Jahan v Minister for Immigration & Multicultural Affairs

[1999] FCA 1052

Jahan v. Minister for Immigration & Multicultural Affairs [1999] FCA 1052

Jahan v. Minister for Immigration & Multicultural Affairs [1999] FCA 1052

SARWAT JAHAN v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 505 of 1999

HILL J

28 JULY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 505 OF 1999

BETWEEN:	SARWAT JAHAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
#DATE 28:07:1999 JUDGE:	HILL J
DATE OF ORDER:	28 JULY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.       The decision of the Immigration Review Tribunal be set aside.

2.       The matter be remitted to the Immigration Review Tribunal, differently constituted, to be determined according to law.

3.       The Minister pay the applicant's costs.

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	N 505 OF 1999

BETWEEN:	SARWAT JAHAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	HILL J
DATE:	28 JULY 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1       The applicant, Sarwat Jahan, applies to the Court for a review of the decision of the Immigration Review Tribunal ("the Tribunal") affirming a decision made by a delegate of the respondent Minister for Immigration and Multicultural Affairs to refuse her a bridging visa. The applicant is a citizen of Pakistan who arrived in Australia on 16 December 1996 as the holder of a 456 temporary business visa permitting her to remain in Australia for one month.

2       She apparently placed no significance on that one month period because she remained in Australia illegally and undetected until 12 May 1999 when discovered by officers of the respondent. The day after she was discovered she was interviewed and in the course of that interview said:

"I do not want to go back to Pakistan under any circumstances. I believe my husband's family will kill me."

3       The day after the interview the applicant lodged her application for a bridging visa claiming that she could satisfy the criteria set out in clause 050.212(2). The Tribunal in its reasons notified that one of the relevant requirements of which it must be satisfied before the applicant could succeed was that she would abide by any conditions which might be imposed upon a visa if one were granted to her.

4       The Tribunal considered that it would be appropriate to impose five conditions. That exercise of discretion is not in issue. The relevant conditions are:

"8101: The holder must not engage in work in Australia.

8401: The holder must report

(a) at a time or times; and

(b) at a place; specified by the Minister for the purpose.

8505: The holder must continue to live at the address specified by the holder before the grant of the visa.

8506: The holder must notify Immigration at least 2 working days in advance of any change in the holder's address.

8507: The holder must, within the period specified by the Minister for the purpose:

(a) pay; or

(b) make an arrangement that is satisfactory to the Minister to pay; the costs (within the meaning of Division 10 of Part 2 of the Act) of the holder's detention."

5       Having outlined the conditions which would be imposed the Tribunal continued:

"In coming to a conclusion with regard to whether the applicant will abide by these conditions, I have had regard to the considerations set out in the relevant Departmental Migration Series Instruction and I set out my conclusions below with regard to those considerations."

6       There appear thereafter a series of headings of the conditions detailed in the relevant instruction and comments on them. Some of the matters in the instruction the Tribunal indicated had no significance to the facts of the case, others would appear to. The final condition to which the Tribunal refers and the comments which follow that condition are as follows:

"Whether the grant of a bridging visa to the applicant is in the best interests of the community."

...

"The Applicant indicated that under no circumstances would she return to Pakistan. She has worked without permission and managed for over two years to support herself. I do not believe that it would be in the best interests of the community to grant this visa."

The Tribunal then continued:

"Taking into consideration all the evidence presented to this Tribunal, I do not believe that the Applicant would abide by any conditions which may be imposed. Rather, I believe the Applicant when she says she will not return to Pakistan and will, if given the chance, cease contact with the Department and disappear."

7       Although not relevant to matters argued before me it may be noted that there was no conditions imposed or indeed which could be imposed which would have required the applicant to return to Pakistan. The relevant condition was merely a condition that she would leave Australia.

8       Counsel for the applicant submitted that the Tribunal had erred in law in applying, or taking into account, the Departmental Migration Series Instructions when those instructions were irrelevant to the issue which the Tribunal had to consider. Reliance was placed upon a decision of Burchett J in Ghomrawi v Minister for Immigration and Multicultural Affairs 21 December 1998 (unreported).

9 Counsel for the Minister submitted that the Tribunal had not erred in law within the meaning of those words in s 476(e) of the Migration Act 1958 but rather had merely taken the Departmental Migration Series Instructions into account in determining a factual issue. He submitted also that while clearly enough the Ministerial instruction requiring consideration of the best interests of the community posed an irrelevant issue, the posing of that issue in the present case was not material. Rather it was said the Tribunal made a factual finding that the applicant would not return to Pakistan but would rather cease contact with the Department and disappear, or in other words had concluded by reference to the facts that the relevant conditions which the Tribunal saw appropriate to apply would not be complied with. He submitted that Burchett J's decision in Ghomrawi was distinguishable and that the present case rather fell closer to the decision of Hely J in Choy Hiong Chan v Minister for Immigration and Multicultural Affairs [1998] FCA 1357 and in consequence the application should be dismissed.

10       In Ghomrawi the Tribunal had imposed conditions requiring the applicant to report to the Department and not engage in work. The Tribunal found it likely that the applicant would fail to comply with these conditions. In reaching its conclusion the Tribunal stated that it had relied on the same migration series instruction including, inter alia, consideration of the best interests of the community.

11       Of this particular matter and its relevance to the issue before the Tribunal Burchett J said:

"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 of the ..... two quite separate questions. As a policy consideration, it goes altogether outside the statutory charter to determine the issue of satisfaction of the criterion."

12       His Honour formed the view that the Tribunal was misled by considering the policy statement. His Honour set out the various factors in the statements and the Tribunal's conclusions about them in the same way as occurred in the present case. On the issue of whether the grant of a bridging visa to the applicant was in the best interests of the community, the Tribunal in that case said:

"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 he had 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 had supported and cared for him throughout the time he had been detained. The evidence shows his attitude to others in authority with whom he has come in contact with regard to this matter has been disrespectful and at time violent."

13       It will be noted that nowhere under the heading of the best interests of the community did the Tribunal actually say anything about the best interests of the community. The Tribunal's comments indeed appear in part to have been directed to matters such as respect for authority which might be thought to have some bearing, at least, on the reporting condition. The reference to violence was obviously quite irrelevant to the conditions.

14       Burchett J concluded:

"My analysis of the reasons leaves me with a 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 section 476(1)(e). The decision must be set aside, and the matter must be remitted for determination according to law."

15       It would seem to be common ground between the parties that this Court would not set aside a decision of the Tribunal where the error in question, if made, was not material to the Tribunal's decision. The correct test to be applied is whether the error in question could have affected the decision: Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513 at 519 and cases there set out, and see also, albeit in the context of whether remittance would be futile, Nguyen v Minister of Immigration and Multicultural Affairs (1998) 158 ALR 639 at 647 per Merkel J and Ranatora v Minister of Immigration and Multicultural Affairs (1998) 154 ALR 693 at 698.

16       Had the Tribunal not said:

"I do not believe that it would be in the best interests of the community to grant this visa."

it would, I think, have been relatively clear that the question of the best interests of the community was not a question which the Tribunal considered in determining whether it was satisfied that the applicant would comply with the relevant conditions.

17       The difficulty I have is that the Tribunal went out of its way to say that in reaching its conclusion, a conclusion rather of prediction than of existing fact, it had regard to the relevant instruction and specifically indicated a belief that it was not in the best interests of the community to grant the visa. Although the case obviously differs from Ghomrawi in a factual way I think that the error of law which the Tribunal has committed is the same in the present case as it was in Ghomrawi. In essence, the error of law is that the Tribunal has addressed the wrong issue. It has allowed itself to take into account matters that might be relevant to some other exercise of discretion in arriving at what the legislation provides is really an objective determination of prediction of compliance with conditions which would be imposed if a bridging visa were to be granted.

18       The present is not, with respect to counsel for the Minister, merely a case of irrelevant evidence being considered along the way to arriving at a factual conclusion where the relevant evidence could have had no impact, it is really the posing of a wrong test. No doubt that explains Burchett J's relatively terse comment in Ghomrawi that 476(1)(e): "fits neatly the issue argued".

19       It is perhaps unfortunate that the Tribunal was apparently unaware of Burchett J's decision in Ghomrawi. It is, I must say, likewise unfortunate that some months have now gone by since the Minister was alerted to the problem, months in which the matter could easily have been sent back to the Tribunal and dealt with. However, that is not what has happened. In the circumstances I would set aside the decision of the Tribunal.

20       The orders I make are that:

1.       The decision of the Immigration Review Tribunal be set aside.

2.       The matter be remitted to the Immigration Review Tribunal, differently constituted, to be determined according to law.

3.       The Minister pay the applicant's costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:        28 July 1999

Counsel for the Applicant:	T Reilly
Solicitor for the Applicant:	Christopher Levingston & Associates
Counsel for the Respondent:	P Braham
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 July 1999
Date of Judgment:	28 July 1999