Kesic v Minister for Immigration and Multicultural Affairs
[2001] FCA 1270
•7 SEPTEMBER 2001
FEDERAL COURT OF AUSTRALIA
Kesic v Minister for Immigration and Multicultural Affairs [2001] FCA 1270
MIGRATION – application for bridging visa – whether application a valid application – whether applicant an “eligible non-citizen” – whether applicant had not come to the notice of the Department of Immigration as an illegal entrant or an unlawful non-citizen within 45 days of entering Australia – dispute as to date of applicant’s arrival – whether no evidence to justify the decision of the Minister’s delegate that application not a valid application – whether Court can look beyond the material before the decision-maker in reviewing decision of delegate
Migration Act 1958 (Cth) ss 46, 47, 72, 73, 475(1)(c), 476
Migration Regulations 1994 (Cth) regs 2.07, 2.20, Sch 1 item 1305Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 considered
Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854; 55 ALD 600 cited
Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 appliedMILAN KESIC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 620 of 2001BRANSON J
SYDNEY
7 SEPTEMBER 2001
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 620 of 2001
BETWEEN:
MILAN KESIC
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
BRANSON J
DATE OF ORDER:
7 SEPTEMBER 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application be dismissed.
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 620 of 2001
BETWEEN:
MILAN KESIC
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
BRANSON J
DATE:
7 SEPTEMBER 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The applicant (“Mr Kesic”) is a Serbian citizen of Yugoslavia. He has applied under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review by this Court of a decision, made by a delegate of the respondent (“the delegate”) on 9 May 2001, that an application for a bridging visa made by Mr Kesic on 7 May 2001 was not a valid application. The respondent acknowledged that the decision of the delegate was a judicially-reviewable decision within the meaning of s 475 of the Act being a decision of the kind identified in par 475(1)(c).
The only ground of review relied upon by Mr Kesic is that:
“The Minister’s delegate’s decision was based on a particular fact, namely, that the applicant did not arrive in Australia more than 45 days before coming to the notice of Immigration, and that fact did not exist. In fact, the applicant arrived in Australia on 23 October 1999, rather than on 13 December 1999 as found by the delegate.”
Section 476 of the Act relevantly provides:
“(1)… application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
…
(g)that there was no evidence or other material to justify the making of the decision.
…
(4)The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
…
(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”
APPLICATION FOR BRIDGING VISA
Mr Kesic’s application for a bridging visa was signed and dated by him on 7 May 2001. Attached to the application form, and forming part of the application, was a statutory declaration made by Mr Kesic also dated 7 May 2001. By his statutory declaration Mr Kesic outlined in some detail the means by which he travelled from the Serbian Republic to Australia in 1999. In his statutory declaration he asserted that, having travelled to Genova, he obtained assistance to board and hide on a container ship which sailed to Australia. He gave the date of his arrival in Sydney as 23 October 1999. The statutory declaration concludes as follows:
“… I called my cousin from Melbourne on 24.10.99 and she came with her sister to Sydney next day on 25.10.99. So they picked m[e] up from McDonalds at Central station then we went together to my sister in Melbourne. I mention that I have no other proof to give except the two cousins who are witnesses so I write their names and addresses below.”
Two names, each with an address and a telephone number with the prefix “03”, appear in the statutory declaration below the above passage.
REASONS OF THE DELEGATE
By letter dated 9 May 2001 on the letterhead of the Department of Immigration and Multicultural Affairs Mr Kesic was advised as follows:
“Re: Your application for a Bridging Visa E subclass 050 (BVE)
This refers to your application for BVE lodged on 7th May 2001. I am writing to inform you that your application is not a valid application for a BVE, and that you can not be granted a BVE.
I shall now explain to you the reasons for your application being invalid:
1.In your application for the grant of a protection visa lodged on 13 December 1999, you mentioned that you arrived in Australia on 4 December 1999 by ship, bypassing Australian immigration clearance.
2.As a result, Section 72(2) of the Migration Act, and in particular the Migration Regulations 2.20(6), which states as hereunder, applies to you:
Regulation 2.20 Eligible non-citizen (Act, s 72(2))
(6) This subregulation applies to a non-citizen who:
(a)either:
(i) bypassed immigration clearance on or after 1 September 1994 and has not subsequently been granted a visa; or
(ii) entered Australia without authority before 1 September 1994 and has not subsequently been granted a visa or entry permit; and
(c) has remained in Australia since 1 September 1994; and(d)has not come to the notice of Immigration as an illegal entrant or an unlawful non-citizen within 45 days of entering Australia.
3.As you came to the notice of the Department of Immigration within 45 days of your arrival in Australia, you are not eligible to be considered for the grant of a BVE.
4.Subsequent to your detention, you stated in a declaration on 17/10/2000 that you arrived in Australia no later that [sic] 27 or 28. Again in a declaration made on 7th May 2001, you stated, among other things, that you arrived in Australia on 23rd October 1999, and I have taken into account the statements made by you in your declaration while making this decision on your application. …”
STATUTORY PROVISIONS
Section 47 of the Act provides:
“(1) The Minister is to consider a valid application for a visa.
(2)The requirement to consider an application for a visa continues until:
(a)the application is withdrawn; or
(b)the Minister grants or refuses to grant the visa; or
(c)the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3)To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4)To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.”
The criteria for a valid visa application are specified in s 46 of the Act. Relevantly s 46 provides:
“(1) … an application for a visa is valid if, and only if:
(a)it is for a visa of a class specified in the application; and
(b)it satisfies the criteria and requirements prescribed under this section; and
…
(3)The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4) Without limiting subsection (3), the regulations may also prescribe:
(a)the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b)how an application for a visa of a specified class must be made; and
(c)where an application for a visa of a specified class must be made; and
(d)where an applicant must be when an application for a visa of a specified class is made.”
Section 73 of the Act provides:
“The Minister may grant an eligible non-citizen who satisfies the criteria for a bridging visa prescribed under subsection 31(3) a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia:
(a)during a specified period; or
(b)until a specified event happens.”
Regulation 2.07 of the Migration Regulations 1994 (Cth) relevantly provides:
“(1)For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a)the approved form (if any) to be completed by an applicant;
(b)…
(c)other matters relating to the application.
(2)(repealed)
(3)An applicant must complete an approved form in accordance with any directions on it.”
In relation to Mr Kesic’s application for a bridging visa, the relevant part of Schedule 1 of the Migration Regulations 1994 is item 1305. Subitem (1) of item 1305 is concerned with the form for a Bridging E (Class WE) visa, subitem (2) makes it clear that there is no visa application charge for a Bridging E (Class WE) visa and subitem 3 is concerned with “other” matters. Subitem (3)(ba) reads:
“Applicant must be an eligible non-citizen within the meaning of section 72 of the Act.”
I accept the submission of Mr Jordan, counsel for the respondent, that the effect of para (ba) of subitem 1305(3) is that the fact of the applicant being an eligible non-citizen within the meaning of s 72 of the Act is a prescribed circumstance that must exist for an application for a Bridging E (Class WE) visa to be a valid application (s 46 of the Act).
Section 72(1) of the Act relevantly provides:
“‘eligible non-citizen’ means a non-citizen who:
(a)has been immigration cleared; or
(b)is in a prescribed class of persons; or
(c)the Minister has determined to be an eligible non-citizen.”
Neither par (a) nor par (c) has any application to Mr Kesic. As a consequence, to be an “eligible non-citizen” Mr Kesic must bring himself within a class of persons prescribed for the purpose of s 72 of the Act.
Regulation 2.20(1) of the Migration Regulations 1994 relevantly provides:
“For the purposes of the definition of ‘eligible non-citizen’ in section 72 of the Act (which deals with persons eligible to be granted a bridging visa), the classes of persons described in subregulations (2) to (11) are prescribed.”
It is subregulation (6) of regulation 2.20 upon which Mr Kesic relies. Subregulation (6) relevantly provides:
“This subregulation applies to a non-citizen who:
(a)either:
(i)bypassed immigration clearance on or after 1 September 1994 and has not subsequently been granted a substantive visa; or
(ii)…; and
(d)has not come to the notice of Immigration as an illegal entrant or an unlawful non-citizen within 45 days of entering Australia.”
SUBMISSIONS OF MR KESIC
In deciding that Mr Kesic’s application for a bridging visa was not a valid application, the delegate accepted that Mr Kesic had arrived in Australia on 4 December 1999 as is asserted in his application for a protection visa, and that he had not arrived on the earlier date identified in the statutory declaration forming part of his application for a bridging visa. Mr Kesic, who was represented by Mr Leeming of counsel, acknowledged that the application made in his name for the grant of a protection visa was before the delegate, and that this application gives Mr Kesic’s date of arrival in Australia as 4 December 1999.
However, Mr Kesic argued that, in the light of evidence which he sought to place before this Court, it could be seen that the assertion in the application for a protection visa that Mr Kesic had arrived in Australia on 4 December 1999 was insufficient to “justify the making of the decision” reached by the delegate. The evidence which Mr Kesic sought to place before this Court was an affidavit sworn by him in which he deposes to the application for a protection visa made in his name not being completed in his handwriting and to the application form having been completed by an acquaintance without his (Mr Kesic’s) having been consulted. By his affidavit Mr Kesic denies having signed the application for a protection visa and asserts that he arrived in Australia by ship on 23 October 1999.
In oral argument it was contended by Mr Leeming that the particular fact upon which the delegate based his decision that did not exist, within the meaning of par 476(4)(b) of the Act, was either -
(a)that Mr Kesic (as opposed to his acquaintance) did not mention in his application for the grant of a protection visa that he arrived in Australia on 4 December 1999; or
(b)that Mr Kesic had provided no evidence in support of the statement to the effect that he arrived in Australia more than 45 days before he came to the attention of the Department of Immigration. Mr Kesic placed reliance on the detail surrounding his arrival in Australia provided by his statutory declaration and on the provision of the names, addresses and telephone numbers of persons said to be able to corroborate his story.
Mr Kesic’s amended application, by contrast, identifies the relevant particular facts as “that the applicant did not arrive in Australia more than 45 days before coming to the notice of Immigration”.
CONSIDERATION
The argument advanced by Mr Leeming involved, as I understand the argument, the proposition that this Court, in determining whether there was “no evidence or other material to justify the making of the decision” within the meaning of par 476(1)(g) of the Act, is entitled to look beyond the material before the decision-maker.
In my view, on the present state of the authorities, it is plain that an applicant who can establish -
(a)“that there was no evidence or other material to justify the making of the decision”; and
(b)that “the person who made the decision based the decision on the existence of a particular fact”,
is entitled to place evidence before the Court to establish that the fact did not exist (Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 (“Curragh”) per Black CJ, with whom Spender and Gummow JJ agreed, at 223- 224; Yilan v Minister for Immigration and Multicultural Affairs (FC) [1999] FCA 854 at [57]; 55 ALD 600 at 603).
However, I do not consider that the authorities provide support for the view that evidence can be placed before the Court for the purpose of demonstrating that the evidence or other material before the decision-maker was insufficient to justify the making of the decision. In Curragh at 221-222 Black CJ, who was concerned with provisions in the Administrative Decisions (Judicial Review) Act 1977 (Cth) comparable to the “no evidence” provisions of s 476 of the Act, said:
“… to make out a ground under s 5(1)(h) there must be an absence of evidence or other material of a particular fact upon which the decision was based. It is not necessary in this case to explore the question whether, consistently with an intention that may be revealed, by s 5(3)(a), it will be enough to show, in a case in which s 5(3)(b) is relied upon, an absence of evidence or other material from which the decision-maker could reasonably be satisfied that the particular fact existed or whether, in relation to that fact, there must be a complete absence of any evidence or other material; in my view there was a complete absence of any evidence or other material from which the existence of the critical fact about Curragh’s capacity to have a later date for supply of coal could be established.”
In Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 (“Indatissa”) at [26]-[28] Sundberg, Emmett and Conti JJ, in a joint judgment, said:
“There are three requirements for establishing the ground of s 476(1)(g), as qualified by s 476(4)(b). The first requirement, to be found in s 476(1)(g) itself, is that there was no evidence or other material to justify the making of the decision. The second requirement, as found in the first limb of s 476(4)(b) is that the decision under review is based on the existence of a particular fact. The third requirement, found in the second limb of s 476(4)(b), is that that fact did not exist. Unless each of those requirements is satisfied, the ground is not be [sic] made out.
It is not sufficient simply to establish the two matters referred to in s 476(4)(b). That paragraph qualifies s 476(1)(g). It does not constitute a definition of what will amount to there being no evidence or other material to justify the making of the relevant decision. That is to say, it is not sufficient to show that a decision was based on the existence of a particular fact and that that fact did not exist. If that was sufficient, any decision of a Tribunal based on the existence of a particular fact could be challenged in the Federal Court by adducing evidence designed to persuade the Federal Court to reach a different conclusion concerning the existence of that fact. Such an approach is demonstrably unsound. It is beyond question that the power of the Court under s 476(1) generally and s 476(1)(g) in particular does not extend to a re-examination of any of the factual matters ventilated before the Tribunal.
In other words, it is only if it can be shown that there was no evidence or other material to justify a decision that it is necessary to consider s 476(4). If there is before the Tribunal any evidence or material capable of supporting the particular fact on the existence of which the decision is based, the ground cannot be made out.”
In my view, each of the above authorities indicates that the question of whether “there was no evidence or other material to justify the making of the decision” within the meaning of par 476(1)(g) of the Act is to be determined solely by reference to the evidence and other material that was before the relevant decision-maker. That is, I conclude that the affidavit of Mr Kesic upon which he sought to place reliance does not contain evidence relevant to this question.
I therefore turn to consider, by reference only to the material before the delegate, whether “there was no evidence or other material to justify the making of the decision”. In doing so, I consider, contrary to the submission of Mr Leeming, that I am bound by the approach of the Full Court in Indatissa to the issue which Black CJ did not find it necessary to determine in Curragh. That is, that I am bound to conclude that if there was “any evidence or material capable of supporting the particular fact on the existence of which the decision is based, the ground cannot be made out” (in Indatissa at [28]).
The delegate’s decision was based on a finding that Mr Kesic arrived in Australia on 4 December 1999. In the language of par 476(1)(g), the decision of the delegate was “justified” if there was evidence or other material before the delegate capable of supporting that finding.
The evidence or other material before the delegate capable of supporting the finding that Mr Kesic arrived in Australia on 4 December 1999 was the assertion to that effect contained in the application for a protection visa which had been completed in Mr Kesic’s name and which apparently bore his signature. As the delegate may be assumed to have known, Mr Kesic had placed reliance on that application when he sought review by the Refugee Review Tribunal of a decision of another delegate of the respondent to refuse to grant him a protection visa, and when he made application to this Court for review of the decision of the Refugee Review Tribunal to affirm the decision of the delegate. There was nothing before the delegate to negative the significance of the assertion as to the date of Mr Kesic’s arrival in Australia contained in the application for a protection visa. That is, there was evidence or other material before the delegate capable of supporting its finding as to the date on which Mr Kesic arrived in Australia.
I therefore conclude that Mr Kesic has failed to establish the ground of review upon which he relies. However, as the decision of the delegate was that Mr Kesic’s application for a bridging visa was not a valid application, it is conceded by the respondent that Mr Kesic is entitled to make a fresh application for a bridging visa. If Mr Kesic does make another application, he will be able to place reliance on material that was not before the delegate who made the decision, which is presently under review. The decision-maker who considers any further application made by Mr Kesic may be expected to evaluate the whole of the evidence before him or her touching on the issue of the date of Mr Kesic’s arrival in Australia.
There will be an order that the application be dismissed. I will hear counsel on the issue of costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate:
Dated: 7 September 2001
Counsel for the Applicant: Mr M Leeming Counsel for the Respondent: Mr D Jordan Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 28 August 2001 Date of Judgment: 7 September 2001
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