Ghomrawi, Hassan Salah v Minister for Immigration & Multicultural Affairs
[1998] FCA 1712
•21 DECEMBER 1998
No. NG 1295 of 1998
FED No. 1712/98
Number of pages - 5
Migration
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BURCHETT J
Migration Act 1958, ss 37, 73, 476
Migration Regulations, Sched. 2, item 050.213
Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs (1993) 34 ALD 169
Chaudhary v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 84
Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 50 ALD 690; 150 ALR 608
SYDNEY, 21 December 1998 (hearing and decision)
#DATE 21:12:1998
Appearances
Counsel for the Applicant: Mr T Reilly
Solicitor for the Applicant: Corby Levingston
Counsel for the Respondent: Mr S Lloyd
Solicitor for the Respondent: Australian Government Solicitor
THE COURT ORDERS THAT:
(1) The decision of the Immigration Review Tribunal be set aside and the matter be remitted to the tribunal to be determined according to law.(2) The Minister pay the applicant's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
BURCHETT J
This is an appeal, so called, from a decision of the Immigration Review Tribunal. It is, of course, not a full appeal. I am required to consider the matter on the basis of the narrow questions of law to be found in s 476 of the Migration Act 1958. In this case, s 476(1)(e) fits neatly the issue argued.
The application in question was for what was called a bridging visa class E (the full description of which is Bridging E (Class WE) visa Subclass 050 (Bridging visa (General))). Section 37 of the Act provides:
"There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF."
Section 73, which is in Subdivision AF, then provides:
"The Minister may grant an eligible non-citizen who satisfies the criteria for a bridging visa prescribed under subsection 31(3) a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia:(a) during a specified period; or
(b) until a specified event happens."
It will be noticed that s 73 appears to confer a discretion by the use of the word "may", but only where the person concerned "satisfies the criteria for a bridging visa". Those criteria relevantly include (by item 050.213 in Schedule 2 to the Migration Regulations) the criterion that the applicant would abide by conditions which would be imposed on the grant of a bridging visa.
In the present case, the tribunal held it was likely the applicant would fail to comply with such conditions, particularly the condition of reporting to the department and not engaging in work. This was the ground expressed in the tribunal's decision for refusing the application. But, in reaching that conclusion, the tribunal relied on a policy statement issued by the department, under the heading "MIGRATION SERIES INSTRUCTION", relating to the consideration of an application for a bridging E visa subclass 050. That document contains a list of factors which may be taken into account, set out in paragraph 3.2.13.4 as follows:
"In determining whether the applicant is likely to abide by the conditions imposed, officers should have regard to the applicant's immigration history and any past dealings with the Department. The following factors may be taken into account:* whether the applicant has been identified to the satisfaction of the officer;
* whether the applicant has co-operated with the Department in its dealings with him/her;
* whether the applicant is a previous removee/deportee;
* whether the applicant has committed any breaches of the Act or Regulations;
* whether the applicant has breached the conditions of any previous bridging visa;
* whether the applicant has previously absconded from immigration detention or other custody;
* the applicant's conduct during any period of immigration detention;
* the strength of the applicant's ties to the Australian community;
* whether the applicant has had a visa cancelled or a substantive visa application refused in Australia;
* whether the grant of a bridging visa to the applicant is in the best interests of the community."
It will be observed that a number of these factors would appear to have a bearing on the decision to be made concerning the satisfaction of the relevant criterion. But the last raises an issue of an entirely different character. It invites the decision maker to consider, not whether the criterion is satisfied, but whether the applicant should have a grant in the best interests of the community, a matter of discretion to be considered only if the criterion were satisfied, and in the light of that satisfaction. This is to confuse the issue by the conflation of two quite separate questions. As a policy consideration, it goes altogether outside the statutory charter to determine the issue of satisfaction of the criterion. Cf. Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs (1993) 34 ALD 169 at 175.
Unfortunately, I think the tribunal was misled by this inappropriate and erroneous policy statement. It said, under the heading "Policy Considerations":
"In coming to a conclusion with regard to whether the Applicant will abide by conditions of a bridging visa, I have had regard to the considerations set out in the relevant Departmental Migration Series Instruction and I set out my conclusion below with regard to those considerations:* whether the applicant has been identified to the satisfaction of the decision-maker;
He has been identified.
* whether the applicant has co-operated with the Department in its dealings with him or her;
There is evidence that the Applicant has failed to notify the Department of changes of his residential address and has not complied with Departmental advice or migration law after the cessation of his Bridging visa.
* whether the applicant has previously been removed or deported;
There is no evidence of removal or deportation.
* whether the applicant has previously been refused a bridging visa;
The Applicant was refused a bridging visa, that refusal being confirmed by the Tribunal on 25 September 1998.
* whether the applicant has committed any breaches of the Act or Regulations;
The Applicant has worked without permission and has remained in Australia without a visa to do so.
* whether the applicant has breached the conditions of any previous bridging visa;
The Applicant has worked in contravention of a condition of the Bridging visa issued on 31 January 1996.
* whether the applicant has previously absconded from immigration detention or other custody, or is likely to abscond;
There is evidence on the Departmental file that he was considered likely to attempt to abscond.
* the applicant's conduct during any period of immigration detention.
Not acceptable.
* the strength of the applicant's ties to the Australian community;
The Applicant has a wife and child who are Australian citizens. His son is approximately six months old and his wife, who is currently living with her parents, is very anxious to have him released. The Tribunal recognises the strength of the claims of the Applicant's wife and infant son. However, I agree with previous decision-makers who found these are not sufficient to outweigh the community's interests referred to below.
* whether the applicant has had a visa cancelled or a substantive visa application refused in Australia;
The Applicant has been refused a Medical Treatment visa (Class 685) and a Criminal Justice Stay visa.
* whether the grant of a bridging visa to the applicant is in the best interests of the community;
I do not believe the Applicant's past conduct has demonstrated that he has any regard for Australia's migration laws. I believe his application for a Protection Visa was set in place only to allow him a further stay in Australia. The evidence shows that he has stated that he applied for the Protection Visa because it was the only way he could stay in Australia. His demeanour at the hearing portrayed, in my opinion, a disrespectful and arrogantly contemptuous person with regard to his wife's physical appearance despite the fact that his wife has supported and cared for him throughout the time he has been detained. The evidence shows that his attitude to others in authority with whom he has come in contact with regard to this matter has been disrespectful and at times violent."
Counsel for the Minister urged that the final part of this passage, though put under the rubric "whether the grant ... is in the best interests of the community", was confined to considerations bearing on the probability of compliance with conditions. But this would be far too strained an interpretation. The whole passage opens with an unqualified statement that the tribunal has "had regard to the considerations" in the policy statement, and the conclusion of the tribunal is stated to be set out below "with regard to those considerations". Then, when referring to the one important consideration which might be thought to require to be examined as bearing in the applicant's favour - the strength of his ties to an Australian wife and child - the tribunal deals with it, not as an indication that the applicant would abide by conditions, but as a discretionary factor raising "claims of the Applicant's wife and infant son". Those claims, so considered, are balanced in the reasons against "the community's interests referred to below". In this context, it is plain the tribunal was seduced by the policy guidelines into allowing discretionary factors to intrude upon the objective determination which was first required to be made.
In so dealing with the matter, the tribunal recorded, under the broad discretionary heading to which I have already referred, a series of highly prejudicial findings about the applicant, some but not all of which could properly have been considered in respect of the issue of satisfaction of the criterion in question.
My analysis of the reasons leaves me with the firm conclusion that the mistaken invitation in the policy document was taken up, with the result that the decision was infected by an error of law falling within s 476(1)(e). The decision must be set aside, and the matter must be remitted for determination according to law. It is accepted that that determination would be made by the tribunal differently constituted.
I should add, lest passing it over might lead to any misapprehension, that the dichotomy asserted by the tribunal, between the interests of the wife and child, on the one hand, and those of the community on the other, also involves error. See Chaudhary v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 84 at 87-88, a decision of a full court to which reference was made in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998)
50 ALD 690 at 696; 150 ALR 608 at 614-615. The interests of the Australian community cannot be so narrowly understood.
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