oral evidence.
As the applicant has not demonstrated any jurisdictional error in the Tribunal’s decision, the first respondent submitted the matter be dismissed with costs.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
As noted by the respondent, if grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal; (see: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).
Ground one is a complaint that the applicant had to wait two years for the Tribunal to hear his matter and make a decision. He goes on to state that all he wants to do is to leave Australia in a legal way so that he might come back in the future if he can. This ground does not allege any jurisdictional error and is merely a statement of the applicant's intent. This ground, such as it is, has no merit.
What appears to be ground two is merely a statement that the applicant has a friend who was offering him help pending a final decision by the Court. Again, it does not allege any jurisdictional error and is incapable of being responded to by the Minister.
As the applicant is self-represented, the Court has perused the relevant Court Book together with the Tribunal decision but is unable to ascertain any unarticulated jurisdictional error.
DETERMINATION
In these circumstances, the Court has no option but to dismiss the application for judicial review.
The Court notes that it advised the applicant that he should seek relevant specialist advice as to what options he may have to remain in Australia, noting he now has a son who is an Australian citizen, who he has regular contact with, notwithstanding the fact he is separated from his former partner.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 17 January 2025
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