Bxi23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 106
•12 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BXI23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 106
File number(s): SYG 1128 of 2023
SYG 1165 of 2023Judgment of: JUDGE CAMERON Date of judgment: 12 February 2024 Catchwords: MIGRATION – Application for extension of time to bring proceeding – relevant considerations.
MIGRATION – Student Visa - refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision.
MIGRATION – Bridging Visa - refusal – review of Tribunal decision.
Legislation: Migration Act 1958 (Cth), ss 116, 474, 477
Migration Regulations 1994 (Cth), reg 2.43; sch 2 cl 050.223; sch 8 cls 8101, 8207, 8401, 8506, 8564
Cases cited: BX123 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 660
BX123 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 942
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819
Division: General Number of paragraphs: 62 Date of hearing: 23 January 2024 Place: Sydney Counsel for the Applicant: The applicant appeared in person by videoconference Counsel for the First Respondent: Mr R. Harvey Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1128 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BXI23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
12 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application for an extension of time within which to bring the proceeding be refused.
2.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
ORDERS
SYG 1165 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BXI23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
12 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Cameron
INTRODUCTION
The applicant is a citizen of India who arrived in Australia on 16 March 2014. He has commenced two proceedings, the Student Visa Case (SYG1128/2023) and the Bridging Visa Case (SYG1165/2023) which were heard together and are dealt with in these reasons.
Student Visa
On 15 November 2017 the applicant was granted a subclass 500 student visa valid until 14 October 2020. On 5 February 2020 he was convicted of a criminal offence and on 2 June 2020 his visa was cancelled by a delegate (First Delegate) of the First Respondent (Minister) pursuant to s.116(1)(g) of the Migration Act 1958 (Cth) (Act) and reg.2.43(1)(oa) of the Migration Regulations 1994 (Cth) (Regulations). The applicant applied to the Second Respondent (Tribunal) for a review of that departmental decision. He was unsuccessful before the Tribunal and later commenced the Student Visa Case seeking judicial review of the Tribunal’s decision (First Tribunal Decision).
The Student Visa Case was filed outside the limitation period prescribed by s.477 of the Act and the applicant sought an extension of time within which to bring that proceeding.
Bridging Visa
Between 2020 and 2023, the applicant lodged 4 bridging visa applications, each of which was unsuccessful and each refusal was subsequently affirmed on review by the Tribunal. The most recent application for a Bridging E (Subclass 050) visa was made on 11 July 2023 and was refused by a Second Delegate on 13 July 2023. The applicant applied to the Tribunal for a review of that departmental decision. He was unsuccessful before the Tribunal and has commenced the Bridging Visa Case seeking judicial review of that Second Tribunal Decision.
On 25 July 2023, in each of the two proceedings, interlocutory applications for injunctions to prevent the Minister from removing the applicant from Australia were refused: BX123 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 660. Leave to appeal from that decision was refused on 4 August 2023: BX123 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 942.
For the reasons which follow, the application for an extension of time within which to bring the Student Visa Case will be refused and the proceeding dismissed.
For the reasons which follow, the Bridging Visa Case will also be dismissed.
BACKGROUND FACTS
In the Minister’s written submissions dated 24 July 2023 (First Written Submissions), a chronology of the applicant’s relevant migration history was set out as follows:
…
4.On 16 March 2014, the applicant arrived in Australia on a Student (Subclass 573 Higher Education Sector) visa that was valid to 21 September 2017. The applicant was subsequently granted three more Student visas. The applicant was last granted a Student (Subclass 500) visa (the visa) on 15 November 2017. The visa was valid to 14 October 2020.
5.On 5 February 2020, the applicant was convicted in the Local Court of New South Wales of possessing child abuse material. He was sentenced to a Community Corrections Order for two years.
6.On 17 March 2020, the applicant was notified of, and invited to comment on, the intention to consider cancellation of the visa. The applicant did not reply to the notification.
7.On 2 June 2020, the visa was cancelled under s 116(1)(g) of the Migration Act 1958 (Cth) (the Act) and reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth) (the Regulations) on the basis that the applicant was the holder of a temporary visa and had been convicted of committing a criminal offence.
8.On 16 June 2020, the applicant was detained and placed in Villawood Immigration Detention Centre. The applicant applied for a bridging visa, which was refused on 18 June 2020.
9.On 20 June 2020, the applicant applied to the Tribunal for review of the decision to cancel the visa. On 23 July 2020, the Tribunal affirmed the decision to cancel the visa.
10.On or about 23 August 2020, the applicant applied for a Permanent Protection visa, which was refused on 2 September 2020. This decision was affirmed by the Tribunal, and a subsequent judicial review application was dismissed. The applicant was unsuccessful on appeal to the Full Federal Court as well as to the High Court. These proceedings came to an end on 10 March 2022.
11.On 28 June 2022, the applicant lodged two Ministerial Intervention requests and on 23 November 2022, the Ministerial Intervention requests were finalised without referral.
12.On 3 July 2023, the applicant lodged a further Ministerial Intervention request …
…
I adopt that summary.
Additionally, the Second Tribunal Decision recorded:
…
Various requests for Ministerial intervention
15.On 8 March 2022, 5 September 2022 and 13 September 2022, the applicant made three requests under s 48B of the Act to enable him to lodge another protection visa application. Each of these requests was refused.
16.Requests for ministerial intervention pursuant to s 195A and s 197AB of the Act were initiated on 28 June 2022 but a decision was made on 23 November 2022 not to refer these requests to the Minister.
17.Further requests for intervention pursuant to s 48B, s 195A and s 197AB of the Act were initiated on 11 July 2023. The outcome of each of these requests is outstanding.
Various bridging visa applications
18.On 24 August 2020, the applicant lodged his first Bridging E (Class WE) visa application. A decision to refuse to grant this bridging visa was made on 26 August 2020. On 28 August 2020, the applicant appealed to the Tribunal (differently constituted) which affirmed the delegate’s decision on 7 September 2020.
19.On 24 June 2021, the applicant lodged his second Bridging E (Class WE) visa application. A decision to refuse to grant this bridging visa was made on 29 June 2021. On 29 June 2021, the applicant appealed the decision to the Tribunal (differently constituted) which affirmed the delegate’s decision on 14 July 2021.
20.On 26 August 2021, the applicant lodged his third Bridging E (Class WE) visa application. A decision to refuse to grant this bridging visa was made on 31 August 2021. On 31 August 2021, the applicant appealed the decision to the Tribunal (differently constituted) which affirmed the delegate’s decision on 11 September 2021.
21.On 11 July 2023, the applicant lodged his fourth Bridging E (Class WE) (Subclass 050) visa application, which was refused by the delegate on 13 July 2023 …
STUDENT VISA CASE
Before the applicant can prosecute his application for judicial review of the First Tribunal Decision he requires an order extending the time within which to bring the Student Visa Case.
Legislation – extension of time
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of Tribunal decisions in respect of which this Court has jurisdiction. At the time of the First Tribunal Decision, it relevantly provided:
477 Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)
(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
“date of the migration decision” means:
(a)in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or
(b)in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5--the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c)in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7--the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca)in the case of a migration decision made by the Immigration Assessment Authority--the date of the written statement under subsection 473EA(1); or
…
Because the First Tribunal Decision was dated 23 July 2020, the applicant had until 27 August 2020 to commence the Student Visa Case. However, it was not commenced until 14 July 2023 and so it was almost three years out of time.
Application in writing citing reasons
The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether an application has been made to the Court for an extension of time. The application commencing this proceeding contained an application for an extension of time and set out the basis on which the applicant said that an extension of time would be in the interests of the administration of justice. The initial criteria for the granting of an extension of time have therefore been satisfied.
Interests of the administration of justice
The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend time. In the circumstances of the Student Visa Case, that question will be determined by whether the applicant has provided a satisfactory explanation for his delay in commencing that proceeding and whether the allegations made in the substantive application for judicial review have sufficient merit that the Court should consider them at a trial. The Minister could not point to any particular prejudice he would suffer were time for the commencement of the Student Visa Case to be extended.
Satisfactory explanation for delay
In his application commencing the Student Visa Case the applicant stated:
…
2.I am seeking extension of time in this proceeding as I could not continue with my application earlier due to my poor mental health. I was going through severe depression and anxiety.
3.My mental health had deteriorated due to seeing the hanging body of my roommate, which used to haunt me all the time so I could not do anything.
4. I had no prior knowledge of federal court proceedings.
5.My representative who acted on my behalf in the AAT did not inform me that I can appeal to a Federal Circuit Court within 35 days.
In his reasons for refusing the applicant’s associated application in this proceeding for an injunction to prevent his removal from Australia, Judge Manousaridis considered this question and said:
39.The applicant seeks to explain his delay by reference to his mental state and other matters; and also to his not having the benefit of legal advice. It is not necessary to set out the material on which the applicant relies; and that is because, accepting the facts and opinions contained in the material on which the applicant relies, they do not disclose an arguably sufficient explanation for the delay in making the EOT application; and that is because they are inconsistent with the applicant’s conduct.
40.During the period in which the applicant did nothing in relation to the Tribunal’s decision, the applicant applied for a Protection visa, and, when his application was refused, the applicant took every step that was available to him to challenge that refusal. The applicant applied to the Tribunal for review of that decision; the applicant then applied to this Court for remedies under s 476 of the Act; and the applicant then appealed against the orders this Court made and sought special leave in relation to the orders the Federal Court made dismissing an appeal from this Court. The applicant’s conduct shows he had capacity to take such steps as he considered would be in his interests; and it also shows that he was aware that decisions of the Tribunal affirming decisions not to grant visas could be challenged by applying to a court.
41.No serious question arises that the applicant has a reasonable explanation for his delay.
(BX123 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 660)
Having had regard to the applicant’s affidavits of 12 July 2023, 19 July 2023 and 13 October 2023 filed in the Student Visa Case, I respectfully adopt his Honour’s summary and additionally note the various bridging visa applications and related review proceedings prosecuted by the applicant in or around the period between the First Tribunal Decision and the commencement of the Student Visa Case. I have also had regard to the applicant’s written submissions and to his submissions at the hearing of this application to the effect that he had prosecuted his protection visa application in preference to pursuing judicial review of the First Tribunal Decision.
I too find that the applicant has given no reasonable explanation for his delay in commencing the Student Visa Case.
Merits of substantive application
It should be noted in relation to the question of the merits of the substantive application, that in proceedings for judicial review of a Tribunal decision, the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would conclude it to be in the interests of the administration of justice to extend the time within which to bring a proceeding, it is necessary that an applicant demonstrate that his or her case has sufficient merit that the Court should consider it at a trial. Such an assessment need not be restricted to an impressionistic one: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819.
Legislation – cancellation of visas
At all material times the Act relevantly provided as follows:
116 Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(g) a prescribed ground for cancelling a visa applies to the holder.
…
At all material times the Regulations relevantly provided as follows:
2.43 Grounds for cancellation of visa (Act, s 116)
(1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
…
(oa)in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)--that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));
…
First Tribunal Decision
The reasons for the First Tribunal Decision were summarised by the Minister in his First Written Submissions as follows:
14.The issue for the Tribunal was whether the ground for cancellation in s 116(1)(g) of the Act and reg 2.43(1)(oa) of the Regulations were made out and, if so, whether the visa should be cancelled.
15.The Tribunal found that the ground for cancellation in s 116(1)(g) and reg 2.43(1)(oa) existed because the applicant was convicted of a criminal offence against the law of New South Wales on 5 February 2020. The Tribunal then considered whether to exercise its discretion to cancel the visa and had regard to the Department’s Procedural Instructions in doing so.
16.The Tribunal noted that it was not the Tribunal’s role to punish the applicant for his criminal offending and that punishment was not a relevant consideration.
17.The Tribunal considered the purpose of the applicant’s travel to and stay in Australia. The Tribunal accepted the applicant’s evidence of his circumstances and the importance to him of completing his study in Australia, but did not accept that this provided a compelling need for the applicant to remain in Australia. The Tribunal noted that the applicant had not made significant academic progress in his Bachelor studies. The Tribunal was not convinced that the applicant could not continue his studies in India. The Tribunal gave this consideration some weight in supporting the cancellation of the applicant’s visa.
18.The Tribunal considered the extent of the applicant’s compliance with his visa conditions. The Tribunal gave this consideration some weight against the cancellation of the visa.
19.The Tribunal considered the degree of hardship that may be caused to the applicant and any family members. The Tribunal accepted the applicant’s evidence that the cancellation of his visa will cause him considerable emotional hardship and financial loss or hardship. The Tribunal accepted that the applicant’s loss of links to the local Sikh Temple would cause him emotional hardship. The Tribunal accepted that the cancellation of the visa would cause the applicant’s parents considerable emotional hardship and also financial hardship. The Tribunal gave this consideration considerable weight against the cancellation of the visa.
20.The Tribunal considered at length the circumstances in which the ground for cancellation arose. The Tribunal was not convinced that the circumstances in which the ground for cancellation arose were beyond the applicant’s control. The Tribunal gave this circumstance great weight in support of cancelling the visa.
21.The Tribunal considered the applicant’s past and present behaviour towards the Department. The Tribunal accepted that the applicant had no adverse dealings with the Department and gave this consideration some weight against cancelling the visa.
22.The Tribunal considered the mandatory legal consequences of the cancellation decision, including the detention of the applicant. The Tribunal gave this consideration considerable weight against cancelling the visa.
23.The Tribunal accepted the applicant’s concession that there were no relevant obligations arising under international agreements that would be breached as a result of the visa cancellation.
24.The Tribunal found that the considerations weighing in favour of cancelling the visa outweighed the considerations in favour of setting aside the cancellation. The Tribunal affirmed the decision to cancel the visa.
(references omitted)
I adopt that summary.
Allegations
In his amended application in the Student Visa Case, the applicant alleged:
Ground One – Error of Law
1.The tribunal made an error in its decision by denying the applicant the opportunity to resume his studies. This decision was made despite the tribunal's awareness that the applicant's poor academic performance was a result of the emotional impact caused by the loss of his cousin and friend in India.
Ground Two – error of law
2.The tribunal made an error in determining that the applicant stated he would be unable to enroll in educational institutions in India or any other country upon his return due to the incomplete study and prior offense.
Ground Three – Error of Law
3.The tribunal made an error by disregarding the applicant's explanation that his completed diplomas would not secure him a professional job upon returning to India. The tribunal wrongly concluded that this was not a compelling reason for the applicant to stay in Australia.
Ground Four – Error of Law
4.The tribunal error while deciding that applicant could take action or other method while he was being added in the what’s app group such as included not downloading any videos made available to him through the WhatsApp group, letting those in the WhatsApp group know that he did not wish to be a part of the group or to be added to the group and speaking to his housemates about the group to see if they were members of the group and adding him to the group. Those potential actions also extended to, perhaps least attractively for the applicant, deleting the WhatsApp application and using another of the myriad of applications available to both the applicant and his family that facilitate internet based communications using low amounts of data.
Ground five-error of law
5.The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
(References omitted)
Consideration
Ground 1
In his written submissions in the Student Visa Case, the applicant put that he had “found it extremely challenging to maintain [his] focus and concentration on [his] studies” and that he had been “going through … overwhelming waves of stress and the suffocating embrace of depression”. He asked the Court to “take these extraordinary circumstances into account while evaluating my academic performance”.
Relevantly, the Tribunal had said in its decision record:
22.The applicant has performed poorly academically at the Higher Education Sector level as his academic transcript he provided to the Tribunal shows he failed all five units he enrolled in prior to his arrest in November 2018 and has failed 12 of 18 units overall with the result that the applicant has only completed 25% of his Bachelor course. The applicant explained to the Tribunal that his studies have been affected by the death in February 2017 of a cousin who lived in a shared household with the applicant when they were growing up in India and who was like a sister to the applicant. The applicant gave evidence that his arrest in November 2018 and being charged with a criminal offence, even though he was granted bail, was confronting for him and for his parents as Sikhs and caused the applicant a great deal of stress which also adversely affected his studies.
…
26.The Tribunal accepts the applicant's evidence of his circumstances and the importance to him of completing his study in Australia. However, the Tribunal does not accept that this provides a compelling need for the applicant to remain in Australia. …
In substance, the first ground of the amended application invites the Court to substitute the Tribunal’s view of the merits of this aspect of the applicant’s review application with its own. The Court cannot do that, its role being limited to determining whether the Tribunal’s review is affected by jurisdictional error.
Ground 2
The allegation made in the second ground of the amended application, that the Tribunal had believed that the applicant had said that he could not enrol in courses of study “in India or any other country” because of his conviction, was factually ill-founded. This is demonstrated by the following passage from the Tribunal’s decision record:
23.… The applicant told the Tribunal if his visa is cancelled he will have to explain to Indian education providers why he didn't complete his study in Australia and would have to explain his criminal record which would result in him not being offered enrolment in India.
The evidence does not support the allegation and so I find that it is not made out.
Ground 3
In his written submissions in connection with the third ground of the amended application, the applicant invited the Court “to consider the matter again”, the matter being the alleged failure by the Tribunal to have regard to the applicant’s contention that “his completed diplomas would not secure him a professional job upon returning to India”.
Again, the allegation invites impermissible merits review. It also mis-states the evidence, the Tribunal in fact having said:
24.… The applicant told the Tribunal that his Australian qualifications to Advanced Diploma level would not secure him the job opportunities he seeks because employers want applicant's with at least a Bachelor degree in India.
This ground fails to identify any jurisdictional error.
Ground 4
The fourth ground of the amended application concerned the Tribunal’s discussion of the circumstances surrounding the presence of child abuse material on the applicant’s smartphone. I accept and adopt the Minister’s submissions on this point:
Ground 4 essentially cavils with the Tribunal’s finding at [68] its reasons that it was “not convinced” that the circumstances in which the ground for cancellation arose (that is, the applicant’s criminal conviction) were beyond the applicant’s control. The applicant’s written submissions at [11] attempt to expand his explanation for why he should be considered less culpable for the criminal charges that were brought against him. The Tribunal considered these matters as set out in its reasons and cogently explained why [they] did not weigh against cancellation in the applicant’s case. There was no error in this approach to its reasoning. The applicant’s submissions do not otherwise advance any legal arguments to establish jurisdictional error for this ground. (reference omitted)
Ground 5
The fifth ground of the amended application does not allege jurisdictional or any other sort of error. It discloses no basis upon which the Tribunal’s decision should be set aside and the applicant’s written submissions and his address to the Court did not take the matter any further.
Generally
The proposed application for judicial review of the Tribunal’s decision lacks merit sufficient to justify its consideration at a final hearing.
BRIDGING VISA CASE
The Court’s task in the Bridging Visa Case is to determine whether the Second Tribunal Decision is affected by jurisdictional error, that being the only basis on which it can be set aside.
Legislation – Bridging Visa E
Part 050 of sch.2 to the Regulations sets out the criteria for a grant of a subclass 050 bridging visa and relevantly states:
050.223
The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.
Conditions which may be imposed on a subclass 050 visa are set out in Division 050.6 of sch.8 to the Regulations, including relevantly the following:
8101 The holder must not engage in work in Australia.
…
8207 The holder must not engage in any studies or training in Australia.
…
8401 The holder must report:
(a) at the time or times; and
(b) at a place or in a manner;
specified by the Minister from time to time.
…
8506 The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.
…
8564 The holder must not engage in criminal conduct.
Second Tribunal Decision
The Tribunal considered that conditions 8101, 8207, 8401, 5806 and 8564 (Relevant Conditions) ought to be imposed on a bridging visa, were one to be granted to the applicant. The Tribunal then considered whether the applicant would abide by each of the those conditions.
The Tribunal found that the applicant would not abide by condition 8101. In so finding, the Tribunal:
(a)accepted that the applicant had previously complied with his work-related visa conditions;
(b)considered that given that the applicant had shown no appetite to depart Australia and that there was no way of knowing when his pursuit of judicial review of his student visa cancellation would reach a conclusion, stated that it was:
… difficult to understand how the applicant will be in a position to abide by the work-related visa condition to be imposed on the bridging visa in the absence of more persuasive evidence relating to the requisite amount of ongoing financial support that will need to be made available to him by others and their capacity to provide such support.
(c)acknowledged that friends and relatives of the applicant had offered financial support but was concerned at the absence of evidence that these persons:
•have offered any specific amount of money to the applicant for the purpose of remaining in Australian community;
•understand the applicant’s proposed living arrangements in the Australian community along with the indefinite nature of the period during which the applicant would not be permitted to work in Australia and therefore require ongoing financial support;
•have the capacity to provide financial support to the applicant on an ongoing basis taking into account their own personal circumstances and other financial commitments.
(d)was not persuaded that offers of accommodation in the Australian community made to the applicant were reliable or durable because the people who had made those offers were unaware that the applicant would have no work rights; and
(e)concluded that the applicant would be likely to be impoverished due to lack of financial means unless he earned some income from working and would therefore be incentivised to work in Australia.
The Tribunal found that the applicant would abide by condition 8207.
The Tribunal found that the applicant would not abide by condition 8506. In so finding, the Tribunal:
(a)considered that there was some risk the applicant would change address if released into the Australian community, particularly in circumstances where:
(i)those offering accommodation to the applicant themselves lived with others, including children, and had not provided any persuasive evidence that they are aware of the various reporting requirements that would apply to the applicant given that his details appeared on the Child Protection Register in New South Wales; and
(ii)there was no evidence indicating that the other women and men who resided with those supporters were fully aware of the applicant’s criminal history and similarly supportive of the applicant living with them and, in some instances, their children; and
(b)concluded from the fact that the applicant had expressed determination to remain in Australia that he might well not continue to comply with the visa condition if it no longer suited his purpose.
The Tribunal considered that there was a likelihood that the applicant would not comply with condition 8401. It took into account its findings in relation to the applicant’s determination to remain in Australia and concluded that should the applicant be unsuccessful in any of his then-current or future judicial review applications and ministerial intervention requests, there would be a strong incentive for him to hide in the community.
The Tribunal did not believe it necessary to consider condition 8564.
Allegations
In his amended application in the Bridging Visa Case, the applicant alleged:
Ground One – Error of Law
1."The tribunal made an unjust decision by failing to consider the applicant's documented support from individuals known to him and by denying the request for a bridging visa."
Ground Two – error of law
2."The tribunal made a legal error in its decision. Even though the applicant showed evidence that he followed the rules set by the police and the department before, the tribunal still made an unfair decision based on wrong legal reasoning and assumptions."
Ground Three – Error of Law
3."The tribunal made a big legal error during the interview with the applicant's supporters by asking a question that could easily be misunderstood."
Ground Four – Error of Law
4.The tribunal erred in concluding the support letter provided by the applicant’s supporters who knows applicant from his childhood and supported him since applicant arrived in Australia and helped him his criminal proceedings and applicants used to visit their house many times in a week.
Ground five-error of law
5."The tribunal made an unjust decision when it determined that the applicant didn't have a specific guarantor who could vouch for the amount of money he would rely on and ensure he wouldn't break any rules."
Consideration
Ground 1
In his written submissions in the Bridging Visa Case the applicant said that the Tribunal’s decision “appears to be unjust” in that was unfavourable to him notwithstanding his “compelling evidence”.
Contrary to the terms of the allegation made in the first ground of the amended application in the Bridging Visa case, para.22 of the Tribunal’s decision sets out in some detail the material before it, including the supporting information to which the applicant referred, and its reasons, summarised earlier, demonstrate that it considered that information. In any event, this ground is no more than a further invitation to the Court to undertake a review of the merits of the applicant’s bridging visa application and so discloses no jurisdictional error.
Ground 2
The applicant’s written submissions in relation to the second ground of the amended application propounded facts which, the applicant said, indicated that the Tribunal had reached an incorrect decision concerning whether he would comply with police reporting requirements. He also contended that the Tribunal’s decision had been an assumption, that is to say arbitrary and unreasoned.
Contrary to the latter submission, the Tribunal’s reasoning in relation to condition 8401, summarised earlier, was not unreasonable, illogical or arbitrary. A different decision-maker might have reached a different conclusion but that does not mean that the Tribunal’s decision was legally erroneous. I find that it was not. The remainder of the applicant’s arguments again invite impermissible merits review and so disclose no jurisdictional error on the Tribunal’s part.
Ground 3.
In his written submissions, the applicant contended:
… the tribunal inquired from the supporters that how quickly the supporters could secure a job for the applicant upon his release from detention. This line of questioning, in essence, presupposed that the supporters were solely responsible for finding employment for the applicant, which is an unfair characterisation of the supporters’ intentions.
The supporters had informed the tribunal that obtaining a job in Australia is not particularly difficult, and if needed, they can secure employment for applicant within a short period, perhaps within three days to a week. However, the tribunal seemingly misinterpreted this statement, forming the basis of a decision that the supporters would not be able to accommodate the applicant and that the applicant should seek casual employment instead.
The statement in the final sentence of that quotation misrepresents the Tribunal’s actual findings on the applicant’s likely financial and accommodation circumstances were he to be granted the bridging he sought, which relevantly were:
The Tribunal raised its concern with the applicant that these witnesses had no knowledge of the fact that the applicant would not be permitted to work in the community, thereby undermining the Tribunal’s willingness to give weight to their offers of support. The applicant acknowledged this concern but was unable to offer anything to address it. The Tribunal finds that the applicant has not been forthcoming with Mr [X] and Mr [Y] about his need for ongoing support in the Australian community and this leads the Tribunal to find that these offers of support are neither reliable nor durable. …
Taking into account the above evidence, the Tribunal is not satisfied that the applicant will be able to live on an ongoing basis with either Mr [X] or Mr [Y]
Moreover, the applicant did not lead any evidence of what the Tribunal had said to the witnesses in question and his allegation concerning what was said is not borne out the Tribunal’s summary of the relevant exchanges which was:
… Each of the witnesses who gave evidence at hearing provided written commitments that they would offer housing to the applicant if he were to be released from immigration detention. In his evidence before the Tribunal, Mr [X] stated that he would support the applicant until such time as the applicant could find a job which he expected the applicant would find within a fortnight. Clearly, this witness had little understanding of the applicant’s circumstances and the reality that he would not be permitted to work in Australia. In his evidence before the Tribunal, Mr [Y] similarly demonstrated a distinct lack of understanding that the applicant would not be permitted to work in Australia. Asked about the nature of assistance that was on offer, Mr [Y] stated that he had been unemployed for about five or six months due to a back injury and did not expect to return to work for another two months. Nevertheless, he explained that he would help the applicant by offering him accommodation until such time as the applicant found work and that he expected the applicant could find work within a fortnight of his release from detention because the applicant was a hard-working and fit man.
Absent any evidence to contradict that summary, I accept that it is accurate and so find no reason to conclude that the Tribunal asked misleading questions, with the consequence that the allegation that it did is not made out.
Ground 4
The applicant submitted:
The tribunal's error in its findings led to an unjust decision, particularly in its assumption that the applicant's supporters were aware of his charges while their wives were not fully informed.
The applicant went on to say that the individuals in question were aware of the nature of his offending. However, there is no evidence that the Tribunal was made aware of that information, which means that it could not consider it. In the circumstances, its finding cited earlier at [42(a)(i)] was reasonably open to the Tribunal and not demonstrative of error.
Ground 5
The applicant’s written submissions did not elucidate the allegation made in the fifth ground of the amended application that:
The tribunal made an unjust decision when it determined that the applicant didn't have a specific guarantor who could vouch for the amount of money he would rely on and ensure he wouldn't break any rules.
The relevant passages from the Tribunal’s decision were:
At hearing, the applicant indicated he would be prepared to pay a bond of $10,000 and that his friend in India, [Z], would provide him with these funds.
…
At the time of this decision, the Tribunal is not satisfied that a bond of $10,000 – or indeed, a security of any amount – will act as an incentive for the applicant to comply with the visa conditions.
As can be seen, the allegation does not engage with the finding that the Tribunal in fact made and so it discloses no error on the Tribunal’s part.
Generally
Jurisdictional error affecting the Second Tribunal Decision has not been demonstrated.
CONCLUSION
In the Student Visa Case I have found that the applicant has not provided a satisfactory explanation for his late commencement of the proceeding. I have also found that his application for judicial review does not merit consideration at a final hearing. In the circumstances the application for an extension of time within which to bring the Student Visa Case will be refused and the proceeding dismissed.
In the Bridging Visa Case I have found that jurisdictional error has not been shown.
In those circumstances, each proceeding will be dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 12 February 2024
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