Mah v Minister for Immigration
[2003] FMCA 378
•28 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAH v MINISTER FOR IMMIGRATION | [2003] FMCA 378 |
| MIGRATION – Objection to competency – where the applicant had a series of visas that have expired – where the applicant had a student visa but did not comply with the requirements of that visa – where the applicant seeks review of the decision of the delegate not to issue a bridging visa – where there is no substantive visa application – where certain time limits for review have expired – where the applicant seeks a merits review. |
Migration Act 1958 (Cth), ss.74, 474, 476
Judiciary Act 1903 (Cth), s.39B
| Applicant: | ENG TIANG ROBIN MAH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1195 of 2003 |
| Delivered on: | 28 August 2003 |
| Delivered at: | Sydney |
| Hearing date: | 28 August 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Mr A Markus Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1195 of 2003
| ENG TIANG ROBIN MAH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a Malaysian citizen who first arrived in Australia on 26 March 1999. He departed from Australia and returned again and on 27 October 2000 he lodged an application for a student visa. That was granted to him on 8 December 2000. When that visa expired he was granted another, which expired on 5 November 2002. On 5 November 2002, the student visa was cancelled because the applicant failed to meet his course requirements, a mandatory requirement of condition 8202.
He was granted a Bridging (E) Visa on 5 November 2002, but that ceased on 14 November 2002 and he has been an unlawful non-citizen since that time. On 28 April 2003 he was detained and transported to Villawood Immigration Detention Centre. Whilst in Villawood, the applicant applied for another bridging visa. A delegate of the Minister considered his application and, as is found at [CB 16 to 20], declined it.
There are only two avenues by which an applicant may obtain a bridging visa which are really relevant to this application. The first is if an applicant has himself applied for a substantive visa, and the second is if he satisfies the Department that he has made arrangements to depart Australia and will be departing the country in a short while. When the applicant was interviewed, he told the officer that he had no intention of departing Australia voluntarily. The applicant is not making any application for a substantive visa. Before me today he appealed for the right to remain so that he could take up his student activities again, but that would require an application for a student visa which, in the circumstances of the applicant, could not be applied for within this country because of his failure to comply with the conditions of the previous visa.
There are other problems with the application. Firstly, it is an application for review of a decision of a delegate. Because of the rather complex legislative matrix within which decisions of this type are dealt with in ss.474 to 476 of the Migration Act 1958 (Cth) (“the Migration Act”), the respondent has conceded that the apparent prohibition on this court hearing applications for review of this type of decision (described in s.476(6) of the Act) does not apply where the applicant alleges that the primary decision is stained with jurisdictional error, such as a failure to provide procedural fairness.
However, noting that the decision was one that was capable of being the subject of a complete merits review by the Migration Review Tribunal, a court hearing such an application would be reluctant to exercise its discretion to grant one of the prerogative writs sought under s.39B of the Judiciary Act 1903 (Cth).
Even if I were to accede to the applicant's request for review, the most that could happen would be for this case to be sent back to the decision maker for him to make a decision in accordance with law. Because the decision was made more than 30 days ago, the applicant has the right, under s.74(2)(a) of the Migration Act, to reapply, himself, to the delegate. However, that application would have little prospect of success as the conditions upon which a bridging visa might be granted still do not appear to exist.
When this matter came before the court, the applicant was ordered to file and serve any written outline of submissions five working days prior to the hearing. He did not comply with that order. We are left with an application that states that "the applicant did not receive natural justice" and no particulars are provided.
The applicant has addressed me. He tells me that he had a lawyer who he relied upon to assist him in relation to his migration problems. He appeared to indicate that the lawyer had asked him for payment which, I rather gather, he did not make. Notwithstanding that he did not pay the lawyer, he appears to have presumed that the lawyer was continuing to act on his behalf and as a result of all of this, the time in respect of which he had the right to appeal to the Migration Review Tribunal expired. No blame can be placed upon the Department in relation to this matter because they reminded him of his rights to appeal but he did not take them up.
The applicant tells me that he is a changed man and that he wants a last chance to study in Australia. He believes he has something to offer people here. There was faxed into my chambers two letters from an organisation called Cornerstone Community Inc, a Christian vocational course provider. However, it is not within my power to make orders allowing the applicant to remain in Australia, nor is it within my power to grant him a student visa which would be necessary for him to undertake the course offered by this organisation. Those letters are therefore irrelevant for the purposes of this hearing.
I am satisfied that the respondent has made out its challenge to the competence of the application. The application has no utility. Even if the applicant had particularised the alleged jurisdictional error on the part of the delegate, I would have declined to grant any relief under s.39B because the applicant had the opportunity to appeal to a properly constituted Tribunal, which would have been able to give his whole application a merits review.
I also accept Mr Markus' submissions that there is no utility in the application for a bridging visa in the current circumstances of the applicant's situation. Until such time as he agrees with the Department that he will leave the country voluntarily and commenced to make arrangements in that regard, he does not fall within the class of persons to whom such a visa will be granted.
I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $3,000.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
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