De Silva v Minister for Immigration and Multicultural Affairs
[2001] FCA 962
•23 JULY 2001
FEDERAL COURT OF AUSTRALIA
De Silva v Minister for Immigration & Multicultural Affairs [2001] FCA 962
MIGRATION – Bridging visa – Mandatory condition of the visa that the visa holder is not to work in Australia – decision that a $50,000 security be lodged – consideration of the relevant statutory regime
Migration Regulations 1994 (Cth) Sch 2, cl 050.612A
O’Reilly v The Commissioner of the State Bank of Victoria (1983) 153 CLR 1 - cited
PRIYANKARAGE UPUL DE SILVA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
MERKEL J
23 JULY 2001
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 684 OF 2001
BETWEEN:
PRIYANKARAGE UPUL DE SILVA
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
MERKEL J
DATE OF ORDER:
23 JULY 2001
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The decisions of the Migrations Review Tribunal made on 19 June 2001 affirming the decision under review to refuse the grant of a Bridging E (Class WE) visa, subclass 050 to the Applicant and affirming the decision under review to require a security of $50,000 for compliance with conditions if a subclass 050 visa were granted, be set aside;
2. The matters the subject of those decisions be remitted to the Migration Review Tribunal, differently constituted, for reconsideration according to law.
3. The Respondent pay the Applicant’s costs as agreed or taxed in default of agreement.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 684 OF 2001
BETWEEN:
PRIYANKARAGE UPUL DE SILVA
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
MERKEL J
DATE:
23 JULY 2001
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Occasionally cases come before the Court that show that the law can be used as an instrument of injustice. The present is such a case.
The applicant and his wife have resided in Australia since 1996. They have a three year old son who was born in Australia. The applicant was recently the holder of a bridging visa, issued because the applicant’s wife is a party to a class action in the High Court.
Under the current scheme of the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) neither the applicant, nor his wife, both of whom are seeking visas to remain in Australia and are following lawful procedures to do so, are allowed any form of social security; nor are they allowed to work. According to the decision of the Migration Review Tribunal (“the Tribunal”) presently under review the family received limited assistance from the applicant’s brother-in-law but, as he only earns a small salary, they were required to rely on food vouchers from the Red Cross and other charities and beg for free food from convenience stores like McDonalds and Kentucky Fried Chicken.
The requirement that the applicant not work in Australia is a mandatory condition of his bridging visa. This is surprising, as in relation to other classes of bridging visas the Minister has a discretion to waive that condition if satisfied an applicant has a compelling need to work. It is difficult to understand why any person entitled to remain in Australia to await the outcome of an application for a visa permitting residence in Australia should be absolutely prohibited from seeking work when work is available to that person and he or she can satisfy the Minister that there is a compelling reason for permission to work to be given.
The present legislative regime leads to the Kafkaesque situation in which the applicant, evidently under surveillance, was twice apprehended for working in order to provide for his wife and young child. Under the statutory regime that is an offence, and has resulted in the cancellation of the applicant’s bridging visa and his indefinite detention away from his wife and child.
Prior to the current sequence of events, the applicant had been apprehended committing the offence of working to support his family at a Holeproof factory. As a result of this a $10,000 security bond was imposed.
He was again apprehended for working at the Nunawading Library. However, instead of forfeiting the $10,000 bond the Minister’s delegate saw fit to increase that bond to $50,000, a sum known to be beyond the means of the applicant who the Tribunal described as having no monies or savings. The applicant’s failure to pay the increased security was a ground for keeping him in detention. The decision of the Minister’s delegate was upheld by the Migration Review Tribunal. The outcome was that the applicant not only committed an offence but is now in indefinite detention.
The circumstances I have outlined are anomalous, to say the least. The Minister’s delegate did not forfeit the $10,000 security as it appeared to be a disproportionate response in the circumstances. However, that apparently compassionate approach to the issue was followed by the disproportionate response of increasing the security to $50,000, thereby ensuring the applicant’s indefinite detention. The anomaly is exacerbated by the fact that the Tribunal accepted that the applicant has no record of misconduct other than working to support his family, presents no risk of any kind to the community, and there is no evidence of any risk of flight or of absconding.
It is not surprising that when the matter came before me on an application by the applicant to review the decision of the Tribunal he was in a distressed state. I referred the case under the Court’s legal assistance scheme to counsel to represent the applicant and fixed the matter for an expedited hearing.
Counsel for the applicant prepared a detailed, well researched and comprehensive outline of submissions. One of the submissions was that the decisions of the delegate and the Tribunal were an improper exercise of power in that they involved an excessive use of power (see O’Reilly v The Commissioner of the State Bank of Victoria (1983) 153 CLR 1 at 48) and a use of the power to require the lodging of security for purposes for which the power was not conferred. Upon receipt of the submissions the Minister agreed to orders setting aside the decisions in question and remitting the matter for rehearing.
As the parties have resolved the matter by consent it is not necessary for me to adjudicate upon it. However, merely setting aside the decision may not redress the underlying injustice. It is a matter of some concern that the current regulatory environment can operate to require that persons employing proper procedures to remain in Australia be required to live off such charity as may be available or to beg to make up the shortfall to enable their sustenance. I doubt that the regime was intended to have that outcome. The problem lies in the fact that under the regime, in certain categories of cases, there is no discretion to allow an applicant to work no matter how compelling the applicant’s circumstances and need to do so. I have set out my concerns in an endeavour to draw the anomalies that have arisen in the present case to the attention of those responsible for the Regulations in the hope that some corrective action might be taken.
By consent, I will set aside the decisions of the Migration Review Tribunal made on 19 June 2001 and order that the matters the subject of those decisions be, as a matter of urgency, referred back to the Tribunal, differently constituted, for further consideration according to law. I will also order under Order 80 r 9(2) that the Minister pay the applicant’s
costs. Finally I would like to express the Court’s gratitude to counsel for assisting in the Pro Bono scheme.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate:
Dated: 23 July 2001
Counsel for the Applicant: Stephen Donaghue Counsel for the Respondent: Caron Beaton-Wells Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 23 July 2001 Date of Judgment: 23 July 2001
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