Masone v Minister for Immigration

[2020] FCCA 1642

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASONE v MINISTER FOR IMMIGRATION [2020] FCCA 1642

Catchwords:
MIGRATION – Application for a Bridging E (General) (Subclass 050) visa – whether the Bridging visa deprived the applicant of a work right – whether the application had reasonable prospects of success – no arguable ground of error made out – application dismissed – application for leave to file an amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.41, 476,

Migration Regulations 1994 (Cth), sch.2, cl.050.611

Federal Circuit Court Rules 2001 (Cth) r.13.10

Applicant: SEBASTIAN MASONE

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: SYG 702 of 2020

Judgment of: Judge Street

Hearing date: 19 June 2020

Date of Last Submission: 19 June 2020

Delivered at: Sydney

Delivered on: 19 June 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams

Solicitors for the Respondent: Ms D Watson, Australian Government Solicitor, via Microsoft Teams

ORDERS

1. The applicant’s application for leave to file an amended application is refused.

2. The application is dismissed under r 13.10 of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 19 June 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 702 of 2020

SEBASTIAN MASONE

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application, filed on 18 March 2020, for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a non-reviewable migration decision made on 2 March 2020 by a delegate of the respondent (“the Delegate”) granting the applicant a  Bridging E (General) (Subclass 050) visa. 

2. The visa granted was identified in the relevant notice as having a visa condition from Sch 8 of the Migration Regulations 1994 (Cth) (“the Regulations”), being condition 8101, which is a no work condition. The ability to impose conditions on visas is identified in s 41 of the Act. Schedule 1 of the Regulations identifies different classes of visas, including bridging visas, and Sch 2 of the Regulations, in cl 050.611 identifies the ability to impose the no work condition 8101 on a bridging visa.

3. The applicant has filed an amended application seeking to rely upon and challenge a more recent migration decision made on 2 June 2020 granting a substituted Bridging E (General) (Subclass 050) visa, which is also the subject of a no work condition 8101.

4. The notes in relation to that visa application interview by the decision maker have been put into evidence, and, relevantly, in that regard, it includes:

   The client confirmed his intention is to depart Australia and a 6 month grant period should be sufficient to depart. 

And, relevantly:

The client did not indicate financial hardship.

And:

The client disclosed he could support himself financially and self-fund his own departure.

1. The proceedings were the subject of an application in a case filed on 25 May 2020 by the respondent to have the proceedings dismissed as disclosing no arguable case. The matter was listed for hearing today.

Before the Court

1. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. 

2. The applicant identified that he wished to amend his application because of the argument that had been identified by the respondent as to the want of utility to the challenge to the earlier bridging visa. There is now a more recent bridging visa decision made on 2 June 2020 which was the subject of the proposed amended application. The Court identified that it would consider the request for leave to amend at the same time as considering the dismissal of the substantive application as disclosing no arguable case. 

3. There would be no utility in the present case in granting leave to amend as the amended application could not succeed. The argument advanced by the applicant was that he had a work right and that the bridging visa took away his work right.

4. There is a very important principle in relation to all human rights and which is that no human rights are absolute. They are all subject to the rule of law. The freedom of liberty, the freedom of the press, the freedom of religion, the freedom of speech, the right to work are all the subject of legal constraints and are not absolute, unqualified rights. In the present case, there is no basis to find that the no work condition 8101 is other than reasonably adapted to the condition power found in s 41 of the Act. 

5. There is no basis to find any arguable case that s 41 of the Act, by permitting imposition of 8101 no work rights condition, exceeds the object of the legislative power of the Parliament. 

6. There are obvious legitimate and adapted reasons why the no work condition may be imposed on relevant visas such as to ensure compliance with the terms and conditions as well as the overarching purpose upon which a relevant visa was granted.  This includes the grant of a visa a purpose of which is that the person will not be a financial burden on Australian citizens including Australian citizen work-rights and to ensure that the visa applicant has the financial capacity and support to sustain themselves for the grant of the visa period. A bridging visa is an obvious temporary visa of a kind upon which such a no work condition may be reasonably imposed within the scope of the legislative objects of the power.

7. Further, there are other legitimate and adapted reasons why a no work condition may be imposed such as to ensure compliance with intentions conveyed as to the departure from Australia or being a relevant genuine applicant for a particular visa. All these reasons for imposing the 8101 no work condition are reasonably adapted to and within the scope of the object of the condition power found in s 41 of the Act. Section 41 is itself reasonably adapted to and within the scope of the legislative power, s 51(xxvii) of the Constitution. 

8. The legitimate and adapted reason for the 8101 no work condition imposed on the bridging visa in the present case, is apparent from the information provided by the applicant to the decision maker as to his intention to depart Australia. It is evident that the imposition of the condition is to ensure compliance with that intention conveyed as to departure from Australia. The imposition of the 8101 no work condition in these circumstances has an evident and intelligible justification. Accordingly the manner of exercise of the decision making power by imposing the 8101 no work condition cannot be said to be legally unreasonable.

9. The imposition, in the circumstance of the present case of the 8101 no work condition on the bridging visa and the applicant’s disagreement with the same does not identify any arguable case of relevant error in the migration decision made on 2 March 2020. Further there is no arguable case of relevant error disclosed in relation to the imposition of that 8101 no work condition in respect of the decision the subject of the amended application. 

10. The Court notes that Ms Watson, who appeared for the respondent, informed the Court that it would be open to the applicant to make a further bridging visa application and to provide to the Department of Home Affairs (“the Department”) information, if true, supporting the reasons why the applicant should not have imposed a 8101 no work condition.

11. It is apparent that the no work condition has been imposed on the bridging visa in circumstances where the applicant has conveyed to the Department an intention to depart within six months. Compliance with that intention is an evident and legitimate purpose within the scope of the decision making power for the imposition of the no work condition on the bridging visa. The grant of the bridging visa in this case and any further bridging visa with the no work condition is and would be a valid exercise of the condition power that is reasonable and adapted to the scope of s 41of the Act.

12. Whether or not the Department finds there is a genuine intention to depart Australia within six months, it would in the circumstances of this case, be a valid exercise of condition power for the Department to continue to impose the 8101 no work condition on the bridging visa. 

13. There is no basis in the circumstances of the present case to identify any arguable case that the Department exceeded its statutory powers in the decision made on 2 March 2020 by the no work condition imposed on the bridging visa the subject of the substantive application. The proceedings have no reasonable prospect of success and the order for dismissal sought in the application in a case should be made.

14. The proposed amendment, for the above reasons, is one that does not disclose any arguable case of relevant error in respect of the decision made on 2 June 2020. Accordingly, that there would be no utility in granting leave to amend. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 19 June 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 28 July 2020