Ghomrawi v Minister for Immigration and Multicultural Affairs

[1999] FCA 1216

FEDERAL COURT OF AUSTRALIA

Ghomrawi v Minister for Immigration & Multicultural Affairs [1999] FCA 1216

MIGRATION – application for order of review of decision of Immigration Review Tribunal – where Tribunal affirmed decision to refuse a bridging visa pending outcome of application for protection visa – where, by the time decision of Tribunal reviewed by the court, the bridging visa if granted would already have expired – whether futile to consider the application

HASSAN GHOMRAWI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N398 OF 1999

EMMETT J
28 SEPTEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N398 OF 1999

BETWEEN:	HASSAN GHOMRAWI Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	28 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed in so far as it seeks any review of the decision of the Immigration Review Tribunal given on 8 April 1999.

2.Costs relating to questions raised in relation to the review of the Immigration Review Tribunal decision of 8 April 1999 be reserved.

3.The applicant file a further amended application within 7 days from the date of these orders.

4.The proceedings be stood over part-heard to Monday 11 October 1999 at 10.15am.

5.The applicant file and serve no later than 5 October 1999 a further outline of his contentions in so far as they are based on the alleged refusal of Ms Capra to accept an application for a visa on 18 November 1996.

6.Each party file and serve no later than 8 October 1999 an outline of submissions as to why the court should accept one version or another of the events of 18 November 1996.

7.The applicant file no later than 8 October 1999 the particulars of any responses received from the Attorneys-General regarding the section 78B notices.

8.The applicant file no later than 5 October 1999 an outline of his contentions as to the invalidity of section 189 or section 196 Migration Act 1958 (Cth) in so far as the applicant seeks to rely on such invalidity.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N398 OF 1999

BETWEEN:	HASSAN GHOMRAWI Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	28 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT (NO. 2)

1. I have before me an application brought by Mr Hassan Ghomrawi (“the applicant”).  The original application was filed on 5 May 1999.  An amended application was filed in court by leave on 14 September 1999.  In the original application, the following appeared at the beginning of the document as filed:

   “APPLICATION FOR AN ORDER OF REVIEW

   DETAILS OF CLAIM

   This is an application pursuant to Part 8 of the Migration Act 1958 (Cth) to review the decision (N99/00510) of the Immigration Review Tribunal (“the IRT”), (“the decision”), made on 8 April 1999 to affirm the delegate's decision not to grant the applicant a bridging visa (“the decision”). The applicant is aggrieved by the decision because he was an applicant for a bridging visa and for review by the IRT of the decision denying him such a visa.

   PART I

   The grounds for the application are: 

   1.Procedures that were required by the Act to be observed in connection with the making of a decision were not observed;

   2.The decision was an improper exercise of the power conferred by the Act. 

   3.The decision involved an error of law being an incorrect interpretation of the applicable law and/or an incorrect application of the law to the facts as found by the IRT. 

   The applicant claims:- 

   4. An order setting aside the decision. 

   5.      An order remitting the matter to the IRT to be determined according to law. 

   6. Such other relief as this Honourable Court considers just and necessary.”

   There then follow parts of the application entitled:  Part II and Part III.  Under Part II, appeared the following:

   “FURTHER APPLICATION

   Upon the grounds set out above and the following additional grounds, the applicant seeks relief against the first and second respondents pursuant to section 39B of the Judiciary Act 1903 and/or the Administrative Decisions (Judicial Review) Act 1977 and/or the Federal Court of Australia Act.”

2. The respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), filed a Notice of Objection to Competency under Order 54 rule 4 and Order 54B rule 3 of the Federal Court Rules.  The grounds of the objection were as follows:

   “In respect of judicially reviewable decisions or decisions covered by subsection 475(2) of the Migration Act 1958, pursuant to section 485(1) of the Migration Act the Federal Court has no jurisdiction other than the jurisdiction provided by Part 8 of the Migration Act 1958 or by section 44 of the Judiciary Act 1903.”

   That objection was directed to the application in so far as it claimed relief based on the Administrative Decision (Judicial Review) Act 1977 (Cth) or section 39B of the Judiciary Act 1903 (Cth). That is to say, it was an objection to the competency of the claim for relief under Part II of the application. In the light of section 485(1) of the Migration Act, it is clear that the claim for relief under Part II is doomed to fail.

3. The original application went on to make claims in Part III as follows:

   “FURTHER APPLICATION: HABEAS CORPUS

   Pursuant to the jurisdiction pleaded above, the applicant seeks habeas corpus upon the grounds that he has been and/or has been unlawfully deprived of his liberty.”

   Thus, the application, as originally filed, involved no more than a review, by one means or another, of the decision of the Immigration Review Tribunal (“the Tribunal”) of 8 April 1999.  Even Part III was expressed to be based on what was pleaded in Parts I and II.

4. The amended application for an order for review expanded considerably the material in Part III and added a new “Part 4” (sic).  No change was made to Parts I or II.  As the matter has developed, the substantive complaint made by the applicant is that covered by the material now contained in Parts III and 4 of the amended application.

5. In the course of submissions today, I raised with counsel the utility of dealing with the matter raised in Part I, that is, the decision of the Tribunal of 8 April 1999.  To deal with that question it is necessary to recount the circumstances in which the matter came before the Tribunal.

6. On 17 September 1998, the applicant applied for a protection visa.  At the same time the applicant applied for a bridging visa.  The application was for Bridging Visa E (Subclass 050).  The application was submitted under cover of a letter from Corby Levingston, solicitors, of 17 September 1998 which said as follows:

   “1.The purpose of this facsimile is to confirm that Mr Ghomraoui [sic] has lodged an application for a protection visa today and an application for a bridging visa on the basis of that application. 

   2.We enclose a copy of the bridging visa application and we will provide you with a copy of the Departmental receipt confirming lodgment as soon as we receive it.”

   The letter was addressed to Ms Jean Newton, a compliance officer with the Department of Immigration & Multicultural Affairs (“the Department”) at Bankstown.  On 21 September 1998, a delegate of the Minister refused the grant of a bridging visa.  On 25 September 1998, the Tribunal affirmed that decision.

7. On 5 November 1998, the applicant lodged a further application for a Bridging Visa E (Class WE). The application was made on Form 1008 and contained, inter alia, the following:

   “Q.  Have you applied for a visa since arrival in Australia.  A.  Yes. 

   Q.   Type of visa applied for.  A. Visa class 966. 

   Q.  When did you apply.  A.  17/9/98. 

   Q.  Where did you apply?  A. Sydney.”

8. A letter from Corby Levingston of 5 November 1998 indicated that Mr Ghomrawi had lodged an application for a protection visa in the following terms:

   “Mr Ghomrawi has lodged an application for a protection visa on a Form 866 which was made on 17 September 1998.  That application, specifically the Form 866, was also the prescribed form for the purposes of making a valid application for bridging visa “E” subclass 050.  However, as a precaution we have asked our client to complete a bridging visa E form which has been sent to him by facsimile at the MRRC Silverwater and I would ask you under the circumstances to deem that he has made an application. 

   The applicant is in the migration zone as defined in section 5 and has applied while in the migration zone.

   ……………………

   The application for a protection visa was a valid application.”

   Thus, it is clear that the application lodged on 5 November 1998 was lodged in support of the protection visa application that had previously been lodged on 17 September 1998.  The applicant was entitled to make a second application for a bridging visa, notwithstanding the refusal of the bridging visa on 21 September 1998 as affirmed by the Tribunal on 25 September 1998.

9. On 6 November 1998, the second application for a bridging visa was refused.  The Tribunal affirmed the delegate's decision to refuse the second application.  The Tribunal's decision was made on 23 November 1998. Proceedings were then brought in this Court by way of application for review of the Tribunal's decision.  On 21 December 1998, Burchett J set aside the decision of the Tribunal and remitted the matter to the Tribunal for reconsideration.

10. On 5 January 1999, the Tribunal again affirmed the decision made on 6 November 1998 by the Minister's delegate.  On 19 January 1999, a further application was made to this court for review of the decision of 5 January 1999.  On 23 February 1999, the matter was, by consent, remitted to the Tribunal for reconsideration.  On 8 April 1999, the Tribunal once again affirmed the delegate's decision of 6 November 1998.  It is that decision which is the subject of the application for review before me.

11. However, in the meantime on 31 December 1998, a decision of the Minister’s delegate, apparently refusing the application for a protection visa, was confirmed by the Refugee Review Tribunal.  If a bridging visa had been granted pending the determination of the application for a protection visa, it would have expired 28 days after the decision refusing the protection visa.  In other words, it would have expired on 28 January 1999.  It is difficult to see, in those circumstances, why the parties saw fit to remit to the Tribunal, for reconsideration, the decision to refuse the bridging visa made on 6 November 1998.  Just as puzzling is the fact that the Tribunal proceeded to re-hear the matter and make a further decision on 8 April 1999. 

12. The Tribunal’s reasons for decision of 8 April 1999 refer to the fact that the applicant's application for a protection visa had already been resolved contrary to his interests.  However, it appears that the Tribunal and the parties nevertheless concluded that there was still some utility in considering the question of the validity of the decision of 6 November 1998.

13. Nothing has been said that dissuades me from the conclusion I have reached that there is no utility at all in considering the application before me in so far as it seeks review of the decision of 8 April 1999.  No evidence has been adduced to indicate that, had the bridging visa been granted, the applicant may have acted in a different way, for example, by making a further application for a different substantive visa.

14. The only matter that could possibly turn on the Tribunal's decision would be the question of costs. In the circumstances, I consider that the appropriate course is to dismiss the application in so far as it seeks review of the decision of the Tribunal of 8 April 1999 whether under Part 8 of the Migration Act, under section 39B of the Judiciary Act or under the provisions of the Administrative Decisions (Judicial Review) Act.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             8 October 1999

Counsel for the Applicant:	J.M. Gersten
Solicitor for the Applicant:	Alex Lee
Counsel for the Respondent:	A.F. Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 September  1999
Date of Judgment:	28 September 1999