Kosi v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1467

FEDERAL COURT OF AUSTRALIA

Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1467

HEIVAHA KOSI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1114 OF 2002

MOORE J
6 DECEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1114 OF 2002

BETWEEN:	HEIVAHA KOSI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	6 DECEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’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 1114 OF 2002

BETWEEN:	HEIVAHA KOSI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE:	6 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an application by Ms Heivaha Kosi (“the applicant”) for review of a decision of the Migration Review Tribunal (“the MRT”) on 27 September 2002.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the Minister”) to refuse to grant the applicant a Bridging visa. 

   Background

2. The applicant first arrived in Australia in July 1990 on a Subclass V12 Visitor visa.  This visa expired in January 1991, and the applicant remained in Australia unlawfully.  On 27 August 1992, the applicant applied for Refugee status.  This application was refused by a delegate of the Minister on 18 November 1992, and subsequently affirmed by the Refugee Review Tribunal (“the RRT”) on 27 May 1993.  The applicant then applied for a protection visa on 16 May 1994.  She was granted an unconditional bridging visa on 1 September 1994 while her application was pending.  On 22 November 1995, a delegate of the Minister refused to grant the applicant a protection visa.  This decision was affirmed by the RRT on 6 June 1996.  The applicant’s bridging visa expired on 11 July 1996.

3. On 18 July 1996 the applicant requested that the Minister consider her case under s 417 of the Act.  The Minister decided not to act on 27 June 1997. 

4. On 20 April 1999 the applicant was located by compliance officers, and on 23 April 1999, she was granted a bridging visa.  This bridging visa was granted on the understanding that the applicant was making arrangements to depart Australia voluntarily.  Two more bridging visas were granted to the applicant, on 25 May 1999 and 25 June 1999.  These bridging visas were granted following the provision of $2000 in security on behalf of the applicant.

5. The applicant failed to depart Australia as requested, and her last held bridging visa expired on 2 July 1999.  She remained in Australia unlawfully, and the $2000 in security was forfeited.  Police officers in Port Kembla located the applicant on 21 February 2002, and she was detained by the Department under s 189 of the Act.  The applicant was interviewed by Department officers on 22 February 2002, following her detention.  During that interview, the applicant stated that she has a daughter in Australia, and remained here so that she could be with her cousin.  She also said that she worked as a cleaner from 1999 to 2001, and that she was presently unemployed. 

6. On 25 February 2002, the applicant stated that she would be applying for a substantive visa.  The applicant’s daughter was granted a bridging visa on 26 February 2002, on the basis that arrangements were being made for her to depart voluntarily, or alternatively that arrangements were being made for private adoption of the applicant’s daughter. 

7. On 16 April 2002, the applicant requested the Minister consider her case under s 48B and s 417 of the Act.  On the same day she lodged an application for a bridging visa, based on those current applications.  The application for a bridging visa was refused on 18 April 2002.  The applicant’s request under s 48B was refused by the Minister on 8 May 2002.  She is now prevented from lodging a subsequent application.  The applicant was also informed on 8 May 2002 that the Minister had decided not to exercise his discretionary power under s 417.  The Department then obtained travel documentation for the applicant and her daughter to depart Australia. 

8. On 27 May 2002 the applicant lodged an application in the Federal Court, seeking a review of the two RRT decisions, made on 27 May 1993 and 6 June 1996.  The applicant was unsuccessful in this application, and has appealed to the Full Court of the Federal Court.  This appeal was heard on 5 December 2002. 

9. The applicant has made a number of additional applications for a bridging visa, all based on the current Federal Court proceedings:

   ·On May 31 2002, an application for a bridging visa was lodged, with an offer for $4000 in security.  On 4 June 2002 this application was refused, and the decision was affirmed by the MRT on 18 June 2002.

   ·On 26 July 2002 the applicant made another application for a bridging visa, offering security of $5000.  This was refused by the Department on 31 July 2002, and affirmed by the MRT on 12 August 2002.

   The current application

10. The current matter relates to an application for a bridging visa lodged by the applicant on 12 September 2002.  The applicant had offered $5000 by way of security.  This application was refused by the Department.  Although the applicant satisfied the criteria of having a current matter before the Federal Court, based on the applicant’s immigration history, the delegate was not satisfied that the applicant would abide by conditions that may be applied to her bridging visa.  Specifically, the delegate noted that the applicant had a daughter, and that she had no means of supporting herself and her child upon release.  In addition, it was felt that the security offered by the applicant was insufficient incentive for her to abide by any requisite conditions. 

11. The applicant applied for a review of this decision on 18 September 2002.  On 25 September 2002 the MRT wrote to the applicant asking if she would like to provide comments about her immigration to the MRT at an interview before the hearing.  The letter went on to set out her immigration history, noting that she had stayed in Australia unlawfully for a period of time, that she had worked without permission, that she had failed to depart Australia previously and that she had no evident means of support. 

12. The MRT hearing was held on 27 September 2002.  The applicant gave evidence at the hearing which confirmed her immigration history as understood by the Department.  She stated that if a bridging visa was granted, that she would comply with all conditions.  The applicant indicated that she planned to stay with and be supported by her cousin in Wollongong and that cousin’s family, and that she would not need to work.  She added that she would be prepared to report to the Department regularly as required.  The applicant also restated her willingness to provide $5000 in security. 

13. The applicant’s cousin (“Ms A”) also gave evidence at the hearing.  She stated that the applicant would live with her in Granville.  The Tribunal noted that the applicant had previously said that she planned to live with her cousin in Wollongong.  Ms A replied that the applicant could choose where she would live.  Ms A then went on to explain that she believed the applicant would comply with any conditions attached to a bridging visa, and noted that she had previously supplied $2000 as security for the applicant, which had been forfeited in 1999.  The applicant’s daughter was currently living with Ms A, and Ms A appealed to the MRT that the applicant be given a bridging visa so that she could be with her child.

    The Tribunal’s reasons

14. The Tribunal noted that the only type of Bridging visa that the applicant is eligible for is the Subclass 050 (Bridging (General)) visa.  In its reasons, the Tribunal acknowledged that the applicant satisfied the criteria in clauses 050.211 and 050.212, and that she was therefore eligible for the visa which was sought. 

15. The Tribunal then turned to consider two further, but related issues.  First, it considered whether the applicant would be likely to abide by any conditions that may be imposed on the visa if it were issued.  Some conditions are mandatory, such as condition 8101, the requirement to not engage in paid work, while other conditions are discretionary in the sense that they may, but need not, be imposed by the decision maker.

16. The Tribunal considered that having regard to the applicant’s past immigration history, it would be appropriate, as a matter of discretion, to impose the following conditions:

    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 applicant 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.

17. The Tribunal then turned to consider whether the applicant would be likely to comply with those conditions.  It noted that she had "seriously breached" immigration law in the past by remaining in Australia unlawfully, and engaging in employment unlawfully.  The Tribunal also noted the fact that the applicant had previously forfeited $2000 in security when she had not complied with a bridging visa.

18. The Tribunal concluded that the applicant would be unlikely to comply with conditions 8401 and 8505, based on her past history of non-compliance and forfeiture of security.  It was also noted that there was inconsistent evidence regarding the applicant’s proposed accommodation upon release.  The decision to refuse both the visa and the offer of security was affirmed.

    Conclusion in the application

19. Putting to one side the effect of s 474 (which, in any event, would almost certainly be decisive), no error is revealed in the approach of the Tribunal.  It is, in a sense, a curious approach of determining whether conditions should be imposed by reference to a visa applicant's past conduct, and then, by reference to the same conduct, determining whether the conditions would be complied with if a visa was granted.  I have read the Tribunal's reasons and it is not apparent to me that it erred in any respect.

20. The application should be dismissed with costs. 

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

Associate:

Dated:             6 December 2002

The Applicant appeared in person.
Solicitor for the Respondent	Australian Government Solicitor
Date of Hearing:	2 December 2002
Date of Judgment:	6 December 2002