Bolea v Minister for Immigration and Multicultural Affairs

[2001] FCA 786

FEDERAL COURT OF AUSTRALIA

Bolea v Minister for Immigration & Multicultural Affairs [2001] FCA 786

JIMI MAUWA BOLEA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 436 of 2001

SACKVILLE J
SYDNEY
22 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N436 OF 2001

BETWEEN:	JIMI MAUWA BOLEA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	22 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N436 OF 2001

BETWEEN:	JIMI MAUWA BOLEA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	22 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision made by the Migration Review Tribunal (“MRT”) dated 11 April 2001.  The MRT affirmed a decision of a delegate of the respondent (“the Minister”) made on 30 March 2001 not to grant the applicant a Bridging Visa E (Class WE) Subclass 050.

2. The applicant is a Fijian citizen, born on 14 February 1936. He first entered Australia on 26 July 1989 on a Category V12 Visitor visa, but became an unlawful non-citizen on 26 November 1989 when an extension to that visa expired. On 10 February 1995, the applicant lodged an application for a Protection visa and was granted a Bridging visa for the period of that application. The application, and an application to the Refugee Review Tribunal for review of the Minister’s decision, were unsuccessful. However, the applicant was subsequently granted a further Bridging visa upon his request to the Minister to reconsider his application pursuant to s 417 of the Migration Act 1958 (Cth) (“Migration Act”).  On 11 March 1996, the applicant was notified that this request had been rejected.  A further Bridging visa was then granted to the applicant on the condition that he would depart Australia by 15 April 1996. The applicant did not depart on that date and thereafter he became an unlawful non-citizen.

3. The applicant was apparently located in Orange on 28 February 2001 and was subsequently taken into detention pursuant to s 189 of the Migration Act.

4. On 15 March 2001, the applicant made a request to the Minister under s 417 of the Migration Act in respect of his application for a protection visa lodged on 10 February 1995.  The applicant was advised on 20 April 2001 that this request would not be considered by the Minister. At the time the MRT made its decision, however, the request was still being assessed by the Ministerial Interventions Unit.

5. On 28 March 2001, the applicant lodged his application for a Bridging E visa.  This application was refused by the Minister’s delegate on 29 March 2001.  The applicant sought review by the MRT on 2 April 2001 and the MRT affirmed the delegate’s decision on 11 April 2001.

6. On 9 April 2001, the MRT sent the applicant a letter inviting him to comment on information that the MRT considered might constitute a reason for affirming the decision under review.  Essentially that information was that the applicant had remained in Australia as an unlawful non-citizen on two occasions after his visa had expired, and had been located working unlawfully.  The letter also noted that the applicant had not co-operated with the Department in applying for a passport and that he might not have had the financial means to support himself while in Australia without working. 

7. The MRT held a hearing at which the applicant gave evidence.  Evidence was also given by the applicant’s niece, a permanent resident of Australia.  She gave evidence that she and her husband would be willing to have the applicant stay with them and to feed and support him.

8. The criteria for the grant of a Bridging E visa Sub-class 050 (General) are set out in Schedule 2 to the Migration Regulations 1994. The MRT found that, having regard to the applicant’s then pending application to the Minister under s 417 of the Migration Act, the applicant satisfied all the threshold criteria.  The only question, therefore, was whether the applicant satisfied cl 050.223, which requires the Minister to be satisfied that, if a Bridging E visa is granted, the applicant will abide by the conditions (if any) imposed on it.

9. The MRT noted that the effect of cl 050.612A was that it was bound to impose condition 8101 and could impose any one or more of a number of conditions, including conditions 8401, 8505, 8506 and 8507.  The requirements of those conditions are as follows:

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

   8401
     8401
   The holder must report:

   (a)at a time or times; and

   (b)at a place;

   specified by the Minister for the purpose.

   8505

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

   8506

   8506The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

   8507

   8507The holder must, within the period specified by the Minister for the purpose:

   (a)pay; or

   (b)make arrangement that is satisfactory to the Minister to pay;

   the costs (within the meaning of Division 10 of Part 2 of the Act) of the holder’s detention.”

10. The MRT pointed out that the applicant had committed serious breaches of the Migration Act and the Migration Regulations. The Department’s movement records indicated that he had remained unlawfully in Australia without a visa for prolonged periods of time.  In total, he had lived in Australia unlawfully for a period of almost ten years.  Moreover, he had stated that he did not wish to leave Australia and the MRT considered it likely that he would once again move from his specified address and attempt to remain unlawfully in this country. 

11. The MRT also found that the applicant had worked illegally during the period he had remained unlawfully in Australia.  He had admitted to working on a vineyard around the Orange area for approximately five years.  This and other evidence indicated that the applicant had no means of supporting himself without the support of family members in Australia and could be tempted to work again as he had done for lengthy periods in the past.

12. The applicant had refused to co-operate with the Department in respect of his passport. Further, he had refused to fill out a passport application form on the ground that he did not wish to leave Australia.  This caused the MRT to question the readiness of the applicant to comply with any decision that would require his departure from Australia.

13. The MRT noted that, in his favour, the applicant had not absconded from immigration detention, nor had he previously had a visa cancelled on the basis of breaching conditions.  In addition, there was no evidence that he had not conducted himself properly in immigration detention.

14. The MRT reached the following conclusion:

    “On all the evidence before it, the [MRT] is not satisfied that the…applicant will abide by the conditions on the visa if it is granted.  It finds that the …applicant does not meet the criterion in cl 050.223.”

15. The MRT went on to consider whether the delegate had been correct in not requesting a security from the applicant on the ground that he (the delegate) was not satisfied that the applicant would abide by the conditions of the visa even if a security for compliance with those conditions was provided.  The MRT found that, having regard to the applicant’s history, he would not abide by the conditions of a bridging visa even if a security for compliance were lodged.

16. Accordingly, the MRT found that the applicant did not meet the criterion in cl 050.223 as it was not satisfied that at the time of the decision the visa applicant would abide by the conditions of the visa, should one be granted.  Since that was an essential criterion for the grant of a Sub-class 050 visa, the application had to fail.

17. The applicant was unrepresented in the proceedings in this Court. He did not file any evidence, nor did he file any written submissions. The application does not identify any ground that is capable of constituting a ground of review under s 476(1) of the Migration Act.

18. The MRT carefully considered the history of the applicant.  It took into account factors such as the lengthy period of time in which he had remained in Australia unlawfully; his stated desire not to leave Australia; the fact that he had worked illegally in this country for a long period; and that he appeared to lack adequate resources to support himself.  It was for the MRT to assess the significance of these factors in determining whether it was satisfied that the criterion laid down in cl 050.223 had been satisfied.

19. The applicant has not pointed to any error of law in the approach taken by the MRT and I have not detected one.  Nor has he said anything which suggests that another ground of review is available.  The applicant’s complaints relate to the merits of the MRT’s decision.  The application must be dismissed, with costs.

I certify that the preceding nineteen  (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.

Associate:

Dated:             22 June 2001

The Applicant was unrepresented.

Counsel for the Respondent:	A F Backman
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	22 June 2001
Date of Judgment:	22 June 2001