JIMMY v Minister for Immigration

[2013] FCCA 1100

FEDERAL CIRCUIT COURT OF AUSTRALIA

JIMMY v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1100

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – cancellation of a bridging visa – immediate show cause hearing – no arguable case of jurisdictional error – observations on right of the applicant to make a fresh protection visa application.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 48B, 116, 359A, 417

Minister for Immigration v SZQRB [2013] FCAFC 33
SZGIZ v Minister for Immigration [2013] FCAFC 71

SZNJR v Minister for Immigration & Anor [2009] FMCA 654

SZNJR v Minister for Immigration [2009] FCA 1318

Applicant: BABU JIMMY

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1710 of 2013

Judgment of: Judge Driver

Hearing date: 15 August 2013

Delivered at: Sydney

Delivered on: 15 August 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms D Watson

Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The name of the second respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

2. There be an immediate show cause hearing under rule 44.11(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,331 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1710 of 2013

BABU JIMMY

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 24 July 2013 seeking review of a decision of the Migration Review Tribunal (Tribunal) made on 17 July 2013.  The Tribunal affirmed a decision of the delegate of the Minister to cancel the applicant’s bridging visa.  Background facts relating to this matter are set out in an affidavit prepared by the Minister’s solicitor and filed on 14 August 2013.  I received that affidavit into evidence along with the affidavit of the applicant filed on 24 July 2013.  The following statement of background facts is derived from that evidence.

2. The applicant arrived in Australia on 6 July 2008 as the holder of a tourist visa subclass TR 676. He subsequently applied for a protection visa which was refused on 3 November 2008. He then applied for review to the Refugee Review Tribunal (RRT), which affirmed the decision under review. He sought judicial review of that decision and the Federal Magistrates Court (as it then was) dismissed the application on 1 July 2009[1].

   [1] SZNJR v Minister for Immigration & Anor [2009] FMCA 654

3. The applicant appealed from that judgment and that appeal was dismissed by the Federal Court of Australia on 13 November 2009[2].

   [2] SZNJR v Minister for Immigration [2009] FCA 1318

4. The applicant has sought Ministerial intervention under s.417 of the Migration Act 1958 (Cth) (Migration Act) on 18 February 2010 and 5 March 2012. Neither of these requests resulted in Ministerial intervention. The applicant also sought Ministerial intervention under s.48B of the Migration Act on 5 March 2012. This also did not result in Ministerial intervention. That request was re-activated by the Department on 20 May 2013 and was finalised on 7 August 2013 on the basis that there was no Ministerial intervention.

5. I have before me a record relating to the applicant from the computer data base maintained by the Department recording visas held by individuals. That record shows that the applicant has been granted a total of 23 bridging visas since his arrival in Australia. That record also indicates that the bridging visa granted to him on 6 June 2013 was subject to, among other things, condition 8510, which required the applicant to show a passport which is in force or have made arrangements satisfactory to the Minister to obtain a passport, and condition 8511, which required the applicant to show an officer a ticket for travel to another country other than Australia that the Minister is satisfied will allow the holder to enter on his or her arrival. The record further shows that the last bridging visa granted to the applicant on 21 June 2013, the cancellation of which is the subject of this application, was also subject to, among other things, conditions 8510 and 8511 as well as 8512, being a condition which required the applicant to leave Australia by a date specified by the Minister. That visa was due to otherwise expire on 5 July 2013.

6. I also have before me records of interview with the applicant and officers of the Department on 6 June 2013 and 21 June 2013 regarding the granting of further bridging visas to him on departure grounds.

7. I also have before me a notice of intention to consider cancellation and a decision record in relation to a decision to cancel the applicant’s bridging visa on 5 July 2013 pursuant to s.116(1)(b) on the basis that he had breached conditions 8510 and 8511.

8. The applicant lodged an application for review with the Tribunal in relation to the decision to cancel his bridging visa on 8 July 2013.

9. On 12 July 2013, the Tribunal wrote to the applicant in accordance with s.359A of the Migration Act and invited him to comment on certain information.

10. The Tribunal made its decision on 17 July 2013 affirming the decision to cancel the applicant’s subclass 050 (Bridging (General)) visa.

11. The applicant has been in immigration detention since the cancellation of his visa on 5 July 2013. I was informed by the Minister’s solicitor that the Department has been making arrangements for his removal and, at present, it is intended to effect the applicant’s removal from Australia on 9 September 2013.

12. The matter was listed today for first Court day directions.  The Minister’s solicitor sought an immediate show cause hearing and summary dismissal of the application on the basis that it was doomed to fail and was futile in any event as the bridging visa, which had been cancelled, was due to expire on 5 July 2013.  The applicant told me from the bar table that his wife is pregnant and is due to give birth on 5 November 2013.  His intention is to depart Australia voluntarily after his wife gives birth. 

13. As I pointed out to him, it would be open to him to apply for a fresh bridging visa which might receive favourable consideration if he is able to provide proof to the Minister’s Department that he is making arrangements to depart Australia voluntarily.  I accept, on the basis of the material before me, that there is no arguable case of jurisdictional error by the Tribunal in dealing with the cancellation decision.  I also accept that the application is futile in any event given that the bridging visa would have expired on 5 July 2013. 

14. I am bound to note, however, that as the state of the law currently stands the applicant’s approaches to the Minister to exercise his power under s.48B of the Migration Act to permit him to make a fresh protection visa application were unnecessary. The Full Federal Court held, in SZGIZ v Minister for Immigration[3] that a person in the circumstances of this applicant is entitled to apply for a protection visa without the consent of the Minister, limited to the complementary protection criterion in s.36(2)(aa) of the Migration Act.

    [3] [2013] FCAFC 71

15. The Minister has applied to the High Court for special leave to appeal against that decision.  At the present time, however, there is nothing to prevent the applicant from exercising his entitlement to make a fresh protection visa application.  I say nothing, of course, on the merits of such an application.  I also observe from the decision of the Full Federal Court in Minister for Immigration v SZQRB[4] that the Minister would be liable to be restrained from removing the applicant from Australia in the event that he makes a fresh protection visa application which has not been lawfully determined[5].  I understand that the Minister has also applied for special leave to appeal against that decision. 

    [4] [2013] FCAFC 33

    [5] At [231]

16. I conclude that there is no utility in reviewing the decision of the Tribunal and the application would be doomed to fail.  The applicant’s future is in his own hands.  He can choose to depart Australia voluntarily or he can seek to defer his departure by making a fresh protection visa application limited to the complementary protection criteron. 

17. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

18. In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court’s scale. The applicant said he would be unable to pay but, as has been repeatedly observed, that is not a reason for the Court to refrain from making a costs order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $1,331 in accordance with rule 44.15(1) and item 1(a) of part 2 of schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  20 August 2013