Liu v MIAC
[2008] FMCA 725
•6 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIU v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 725 |
| MIGRATION – Application to review MRT decision affirming decision to refuse bridging visa – compliance with criteria in Schedule 2 to Migration Regulations. MIGRATION – Application to restrain Minister from removing applicant from Australia. |
| Migration Act 1958 (Cth), ss.195, 198 |
| S157/2002 v The Commonwealth (2003) 211 CLR 476 VAAN of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 197 Chey v Minister [2006] FMCA 1224 |
| Applicant: | CHUN LIN LIU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 265 of 2007 |
| Judgment of: | Wilson FM |
| Hearing date: | 22 June 2007 |
| Date of Last Submission: | 24 August 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 6 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Steel |
| Solicitors for the Applicant: | Cruise Lawyers |
| Counsel for the Respondents: | Ms Wheatley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The applications filed 5 April 2007, 30 May 2007 and 4 June 2007 be dismissed.
The applicant pay the respondents’ costs of and incidental to such applications including reserved costs, to be taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 265 of 2007
| CHUN LIN LIU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 15 March 2007 the Migration Review Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a Bridging E (Class WE) visa. The Tribunal’s decision was notified to the applicant, who is in detention, on 16 March 2007. The applicant seeks to review the decision of the Tribunal. He alleges jurisdictional error on the part of the Tribunal. Such error is a prerequisite to successful review: S157/2002 v The Commonwealth (2003) 211 CLR 476.
The applicant also seeks to review the subsequent decision of the Minister to remove the applicant from Australia, pursuant to s.198 Migration Act 1958 (“the Act”). On 5 June 2007 I ordered that an injunction issue restraining the Minister from removing the applicant from Australia until the final disposition of the applicant’s application to review the decision of the Tribunal. The applicant submitted, by his counsel that substantially the same issues arise on both applications (Applicant’s Outline paragraph 17).
The determination of this application requires the court to again enter the byzantine maze that is the Migration Regulations1994.
Before doing so, the factual background to the present application can be simply stated, and is taken from the reasons of the Tribunal. The applicant, a national of the Peoples Republic of China, first entered Australia as the holder of a false Australian passport on 11 November 2002.
On 26 January 2007 the applicant was detained attempting to leave Australia on the false passport. Between November 2002 and the date of his detention, the applicant had been living in Australia with his wife and two children (one of whom was born in Australia in 2005), although he had previously twice used the passport to depart and re-enter Australia. At the time of his detention, the applicant’s wife and children were overseas.
During an interview conducted following his apprehension, the applicant:
a)advised that his usual country of residence was China and that he could return to that country;
b)indicated that he intended to apply for a visa in Australia as he has established himself in Australia;
c)admitted to working in Australia;
d)stated that he had land in Brisbane worth $180,000.
On 31 January 2007 the applicant lodged an application for a Bridging E visa. The Minister’s delegate refused this application on 2 February 2007 on the grounds that the applicant failed to meet the primary criteria for the grant of the visa. No application was made for a review of this decision.
On 9 February 2007 the applicant lodged an application for a spouse visa, sponsored by his wife. On 12 February 2007, this application was deemed invalid pursuant to s.195 of the Migration Act 1958, and the applicant’s representative was notified. No challenge was made to this decision.
Section 195 of the Act provides:
(1) A detainee may apply for a visa:
(a)within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b)if he or she informs an officer in writing within those 2 working days of his or her intention to so apply – within the next 5 working days after those 2 working days.
(2)A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.
The application was argued on the basis that it was common ground that the applicant was, at all relevant times, a detainee. Because he was a detainee for more than two working days before he lodged his application for a spouse visa on 9 February 2007 that application was out of time. So much was accepted in argument by counsel for the applicant. Counsel for the applicant did not argue contrary to the proposition that the applicant does not have on foot an application for a substantive visa. The applicant’s case was premised on the assumption that he could, if released from detention on a bridging visa, properly apply for a spouse visa.
On 5 March 2007 the Minister received an application for a Bridging E visa on the basis of the spouse visa application lodged on 9 February. It is that application for a bridging visa that is the subject of this application.
At paragraph 51 of his written submissions counsel for the applicant states:
“The applicant in his application for a bridging visa indicated that he proposed, if he was successful, to apply for a spouse visa, on the basis of his wife’s then permanent residency. One of the criteria for the grant of the bridging visa is that the Minister is satisfied that the applicant “will apply” for a substantive visa. That is, the Minister needs to be satisfied that, if the bridging visa is granted, the applicant will apply (not “has already applied”) for a substantive visa” (emphasis in original submission)
I will come to the criteria in due course, but a factual error in the above submission needs to be corrected.
In his application for a bridging visa (a copy of which is exhibit LGC1 to the affidavit of LG Cruise filed 5 April 2007), in answer to question 10, the applicant relied solely on his awaiting a decision in relation to an application for a substantive visa. He did not answer the question “Do you intend to apply for a substantive visa”. In answer to question 15 the applicant answered “Applicant has applied for a subclass 801 spouse visa. Application dated 9 February 2007…”
Therefore, it is not correct to assert that the applicant proposed to apply for a spouse visa, if successful in his application for a bridging visa. By his application, relied on by him, he stated that he had already applied for a spouse visa, by application dated 9 February 2007. This completely undermines the balance of the submission made on behalf of the applicant, because on the applicant’s own document he did not state that he “will apply”, but rather that he had applied.
On 7 March 2007 the Minister’s delegate refused the applicant a Bridging E visa on the basis that he failed to meet the primary criteria for the grant of the visa. The delegate also determined that given the application’s immigration history he was not satisfied that the applicant would abide by conditions imposed on a Bridging E visa regardless of a security.
An application for review of the Minister’s decision was lodged on 9 March 2007. On 12 March 2007 the applicant was invited to appear before the Tribunal to give oral evidence and to present argument in support of his application. The hearing was scheduled for 15 March 2007. By letter dated 15 March 2007 (Bundle of Relevant Documents pages 260-2) the applicant was invited to comment on information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The whole of the letter is important, and needs to be read in full, but in my view it clearly conveys to the applicant (and his representative) that the Tribunal was concerned about at least two matters upon which it invited comment from the applicant:
a)Whether the applicant meets the threshold criteria in subclause 050.212 of Schedule 2; and
b)Whether the applicant would abide by any conditions which would be attached to a bridging visa.
It was common ground that the applicant was seeking a bridging visa covered by Subclass 050 in Schedule 2 to the Regulations. Clause 050.2 provides:
All applicants must satisfy the primary criteria.
It was also common ground that the applicant satisfied Clause 050.211 because he was an unlawful non-citizen. The Minister’s delegate decided that the applicant could not satisfy Subclause 050.212. The Tribunal disagreed with this, and decided that the applicant did satisfy subclause 050.212(3)(b). Clause 050.212(1) makes it a primary criterion that the applicant meets the requirements of subclauses (2), (3), (3A), (4), (4AAA), (4AA), (4AB), (4A), (5), (5A), (6), (6AA), (6A), (7), (8) or (9) of subclause 050.212.
The applicant did not seek to argue at length that any sub-clause could be satisfied other than (3) which provides:
(3) An applicant meets the requirements of this subclause if:
(a)the applicant has made, in Australia, a valid application for a substantive visa of a king that can be granted if the applicant is in Australia and that application has not been finally determined; or
(b)the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minster for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.
In its decision, the Tribunal:
a)Stated that it was satisfied that the applicant had made a valid application for a bridging visa and met the criteria in clause 050.211. The applicant is an unlawful non citizen and is not an eligible non citizen of the kind set out in sub-regulation 2.20(7) to (11);
b)Then considered whether the criterion in subclause 050.212(1) had been met, which in turn required it to be established that at least one of the grounds in subclauses 050.212(2) to (9) has been met;
c)Dealt with subclause 050.212(2) and decided that the applicant was unable to satisfy it;
d)Concluded, for reasons that I will shortly set out, that the applicant satisfied subclause 050.212(3)(b);
e)Then considered whether the applicant satisfied clause 050.223 and correctly proceeded on the footing that the Tribunal must be satisfied that the applicant, if released from detention, will abide by any conditions imposed;
f)Then considered which conditions must be imposed and which conditions it would be appropriate to impose in this case, and decided that it would be appropriate to impose conditions 8101, 8104, 8401, 8403, 8505 and 8506;
g)Then took into account the factors set out in Migration Series Instructions 388 in its consideration of whether the applicant would abide by conditions and had regard to the applicant’s immigration history and past dealings with the Department;
h)Found that the applicant was not a witness of truth in regard to the circumstances in which he obtained the Australian passport that he used to travel to Australia;
i)Then moved to consideration of whether to request a security and if so the amount of security to request;
j)Found (at page 10) that the use of a falsified travel document and the work and migration benefits that have flowed from this to the applicant and his family amounts to a substantial breach of migration law;
k)At page 10 stated:
“The Tribunal in these circumstances cannot be satisfied that any amount of security will foster compliance with the conditions attached to a Bridging E visa even if one was issued. The Tribunal accordingly finds that the decision of the Department should be affirmed on this basis.”
Regarding the satisfaction of the primary criteria in subclause 050.212(3)(b), at pages 7 -8 of its reasons for decision, the Tribunal member stated:
“The Tribunal notes that the Department has found that the applicant was not entitled to the grant of a Bridging E visa as he failed to meet any of the threshold criteria at time of application and time of decision. The Department in addressing the considerations in subclause 050.212(3) of the Migration Regulations based this finding on the fact that the applicant had failed to make an application of the type envisaged by s. 195 of the Migration Act namely an application within two working days from the time of his detention either a bridging visa application or a protection visa application.
The Department in its Bridging E decision of 5 March 2007 that is the subject of this review concluded that the applicant failed to meet subclause 050.212(3) because he did not have any outstanding substantive visa application that is yet to be determined. But the Department failed to go on and consider subclause 050.212(3)(b) which requires the Minister to be satisfied that the applicant will apply in Australia within a period allowed by the Minister for a substantive visa of the kind that can be granted if the applicant is in Australia. The Tribunal is satisfied that the visa applicant could make a valid application for a substantive visa of a kind which can be granted if he is in Australia if he was released from detention. The evidence before the Tribunal indicates that his wife holds Australian permanent residence status and thus if he was released from detention there would be nothing precluding him from lodging an application for an onshore spouse visa. Thus on this basis the Tribunal is satisfied the applicant prima facie meets the primary criteria for the grant of a Bridging E visa namely subclause 050.212(3)(b). The Tribunal will proceed to consider whether the applicant if released from detention would comply with the conditions attached to his Bridging E visa having regard to his migration history to date.”
The Minister contends this conclusion was incorrect, and that the Minister’s delegate was correct in determining that the applicant did not satisfy subclause 050.212(3). It will be necessary to deal with that argument after dealing with the applicant’s arguments.
The grounds upon which the applicant relies in asserting jurisdictional error are:
a)the Tribunal misunderstood its task by failing to distinguish the requirements in criterion 050.223 and 050.224 of Schedule 2 to the Migration Regulations 1994;
b)the Tribunal decided the application for review on the wrong basis, namely his alleged failure to comply with criterion 050.224 of the Regulations;
c)the Tribunal purported to make a decision beyond its power, namely in relation to whether security should be lodged by the applicant;
d)the applicant was denied procedural fairness by the Tribunal because he was denied an opportunity to comment or provide evidence on the alleged failure to comply with criterion 050.223 or 050.224 of Schedule 2 to the Regulations;
e)the Tribunal failed to provide to the applicant a genuine invitation to appear and give evidence because it refused to allow a proper translation of the applicant’s evidence
These grounds were refined in the applicant’s outline of submissions to
a)The Tribunal erring in its application of criteria 050.223 and 050.224 in Schedule 2 to the Migration Regulations;
b)The Tribunal did not allow the applicant’s representative to be heard in relation to critically important translated evidence, effectively denying the applicant a real invitation to be heard
Subclauses 050.223 and 050.224 provide:
050.223The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.
050.224If an authorised officer has required a security for compliance with any conditions that the officer has indicated to the applicant will be imposed on the visa if it is granted, the security has been lodged.
Counsel for the applicant is quite correct, in my view, in his submitted construction of subclause 050.224. That is, it is not the function of either the Minister’s delegate or the Tribunal to request security for compliance with any conditions imposed on a visa, nor the amount of such security. Neither is an authorised officer, a defined term for the purpose of subclause 050.224. In the present application no authorised officer ever required security.
The Minister’s delegate was of the opinion that a number of conditions should be imposed on the visa, as he was entitled to do pursuant to Subclause 050.614. He decided that conditions 8101, 8201, 8401, 8505, 8506, 8510, 8511 and 8512 should be imposed.
At pages 8 - 9 of the reasons, the Tribunal member decided that only conditions 8101, 8104, 8,401. 8403, 8505 and 8506 should be applied. The applicant did not (and probably could not) challenge either the applicability or appropriateness of these conditions.
In my view, the Tribunal member did not conflate his consideration of subclauses 050.223 and 050.224, as was submitted by the applicant. What the Tribunal member said, at page 8 of his reasons was:
“Having found that the visa applicant meets one of the threshold criteria in clause 050.212, the Tribunal must go on to determine if it is satisfied that the visa applicant, if released from detention, will abide by any conditions imposed.
The Tribunal must now consider whether the visa applicant satisfied clause 050.223. The Tribunal must be satisfied that the visa applicant, if released from detention, will abide by any conditions imposed.”
In my view, this passage demonstrates that the Tribunal member was cognisant of the need to consider satisfaction of subclause 050.223 separately to, and distinct from, subclause 050.224. Obviously, before reaching a state of satisfaction about whether conditions will be abided by, one needs to determine what conditions ought to be imposed. This is what the Tribunal member has done.
After determining what conditions ought to be imposed, the tribunal has then gone on, properly in my view, to consider whether the applicant would abide by such conditions. In doing so, the Tribunal member has dealt at length with the applicant’s history of dealings with immigration, culminating with the finding at the foot of page 9, where the applicant’s credit was impeached.
The Tribunal has, at page 10 of the reasons, and by reference to MSI388 turned its mind to the question of whether security should be requested, and if so, how much. It ought not to have done so. As counsel for the applicant submitted, and as I accept, it is no part of the Tribunal’s function to decide whether security should be requested, and the amount of such security, particularly if it decides that conditions will not be complied with even if security is requested.
However, I consider that the Tribunal’s reference to deciding whether to request a security, although erroneous, was in fact surplusage. There was no need to consider this question. The Tribunal member goes on, after the reference to MSI388 to state:
“The Tribunal finds that the use of a falsified travel document and the work and migration benefits that have flowed from this to the applicant and his family amounts to a substantial breach of migration law. The Tribunal in these circumstances cannot be satisfied that any amount of security will foster compliance with the conditions attached to a Bridging E visa if one was issued. The Tribunal accordingly finds that the decision of the Department should be affirmed on this basis.”
What the Tribunal has found, in effect, is that the applicant will not abide by conditions that should reasonably be imposed on any bridging visa issued to him. That is what the Tribunal was required to consider to resolve compliance with subclause 050.223. It is unfortunate that the Tribunal has phrased its conclusion in the language it has, but I think that undue focus on the words actually used distracts from the clear conclusion reached – the applicant will not comply with any conditions imposed, even if security was required. This must mean that the Tribunal has concluded that the applicant would not comply with any conditions imposed if no security was required.
There was, in the circumstances, no need for the tribunal to consider subclause 050.224, because no security had been required.
This accords with the decision of Finkelstein J in VAAN of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 197. At paragraph [10] his Honour said:
“The important questions for the tribunal to consider were (1) whether the conditions imposed by the delegate should be imposed by the tribunal (that is, apart from condition 8101 which is a mandatory condition) and (2) whether it was satisfied that the bridging visa applicants would abide by those conditions. It was only if the tribunal was satisfied that a particular bridging visa applicant would abide by the conditions with a financial incentive to do so, that it was necessary for it to consider the security decision.”
At paragraphs [21] – [22] his Honour said:
“There is another problem with the tribunal’s approach, a problem that is more acute in the case of a delegate who acts as an authorised officer for the purposes of s 269. As I have mentioned, after finding that the provision of security will not ensure compliance with the conditions, the tribunal went on to review the security decision. In each case it decided that $10,000 was an appropriate sum. It seems to me, however, that once the tribunal (or the delegate) has decided that, notwithstanding the provision of security, a visa applicant will not comply with conditions, the occasion for the imposition of security simply does not arise. It does not arise because the object of the imposition of security is to secure compliance with conditions and once the tribunal has determined that it is not satisfied that any will be met, nothing is achieved by requiring any security.
In reaching a decision about security, there are several steps that a decision-maker must undertake. Approaching the steps in the correct order is as important as getting the steps themselves right. As I see it (and in expansion of what was said in Tennakoon), the steps are: (1) The decision-maker must decide what conditions (if any) ought to be imposed on the grant of a visa; (2) Next, if conditions are to be imposed, the decision-maker must ask himself (or herself) whether they will be complied with standing alone (that is, without any security being taken); (3) If the answer is yes, no security should be imposed. If, on the other hand, the answer is no, the decision-maker must proceed to the next question which is: (4) Will the conditions be complied with if security is taken?; (5) If the answer is no, the visa ought not to be granted because the criterion set out in subcl 050.223 will not be met. If the answer is yes, security should be required and the decision-maker must assess the appropriate amount and type of security to be imposed; (6) If security has been required, the decision-maker must see whether or not it has been lodged. If it has not been lodged, the visa application should be rejected because subcl 050.224 will not be satisfied. If it has been lodged (provided all other relevant criteria have been met), the visa must be granted.”
In this case the Tribunal was not satisfied that the applicant would comply with any conditions even if security was required. It followed the process identified by Finkelstein J. It follows, in my view, that the Tribunal has not erred in its consideration of the relevant criteria, particularly subclause 050.223.
In reference to the second broad ground of attack advanced by the applicant, it is plain from a reading of the letter of 15 May 2007, to which I have already referred, and to the transcript of proceedings (annexed to the affidavit of Mr Maycock), that the applicant was accorded procedural fairness.
It was submitted that the applicant was not given a proper opportunity to be heard because it refused to hear the applicant’s solicitor when he tried to bring to the Tribunal’s attention a critical error in the translation of the applicant’s evidence. It was submitted that the error in translation was critical to the formation of the Tribunal’s views about the applicant’s credibility as evidenced from pages 9-10 of the reasons. It was submitted that the failure of the Tribunal to allow the correct translation to be heard robbed the applicant of a proper opportunity to present aspects of his evidence which may have ameliorated the Tribunal’s view, and its subsequent determinations in relation to criterion 050.223. Reliance was placed on Chey v Minister [2006] FMCA 1224.
In that case, Burchardt FM said, at [29]:
“It is common cause between the parties that an invitation pursuant to s.360 must not be a hollow shell or an empty gesture and must be a “real and meaningful” invitation (Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 at 299) (“Scar”). I accept further that for the hearing to be meaningful, the parties must have an opportunity to put their case and must have, as Finklestein J put it, “a fair crack of the whip” (see Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 44 at [9]) (“Tran”). His Honour Finklestein J’s remarks rose in the context of the obligation of the Tribunal to observe the rules of natural justice.
In this case, the applicant was invited to appear before the Tribunal. The applicant was also invited to comment on information. The applicant and his adviser clearly knew what matters were of concern to the Tribunal. An accredited interpreter was present at the hearing (page 1 of transcript).
Focus was placed on the following passage of the transcript of hearing:
“IBut but I didn’t know that you know they did that for me they did that for me through South Africa and then they even brought the passport to my door so I would not know.
M Yeah but sir, sir with due respect.
MA It seems that there is a mistake in the translation there.
MWell I’m sorry I have to rely on this interpreter, I have to rely on this interpreter, if you have any issues with the translation you will have to organise for it to be independently vetted by an accredited interpreter but I have to rely on this interpreter down here. What’s the basis, do you speak Mandarin or Cantonese do you?
I [interpretation]
MA I speak Mandarin.
MOk well sir I I can’t rely on you I have got to rely on an accredited interpreter, if you want to take an issue with the interpreting you have to take that up and have this vetted by an independent interpreter.
MA Just a very important point was overlooked, I’m not …
MAlright I’m, I’m sorry my job is to rely on an accredited interpreter that I am using for this process. I am going to ask the question again.
I [interpretation]
MYou say that your mother’s friend called Peter who lives in South Africa organised an agent in that country to get you a passport to travel to Australia.
I [interpretation]
CLL [reply]
I Yes that’s correct.”
However, that passage must be put in context. The applicant was asked questions about the circumstances in which he obtained his passport from page 9 of the transcript. At pages 13 – 14 the following exchange appears:
“M Are you understanding this man?
INo I do not understand his English but I can understand his Chinese.
MOk are you having any trouble sir understanding this interpreter?
I [interpretation]
CLL No [reply]
IYes I understand. Yeah I went to Africa and I went to South Africa.
MOk so you are having no trouble understanding this interpreter?
I [interpretation]
CLL [reply]
I Yes I understand.
M Right sir can you tell me what’s on that note please?
MA I said the interpreter said Nigeria.
MI said I’m replying on this interpreter sir I can’t rely on you to make corrections ok because you’re not you’re not an accredited interpreter you are this man’s representative this tribunal has to rely on an accredited interpreter, that’s the way we do our business.
MA
MThat’s the way we do our business ok? Sir I’m just going to ask you, you said that you travelled to Nigeria in Africa in 1999.”
At pages 33 and 34 of the transcript the applicant was offered the opportunity to clarify his evidence about the issue:
“MSir do you want to clarify that because you have been saying it was issued by a migration agent in South Africa?
I [interpretation]
CLL [reply]
INo, no, no, you make a mistake of hearing, my passport was from the Chinese government, I saw with my eyes that they give it to me.
MSorry which passport are we talking about, your Chinese or your Australian passport?
I [interpretation]
CLL Australia Passport. Australia [reply]
II was in Australia so through the migration agent I got the passport.
MNo no I’m talking about the one that you used to travel from South Africa to Australia on.
I [interpretation]
MOr am I mistaken did you go back from South Africa to China and then to Australia?
I [interpretation]
CLL [reply]
M Can you translate this?
IYes but I don’t understand his English I can only understand his Chinese.
M Yeah ok.
IYeah ok. No. the situation I want to say is that yes, yes in South Africa I got my document that’s the Australian Passport and through the Australian uh sorry through the Australian Embassy in South Africa and the immigration agent accompany me to the embassy to have it.
MOk, I’ve nothing further, is there anything more you want to say?”
A reading of the transcript as a whole shows the applicant was questioned at length about the circumstances in which he obtained a false Australian passport. The totality of the evidence must be looked at. I do not think it can be reasonably said that the answer that was allegedly misinterpreted as alleged by the applicant was of critical significance in the overall process. Further, natural justice requires that the applicant be heard. He plainly was. At pages 25 and 26 of the transcript his agent (also a lawyer) debated the merits of the matter with the Tribunal member. It cannot be said that the applicant did not have his case clearly and fully presented to the Tribunal. At paragraph 780 the applicant was asked if there was anything else he wanted to say. Neither the applicant nor his adviser thought it necessary to expand upon or clarify any of the matters that had been raised by the Tribunal.
In my view, the ground of the application that asserts a failure to accord procedural fairness must fail.
I conclude, therefore that the applicant’s grounds of review must be rejected.
I turn to consider the Minister’s argument that the Tribunal erred in accepting that the applicant satisfied subclause 050.212(3) (b).
I should first put to one side the question as to whether the applicant could apply for a spouse visa, given his wife’s now uncertain immigration status. It was argued that it would be futile to grant a bridging visa to allow the applicant to apply for such a visa, because the wife’s immigration status was being challenged. At the time of the Tribunal’s decision, no determination had been made. The applicant’s wife’s visa was subject to a notice of intention to consider cancellation, but was not cancelled until after the decision of the Tribunal had been made. I therefore do not consider it would have been appropriate for the Tribunal to consider the applicant’s case on the presumption that his wife’s visa would be cancelled. To do so was speculative.
There are, however, two more fundamental difficulties with the proposition that a bridging visa could be granted to the applicant to pursue his application for a spouse visa. First, as I set out above, the application for a bridging visa was not made on the basis of a future application for a spouse visa. It was made on the basis of what was said to be a pending application, made on 9 February. However, in fact, that application had been refused, and no review was sought of that decision. There was therefore no evidence before the Tribunal of any intention on the part of the applicant to make a further application for a spouse visa, if he obtained a bridging visa. In those circumstances, how could the Minister be satisfied a future application would be made, when none was foreshadowed.
Secondly, for subclause 050.212(3)(b) to be engaged the Minister must have allowed for an application for a substantive visa to be made. The use of the past tense of the verb allow, means, to my mind, that the applicant must demonstrate that he is within time to apply for a spouse visa if he is released from detention, without any further time to be allowed for that purpose. No submissions were addressed to this issue.
Further, as the Minister submits, subclause 050.212(3)(b) seems to require, as a condition of its satisfaction, that a substantive visa could be granted to the applicant at the time of his application for a bridging visa. The use of the words “of a kind that can be granted” uses the present tense, namely at the time the application is made for a bridging visa. Because of s.195(1) of the Act, because the applicant is a detainee, he cannot apply for a substantive visa whilst he is in detention.
The applicant complains that this construction deprives subclause 050.212(3)(b) of any utility. I disagree. What the subclause does is allow an applicant for a substantive visa, who is then entitled to apply for such a visa, more time in which to do so by the grant of a bridging visa. There may be a need to obtain documents, or some other evidence to satisfy the Minister of the entitlement to the substantive visa. The subclause should not, in my view, be used as a device to be released from detention, which is what the applicant seeks to do. I accept the Minister’s submission that the grant of a bridging visa under s.195(2) of the Act should not be used as a means of circumventing the plain legislative intent of s.195(1) of the Act.
The satisfaction of subclause 050.212(3)(b) is, however, beside the point because the Tribunal has, correctly in my view decided that the applicant cannot satisfy the primary criteria in subclause 050.223.
It remains to determine the application to restrain the Minister from acting on his decision to remove the applicant from Australia under s.198 of the Act.
Having concluded that the applicant has no entitlement to a bridging visa, and is a detainee, it seems that s.198(5) of the Act compels the Minister to remove the applicant as soon as reasonably practicable.
Time has moved on since the Minister’s decision to remove the applicant in May 2007. A fresh decision will have to be made to remove the applicant, having regard to my decision on the principal application. The injunction will be discharged, and the Minister will act as he is advised.
As the interlocutory injunction was granted because of the existence of the serious question regarding compliance by the Tribunal with the various statutory criteria, that has now been decided adversely to the applicant, there is no reason why the applicant should not pay the costs associated with the granting of the interlocutory injunction.
I should add that during argument the applicant seemed also to rely on having satisfied primary criteria 050.212(6) which provides:
“(6) An applicant meets the requirements of this subclause if:
(a) the applicant is the subject of:
(i) a decision in relation to an application made in Australia for a visa; or
(ii) a decision to cancel a visa; and
(b) in relation to the decision mentioned in paragraph (a):
(i) the applicant:
(A)is the subject of a decision for which the Minister has the power to substitute a more favourable decision under section 345, 351, 391, 417 or 454 of the Act; and
(B)is being assessed by an officer against the Minister’s guidelines for the identification of decisions in relation to which the Minister may think that it is in the public interest to substitute a more favourable decision; and
(C)has not previously sought, or been the subject of a request by another person for, the exercise of the Minister’s power under that section to substitute a more favourable decision for the decision; or
(ii) the Minister is personally considering whether to exercise, or to consider the exercise of, the Minister’s power to substitute a more favourable decision for a decision under section 345, 351, 391, 417 or 454 of the Act in relation to the applicant.”
The applicant submits that he satisfies the criteria. The difficulty with this argument is that it was never raised with the Tribunal, and there is no evidence before the Court that any application for Ministerial intervention has been made. No application had been made to the Minister either at the time of the application for a bridging visa, or before the decision of the Tribunal was made. There is no evidence that the applicant is being assessed as required, or that the Minister is personally considering whether to exercise his power to substitute a more favourable decision.
This Court can only decide applications for review on jurisdictional error. If an argument was not (and could not have been) advanced before the Tribunal and was not reasonably open on the documents before the Tribunal, this Court does not have jurisdiction to determine it.
It follows that both applications should be dismissed, with costs, including reserved costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 6 June 2008
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