Irani and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1964

Irani and Minister for Immigration and Border Protection (Migration) [2017] AATA 1964 (27 October 2017)

Division:GENERAL DIVISION

File Number(s):      2017/5847

Re:Shahzad IRANI

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment

Date:27 October 2017

Place:Sydney

The interlocutory application is refused.

......................[sgd]..................................................

Deputy President B W Rayment

Catchwords

MIGRATION – Skilled (Residence) visa refusal – application to stay refusal of skilled (residence) visa – deemed cancellation of bridging visa – failure of character test – various convictions for driving offences – applicant taken into immigration detention – significant impact on applicant’s wife – reasonable prospects of success on review – recommendation that a determination be made under s 197AB of the Migration Act 1958 – application for stay of decision refused

Legislation

Administrative Appeals Tribunal Act 1975, s 41(2)

Migration Act 1958, ss 196, 197AB, 501, 501F

REASONS FOR DECISION

Deputy President B W Rayment

27 October 2017

1. This is an application for an order or orders staying or otherwise affecting the operation or implementation of a decision made on 28 September 2017 by the Minister’s delegate refusing under s 501 of the Migration Act1958 (the Migration Act) to grant a Skilled (Residence) (Class VB) visa (the Skilled visa). The applicant had made the application in for that visa in the month of June 2009.

2. The applicant arrived in Australia as a student and several years later in 2009, when he made the application for the Skilled visa, he was at first granted a Bridging A (Class WA) visa and later was granted a Bridging B (Class WB) visa.  That visa was current immediately before 28 September 2017 and I will call it the bridging visa.  As I understand it, the purpose of the bridging visa was to regularize his being in Australia pending the consideration of his Skilled visa application.

3. He has married while in Australia, and his wife, an Australian citizen, is pregnant with their first child. She is 30 weeks pregnant.

4. The main ground of urgency of this application is that the applicant’s wife is legally blind. She has no vision in one eye and very reduced, blurry vision in the other eye. The result of the refusal by the Minister’s delegate of the Skilled visa application is that the applicant’s bridging visa has been deemed to be decided to be cancelled by the Minister, under s 501F of the Migration Act. That has resulted in the applicant becoming, for the time being, an illegal non-citizen and his being detained at Villawood Detention Centre, unable to work in either of his two business enterprises, and most importantly, unable to care for his wife in his own home on the central coast, or even to be with her at the present time.

5. His wife cannot cook for herself. She cannot use a microwave. She has either eaten frozen food cold, or most recently, eaten only bread and butter.  She cannot leave the home without someone assisting her, which happens only from time to time. She cannot shop.  She is at her wit’s end, and so is the applicant who constantly worries about her and the health of his unborn child. The applicant’s sister and his mother-in-law, have refused to come to the applicant’s home while he is at Villawood to look after his wife. 

6. The applicant is used to caring for his wife constantly. He cooks for her.  He accompanies her if she leaves the house.  When she is alone in the house, she is at risk of injury unless he or someone else is there.

7. I gathered that lesser concerns of the applicant’s relate to his circumstances at Villawood, some matters of his health and concerns about whether Iranians also detained in the centre might seek to injure him.

8. He has applied to this Tribunal to review the decision of the delegate to refuse to grant the Skilled visa. The refusal was based on “character” grounds, the grounds relating to driving offences of which the applicant has been convicted.  No person was injured as a result of any of those driving offences, and no property was damaged.  He has sold his car and cannot apply for a driver’s licence until January next year.  On the face of it, his application for review has reasonable prospects of success.  It will not be heard until December of this year, and it cannot be certain that it will be decided in that month.

9. If he succeeds in the review, his bridging visa will immediately entitle him to be removed from immigration detention while the Minister’s delegate considers aspects of his application for a Skilled visa that have not yet been dealt with.

10. The Minister has not so far made a “residence” determination permitting the applicant to reside in his home with his wife pending the hearing and determination of the review by this Tribunal. I was told that application has already been made to the Minister for the making of such a determination under s 197AB of the Migration Act. For reasons already expressed, I recommend to the Minister that such a determination be made forthwith. It is open to the Minister to decide that it is in the public interest to make the determination. The applicant seems, on the evidence led before me, to constitute no risk to the community, and would submit to conditions to the effect that he utilise only public transport or taxis and drive no motor vehicles. I gather that he has been travelling for the whole of 2016 to 2017 by means of public transport and taxis, or driven by others.

11. This application for a stay is brought forward only that application has not so far led to the making of a residence determination by the Minister and the situation is extremely urgent.  I would ask the Department to bring the matter to the Minister’s attention immediately.

12. Section 41 of the Administrative Appeals Tribunal Act1975 (the AAT Act) confers power on the Tribunal to make orders staying or otherwise affecting the operation or implementation of “the decision to which the relevant proceeding relates”. That is the decision to refuse the Skilled visa. The deemed decision to cancel the bridging visa was a statutory consequence of the refusal to grant the Skilled visa, and no person actually decided to cancel the bridging visa. The deemed decision itself is not within the jurisdiction of this Tribunal to review, because of s 501F(5) of the Migration Act.

13. Moreover, s 196 of the Migration Act, a section which applies despite any other law, so far as relevant, provides that an unlawful non-citizen must be kept in immigration detention until he is removed from Australia or deported or granted a visa. The words “despite any other law” seem to me to mean that the power of the Administrative Appeals Tribunal to make an order staying or otherwise affecting the operation or implementation of a decision, if it was otherwise applicable, is displaced pro tanto. That is to say, if the power in s 41(1) of the AAT Act is in terms available to make an order of the nature sought, it would not have such an effect because of the terms of s 196(6) of the Migration Act. It will only be when the Tribunal can deal finally with the merits of the refusal to grant the Skilled visa that, if the applicant succeeds, his bridging visa will spring back and he will be released from immigration detention. In the meantime, s 196 requires that I refuse the application under s 41 of the AAT Act. I do not need to deal with arguments put to me as to why s 41 authorises the making of the orders sought.

14. The interlocutory application is therefore refused.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

...........................[sgd].............................................

Associate

Dated: 27 October 2017

Date(s) of hearing:	26 October 2017
Solicitors for the Applicant:	Mr M Jones, Parish Patience Immigration Lawyers
Solicitors for the Respondent:	Mr A Keevers, Sparke Helmore