Bhatti v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 971

FEDERAL COURT OF AUSTRALIA

Bhatti v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 971

Statutes

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth

HASSAN ASHFAQ BHATTI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q75 of 2003

KIEFEL J
BRISBANE
4 SEPTEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q75 OF 2003

ON APPEAL FROM A DECISION BY THE MIGRATION REVIEW TRIBUNAL

BETWEEN:	HASSAN ASHFAQ BHATTI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	KIEFEL J
DATE OF ORDER:	4 SEPTEMBER 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application for review be dismissed.

2.        The applicant to pay the respondent’s costs of the proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q75 OF 2003

ON APPEAL FROM A DECISION BY THE MIGRATION REVIEW TRIBUNAL

BETWEEN:	HASSAN ASHFAQ BHATTI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	KIEFEL J
DATE:	4 SEPTEMBER 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant, Mr Bhatti, is a national of Pakistan.  He arrived in Australia in July 1998 and was then the holder of a student visa sub-class 560.  It is said to have ceased in effect in July 2000.  He has been in immigration detention since June 2002. 

2. The applicant applied on 25 July 2002 for a protection visa and this was refused.  This decision was affirmed by the Refugee Review Tribunal (‘RRT’) on 12 March 2003.  More relevantly, he has also applied for bridging visas.  The applications of 19 June 2002 and 12 August 2002 were refused.  On 26 August 2002, the Migration Review Tribunal (‘MRT’) remitted the second application to the Department on the condition that security in the sum of $5000 was lodged.  He was unable to lodge that security, he tells me.  In any event, it was not lodged and he subsequently sought the Minister’s intervention. 

3. The applicant applied again on 18 March 2003, referring to a previous grant of a visa and asking that the sum for security be reduced to $3000.  The Tribunal again affirmed the decision that he was not entitled to the relevant visa, a Bridging E (class WE) sub-class 050 Bridging (General) visa.  It also affirmed the decision not to request a security.

4. On 12 May 2003, the applicant applied again for the same type of bridging visa and it was refused by the delegate on 13 May 2003.  On 16 May 2003 , advice was given that the Minister had decided not to further consider his request.  When the matter came before the MRT on 20 May 2003, the Minister’s decision, as I have said, had been advised.  The Tribunal considered the question of review of the delegate’s decision but affirmed it on 21 May 2003.  It is that review which is now in question.

5. It would appear from the Tribunal’s reasons that it was aware of the history of the applications.  It was aware that the applicant had married an Australian citizen in July 2000 but was separated from her; that he had formed another relationship with Ms Taylor, who had borne him a child in November 2002.  Prior to his detention, they had been living together and she has visited him whilst he was in detention.  They had been unable to afford the security required.  If released, it was said that he would be able to reside with her and her parents.  The Minister had advised the applicant that he had declined to intervene in his case.  All of these matters were referred to by the Tribunal.  It was apparent to the Tribunal that the applicant was not making arrangements to leave Australia. 

6. The Tribunal observed that the applicant could no longer be said to meet an essential criterion, namely that the Minister was in the process of considering his matter with a view to substituting a more favourable decision:  Migration Regulations, cl 050.221, 050.212(6).  The Tribunal also considered that he did not meet any of the other criteria of clause 050.212 and could not therefore satisfy the requirements of 050.221.  I do not propose to set those provisions out.

7. The application to this Court is said to be brought under s 39B of the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth). It qualifies as a privative clause decision under the latter Act. It is not possible to discern any basis for relief from the application form itself. It is necessary to put to one side the relief which is said to be sought, namely, that Mr Bhatti be granted a bridging visa on the basis of his circumstances. As I have attempted to explain to him, it is not an order that the Court is able to grant.

8. The Court is not in a position to consider whether it thinks he should have a bridging visa.  Its role is very limited.  It is limited to considering whether or not the Tribunal was in error in a legal sense in the way in which it went about the application and in determining it.  The grounds Mr Bhatti gave for the application were in these terms:

   ‘I have applied in the High Court of Australia for a leave/special leave against Refugee Review Tribunal, but according to my recent MRT report it has been rejected because I have not applied before in a lower Court.  I could not do so because my time limit expired’.

9. Since first filing the application in this Court, Mr Bhatti has been provided with pro bono assistance, though limited to obtaining advice as to his application.  It did not extend to representation upon the hearing and he now appears unrepresented.  He has, however, been provided with a copy of the relevant provisions of the Migration Act and Regulations. 

10. The reference in his application to the High Court is a reference to his attempt to apply to the High Court with respect to the RRT decision.  It was not, however, accepted for filing, a matter which was referred to by the MRT in its decision now under review.  It was therefore correct when as it implicitly observed that there was no substantive application or appeal with respect to his application for refugee status then on foot. 

11. Mr Bhatti has since, in very recent times, sought to file an application in this Court to review the RRT decision.  It is well out of time and the time limits under the Migration Act are strict.  He has considered whether or not to purchase an airline ticket and return to Pakistan with his family, but there are difficulties attendant upon this and in any event he has not done so.

12. The facts are that the Minister had, at the time the Tribunal determined this matter, declined to intervene in Mr Bhatti’s matter.  The Tribunal could not therefore be said to have been wrong about the satisfaction of that criterion.  Mr Bhatti also did not satisfy the other criterion which he now seeks to make relevant, namely, that there was then a substantive Court proceeding on foot which had not yet been heard and determined.  Whether the Tribunal was in error must be judged at the time of its decision.

13. Mr Bhatti’s very recent application to this Court, seeking review of the RRT, is a matter yet to be considered by a Judge, although there would appear to be some doubt about whether he will be able to pursue them.  That application does not however establish error in the Tribunal’s decision concerning the bridging visa application.

14. The application for review will be dismissed, with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:             16 September 2003

For the Applicant:	In Person
Counsel for the Respondent:	Mr P Bickford
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	4 September 2003
Date of Judgment:	4 September 2003