Evi20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 971
•10 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EVI20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 971
File number(s): SYG 2609 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 10 May 2021 Catchwords: MIGRATION - Review of Administrative Appeals Tribunal decision – refusal of a bridging visa – applicant found to be unlikely to abide by the conditions on the visa – various errors alleged – no jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 116(1)(e)(i), 189, 359AA, 360
Migration Regulations 1994 (Cth)
Cases cited: Applicant VAAN of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 197
Lee v Minister for Immigration and Multicultural and Indigenous Affairs
Minister for Immigration and Citizenship v SZMDS
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration and Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Number of paragraphs: 38 Date of hearing: 10 May 2021 Place: Sydney The Applicant appeared in person Solicitor for the Respondents: Ms S Balakrishnan of Australian Government Solicitor ORDERS
SYG 2609 of 2020 BETWEEN: EVI20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
10 MAY 2021
THE COURT ORDERS THAT:
1.The application filed on 18 November 2020 is dismissed.
2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER:
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 27 October 2020. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a bridging visa. In separate proceedings, also heard by me today, the applicant also challenges a later decision of a differently constituted Tribunal, refusing him a protection visa. Background facts relating to the bridging visa decision are set out in the Minister’s outline of submissions, which I adopt.
BACKGROUND
The applicant is a citizen of Malaysia who arrived in Australia on 11 March 2015 as the holder of an Electronic Travel Authority (ETA). On 5 June 2015, the applicant applied for a Student (subclass 572) visa, which was granted on 17 July 2015. On 13 November 2017, the applicant applied for a Student (subclass 500) visa as the dependent partner of a Student visa holder, which was granted on 9 February 2018[1]
[1] Supplementary Court Book (SCB) 83.
On 14 January 2019, the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of his Student (subclass 500) visa because the Minister’s Department had been notified that the applicant had been charged with “supply prohibited drug>indictable & <commercial quantity”. On 8 April 2019, the applicant was remanded in criminal custody. Although the applicant’s representative at the time responded to the NOICC, on 2 May 2019, his Student (subclass 500) visa was cancelled under s 116(1)(e)(i) of the Migration Act 1958 (Cth)(Migration Act) and he became an unlawful non-citizen (UNC). On 13 September 2019, following an application for review, the Tribunal affirmed the delegate’s decision to cancel the Student (subclass 500) visa[2].
[2] SCB 83
On 2 March 2020, the applicant was convicted of various offences and sentenced to 2 years and 6 months imprisonment with a non-parole period of 1 year and 6 months. On 6 October 2020, the applicant was released from criminal custody, identified as a UNC, detained and transferred to Villawood Immigration Detention Centre under s 189 of the Migration Act[3].
[3] SCB 83-84
On 13 October 2020, the applicant applied for a Protection (subclass 866) visa, triggering an associated Bridging E visa application. On 15 October 2020, the delegate refused the Bridging E visa.
On 18 October 2020, the applicant applied to the Tribunal for review of the delegate’s decision[4]. On 21 October 2020, the applicant provided written submissions and evidence to the Tribunal[5].
[4] Court Book (CB) 13-14
[5] CB 34-39
On 23 October 2020, the applicant attended a hearing before the Tribunal, assisted by a Mandarin interpreter[6]. On 25 October 2020, the applicant provided further written submissions and evidence to the Tribunal[7].
[6] CB 40-42
[7] CB 43-60
On 27 October 2020, the Tribunal affirmed the decision under review[8].
[8] CB 64-74
Tribunal decision
The Tribunal identified that the applicant sought to satisfy the criteria for a Bridging E (subclass 050) visa[9]. As the applicant had applied for a substantive visa that had not been finally determined, the Tribunal found he satisfied clause 050.212(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations)[10]. Pursuant to clause 050.223 of Schedule 2 to the Regulations, the Tribunal identified that the issue was whether the applicant would abide by conditions imposed on the Bridging E visa[11].
[9] CB 65, [2]
[10] CB 69, [36]
[11] CB 65, [6], 69, [36]
Under s 359AA of the Migration Act, the Tribunal put to the applicant information that it considered would be the reason for affirming the decision under review. Specifically, the Tribunal invited the applicant to comment on information that indicated he did not fear persecution or significant harm if he returned to Malaysia and information that he had previously sold drugs and had prior convictions. The applicant requested further time to consider his response and the Tribunal consented to the request, allowing the applicant until 10am on the Monday following the hearing to provide the information (i.e. 26 October 2020)[12].
[12] CB 68-69, [29]-[33]
Having regard to Division 050.6 of Schedule 2 to the Regulations, the Tribunal found that as the applicant met clause 050.212(3), clause 050.612A of Schedule 2 to the Regulations applied. Therefore, in addition to mandatory condition 8101, the Tribunal considered that conditions 8401, 8505 and 8564 should be imposed[13].
[13] CB 70, [40]
In assessing whether the applicant would abide by visa conditions, the Tribunal referred to Applicant VAAN of 2001 v Minister for Immigration & Multicultural Affairs[14] where Finkelstein J statedthat relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of migration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct[15].
[14] [2002] FCA 197 at [15]-[16]
[15] CB 69-70, [38]
In making its findings, in addition to the applicant’s past conduct and immigration history, the Tribunal considered the applicant’s evidence, the applicant’s father’s evidence, submissions and the documentary evidence[16].
[16] CB 70, [41]
The Tribunal was not satisfied the applicant would comply with condition 8564 (not engage in criminal conduct) for the following reasons:
(a)the Tribunal balanced the applicant’s strong level of parental support against the uncertainty of his parents’ situation who are non-citizens awaiting the outcome of their own visa applications[17];
(b)while acknowledging the rehabilitative courses the applicant had undertaken while in custody and his intention to abstain from further drug use, the Tribunal was concerned by the applicant’s previous relapse while under supervision in the community and being placed back in custody[18];
(c)the Tribunal found that the applicant misrepresented his criminal history in his evidence at hearing[19]. Accordingly, the Tribunal viewed this as an indicator of a person not taking full responsibility for their offending behaviour and placed weight on this as a factor against the applicant complying with a condition not to engage in further criminal conduct[20]; and
(d)the Tribunal’s finding that the applicant has strong family support was not overcome by its finding that the applicant’s convictions for multiple offences demonstrated a broader disregard for Australian law[21].
[17] CB 70, [43]
[18] CB 71, [44]
[19] CB 67, [20]
[20] CB 71, [45]
[21] CB 71, [47]
The Tribunal was not satisfied the applicant would comply with condition 8101 (not engage in work). Having regard to the oral evidence of the applicant’s father and documentary evidence of his father’s financial circumstances, the Tribunal gave positive weight to the support offered by the applicant’s parents. However, balanced against this was the uncertainty of the parents’ own visa situation and the viability of their support in circumstances where the Tribunal had concerns about the applicant’s history of drug dependency[22].
[22] CB 71-72, [48]-[50]
Although the Tribunal noted the applicant’s parents’ wish for him to live with them, the Tribunal was not satisfied the applicant would comply with conditions 8401 (must report) and 8505 (must live at specified address). The Tribunal’s finding was due to the uncertainty of his parents’ visa situation, the applicant’s history of maintaining stability and abstaining from drug use and the concern as to the actions the applicant may take if his Protection visa application were refused[23].
[23] CB 72, [51]-[54]
The Tribunal was not satisfied that a security would provide financial incentive for the applicant to comply with conditions[24].
[24] CB 73, [59], [61]
The Tribunal concluded that the applicant did not satisfy clause 050.223 of Schedule 2 to the Regulations and affirmed the decision under review[25].
[25] CB 73, [62], [65]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application, filed on 18 November 2020. The applicant continues to rely upon that application. There are five grounds in it (errors in original):
1.Applicant to the delegate who refused to grant the visa was required by s66(2)(d)(ii) of the Migration Act 1958 (Cth) to ‘state… the time in which the application for review may be made’. Regulation 4.31 of the Migration Regulations 1994 (Cth) required any merits review application to be made within 28 days of the day when the decision was notified to the Appellant. Since Applicant was late to lodge a review to Administrative Appeals Tribunal requesting court:
2.To allow applicant to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision.
3.To allow The purpose of the obligation to afford procedural fairness to a person who may be affected by an adverse decision is to avoid the “practical injustice” which may occur when an opportunity to explain is lost,
4.Particulars
a.Furthermore the ATT Member failed to give proper advice regarding the applicant’s current refusal of application for a Bridging Visa on the day of interview. In that The Member advised the applicant that he will request further comment on the Interview which was a evidence of support letters and letter for financial support from parents on grant of bridging visa.
b.[36] The tribunal accepts that the visa applicant meets cl.050.212(3)[55] Tribunal acknowledges that applicant has expressed, contrition and remorse for his past offending behaviour and the impact this had upon him his family and Australian society.
i.[36] Tribunal has placed some positive weight on applicants factor.
ii.[36] The tribunal has also placed weight on the level of parental support which is evidence in the case.
c.[59] The tribunal has considered weather the applicant will abide conditions 8101, 8401, 8505, and 8565, if security is required, as financial incentive for his compliance and tribunal was satisfied in applicant’s favour that applicant will comply conditions 8401 and 8505.
d.60] If Tribunal is satisfied that the applicant will abide all conditions if any security amount that will impose, Member fail to to impose a security amount or requested the applicant that if he can meet security requirements so applicant will abide all his visa conditions.
5.hence; the Member fail to give take into account relevant material and coincided irrelevant material while coming to his decisions.
The underlying purposes of the requirements of notice of disclosure as aspects of procedural fairness is another important consideration. It is to provide an opportunity for meaningful participation by the potentially aggrieved person and to enable the person to respond to adverse matters.
The application was accompanied by a short affidavit, which I received as a submission. I have before me as evidence the court book filed on 24 December 2020, and a supplementary court book filed on 1 February 2021.
The applicant told me that he had not received, or could not find, the Minister’s outline of submissions. In the circumstances, I invited the Minister’s solicitor to explain those submissions to the applicant, and then I called upon him to respond. Essentially, the applicant considers that he has not been treated fairly. He was taken into immigration detention after he had completed his criminal sentence. He considers that he has not been given the opportunity to show that he has reformed. He also says that the issue of security was not genuinely dealt with. He says that, in discussion with the Tribunal at the Tribunal hearing, he offered $5,000.
As I explained to the applicant, the issue for this Court is not the correctness of the Tribunal decision, but the legality of it. Also, as I explained to the applicant, in my view, the conclusions reached by the Tribunal on the relevant criteria were open to it on the material before it. That is not to say that a different Tribunal might have made a different decision. Further, there is nothing to prevent the applicant applying again for a bridging visa.
CONSIDERATION
I agree with the Minister’s submissions concerning the grounds of review advance, which I adopt.
Grounds 1 and 2 seek an extension of time to apply to the Tribunal for merits review. The applicant’s assertion is misguided as the applicant applied to the Tribunal within the statutory timeframe and the Tribunal conducted its review. Grounds 1 and 2 fail.
Ground 3 contends that the applicant was denied an “opportunity to explain”.
The Tribunal complied with its procedural fairness obligations under Part 5 of the Migration Act. On 20 October 2020, the Tribunal invited the applicant to a hearing in accordance with s 360(1) of the Migration Act and pursuant to a valid invitation (s 360A)[26]. The applicant was on notice of the determinative issue, namely whether he would abide by visa conditions, as this was the issue before the delegate[27]. Prior to the hearing, the applicant provided to the Tribunal written submissions and evidence addressing the determinative issue. The applicant attended a hearing before the Tribunal, with the assistance of an interpreter. At the hearing, the Tribunal put adverse information to the applicant in accordance with s 359AA of the Migration Act. Following the Tribunal’s advice, the applicant sought additional time to comment on the information, and provided written submissions and evidence following the hearing. Based on the above, I am satisfied that the applicant was afforded multiple “opportunities to explain”. Ground 3 fails.
[26] CB 26-28
[27] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35]
By Ground 4(a), the applicant contends that the Tribunal did not consider the applicant’s evidence, in particular the support letters and a letter from his parents offering financial support.
It is clear from the Tribunal’s reasons that it had regard to this evidence[28]. The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances[29]. Although the Tribunal gave positive weight to the evidence offering parental support, it balanced this against its other concerns, including “the sustainability of the proposed living arrangements”[30]. In this regard, it was open to the Tribunal to conclude that the applicant would not abide by the visa conditions for the reasons which it gave. Ground 4(a) fails.
[28] CB 67, [25], CB 69, [34], CB 70, [41], CB 71, [48]
[29] Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]
[30] CB 72, [50]
Grounds 4(b)-(d) can be characterised as an assertion that the Tribunal neither adequately considered whether to impose a financial security nor asked the applicant whether he can meet the security requirements.
The Tribunal considered the question of whether to impose a security. Consistent with Applicant VAAN[31], the Tribunal considered whether the applicant would abide by conditions if given a financial incentive to do so. As the Tribunal was not satisfied that the applicant would abide by conditions even where there is a financial incentive, the occasion for the imposition of a security did not arise[32].
[31] at [10], [21]-[22]
[32] Applicant VAAN at [21]-[22]; CB 73, [59]-[62]
After substantial reasoning as to why the Tribunal was not satisfied the applicant would comply with conditions, the Tribunal found that it was not satisfied the applicant would abide by conditions even with a security of any amount[33]. I am satisfied that the Tribunal adequately considered whether to impose a financial security.
[33] CB 73, [61]
To the extent that the applicant asserts that the Tribunal’s finding is illogical or irrational, it cannot be said that the Tribunal formed a view that no rational or logical decision maker could have arrived at on the same evidence[34].
[34] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]
There is no requirement that the Tribunal ask the applicant whether he can meet the security requirements. This was a matter considered by the delegate and as such, the applicant was on notice of this issue. In this regard, the Tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence[35].
[35] Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [49]; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]
Grounds 4(b)-(d) fail.
Ground 5 contends that the Tribunal took into account irrelevant considerations and failed to take into account relevant considerations.
This ground is not particularised and a lack of particulars could itself be the basis of dismissal of an application for judicial review[36]. In any event, it is not apparent that any such error exists in the Tribunal’s decision.
[36] WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]
CONCLUSION
The application filed on 18 November 2020 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 20 May 2021
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