Mouradian v Migration Review Tribunal

Case [2001] FCA 1413

FEDERAL COURT OF AUSTRALIA

Mouradian v Migration Review Tribunal [2001] FCA 1413

ALBERT MOURADIAN v MIGRATION REVIEW TRIBUNAL & ANOR
N1120 of 2001

MADGWICK J
6 SEPTEMBER 2001
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1120 of 2001

BETWEEN:

ALBERT MOURADIAN
APPLICANT

AND:

MIGRATION REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

6 SEPTEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1120 of 2001

BETWEEN:

ALBERT MOURADIAN
APPLICANT

AND:

MIGRATION REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE:

6 SEPTEMBER 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

  1. This is a somewhat distressing matter.  The applicant seeks an order of review under the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Migration Review Tribunal (“the MRT”) given on 27 June 2001. The MRT affirmed the decision of a delegate of the respondent Minister refusing the applicant the grant of a Bridging Visa E (Class WE).

    Background

  2. Shorn of the daunting detail that surrounds the matter the applicant’s relevant history seems to be as follows.  He was born in Armenia on 19 July 1967.  He arrived in Australia aboard the vessel MV Ben on 3 January 1999 from which he jumped ship.  About a month later he approached the respondent’s Department and lodged an application for a Protection (Class XA) visa claiming refugee status.  On 8 March 1999, the applicant was granted a bridging visa of yet another category. 

  3. His application for a protection visa was refused on 10 March 1999 and he applied on 24 March 1999 to the Refugee Review Tribunal (“the RRT”) for a review of that decision.  On 7 November 2000, the RRT affirmed the decision of the respondent’s delegate to refuse him the grant of a protection visa.

  4. On 30 November 2000, the applicant asked the Minister to intervene, in the public interest, to make a more favourable decision in his favour than that of the RRT pursuant to s 417 of the Act. On the strength of that request the applicant was granted, on 15 December 2000, a Bridging E, Subclass 050 visa. Conditions were attached to that visa: that he should not work; that he should reside at a specified address; and that he should notify authorities of any change of address. The visa allowed him to remain in Australia subject to those conditions lawfully until 15 March 2001. On 8 March 2001, he asked in effect, for an extension of the bridging visa as the s 417 request was still outstanding. On 13 March 2001, a delegate of the respondent Minister, after interviewing the applicant, decided to cancel the bridging visa for breach of the “no work”, “reside at specified address” and “notify change of address” conditions.

  5. It appears that the applicant was at the time in a poor condition.  A police officer had reported to the Department, on 8 March 2001, that the “Person of Interest”, being the hapless applicant, “suffers from a Mental Illness and is a vagrant with no fixed place of abode”.  According to that officer, he had recently been involved in unspecified criminal activities.  Despite the officialese, the reporting officer expressed concern as to the applicant’s “welfare and personal safety”. 

  6. The applicant was detained on 13 March 2001. The following day he made a further application, in effect for an extension of the bridging visa, which was refused two days later on 16 March 2001. On 22 March 2001, apparently, the respondent Minister decided not to intervene under s 417 of the Act as to the earlier unfavourable decision of the RRT, given on 7 November 2000, showing one may say a considerable turn of speed. On 27 March 2001, the MRT affirmed the decision of the delegate to not extend the bridging visa.

  7. On 30 April 2001, the applicant again lodged an application for a “Bridging E” visa.  A delegate of the respondent Minister refused the application on 3 May 2001, on the basis that no ground existed for the grant of such a visa.  On 15 June 2001, the applicant lodged yet another application for a such a visa which three days later was refused by a delegate of the respondent and his application for review by the MRT was, again with great speed, rejected on 27 June 2001.  It is this last decision of the MRT which the applicant seeks to now have reviewed in this Court.

    Consideration

  8. The MRT did its best to explain the legalities of the review process to the applicant.  I assume it had as little success as when I tried to explain to him at the outset of these proceedings the law that constrains this Court.  The density of the delegated legislation would challenge anybody. 

  9. An abbreviated account of the matter is that there are 9 or 10 bases upon which one might obtain a bridging visa and the MRT member considered them all and found that the applicant did not qualify for such a visa under any of them.

  10. There was some question of a second s 417 request having been made by the applicant, to the respondent Minister, which in substance might possibly found a visa but the MRT member was unimpressed with this. It appears that all the applicant did was to resubmit the same request that had been previously made. The MRT member took the view that there was “no evidence that there was a further request to the Minister”, which the applicant “may have sent” on 20 June 2001, which was being personally considered by the respondent Minister. That was the relevant requirement under the conditions for a bridging visa.

  11. The applicant, I would infer, attempted to tell the MRT, as he has attempted to tell the Court, of his alleged history.  It is one of severe persecution in both Armenia and the Ukraine following the break up of the Soviet Union, to the point where he preferred mostly to live on board a ship to avoid persecution on land, including from police officials in the Ukraine.  The persecution stems, he says, from a generalised hatred by Christian Russians of Muslims, intensified by the conflict in and concerning Chechnya.

  12. The MRT understood that the applicant was “suffering from a mental illness and has been treated for depression”.  The applicant said that he felt worse again and that he had had to witness fights, quarrels, shouting and screaming whilst he had been in detention.  These matters were indicated before me.  I tried to explain the limited role and capacity of this Court in relation to the application the applicant was making.  The applicant had furnished illegible and incomprehensible documents with his application for review, but through an interpreter, he explained the substance of those.  As I have indicated, they were an account of his history which if true is a very sad one.

  13. The applicant claimed that he was mentally ill but was now cured.  He appeared in court to be depressed.  He did not appear to me to have as clear a grasp on matters as the average uncomprehending would-be immigrant, self-represented litigant, to whom it is difficult to explain the complexities concerning this Court’s limited role in reviewing such decisions.  The applicant was in poor circumstances and in urgent need of humanitarian assistance from a social worker who might have some special empathy with his position.  He may also have needed further legal advice. 

  14. The applicant’s principal complaint about the MRT was that he was denied natural justice and that he was told that there was available only a very short hearing, resulting in him being unable to tell his entire history.  He said similar problems had occurred at earlier hearings by the other tribunals.  

  15. It appears that the applicant has certainly had the intervention of mental health professionals from time to time and whether he has been denied natural justice by the MRT in relation to its decision of 27 June 2001, which is the subject of these proceeding, or earlier by the other tribunals is impossible to say, but in any event because of the provisions of s 476(2) of the Act it is simply irrelevant in this Court. I have considered standing the proceedings over to try to maximise the chance of the applicant getting some assistance from a social worker and perhaps some legal assistance but the prospects of it affecting his actual legal application before me appear so slim that I have decided against it.

    Disposition

  16. Accordingly, the application will be dismissed but there will be no order as to costs, given the applicant’s state.  Ms Watson of the Australian Government Solicitor was good enough to undertake to speak to officers of the Islamic Council of New South Wales in an effort to have a suitable social worker found to see the applicant. 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             5 October 2001

Applicant appeared in person.
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 6 September 2001
Date of Judgment: 6 September 2001
Details
AGLC
Mouradian v Migration Review Tribunal [2001] FCA 1413
Case
[2001] FCA 1413
Decision Date

CaseChat Overview and Summary

The case of Mouradian v Migration Review Tribunal involves an applicant seeking judicial review of a decision by the Migration Review Tribunal (MRT) to refuse him a Bridging Visa E (Class WE). The MRT's decision upheld the Minister's refusal to grant the applicant a bridging visa. The applicant, born in Armenia in 1967, arrived in Australia in 1999 by jumping ship from the MV Ben. He applied for a Protection (Class XA) visa, which was refused, leading to a series of subsequent visa applications and refusals. Despite a previous bridging visa, it was cancelled due to breaches of its conditions, and subsequent applications for extensions or new bridging visas were also denied. The court was tasked with determining whether the MRT's decision was legally sound and whether the applicant had a valid basis for obtaining a bridging visa under the Migration Act 1958 (Cth).

The central legal issue before the court was whether the MRT correctly applied the law in refusing the applicant a bridging visa. The court had to consider whether the MRT properly assessed the applicant's eligibility under the various provisions for a bridging visa and whether the applicant's claims of mental illness and past persecution were adequately considered. The applicant argued that he had not received fair consideration of his mental health and refugee status. The court needed to determine if the MRT's decision was reasonable and whether the applicant had provided sufficient evidence to warrant a grant of a bridging visa. The court also had to assess whether the MRT correctly interpreted the conditions and requirements for a bridging visa under the Act.

The court found that the MRT had appropriately exercised its discretion and correctly applied the law. The MRT had thoroughly considered the various grounds for granting a bridging visa and found that the applicant did not meet any of them. The court accepted the MRT's assessment that the applicant had not made a valid second request for ministerial intervention as required by the conditions for a bridging visa. The court noted the applicant's history of mental illness and alleged persecution but held that these factors did not meet the statutory criteria for a bridging visa. The court also acknowledged the applicant's distressing circumstances but concluded that the MRT's decision was legally sound and should be upheld. The court found no error in the MRT's process or outcome.

The court dismissed the application for judicial review, affirming the MRT's decision. The court held that the MRT had correctly applied the law and exercised its discretion in refusing the applicant a bridging visa. The applicant's claims of mental illness and past persecution, while sympathetic, did not satisfy the statutory requirements for a bridging visa. The court found no basis to interfere with the MRT's decision, which was legally sound and properly reasoned. The applicant's application for review was therefore dismissed.

Orders

Orders of the court

1. The application be dismissed.

Background

Background to the litigation

This is a somewhat distressing matter. The applicant seeks an order of review under the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Migration Review Tribunal (“the MRT”) given on 27 June 2001. The MRT affirmed the decision of a delegate of the respondent Minister refusing the applicant the grant of a Bridging Visa E (Class WE). Background Shorn of the daunting detail that surrounds the matter the applicant’s relevant history seems to be as follows. He was born in Armenia on 19 July 1967. He arrived in Australia aboard the vessel MV Ben on 3 January 1999 from which he jumped ship. About a month later he approached the respondent’s Department and lodged an application for a Protection (Class XA) visa claiming refugee status. On 8 March 1999, the applicant was granted a bridging visa of yet another category. His application for a protection visa was refused on 10 March 1999 and he applied on 24 March 1999 to the Refugee Review Tribunal (“the RRT”) for a review of that decision. On 7 November 2000, the RRT affirmed the decision of the respondent’s delegate to refuse him the grant of a protection visa. On 30 November 2000, the applicant asked the Minister to intervene, in the public interest, to make a more favourable decision in his favour than that of the RRT pursuant to s 417 of the Act. On the strength of that request the applicant was granted, on 15 December 2000, a Bridging E, Subclass 050 visa. Conditions were attached to that visa: that he should not work; that he should reside at a specified address; and that he should notify authorities of any change of address. The visa allowed him to remain in Australia subject to those conditions lawfully until 15 March 2001. On 8 March 2001, he asked in effect, for an extension of the bridging visa as the s 417 request was still outstanding. On 13 March 2001, a delegate of the respondent Minister, after interviewing the applicant, decided to cancel the bridging visa for breach of the “no work”, “reside at specified address” and “notify change of address” conditions. It appears that the applicant was at the time in a poor condition. A police officer had reported to the Department, on 8 March 2001, that the “Person of Interest”, being the hapless applicant, “suffers from a Mental Illness and is a vagrant with no fixed place of abode”. According to that officer, he had recently been involved in unspecified criminal activities. Despite the officialese, the reporting officer expressed concern as to the applicant’s “welfare and personal safety”. The applicant was detained on 13 March 2001. The following day he made a further application, in effect for an extension of the bridging visa, which was refused two days later on 16 March 2001. On 22 March 2001, apparently, the respondent Minister decided not to intervene under s 417 of the Act as to the earlier unfavourable decision of the RRT, given on 7 November 2000, showing one may say a considerable turn of speed. On 27 March 2001, the MRT affirmed the decision of the delegate to not extend the bridging visa.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MADGWICK J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MADGWICK J

On 30 April 2001, the applicant again lodged an application for a “Bridging E” visa. A delegate of the respondent Minister refused the application on 3 May 2001, on the basis that no ground existed for the grant of such a visa. On 15 June 2001, the applicant lodged yet another application for a such a visa which three days later was refused by a delegate of the respondent and his application for review by the MRT was, again with great speed, rejected on 27 June 2001. It is this last decision of the MRT which the applicant seeks to now have reviewed in this Court.Consideration The MRT did its best to explain the legalities of the review process to the applicant. I assume it had as little success as when I tried to explain to him at the outset of these proceedings the law that constrains this Court. The density of the delegated legislation would challenge anybody. An abbreviated account of the matter is that there are 9 or 10 bases upon which one might obtain a bridging visa and the MRT member considered them all and found that the applicant did not qualify for such a visa under any of them. There was some question of a second s 417 request having been made by the applicant, to the respondent Minister, which in substance might possibly found a visa but the MRT member was unimpressed with this. It appears that all the applicant did was to resubmit the same request that had been previously made. The MRT member took the view that there was “no evidence that there was a further request to the Minister”, which the applicant “may have sent” on 20 June 2001, which was being personally considered by the respondent Minister. That was the relevant requirement under the conditions for a bridging visa. The applicant, I would infer, attempted to tell the MRT, as he has attempted to tell the Court, of his alleged history. It is one of severe persecution in both Armenia and the Ukraine following the break up of the Soviet Union, to the point where he preferred mostly to live on board a ship to avoid persecution on land, including from police officials in the Ukraine. The persecution stems, he says, from a generalised hatred by Christian Russians of Muslims, intensified by the conflict in and concerning Chechnya. The MRT understood that the applicant was “suffering from a mental illness and has been treated for depression”. The applicant said that he felt worse again and that he had had to witness fights, quarrels, shouting and screaming whilst he had been in detention. These matters were indicated before me. I tried to explain the limited role and capacity of this Court in relation to the application the applicant was making. The applicant had furnished illegible and incomprehensible documents with his application for review, but through an interpreter, he explained the substance of those. As I have indicated, they were an account of his history which if true is a very sad one. The applicant claimed that he was mentally ill but was now cured. He appeared in court to be depressed. He did not appear to me to have as clear a grasp on matters as the average uncomprehending would-be immigrant, self-represented litigant, to whom it is difficult to explain the complexities concerning this Court’s limited role in reviewing such decisions. The applicant was in poor circumstances and in urgent need of humanitarian assistance from a social worker who might have some special empathy with his position. He may also have needed further legal advice.