Gyongyos v Minister for Immigration
[2017] FCCA 537
•22 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GYONGYOS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 537 |
| Catchwords: MIGRATION – Applicant in detention and applies for bridging visa – visa refused on grounds applicant failed to apply for substantive visa within time allowed by section 195 Migration Act – application for judicial review – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.195 |
| Cases cited: Lui v MIAC [2008] FMCA 725 |
| Applicant: | WES MARTIN GYONGYOS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 114 of 2016 |
| Judgment of: | Judge Young |
| Hearing date: | 16 September 2016 |
| Date of Last Submission: | 4 October 2016 |
| Delivered at: | Darwin |
| Delivered on: | 22 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Ms Milutinovic |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed 18 April 2016 be dismissed.
The applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
ADG 114 of 2016
| WES MARTIN GYONGYOS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) affirming a decision of the Minister’s delegate to refuse the applicant a bridging visa.
The applicant was in detention at the time of hearing on 16 September 2016 but he notified my chambers that he had departed the country voluntarily on 9 December 2016.
The applicant is a US citizen. He is 29 years old. He first came to Australia on a visitor’s visa in December 2014 which, with an extension, entitled him to remain until 8 September 2015. On 8 November 2015 he was granted a bridging visa to depart but failed to depart. On 10 November 2015 he was given a further bridging visa to depart valid until 2 December 2015. Again the applicant failed to depart.
The applicant’s personal circumstances probably had some bearing on his conduct. The applicant’s father had lived in Australia and after his death the applicant visited his stepmother and stepsisters in Adelaide. He said he inherited some chattels, principally tools of trade, and personal effects from his father but he otherwise appears to have been without any financial resources. He commenced a relationship with a woman in Adelaide but this ended sometime in 2015. It appears the applicant may have commenced a short relationship with another woman but then recommenced his relationship with the first woman and resumed living with her on about 29 February 2016.
The applicant was detained on 3 March 2016. Pursuant to section 195 of the Migration Act the applicant, within two working days after his detention, informed an officer of his intention to apply for a substantive visa within the next five working days after those two working days. The applicant did not apply for a substantive visa within those five working days or at all.
Section 195 of the Migration Act provides as follows:
Detainee may apply for visa
(1) A detainee may apply for a visa:
(a) within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b) if he or she informs an officer in writing within those 2 working days of his or her intention to so apply--within the next 5 working days after those 2 working days.
(2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.
The applicant indicated to departmental officers during his initial period of detention that he was considering applying for a spouse visa but he failed to do so. There may have been a number of reasons for his failure but one appears to be that he lacked the substantial funds required.
The applicant applied for a further bridging visa and explained to departmental officers that he would need to get out of detention, sell some of his assets to raise funds for the spouse visa application and, at some time in the future, make a spouse visa application. The assessing officer was not satisfied that the applicant would abide by visa conditions, including a condition that he not work, that he would notify the Department of any change of address, given that he had changed address multiple times without notification, and that he had failed to depart on earlier occasions.
His application for a bridging visa was refused by the delegate on 10 March 2016.
The applicant applied to the Tribunal for a review. On 22 March 2016 the Tribunal heard and rejected the application.
In its reasons the Tribunal noted that the applicant indicated an intention to apply for a partner visa or a visa to allow him to work but was not willing to depart Australia and apply offshore because he would be precluded from doing so for three years. The Tribunal noted that the applicant had said that he could sell his father’s tools to raise the funds for a substantive visa application but had taken no steps to do so at the time of hearing.
At the time of the application the applicant was seeking to satisfy the criteria for the grant of a subclass 050 Bridging (General) visa. At the time of the visa application and at the time of decision the applicant was required to satisfy one of the criteria in clause 050.212 (2) – (9) of Schedule 2 of the Migration Regulations. The only relevant criterion in the case of the applicant was clause 050.212(3). That provided as follows:
(3) An applicant meets the requirements of this subclause if:
(a) the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined; or
(b) the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.
“Substantive visa” is defined in section 5 (1) of the Migration Act as a visa other than a bridging visa, criminal justice visa or enforcement visa. The “period allowed by the Minister” was said by counsel for the Minister to be the period referred to in section 195. The meaning of that phrase does not appear to be formally defined but rather, as I understood the submission, is arrived at by interpreting its meaning from the operation of the relevant sections. In the absence of any countervailing submission I accept that submission.
In circumstances where the applicant had not made an application for a substantive visa at the time of the hearing before the Tribunal it was submitted that the applicant was simply ineligible for a bridging visa because he had not satisfied and could not satisfy the requirements of clause 050.212(3). I accept that submission. The Tribunal further observed that there are obiter comments by Wilson FM in the decision of Lui v MIAC [2008] FMCA 725 to the effect that a bridging visa should not be granted under section 195(2) in a way that circumvents the plain legislative intention of section 195(1). That observation appears of limited relevance in the circumstances of this case.
The application sets out the grounds of review in the following terms:
(1) Tribunal member ignored relevant material.
(2) Tribunal member relied on irrelevant material.
(3) Tribunal member refused extension of time so I could prepare documents and my witness be present.
The applicant did not comply with the order for filing written submissions and appeared in person at the hearing. I asked him about the grounds of review. He was not able to specify any relevant material that was ignored. However, he did tell me that he had decided he would not apply for a spouse visa and intended to apply for a visa that he called “remaining relation”, presumably on the basis of his family connection in Adelaide. He did not mention this to the Tribunal. In relation to the second ground he told me that the assessing officer had made an error in concluding that he would not be likely to comply with visa conditions and misunderstood one of his answers about work. On my reading of the form completed by the applicant I suspect there may be something in that assertion. However, by the time of the Tribunal decision that issue was not relevant or, alternatively, could not have made any difference to the outcome. I understood the third ground to relate to the Tribunal’s rejection of a request for an adjournment of the Tribunal hearing on the basis that the woman who was said to be the applicant’s partner at that time was unable to attend the hearing because of an urgent medical appointment. The Tribunal said in response to that request that any evidence that the applicant may wish the Tribunal to consider should be provided in writing before the hearing. No evidence was provided. I am not satisfied that the Tribunal’s rejection of the request for adjournment was procedurally unfair. Further, given the Tribunal’s conclusion that the applicant was formally ineligible for a visa any evidence about the nature of the relationship between the applicant and the woman would be irrelevant.
There is no merit in any of the grounds advanced by the applicant and the application is dismissed with costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 22 March 2017