Bidiwala v Minister for Immigration
[2007] FMCA 1027
•8 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BIDIWALA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1027 |
| MIGRATION – Application for subclass 686 tourist visa – applicant must first satisfy the Minister that the expressed intention “only to visit Australia” is genuine. |
| Migration Act 1958 (Cth), ss.359A, 357A, 360, 474, 476 Migration Regulations 1994 (Cth), reg.686.221 |
| Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 492 Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 257 |
| Applicant: | SOHIEL MASSOM ALI BIDIWALA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 670 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 8 June 2007 |
| Date of Last Submission: | 8 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Ms S. Palaniappan of DLA Phillips Fox. |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $3,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 670 of 2007
| SOHIEL MASSOM ALI BIDIWALA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 26 February 2007 for an order to show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act (“the Act”) in respect of a decision of the Migration Review Tribunal (“the Tribunal”) that affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a Long Stay (Visitor) (Class TN) visa.
The applicant was born in India on 4 June 1974 (“the applicant”).
Applicant’s visa history
Details of the applicant’s visas and relevant dates are as follows:
·The applicant arrived in Australia on 21 June 1998 on a subclass 686 tourist visa valid until 21 September 1998 (CB 167).
·On 17 September 1998 and 15 April 1999 he was granted further subclass 686 visas, the later valid to 21 June 1999.
·On 18 June 1999 the applicant applied for a long stay visitor visa (class TR). In a statutory declaration attached to the application, the applicant claimed that his exceptional circumstances justified the grant of the visa (thereby satisfying reg.686.221(2)(g)(v)). The applicant claimed that his sister (who was awaiting determination of a business visa application) “would not be able to survive by herself [in Australia] without my assistance” (CB 7-8).
·On 18 June 1999 the applicant was granted a bridging visa A, valid until 29 July 1999.
·On 24 June 1999 his application for a long stay visitor visa (class TR) was refused. However, the applicant was not notified validly of the decision until 31 May 2006 (CB 30).
·On 22 July 1999 the applicant applied for a protection visa and was granted a bridging C visa valid until 5 December 2000.
·On 13 September 1999 the applicant’s application for a protection visa was refused and he lodged an application for review with the Refugee Review Tribunal (RRT).
·On 31 October 2000 the RRT affirmed the delegate’s decision not to grant the applicant a protection visa.
·On 16 January 2001 the applicant was granted a bridging visa E, valid until 18 July 2003. The applicant joined the Muin/Lie class action but withdrew on 20 June 2003.
·After 18 July 2003 the applicant became an unlawful non-citizen, until he was located working on 25 May 2006 (CB 167).
·On 25 May 2006 a delegate of the Minister cancelled the applicant’s bridging visa that had been granted on 18 June 1999 and ceased on 29 July 1999.
·On 25 May 2006, 30 May 2006 and 16 June 2006 the applicant was granted bridging E visas.
·On 31 May 2006, the applicant was notified validly of the delegate’s decision of 24 June 1999 to refuse to grant a subclass 686 tourist visa.
·
On 7 June 2006 the applicant filed an application for review of the decision of the delegate with the Migration Review Tribunal. The applicant gave oral evidence before the Tribunal on
20 October 2006.
·On 5 February 2007 the Tribunal handed down its decision affirming the decision of the delegate not to grant the applicant a subclass 686 tourist visa. In considering the applicant’s claims, the Tribunal found (CB 170-2) (highlighting added):
32. The findings are based on the evidence contained in the files of the Tribunal and the Department.
33. As stated above, subclause 686.221(1) requires the visa applicant to meet the requirements set out in paragraphs (2), (3) or (4). A requirement for subclauses (2), (3) or (4), to be met by the visa applicant at the time of this decision, is that the expressed intention of the applicant only to visit Australia is genuine. Clause 8 of Ministerial Direction No. 1 sets out the relevant considerations for testing whether an applicant intends a genuine visit and is set out below with a discussion of the evidence and circumstances of the present case. The Tribunal notes that under section 499 of the Act the Tribunal is bound to follow the Minister’s written directions except where those directions are inconsistent with the Act or Regulations. In Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 492 Emmett J considered that the role of such Ministerial Directions was to impose an obligation on a person performing a function or exercising a power to which section 499 applies, quite unlike policy, which was a matter to be taken into account by the Tribunal. This view was affirmed on appeal by a majority of the Full Federal Court (Whitlam and Gyles JJ) in Rokobatini v Minister for Immigration & Multicultural Affairs (1999) 57 ALD 257.
(a)The level of personal, financial, employment and other commitments which may induce the applicant to return to his or her country of usual residence.
34. The visa applicant has been in Australia since June 1998. He lives with his spouse and 2 children in Australia. He is employed currently at Amcor and was previously employed by Amcor.
(b)Circumstances which may induce the applicant not to return to his or her country of usual residence, including
. military service commitments
. unemployment
. economic situation
. civil disruption, including war or political upheaval, or. circumstances causing severe disruption to the supply of goods and services, or to employment.
35. The visa applicant has been living in Australia since June 1998 and whether he could obtain employment in India is unknown.
(c)The credibility of the applicant in terms of character and conduct.
36. There is no adverse information on the files in relation to this consideration.
(d)The purpose of the applicant's visit, the duration of stay proposed and any other plans which the applicant has made for the visit, relative to the applicant's personal responsibilities and the financial means and earnings and the level of support assistance available to the applicant from any person or persons nominated by the applicant.
37. The visa applicant originally applied for a further subclass 686 visa so he could stay to look after his sister. He now wants to stay with his spouse and children. The visa applicant’s spouse currently is an unlawful non citizen and has been since her bridging visa ceased on 3 March 2005.
(e)Information disclosed in the application or otherwise obtained which indicates a reasonable likelihood that the applicant will not abide by visa conditions.
(f)The history of compliance with or breach of immigration law by the applicant.
38. The visa applicant was for a period of time an unlawful citizen and worked without permission for approximately 3.5 years. The visa applicant claimed that he was part of a class action and that he believed he had permission to work as he was told so by his representative. He also claimed that he was not aware that he was unlawful.
(g)The history of dealings with the department of any person or persons in Australia or usually resident in Australia who supports or support the visit of the applicant, where that person or those persons has or have been involved in:
i.serious breach of immigration law;
ii.serious default in immigration assurances or undertakings; or
iii.sponsoring, nominating or supporting visa applications by a person or persons, other than the applicant, who had overstayed or otherwise breached a condition of their visa.
39. The visa applicant’s spouse has been an unlawful non citizen from 3 March 2005.
40. The Tribunal has taken in to account the visa applicant’s claims as to why he became an unlawful non citizen and worked without permission and the considerations set out in Clause 8 of Ministerial Direction No. 1. However, the Tribunal finds that the visa applicant does not intend a genuine visit, particularly as the visa applicant has remained in Australia for more than 8 years and his spouse is an unlawful non citizen. Therefore the visa applicant does not meet the criterion in subclauses 686.221 (2), (3) or (4).
41. In light of the findings made above the Tribunal has no choice but to affirm the decision not to grant the visa applicant a subclass 686 visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The application
In his application, the applicant set out two grounds as follows:
(1)The MRT has denied procedural fairness.
(2)The applicant seeks relief including writs of prohibition, certiorari and mandamus pursuant to s.75(v) of the Constitution and s.39B of the Judiciary Act.
Only one of these items alleges a ground for review.
The applicant has not filed an amended application or written submissions.
Findings of the Court as to the grounds in the application
The applicant alleges a denial of procedural fairness. The Court accepts the following submissions for the first respondent that:
…the MRT sought further information from the applicant on a number of occasions (CB 111 and 156), and invited him to a hearing [on 20 October 2006] which he attended [and gave evidence (CB 120, 129, 146, 169).
The Court accepts the submission for the first respondent that:
The Tribunal provided [the applicant] with the opportunity (twice) to comment on information which may have formed the reason or part of the reason for the Tribunal’s decision. (CB 144, 156)
These invitations were made pursuant to s.359A of the Act. The second invitation was made after the hearing had occurred. The applicant’s solicitor’s replied to the second invitation (CB 158).
The Court accepts the submission for the first respondent that:
The MRT made a positive finding that the applicant did not intend a genuine visit to Australia
(Particularly as the visa applicant had remained in Australia for more than 8 years and his spouse is an unlawful non-citizen (CB 171.8)).
The Tribunal then found that “the visa applicant does not meet the criterion in sub-clauses 686.221(2), (3), or (4)” (CB 171.8).
Those criteria are set out on CB 165-166.
The Court accepts the submission for the first respondent that:
Given the above, the Tribunal did not need to make a finding (of whether) there were any exceptional circumstances as that issue arises only if the Tribunal is satisfied that the applicant’s expressed intention only to visit Australia is genuine.”
The requirements of sub-clause 686.221(2) are cumulative; that is, every requirement must be met to comply with the sub-clause. Sub-clause 2(c) requires the applicant to satisfy the Minister that the expressed intention of the applicant “only to visit Australia is genuine”. It is only if that, and all preceding, requirements of sub-clause (2) are met, that the subsequent requirements are relevant.
The applicant did not meet sub-clause (2)(c), therefore placitum 2 (g)(v) was not enlivened, as to whether “exceptional circumstances exist for the grant of the visa” (CB 166). Failure to meet sub-clause (2) (c) meant that the Tribunal was not required to consider whether exceptional circumstances existed.
The Court finds that letters were sent to the applicant in compliance with s.359A (CB 144 and 156). The second letter was sent because an incorrect date appeared in the first letter. No breach of s.359A has been established.
Ground one alleges a denial of procedural fairness. Section 357A provides that “this subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it deals with.”
The applicant was invited to the hearing (CB 114); s.360 was complied with. The applicant appeared at the hearing on 20 October 2006 (CB 109). Section 359A was complied with. A breach of Division 5 of Part 5 of the Act has not been established. Natural justice was not denied. Ground one is rejected.
Ground two is a statement that the applicant seeks relief and does not raise any ground for a judicial review. It is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 2 July 2007
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