Baw16 v Minister for Immigration & Anor (No.2)
[2017] FCCA 3050
•7 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAW16 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2017] FCCA 3050 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a bridging visa – refusal of an extension of time for show cause application. |
| Legislation: Australian Citizenship Act 2007 (Cth) Migration Act 1958 (Cth), ss.48A, 48B, 85, 137J, 140, 345, 351, 417, 438, 477 Migration Regulations 1994 (Cth) |
| Cases cited: AVO15 v Minister for Immigration [2017] FCA 566 BAW16 v Minister for Immigration [2016] FCCA 2830 BEG15 v Minster for Immigration [2016] FCCA 2778 BEG15 v Minister for Immigration [2017] FCAFC 198 Minister for Immigration v Singh [2016] FCAFC 183 Minister for Immigration v WZARH (2015) 246 CLR 326 MZAFZ v Minister for Immigration [2016] FCA 1081 |
| Applicant: | BAW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2906 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 7 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr A Keevers of Sparke Helmore |
INTERLOCUTORY ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2906 of 2017
| BAW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 July 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a bridging E visa (bridging visa). Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 21 November 2017.
The applicant is a citizen of Egypt, and arrived in Australia on 11 October 2007 as the holder of a student (Class TU) (subclass 572) visa.[1] The applicant lodged an application for a protection (Class XA) visa on 19 June 2011, and when that application was refused, unsuccessfully sought Ministerial intervention under s.417 of the Migration Act 1958 (Cth) (Migration Act).[2]
[1] Court Book (CB) 12, 14, 54 [2]
[2] CB 54, [5]-[8]
Following the decision of the Full Federal Court in SZGIZ v Minister for Immigration,[3] the applicant lodged a fresh application for a protection visa on 11 February 2014.[4] That application was refused by a delegate of the Minister on 2 June 2014, and the decision affirmed on review by the Tribunal (differently constituted) on 3 March 2016.[5] The applicant sought review of that Tribunal’s decision in this Court.
[3] [2013] FCAFC 71; (2013) 212 FCR 235
[4] CB 1
[5] CB 30, 53
On 21 November 2016, I ordered that the decision be quashed and the matter remitted to the Tribunal for reconsideration.[6]
[6] CB 75; BAW16 v Minister for Immigration [2016] FCCA 2830 (BAW16)
Following the remittal of the matter, the applicant failed to attend the Tribunal hearing, and on 5 May 2017 the Tribunal proceeded to determine the review without giving the applicant a further opportunity to appear, pursuant to s.426A of the Migration Act.[7] The applicant did not seek judicial review of that decision by the Tribunal.
[7] CB 85, 90 [4]
On 18 July 2017, the applicant lodged with the Minister’s Department the application for the bridging visa the subject of the present proceeding.[8] On 19 July 2017, the delegate refused to grant the bridging visa.[9] The delegate noted that the applicant had foreshadowed the making of a fresh request for Ministerial intervention, but that as he had previously made such a request, he did not satisfy the requirements of clauses 050.212(5B), (6), (6AA), or (6B) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), and had not sought to satisfy any of the other bases for a bridging visa E set out in clause 050.212 of Schedule 2 to the Regulations.[10]
[8] CB 94-95
[9] CB 100
[10] CB 104
On 21 July 2017, the applicant lodged with the Tribunal an application for review of the delegate’s decision.[11] The applicant attended a hearing before the Tribunal on 28 July 2017 with the assistance of an Arabic interpreter.[12] On 31 July 2017, the Tribunal affirmed the decision under review.
[11] Annexure ALK-1 to the affidavit of Andrew Keevers affirmed 29 November 2017 (Keevers affidavit)
[12] Annexure ALK-2 to the Keevers affidavit
Relevant law
Clause 050.212(1) of Schedule 2 to the Regulations requires that, in order to be granted a bridging visa E, an applicant must satisfy one of the criteria in clause 050.212(2)-(9). In summary, an applicant will satisfy clause 050.212 if the Minister is satisfied that the applicant:
a)is making, or is the subject of, acceptable arrangements to depart Australia;[13]
[13] clause 050.212(2)
b)has made an application, which has not yet been finally determined, for a substantive visa of a kind that can be granted while the applicant is in Australia, or will apply for such a visa;[14]
[14] clause 050.212(3)
c)has made an application for a substantive visa (or is the family member of a person who has applied for a substantive visa) that can be granted if the applicant is in Australia, and there are unresolved proceedings in a Court or in the Tribunal in respect of that application;[15]
d)is a person to whom s.48A of the Migration Act applies, has made a request to lift the bar under s.48B, and has not previously made a request to lift the bar under s.48B of the Migration Act, or for Ministerial intervention under ss.345, 351 or 417 of the Migration Act;[16]
e)has made an application (or is a family member of a person who has made an application) for a declaration from a Court that the Migration Act does not apply to the applicant, or has made an application for judicial or merits review of a decision made under the Australian Citizenship Act 2007 (Cth) (Citizenship Act) and those proceedings have not yet been concluded;[17]
f)has made a request for the Minister to exercise his power under ss.345, 351 or 417 of the Migration Act, and has not previously made a request for Ministerial intervention pursuant to those sections, or for the Minister to lift the bar under s.48A of the Migration Act;[18]
g)is the subject of a decision by the Minister to substitute a more favourable decision under ss.345, 351 or 417 of the Migration Act, but cannot be granted a substantive visa because of a determination under s.85 of the Migration Act;[19]
h)holds a bridging visa E, satisfies the criterion in clause 050.212(6AA) and has a compelling need to work;[20]
i)holds or has held a bridging visa E, and the applicant’s request for Ministerial intervention under ss.345, 351 or 417 of the Migration Act is pending;[21]
j)is in criminal detention and no criminal justice stay certificate or warrant is in force;[22]
k)holds a bridging visa E granted as a result of the applicant making a valid visa application, made in Australia for a substantive visa that may be granted while the applicant is in Australia, the applicant is subject to condition 8101 and has a compelling need to work;[23] or
l)had made a valid application for a partner visa which was refused, and is the subject of judicial review proceedings that have not yet been completed.[24]
[15] clauses 050.212(3A), (4), (4AA) and (4A)
[16] clause 050.212(5B)
[17] clauses 050.212(4AAA), (4AA) and (4AB)
[18] clause 050.212(6)
[19] clause 050.212(6AA)
[20] clause 050.212(6A)
[21] clause 050.212(6B)
[22] clause 505.212(7)
[23] clause 050.212(8)
[24] clause 050.212(9)
Tribunal decision
The Tribunal identified the issue before it as being whether the applicant satisfied clause 050.212 of Schedule 2 to the Regulations.[25] The Tribunal was not satisfied that the applicant satisfied any of the criteria in clause 050.212, finding as follows:
a)the applicant had made no claim (and the Tribunal was not satisfied) that he intended to leave Australia, noting the applicant’s evidence that he did not wish to leave Australia.[26] Accordingly, the Tribunal found that the applicant did not satisfy clause 050.212(2);
b)there was no evidence before the Tribunal that the applicant had made an application for a substantive visa that had not yet been finally determined, nor that the applicant would apply for such a visa within a period specified for doing so.[27] The Tribunal was therefore not satisfied that the applicant met clause 050.212(3);
c)the Tribunal further noted that there was no evidence to suggest that the applicant had made an application for a visa that was the subject of judicial review; that the applicant had sought merits or judicial review of a decision to revoke or cancel a visa, for which he had sought merits review; that the applicant had sought a declaration that the Migration Act did not apply to him; or that he had sought review of a decision made under the Citizenship Act.[28] On this basis, the Tribunal found that the applicant did not satisfy clauses 050.212(3A), (4), (4AAA), (4AA) or (4AB);
d)similarly, the Tribunal noted that there was no evidence before the Tribunal that the applicant’s visa had been cancelled under ss.140 or 137J of the Migration Act, and therefore found that the applicant did not satisfy clauses 050.212(5) or (5A);[29]
e)the Tribunal noted that the applicant had sought to satisfy clause 050.212(5B), but had not, at the time of the hearing, made any request for Ministerial intervention.[30] The Tribunal found that there was no evidence to suggest that the applicant satisfied clauses 050.212(6), (6A), (6AA), or (6B);[31]
f)the Tribunal found that there was no evidence to suggest that the applicant satisfied clauses 050.212(7), (8) or (9), and concluded that the applicant did not satisfy clause 050.212 of the Regulations.[32]
[25] CB 110, [5]
[26] CB 110, [8]
[27] CB 111, [10]
[28] CB 111, [11]-[13]
[29] CB 111, [15]
[30] CB 112, [19]
[31] CB 112, [20]
[32] CB 112, [21]-[24]
The Tribunal further found that the applicant did not satisfy the criteria for the grant of a subclass 051 (bridging (protection visa applicant)) visa.[33]
[33] CB 112, [25]
Having so found, the Tribunal affirmed the decision under review.
The present proceedings
These proceedings began with a show cause application filed on 19 September 2017. The applicant continues to rely upon that application. It was filed 15 days outside the 35-day time limit imposed by s.477(1) of the Migration Act. The applicant seeks an extension of time, pursuant to s.477(2) of the Migration Act.
As the Minister notes in his submissions, the matters to which the Court may have regard in considering whether to extend time under s.477 are unconfined, although the Court commonly has regard to the extent of the delay, whether there has been a reasonable and adequate explanation for the delay and whether the substantive application has sufficiently arguable grounds to support the extension of time application, as well as any issue of prejudice to the respondents. The Minister’s submissions refer to the Federal Court decision of SZTES v Minister for Immigration.[34]
[34] [2015] FCA 719, per Wigney J
In the present case, the delay is relatively short. Although he has not filed any affidavit evidence explaining the delay, the applicant refers in the show cause application to the difficulties he encountered in detention, where he was dependent upon help sought from a community organisation. He explained that difficulty in more detail from the bar table. I have no reason to doubt the truth of what he told me. I accept that the ordinary exigencies of life in detention, where the applicant has been since May, can explain a short delay in making application to the Court.
The particular difficulties encountered by this applicant, in particular that he was initially denied access to community support, in my opinion, provide an adequate explanation for the delay of 15 days. The respondents would not suffer any particular prejudice from the granting of an extension of time. Although, during the course of argument, I indicated that I was minded to grant an extension of time, the solicitor for the Minister pressed upon me the proposition that I should not do so without having regard to the legal merit of the show cause application. I acceded to that course.
In that regard, in addition to the court book filed on 6 November 2017 and the applicant’s affidavit filed with his show cause application, I have before me as evidence the affidavit of Andrew Lyall Keevers made on 29 November 2017 and a bundle of documents comprising a purported certificate issued under s.438 of the Migration Act, dated 20 December 2016, and copies of the documents purportedly covered by that certificate. That bundle of documents were tendered, and I received them as an exhibit.[35]
[35] exhibit R1
I received and examined those documents, consistently with the decision of the Full Federal Court in BEG15 v Minister for Immigration,[36] on the basis that my examination of the documents was necessary in order to determine whether there was any legal argument, apart from those advanced by the applicant, which called for the granting of an extension of time.
[36] [2017] FCAFC 198
The applicant also sought to tender two documents, which I marked for identification. The first is a bundle of documents from the New South Wales Police Force, which comprises a brief of evidence relating to a charge or charges against the applicant. The second is a letter to the applicant from the Minister’s Department, dated 13 July 2012. I do not consider that those documents have any relevance to this proceeding.
In his oral submissions, the applicant also referred to my earlier decision in BAW16. That decision concerned an earlier Tribunal decision in relation to a protection visa application made by the applicant and has no bearing on this case.
There is nothing in the grounds advanced in the show cause application which points to any arguable case of jurisdictional error by the Tribunal. The grounds are simply unparticularised assertions. In my opinion, the Tribunal addressed all of the material criteria for the grant of the bridging visa and found that the applicant did not satisfy any of them. There does not appear to have been anything unfair in the process followed by the Tribunal. Plainly, the conclusions reached by the Tribunal were open to it on the material before it.
The Minister has raised the issue of the purported certificate. The Minister concedes that this certificate is invalid. I agree. As I have already noted, the certificate is dated 20 December 2016 and is directed to the district registrar of the Tribunal. The file reference, both at the top of the certificate and in the body of it, is a file concerning the applicant’s second protection visa application. It appears that the Minister’s Department intended that the certificate would bind the Tribunal in relation to its reconsideration of the applicant’s protection visa application following remittal from this Court. In my opinion, the certificate has no relevance to the present Tribunal decision.
I am satisfied, on the available material, that a new file was created by the Minister’s Department for the applicant’s bridging visa application. I am also satisfied that only that file was made available to the present Tribunal to review the delegate’s decision.[37] I infer that the present Tribunal was unaware of the purported certificate and of the documents purportedly covered by it, and hence the certificate and the documents referred to did not have any impact upon the Tribunal’s consideration and decision. I otherwise agree with the Minister’s submissions concerning the purported certificate.
[37] See [25] below
The certificate was in respect of 16 documents contained in the Departmental file relating to the protection visa application. The basis for the issue of the certificate was that:[38]
The disclosure of this information would be contrary to the public interest because the aforementioned folios contain information relating to an internal working document and business affairs.
[38] CB 77
The documents covered by the s.438 certificate relate first to the applicant having been charged with domestic violence offences and being the subject of an apprehended violence order in favour of his ex-girlfriend, and secondly in relation to the remittal of the Tribunal’s decision in respect of the protection visa application by this Court.
Having regard to the decision in MZAFZ v Minister for Immigration[39] (MZAFZ), I accept that the s.438 certificate was not validly issued. However, the present case can be distinguished from MZAFZ and Minister for Immigration v Singh[40] for the following reasons:
a)first, it does not appear that the documents subject of the s.438 certificate were actually before the Tribunal. The covering page to the Tribunal’s decision record only makes reference to the Departmental file ADF2017/70349. That Departmental file number corresponds with the bridging visa E application. There is no mention in the Tribunal’s reasons to the applicant’s protection visa application or the files relating to it;
b)secondly, and in any event, the disclosure of the certificate could not have made any difference to the Tribunal’s task.[41] The documents covered by the certificate were of no relevance, or at best “passing contextual reference” to the Tribunal’s decision:[42]
i)the documents relating to the applicant having been charged for domestic violence offences merely revealed that the applicant had been charged with an offence, become the subject of an apprehended violence order, and was due to appear in Bankstown Local Court on 15 December 2016 for a first mention. There is no record of the applicant having entered a plea or having been convicted of these offences, and certainly no suggestion that at the time of the bridging visa E application, he was in criminal detention and subject to a criminal justice stay or criminal justice warrant. Accordingly, the documents were irrelevant to the Tribunal’s consideration of clause 050.212(7);
ii)the document relating to the outcome in BAW16 was not “adverse to the applicant, relevant or significant to the decision to be made”.[43] Further, it is not apparent how this information could have made any difference to the Tribunal’s task.
[39] [2016] FCA 1081
[40] [2016] FCAFC 183
[41] BEG15 v Minster for Immigration [2016] FCCA 2778 at [63]-[68]
[42] AVO15 v Minister for Immigration [2017] FCA 566 at [91]
[43] BEG15 at [65]
In light of the above, it could not be said that applicant lost any opportunity to advance his case as a result of the Tribunal’s failure to disclose the existence of the s.438 certificate, nor that he suffered either detriment nor practical injustice.[44]
[44] Minister for Immigration v WZARH (2015) 246 CLR 326 at [57]
I conclude that the interests of the administration of justice do not call for the granting of an extension of time pursuant to s.477(2) of the Migration Act. I refuse that application, with the consequence that the show cause application is incompetent.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 8 December 2017
0
9
4