Bho17 v Minister for Immigration
[2018] FCCA 2257
•15 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHO17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2257 |
| Catchwords: MIGRATION – Visa – protection visa – where request for impermissible merits review – where applicant voluntarily left the country with no right of return – where no jurisdictional error demonstrated – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.65 Migration Regulations 1994 (Cth), cl.866.411 |
| Cases cited: Pilbara Infrastructure Pty Ltd and Anor v Australian Competition Tribunal and Ors (2011) 193 FCR 57 SZAOE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 100 Bolea v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 387 |
| Applicant: | BHO17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 114 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 7 August 2018 |
| Date of Last Submission: | 7 August 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 15 August 2018 |
REPRESENTATION
| The Applicant: | In person via phone |
| Solicitors for the Respondents: | Ms Milutinovic for Sparke Helmore Lawyers |
ORDERS
The application filed on 28 March 2017 is dismissed.
The applicant is to pay the first respondent’s costs fixed in the amount of FIVE THOUSAND DOLLARS ($5,000).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 114 of 2017
| BHO17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for constitutional writs with respect to a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 6 March 2017. That decision affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
There are two grounds of application as follows:
a)That the second respondent exceeded its jurisdiction in making its decision to affirm the first respondent’s decisions.
b)That the second respondent constructively failed to exercise its jurisdiction in arriving at its decision.
On 27 April 2017, the Registrar gave the applicant leave to file an amended application and affidavit by 23 June 2017. He was also given leave to file and serve such further material including the transcript of proceeding, if he sought to rely on such material. The applicant has not filed an amended application and has not filed any other materials. The applicant did not attend the hearing in person for reasons that I will explain later.
On 31 July 2018, the applicant sent an email to the Court setting out what I have treated as his written submissions in this matter. A copy of those submissions was provided by my chambers to the solicitors for the first respondent.
The applicant was self-represented. He attended at the hearing by way of a telephone link. At the time of the hearing, the applicant told the Court that he was in France. He had earlier emailed the Court to advise that he was living in Poland with his wife and children. The applicant left Australia a few days prior to the Court Book in this matter being filed. Counsel for the first respondent indicated from the bar table that the book was sent to the applicant’s last known address. The applicant indicated that he wished to rely on the materials in the Court Book, even though he did not have a copy of it in front of him. He also relies on his affidavit filed at the time that his application was filed. That affidavit annexes a copy of the decision of the Tribunal, but otherwise adds no matters of substance.
By way of brief background, the applicant arrived in Australia on 8 September 2007 and at that time held a student visa.[1] On 21 June 2010, he applied for a protection visa. That application was refused on 8 December 2010. He applied to the Refugee Review Tribunal to review the Department’s decision. The Refugee Review Tribunal affirmed the Department’s decision not to grant the applicant a protection visa. He then applied to the Federal Magistrates Court for judicial review of that decision. The Court dismissed that application. The applicant subsequently applied to the Federal Court of Australia and his appeal to that Court was also dismissed.[2]
[1] Court Book (‘CB’) p 400 at [3].
[2] CB p 400 at [5].
In 2012 and 2013, he made two unsuccessful applications for Ministerial intervention. The applicant was not barred from making a second application for a protection visa on the basis of the complimentary protection provision and accordingly he filed a second application on 13 September 2013. The applicant appeared before the Tribunal on 22 February 2017 to give evidence and present arguments. It is that decision from which these proceedings emanate.
The first respondent has filed an affidavit[3] confirming that as at 20 July 2018, the applicant’s status is recorded as ‘off-shore’. It establishes that the applicant departed Australia on 16 May 2017 and that his Bridging Visa E ceased on that day by virtue of his departure from this country. The first respondent asserts that on the basis of its records, the applicant does not hold a visa that would permit him re-entry into Australia. The applicant has not suggested otherwise. I accept that evidence.
[3] Affidavit of Ashleigh Allan, dated 26 July 2018.
Prior to submissions commencing, I explained the nature of a judicial review to the applicant in brief terms. His oral submissions and indeed his written submissions were all directed at the merits of his claim and why this Court should revisit the decision of the Tribunal. It is well-established that this Court is not able to conduct a merits review:
“It is not this Court’s function to resolve the difficult and complex matters of judgment raised by the evidence and resolved by the Tribunal. This Court’s role in reviewing the decision of the Tribunal is to ensure that the decision of the Tribunal accords with the law.”[4]
[4] Pilbara Infrastructure Pty Ltd and Anor v Australian Competition Tribunal and Ors (2011) 193 FCR 57 at [16].
It is not part of the supervisory jurisdiction of this Court to enter into a consideration of the factual merits of the individual decision.[5]
[5] Ibid.
Regrettably for the applicant, there is another more fundamental problem with his application and that relates to the fact that he has left this country.
As the Minister submits, cl.866.411 of the Migration Regulations 1994 (Cth) stipulates that an applicant must be in Australia in order for a protection visa to be granted. Counsel for the Minister referred me to a number of authorities were are conveniently summarised in SZAOE v Minister for Immigration & Multicultural & Indigenous Affairs.[6]The Minister submits that as the applicant is outside this country and has no right to return, his application is moot and futile. This was the position taken by the Full Court in Tchoylak v Minister for Immigration & Multicultural Affairs[7] and again in Bolea v Minister for Immigration & Multicultural Affairs[8]. Both of those cases dealt with circumstances in which an applicant had been removed from the country by the Minister. In this matter, the applicant voluntarily left the country. It is submitted by the first respondent in effect that given the applicant is outside this jurisdiction, he has no right of return. Even if this application were to be successful, the Administrative Appeals Tribunal would have no other option but to affirm the decision of the delegate and that for that reason this Court should refuse to grant relief because to do otherwise would be futile.
[6] [2004] FMCA 100.
[7] (2001) 111 FCR 302.
[8] (2001) 113 FCR 387.
I accept that submission. It is most unfortunate for the applicant that his present circumstances render these proceedings moot and futile. He made an impassioned request to the Court to consider his circumstances and those of his wife and his children, and assured the Court that in all the time that he had lived in Australia, he had been a good citizen. Those matters may well be true, but this Court does not have the power to grant the applicant a visa. I accept that this case is moot and it would be futile to issue constitutional writs.
I note that in the decision of SZAOE, Driver FM (as he then was) considered whether, notwithstanding the applicant was outside the jurisdiction, it was necessary for the Court to deal with the application “in order to provide normative guidance to the RRT”.[9] Having considered the decision record of the Tribunal, I am satisfied that there is no jurisdictional error apparent on the face of that decision and in the absence of any further particularisation, no jurisdictional error identified in the application filed by the applicant. I am satisfied that it is not appropriate for the Court to deal with this matter.
[9] SZAOE op cit.
Accordingly, I make the orders to be found at the beginning of these reasons.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 15 August 2018
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