Bhullar v Minister for Immigration - [2005] FMCA 1783

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BHULLAR v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1783

MIGRATION – VISA – Bridging visa – application for review of a decision by the Migration Review Tribunal not to grant a bridging visa to the applicant – applicant applied for review of decision of the Refugee Review Tribunal – appeal to Full Federal Court heard and dismissed – applicant made application to Minister for Immigration & Multicultural & Indigenous Affairs under Migration Act 1958 s.417 – where Tribunal affirmed decision of delegate that security of $25,000.00 was appropriate – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.417, 475A

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Applicant:

GURLAL PREET SINGH BHULLAR

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2345 of 2005

Judgment of:

Scarlett FM

Hearing date:

16 November 2005

Date of Last Submission:

16 November 2005

Delivered at:

Sydney

Delivered on:

16 November 2005

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondent:

Ms Alex
Phillips Fox

ORDERS

That leave be granted to join the Migration Review Tribunal as second Respondent.
That the application is dismissed.
The Applicant is to pay the first Respondent’s costs fixed in the sum of $3,000.00 and I will allow (6) six months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2345 of 2005

GURLAL PREET SINGH BHULLAR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Migration Review Tribunal finding that the visa applicant is not entitled to the grant of a bridging E class WE visa. In addition, the Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to request a security of $25,000.00.
The applicant is currently an inmate of the Immigration Detention Centre at Villawood. On 23rd August 2005 he filed an application for review of the Migration Review Tribunal decision seeking an order that the decision should be quashed and that the matter be remitted to the Tribunal, and that the Tribunal redetermine the application in accordance with the law.
There was a further order sought which says:
In lieu of the said decision of the Migration Review Tribunal (MRT) that the matter be remitted back to the MRT for consideration in accordance with the law.
I am not persuaded that that order sets out anything which the applicant has not otherwise sought.
The applicant has told the Court today that what he particularly seeks is a visa that will give him the status of a permanent resident, although I have explained that the Court does not have the power to grant permanent residence status to an applicant for review of a decision of the Migration Review Tribunal.
The applicant has filed in court, without objection, a document entitled “Notice of Appeal” but which is in effect an amended application.

In that document the applicant said the Department of Immigration and Multicultural Affairs and the Minister have erred in not informing and warning the applicant in time about all of his options, also in that the Department did not provide the detainee himself with the appropriate application form to apply for a substantive spouse or parenting visa.
The applicant bases his application on the ground that the Court should consider the best interests of the child, which is set out at Article 3.1 of the Convention of the Rights of the Child. The applicant points out that he has been a resident in Australia for nearly seven years, and that he has a wife and a child who is now four years of age. He alleges that both the Minister and the Migration Review Tribunal failed to give adequate weight and meritorious value to the applicant’s submissions in relation to the best interests of the child.
He claims that his separation from his child is a source of detriment to the child as much as it is an emotional wrench for himself. He asked the Court what in fact the child had done to deserve to be deprived of his father.
The applicant annexed to the amended application documents relating to another detainee from Romania where the Federal Court had overturned a decision to cancel the applicant’s visa under s.501 of the Migration Act. The letter informed the officer in charge of Mobilong prison, Murray Bridge, South Australia that that particular person was no longer to be detained under the Migration Act upon the completion of his sentence. There is also annexed a copy of the decision by Justice Finn in those proceedings made on 12th October 2005 in Adelaide.
The applicant indicates that a similar situation should apply to him, although in my view the matter can be distinguished on the facts.

This is not a matter to which s.501 of the Migration Act applies.
The applicant had sought another visa and that application had been refused, and the applicant had sought review of that decision.

The current state of those proceedings, I am informed, is that on 1st September 2005 the applicant’s appeal was heard and dismissed by the Full Court of the Federal Court of Australia. There is no application for special leave to the High Court of Australia, and so apart from the application before me today there are no other judicial proceedings in force.
The applicant told the Court that he still wishes a bridging visa because he has made an application to the Minister for Immigration and Multicultural and Indigenous Affairs for the Minister’s intervention and the granting of a more favourable outcome under the provisions of s.417 of the Migration Act. He said that he has received a letter informing him that that application is being considered, but has not yet heard whether his application will be successful or not.
It is for those reasons that the applicant wishes to have the Court review the decision of the Migration Review Tribunal which resulted in his not being granted a bridging visa. I would comment that, although the applicant has been residing in Australia since 19th October 1998, he has not done so under the protection of a visa for that entire period of time. In fact, he entered Australia on 19th October 1998 on a student visa which ceased on 6th November 2000. He overstayed that visa, and has been in fact an unlawful non-citizen from 7th November 2000 until the present day.
He has received custodial sentences for a larceny offence, for which he served three months, and for the offence of being armed with intent to commit an indictable offence, for which he was convicted on 10th November 2003 and was sentenced to imprisonment for two years with a non-parole period of one year. The sentence expired on 24th November 2003 and he has been held in detention from the expiration of his criminal sentence.
The applicant has said that the Tribunal did not consider the matters relating to him, but considered only his criminal history. A perusal of the decision of the Migration Review Tribunal shows at pages 84 to 85 of the Court Book a recitation of all the material that the applicant is recorded to have stated in a post location interview at the Immigration Detention Centre at Villawood on 22nd June 2004, and at page 87 of the Court book the Tribunal provides a summary of the evidence given not only by the applicant, but also by his wife. The applicant has said that he would abide by conditions on a bridging visa, but is not able to raise $25,000.00. He believed that he may be able to lodge a security of $5,000.00, although he indicated to the Court today that he would need to borrow that amount of money. He suggested to the Court that that amount should be added to his accommodation account.
The applicant’s wife gave evidence to the Tribunal that the parties were married and that they have a four year old son, and if the applicant were released he would live with her in public housing. She would provide him with financial support. She is in employment and pays rent. She would in fact support herself, the applicant and their child.
To my mind the Tribunal has considered the factual matters relating to the applicant. It is of course the situation that the proceedings before me are a review of the decision of the Migration Review Tribunal, but are not a rehearing of the matter on the facts. This is not a bail review application where a Court considers the material de novo.
It is clear that the Tribunal has formed the decision that it did not accept the applicant’s evidence that he would abide by conditions 8101, 8401, 8505 and 8506. That is set out at page 89 of the Court Book. The Tribunal gave its reasons, that the applicant had ignored immigration law in Australia in the past; that he had also ignored criminal law in the past. In those circumstances the Tribunal said that it did not accept that in the future the applicant would abide by immigration law.
Those are factual findings that are within the province of the decision maker, and indeed it has been made clear by the High Court of Australia in the Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 that the only reliable guide to future behaviour is in fact past behaviour. The applicant suffered in the Tribunal’s consideration from the fact that he has been an unlawful non-citizen since November 2003, and that he has spent a total of

15 months in prison for two separate criminal offences.
The Tribunal did consider the applicant’s argument that he wished to be with his child, and that the Tribunal should consider the rights of the child. The Tribunal formed the view that the child would have the right to see the applicant whether or not he was granted a visa, although it would be clear that he would not see his father nearly as often, and that the child would remain living with his mother who was his primary care giver.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 30 November 2005