BDR16 v Minister for Immigration

[2016] FCCA 2278

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDR16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2278

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal (Tribunal) – Tribunal affirmed decision of delegate of Minister not to grant applicsant Bridging E (Class WE) visa – whether application discloses arguable case for the relief it seeks – whether given the applicant is outside Australia, and the applicant has no right to re-enter Australia there is no arguable case the applicant will be entitled to relief even if the Tribunal will be held to have made a jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court of Australia Act1999 (Cth), s. 44

Federal Circuit Court Rules 2001 (Cth), r. 44.12(1)(a)
Migration Act 1958 (Cth), s. 198
Migration Regulations 1994 (Cth), Schedule 2, cl. 050.212(2), 050.223, 050.411

Cases
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317

Applicant: BDR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1197 of 2016

Judgment of: Judge Manousaridis

Hearing date: 19 August 2016

Delivered at: Sydney

Delivered on: 19 August 2016

REPRESENTATION

Ms F. Najjarine appeared on behalf of the applicant, with leave.

Solicitors for the Respondent:

Ms B. Griffin of

Australian Government Solicitors

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1197 of 2016

BDR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. On 13 May 2016 the applicant, a national of Lebanon, filed an application in this Court seeking judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Bridging E (Class WE) visa.  On 20 July 2016, in circumstances that I will shortly set out, I directed that the application be listed before me today for a show cause hearing. To understand the issues that I must consider today it is necessary to set out some background.

2. The applicant arrived in Australia on 25 August 2012 on a subclass 675 visa that was valid for one month. The applicant, however, did not depart Australia within that month.  Instead, he applied for a protection visa.  A delegate of the Minister refused that application on 31 January 2013 and the Refugee Review Tribunal affirmed the delegate’s decision on 6 November 2013.  The applicant did not, however, depart Australia or otherwise seek to regularise his immigration status in Australia.  On 23 July 2015 the applicant approached the Department of Immigration and Border Protection (Department) and was granted a Bridging visa E. On 30 July 2015 the applicant applied to the Minister for intervention.  That application was unsuccessful. The consequence was that the applicant’s Bridging visa E was due to cease on 12 January 2016.  The applicant, however, did not depart Australia by that date and he did not attempt to regularise his immigration status.

3. On 6 April 2016 the applicant was located residing at an address in Bankstown, and was detained as an unlawful non-citizen.  On 7 April 2016 the applicant signed a document titled “Request for removal from Australia”. One consequence of the applicant doing that is that it engaged s.198(1) of the Migration Act 1958 (Cth) (Act) which provides:

   An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

4. On 20 April 2016 the applicant applied for a Bridging E (Class WE) visa. To have been entitled to such visa, the applicant had to satisfy the Minister, among other things, the criterion specified in cl.050.212(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) which provides:

   An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

5. Also relevant is the criterion prescribed by cl.050.223 which provides:

   The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.

6. On 21 April 2016 a delegate of the Minister refused to grant the applicant a Bridging E (Class WE) visa. On 26 April 2016 the applicant applied to the Tribunal for review of the delegate’s decision. The applicant appeared before the Tribunal on 3 May 2016. 

7. In support of his application, the applicant provided a copy of his passport that showed that it had been stamped as valid for 12 months from 25 June 2015. The applicant and his brother informed the Tribunal that a ticket had been purchased for the applicant’s departure from Australia on 29 May 2016.  The Tribunal was provided with a copy of a document which is titled “Itinerary” that provided details of a flight and a booking number.  The document also referred to the need to pay a fee if any aspect of the ticket were to be changed. 

8. The Tribunal was not satisfied that at the time he applied for the visa the applicant was making, or was the subject of, acceptable arrangements to depart Australia. The Tribunal was not satisfied because the applicant had not provided a copy of the ticket the applicant and his brother claimed had been purchased or any evidence that a ticket had been paid for.  The Tribunal also noted that it was open to the applicant to alter his flight arrangements.  The Tribunal was also not satisfied that the applicant would abide by conditions that would be imposed if a bridging visa were granted. The Tribunal was satisfied that the following conditions would be imposed:

   ·8101  The holder must not engage in work in Australia.

   ·8401  The holder must report:

   (a)at a time or times;  and

   (b)at a place;

   specified by the Minister for the purpose.

   ·8505 The holder must continue to live at the address specified by the holder before grant of the visa.

   ·8506 The holder must notify Immigration at least two working days in advance of any change in the holder’s address.

   ·8564   The holder must not engage in criminal conduct.

9. The Tribunal, however, was not satisfied the applicant would abide by those conditions. The Tribunal noted the applicant expressed regret that he had not complied with Australia’s immigration laws, but, based on the applicant’s immigration history, the Tribunal was not satisfied the applicant would comply with those laws in the future.  The Tribunal also referred to the applicant’s brother’s willingness to support his brother and his offering security. The Tribunal was not satisfied, however, that such financial support was available or that any amount of security will act as an incentive for the applicant to comply with Australia’s immigration laws.

10. The applicant commenced these proceedings on 13 May 2016.  A first court date was appointed on 30 June 2016.  The applicant, however, did not appear.  In the meantime, on 24 June 2016, he booked a flight ticket under which he was to depart from Sydney on 5 July 2016.  On 27 June 2016 the applicant signed a document “Consent to use ticket for removal”.  In that document, the applicant confirmed he was the holder of the ticket identified in the form being a ticket to fly to Beirut.  The form provided that the applicant consented to the Department applying the applicant’s ticket for or towards conveyance of the applicant from Sydney to Beirut.

11. I mentioned that the applicant did not appear on the first court date on 30 June 2016. It appears that that was due to Serco Immigration Services overlooking a request that had been made to it on 14 June 2016 that it arrange for the applicant to appear before the Court.  The matter was adjourned to 14 July 2016.  By that day, however, the applicant had departed Australia.  He departed Australia on 5 July 2016. 

12. The matter came before me on 20 July 2016.  On that day, a lady who described herself as the sister-in-law of the applicant appeared and she said that she wished to pursue the proceeding on behalf of the applicant.  I directed that the matter be set down for a show cause hearing today and directed that the applicant file and serve all affidavits on which he intends to rely.  Pursuant to those directions, the applicant, through his sister-in-law, filed an affidavit which was made by the applicant’s sister-in-law.

13. There was a threshold issue that I had to determine when the hearing commenced before me today, and that is whether the applicant’s sister-in-law should be permitted to represent the applicant. The Minister submitted that the applicant’s sister-in-law was not entitled to represent the applicant. The Minister referred to s.44 of the Federal Circuit Court of Australia Act1999 (Cth).

14. There is no doubt that the applicant’s sister-in-law has no right to represent the applicant.  However, it is within the Court’s discretion to permit the applicant’s sister-in-law to do that.  The applicant’s sister-in-law said from the bar table that she had regular communications with the applicant, and that the applicant was aware that the applicant’s sister-in-law was seeking to represent him in the proceedings and, in particular, in the hearing today.  Ms Griffin, who appeared for the Minister, said it was unnecessary to require the applicant’s sister-in-law to give that evidence on oath and was prepared to accept that what was said from the bar table was true.  I, too, accept that what the applicant’s sister-in-law said from the bar table is true and, on that basis, I made an order granting her leave to represent the applicant at today’s hearing. 

15. That brings me next to the affidavit of the applicant’s sister-in-law that was filed pursuant to the directions I made on 20 July 2016.  The Minister objected to my reading that affidavit on the grounds of relevance.  I read the affidavit subject to reserving my decision on that objection and I proceed to give my reasons and ruling on that matter now.

16. In substance, the sister-in-law’s affidavit deals largely with the circumstances in which the applicant departed Australia.  In broad terms, she asserts the applicant had booked a ticket to depart on 30 June 2016, believing that the proceeding in this Court would be completed by then.  What had occurred, however, according to the sister-in-law’s affidavit, is that on 22 June 2016 a removal officer from the Department informed the applicant that he needed to depart on 4 July 2016 and that if the applicant would not be able to arrange that, the Department would arrange it.  The applicant then arranged to obtain a ticket under which he was due and did depart on 5 July 2016.  The sister-in-law claims that the applicant’s departure was not voluntary.  She further claims that the Department’s actions were motivated to prevent the applicant from maintaining his application.  She seeks an order that, in effect, the Minister arrange to have the applicant brought back to Australia. 

17. The ground on which the Minister objects to my reading the affidavit is relevance.  The affidavit seeks relief which is not claimed in the current application. And no application has been made to amend it.  For that reason alone, I find that the affidavit is irrelevant to the matters I have to consider on the hearing today.  I should note, however, that on the material disclosed in the affidavit, there is no arguable case that the applicant was coerced, at least in a legally relevant sense, to leave Australia, or that the Department took steps for the applicant to leave because it wished to defeat what would otherwise be a meritorious claim.  In that regard, it is relevant that on 7 April 2016 the applicant did request that he be removed; and he also signed the consent document to which I have already referred.  Further, if the applicant believed that he was coerced, then he had the opportunity, and ample opportunity, to apply to this Court for injunctive and other relief restraining the Minister from taking steps to remove him from Australia. 

18. This then leads me to consider whether the applicant has an arguable case for the relief he seeks in the application. I will consider this on the assumption that the applicant was not coerced to leave Australia. Before I look at each of the grounds, I must deal with the Minister’s submission that the applicant has no arguable case for relief because even if he were to establish jurisdictional error by the Tribunal, there is no arguable case that the applicant would be granted relief because the granting of relief would be futile. And the reason relief would be futile is that it is a criterion under cl.050.411 of Schedule 2 to the Regulations, which appears under the heading “Circumstances applicable to grant”, that:

    The applicant must be in Australia but not in immigration clearance. 

19. The plain reading of that criterion is that, at the time a bridging visa is to be issued, the person applying for the visa must be in Australia, albeit not in immigration clearance. There is no question that the applicant in this proceeding is out of Australia. There is no suggestion that he has a visa to enter Australia. That means that if the decision of the Tribunal were to be set aside, the applicant would, as a matter of certainty, be unable to satisfy the criterion contained in cl.050.411. That has the consequence that he would not be granted a bridging visa. In my opinion there is no arguable case the applicant would obtain any relief even if he were to succeed in establishing the Tribunal made a jurisdictional error on any one or more of the grounds set out in the application. For that reason alone, the application should be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). Notwithstanding this conclusion, and in defence to the submissions that were made by the applicant’s sister-in-law, I will consider whether each of the grounds on which the applicant relies would have disclosed an arguable case for relief, assuming it would not be futile to grant such relief.

20. There are six grounds of application contained in the application filed on behalf of the applicant.  The first is: 

    The Tribunal made a decision contrary to the evidence presented.

    Particulars: 

    (a)     The Tribunal was provided with record of interview with valid passport and intention to genuinely making arrangements to depart Australia, as it appeared in attachment and signing detainee induction pack receipt that he intends to depart; 

    (b)     The applicant provided airline ticket which in itself is a fully paid ticket and contrary to the comment by the Tribunal the ticket was fully paid and any change of date will be a charge of $250 if the date is other than 29 May 2016.  The Tribunal assumed that the presented ticket had not been paid for or issued.  Such assumption is wrong.  

21. The Minister submits that this raises no jurisdictional error, or no arguable case of jurisdictional error because it was reasonably open to the Tribunal to conclude that there was no evidence of a ticket having, in fact, being purchased or paid for. 

22. The effect of ground 1 is that the Tribunal overlooked evidence.  As I read it, it claims the Tribunal failed to find the applicant had obtained a fully paid ticket.  It is, in effect, a claim that the Tribunal acted irrationally in not being satisfied that there was evidence before it that the applicant purchased a ticket under which he was due to depart on 29 May 2016 and which has been paid. 

23. In my opinion, ground 1 does raise an arguable case of jurisdictional error.  The Tribunal said in its reasons that there was nothing to indicate the ticket had been paid or issued.  When one looks at the document the Tribunal said was an itinerary, there appears the words “ticket not refundable.”  That would indicate money had been paid, or I should say arguably indicate money had been paid, and that a ticket issued.  Further, there is an arguable case that the document is the sort of document that is issued when tickets are bought, as they are increasingly bought, over the internet.  It is a common experience that even on international flights, one need only provide to the airline counter where one presents himself or herself to obtain a boarding pass, a booking number and passport, and once those items are presented a boarding pass is issued.  In my opinion, there is also an arguable case that the error, although one of fact, was sufficiently serious to have affected the proper exercise of the Tribunal’s jurisdiction (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111]).

24. Ground 2 provides as follows:

    There is no adverse information, at the time for applying for bridging visa E, that the applicant does not genuinely intend to return overseas.  The member of the Tribunal failed to provide any comment or request any information prior to making the decision, which is unreasonable based on not taking into account that the applicant wishes to depart and wishes to see his nephews and farewell them from home and not from detention as a deportee. 

25. This ground appears to allege the Tribunal failed to take into account the applicant’s desire to see his nephews and farewell them.  And the Tribunal made no comment or request about the applicant’s desire in that regard.  In my opinion, this does not raise an arguable case of jurisdictional error.  The Tribunal did consider those matters.  In paragraph 26 of its reasons for decision the Tribunal refers to the applicant’s claiming he wanted to be released from immigration detention to spend time with his brother and his brother’s family before he leaves.  The Tribunal did not accept that as being a reason to grant the visa, noting that the applicant has lived with his brother and sister-in-law for much longer than was originally intended and that the applicant has had ample opportunity to spend time with his brother’s family already. 

26. Ground 3 is as follows:

    The Tribunal, even though it considered the applicant’s past immigration history yet failed to take into account that the migration agent died and there are mitigating circumstances justifying the breach and that the applicant also has shown contrition to his unlawful conduct and intention to depart, which includes valid passport as well as paid airline ticket, which cannot be denied because the document presented to the Tribunal is in itself a fully paid ticket and the applicant’s brother offered to pay a bond, and willingness to support the applicant, the Tribunal failed to verify that the document provided it a genuine airline ticket and that the company which on its face purported to issue the ticket was not contacted regarding the ticket which is definite and genuine. 

27. This ground complains that the Tribunal failed to take into account a number of items of information, and these were that the agent died, that the applicant had shown contrition, and that the applicant had provided evidence that he had obtained a fully paid ticket.  In addition, it claims that the Tribunal failed to verify from the issuer of the itinerary that a ticket had, in fact, been paid.  This ground discloses no arguable case of jurisdictional error.  As for the applicant’s reference to his agent dying, the Tribunal referred to the applicant’s saying that in paragraph 8 of its reasons, and the Tribunal dealt with it at paragraph 27 of its reasons.  The Tribunal there said that it “finds the applicant’s reasons for his remaining in Australia unlawfully unconvincing.” It is beyond argument that the Tribunal’s finding in that regard was open to it, bearing in mind the matters the Tribunal identified in paragraph 24 and the matters it says at paragraph 25 it had regard to.  The Tribunal also referred to and noted and took into account the applicant’s expression of contrition.  As for the fully paid ticket, that overlaps with ground 1 and I have already given my opinion on whether there was an arguable case the Tribunal made an error in concluding there was no such evidence before it. 

1. As for the complaint that the Tribunal failed to make an inquiry that discloses no arguable case for jurisdictional error, although there are limited circumstances in which a Tribunal might be obliged to make some inquiry, there’s no reasonably arguable case that this is one such circumstance. 

2. I then turn to ground 4 which provides as follows: 

   The tribunal assumed the Australian brother’s financial support is not available and that any amount of security will act as an incentive for the applicant to comply with visa conditions.

3. This discloses no arguable case of jurisdictional error. It is beyond argument that it seeks merits review.  There is no arguable case that the Tribunal assumed anything.  The Tribunal simply was not satisfied that security could be provided and in any event, it was not satisfied that security that would be provided would afford sufficient incentive for the applicant to comply with Australia’s immigration laws.  Given the other matters to which the Tribunal referred in its reasons for decision, it is beyond argument that it was reasonably open to it not to be satisfied of those matters. 

4. Ground 5 is as follows:

   The tribunal member acted unreasonably and for that reason, the applicant is lodging the application in court as believing that the decision is not logical and unreasonable and is made contrary to the facts and uncontested evidence before the department as well as detention officers as well as Administrative Appeals Tribunal.

5. If one excludes the Tribunal’s treatment of the itinerary document, this ground does not disclose an arguable case.  Apart from what I have said about the itinerary document, all other conclusions which the Tribunal arrived at were open to it.  That needs to be qualified, having regard to the fact that I have found that there is an arguable case that the Tribunal made a jurisdictional error to the extent it found there was no evidence that a ticket had been purchased. 

6. And finally, there is ground 6 which is as follows:

   The tribunal ignored the information provided by the migration agent dated 23 April 2016 and 2 May 2016, as at the time of the hearing, the tribunal did not have the information included such as validity of passport and airline ticket.

7. To the extent this ground complains that the Tribunal mistakenly found there was no evidence of a ticket having been purchased by the applicant, it discloses an arguable case for relief.  However, outside of that evidence, the ground discloses no arguable case for relief. 

8. As I have said, I have considered each of these grounds on the assumption that the granting of relief would not be futile.  However, as I have already found, there is no arguable case that the applicant would obtain relief even if he were to establish jurisdictional error.  What that means overall, and as I have already concluded, is that I am of the opinion that the application has no arguable case for the relief the applicant seeks and that the application should be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 26 August 2016