CRH15 v Minister for Immigration

[2015] FCCA 3183

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRH15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3183

Catchwords:
MIGRATION – Judicial review – applicant in detention – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), s.73

Applicant: CRH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1729 of 2015

Judgment of: Judge Harland

Hearing date: 18 November 2015

Date of Last Submission: 18 November 2015

Delivered at: Melbourne

Delivered on: 18 November 2015

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms Lucas

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the application filed on 27 July 2015 is dismissed.

2. The applicant to pay the first respondent’s costs fixed in the sum of $6,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1729 of 2015

CRH15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The applicant filed an application for judicial review of the decision of the Administrative Appeals Tribunal on 27 July 2015.  In that application, the applicant sets out three grounds and I will deal with each ground in turn.  The first is that: 

   The AAT - Migration and Review Division accepted that I was in criminal custody and could not depart Australia and that now I suffer depression and medical condition.  The arrangements to depart were beyond my control and I was not even aware that my application for refugee was refused as well as my medical treatment visa application.

3. The applicant arrived in Australia in August 2008 on a temporary partner visa.  He is a citizen of Lebanon.  He also applied for a spouse visa and a protection visa and those were refused.  The applicant has also been given several bridging visas.  The migration history of the applicant is set out in both the Delegate’s decision and the Tribunal’s decision in the Court Book (CB). In particular, I refer to CB 77 and 78. 

4. It is not disputed that the applicant was remanded in criminal custody in 2013 and was held in remand for several months before those criminal charges were dropped.  It is also clear from the chronology that the applicant was not in criminal custody at the time that he was subject to the bridging visa that was conditional upon him departing, making arrangements to depart from Australia, because that had occurred earlier. 

5. The applicant has been charged with further criminal charges, which he is disputing and he was granted bail with respect to those charges.  It is clear that being on bail is not defined as being in criminal detention.  That is clearly set out in the legislation in subclause 050.212(7).  A person is in criminal detention, as defined by that subclause, if he or she is serving a term of imprisonment, including periodic detention, following conviction for an offence, or is in prison on remand.  But as I said, he was not in prison on remand at that stage and had been granted bail. 

6. The subclause goes on to state that a person is not in criminal detention when they are subject to the community service order, on parole, or on bail awaiting trial.  It is clear that that is the category that the applicant falls into.  So far as that ground mentions the refusal of his medical treatment visa, the Tribunal makes it clear that that visa was declared invalid and there is no right of review with respect to that visa. 

7. It is also clear from the Tribunal decision that the only current application for review was with respect to the refusal of the Minister to grant the applicant a further bridging visa under section 73 of the Migration Act 1958 (Cth). The applicant applied for that visa on 23 June 2015. The second ground that the applicant refers to is:

   The Tribunal had no reason not to support my claim because of the criminal matters and my mental state as a result of the criminal case, which tortured me and then I was proved innocent and the DPP dropped the case.

8. It has been pointed out to the applicant during the course of the hearing that the area of migration law is a very difficult area, particularly for people who are not legally trained, to grasp and follow. It is also true that the applicant is in migration detention and is in detention in Western Australia, which is far away from the supports he has in Victoria.  The applicant has said that he has been unable to get any legal advice or assistance.  That is unfortunately a common situation for many applicants in this Court, not just in migration matters, but in other matters as well. 

9. It is important to note that this hearing is not a rehearing of the application on its merits but is a judicial review where it is necessary to identify in the reasons of the Tribunal an error in the way the Tribunal applied the law.  There is no discretion under the relevant sections of the Migration Act in which the Tribunal could take into account, and this really goes to the third ground, compassionate or compelling circumstances which the applicant refers to:

   The Tribunal failed to accept my compelling circumstances as well as my compassionate circumstances as well as what happened to me in the past caused harm and at the time of the Tribunal hearing I was not mentally and physically fit and such was ignored.

10. The second and third grounds are really belated because the applicant is talking about his mental state, the effect of the criminal charges and not being fit at the Tribunal hearing.  There is nothing in the Tribunal’s decision to indicate that the applicant raised at any stage not being able to participate in the hearing.  There is no medical evidence before the Court addressing that issue and there is no discretion for the Tribunal or for this Court to take into account the factors that the applicant raises.  What is very clear and set out in detail in the Delegate’s decision is that the Delegate actually went to the trouble of setting out each subsection of the applicable clause and then explained why the applicant did not fit into most of those clauses, the exception being that the applicant is an unlawful non-citizen. 

11. The Tribunal also refers to the applicable criteria in the visa application.  One of the highly relevant points was that the applicant at the time of making the visa application must be able to satisfy the criterion that is set out, and one of the issues was acceptable arrangements to depart Australia.  That is dealt with in subclause 050.212(2) and that is met if the Minister or a Tribunal on review is satisfied that the applicant is making or is the subject of acceptable arrangements to depart Australia. 

12. The Tribunal discusses this point and says that there is no action that has been taken on his behalf or by any person on his behalf to show that he was making arrangements to leave Australia, whether or not they would be seen as acceptable.  He has not applied for a passport.  He has not purchased a ticket.  In fact, what he has said is that he wants to be released from detention so that he could prepare for his criminal case. 

13. It is also the case that there is no application on foot or application for review with respect to any substantive visa.  The substantive visa means a visa other than a bridging visa, a criminal justice visa or an enforcement visa.  The applicant had applied for a medical review visa which was found to be invalid and therefore there was no right of review.  The applicant had also previously made application for a protection visa, which had also been refused.  There is no review on foot with respect to that and the applicant is now well out of time with respect to that visa.  Having considered the whole of the reasons of the Tribunal, no judicial error has been made out and therefore I will dismiss the application. 

14. The respondent seeks costs in circumstances where the applicant has been unsuccessful and seeks costs below the scale amount in the sum of $6300. I will make the order for costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 30 November 2015