Nabi v Minister for Immigration and Multicultural Affairs

[2001] FCA 1841

FEDERAL COURT OF AUSTRALIA

Nabi v Minister for Immigration and Multicultural Affairs [2001] FCA 1841

MIGRATION – application for a bridging visa dismissed by delegate of minister and affirmed by Tribunal – Tribunal found applicant had not made acceptable arrangements to leave Australia – no error of law.

Migration Act 1958 (Cth) s 474
Judiciary Act 1903 (Cth) s 39B
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Regulations 1994 (Cth) cls 050.212(2)-(9)

APPLICANT(S) NABI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1506 of 2001

CONTI J
19 DECEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1506 OF 2001

BETWEEN:	NABI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	19 DECEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1506 OF 2001

BETWEEN:	NABI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	19 DECEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 20 August 2001 which affirmed the decision of the delegate of the Minister not to grant the applicant a bridging visa E (Class WE). The applicant was not legally represented before the Tribunal nor before the Court.

2. The applicant is a citizen of the Peoples’ Republic of China born on 18 January 1958. She is a widow and has two children, both of whom continue to reside in China. The applicant first arrived in Australia on 11 April 1998 on a sub-class 676 tourist (short-stay) visa using the identity Yung, Ka Luen.

3. On 22 May 1998, the applicant lodged an application for a protection visa. On 30 May 1998, the Department refused the protection visa application, such decision being affirmed by the Refugee Review Tribunal on 31 May 1999. The applicant’s bridging A visa ceased to have effect on 5 July 1999. On 26 July 1999, the applicant made an application for ministerial intervention pursuant to s 417 of the Migration Act 1958 (Cth) (“the Migration Act”). The Minister, however, decided not to exercise his power with respect to the applicant’s case.

4. On 10 December 1999, the applicant lodged another application for a protection visa in the name Chen, Rui Ya which was a different identity to that used in the first application (see [2] above). With respect to this application, the applicant claimed that she arrived in Australia on 3 November 1999 as a stowaway and presented a Chinese identity card and drivers’ license in the name Chen, Rui Ya. The second application was also refused by a delegate of the Minister on 13 April 2000, such decision being affirmed by the Refugee Review Tribunal on 13 December 2000. An application for Ministerial intervention was refused by the Minister.

5. On 28 July 2001, departmental compliance officers located the applicant working at Fung Lee Chicken in Preston. The Tribunal, referred to a report by a DIMA officer which stated that the applicant attempted to abscond through the front gates of the factory. When she was stopped by DIMA officers, she responded by running back into the factory whereupon she attempted to hide from DIMA officers. When she was caught, the applicant stated that her identity was Chen, Yu Xiang (which is the third alternate identity provided by the applicant to the Department or its officers) and that she was a permanent resident of Australia. During a later interview held at the Detention Centre in Villawood, the applicant acknowledged that she had stolen such name from a friend. She also acknowledged that she had worked at the chicken factory for approximately one to two years. The applicant claimed that she had done so in order to send money to her children. When asked why she remained in Australia after the expiration of her visa, the applicant replied that she had no money and that she remained in Australia in order to acquire wealth for the sake of her children.

6. The Department commenced removal proceedings against the applicant on 2 August 2001. On the following day, namely 3 August 2001, a Mr Jack Meng, advised the Department that he would now be acting on behalf of the applicant. He informed the Department that her correct identity was Chen, Rui Yu instead of Yung, Ka Lun and that he held a valid Chinese passport in this name on her behalf as well as an airline ticket dated 14 August 2001. The Tribunal noted, however, that the airline ticket was in fact dated 13 August 2001. In addition to this, the applicant applied for a Bridging E Visa on 3 August 2001 and in such application she identified herself as Yung, Ka Luen with Chen, Rui Yu in brackets. As I have mentioned above, her adviser, Mr Meng, clarified the position with respect to her true identity.

7. On 6 August 2001 the Department’s document examinations unit reported that there were some irregularities in the applicant’s Chinese passport which suggested that such was not a genuine Chinese passport. On 7 August 2001, the delegate of the Minister refused to grant the applicant a Bridging E visa. Of particular importance was the finding that the applicant did not have a ground for grant of such visa for the reason that she had not presented a valid document to enable her to depart. In addition to this, the delegate found that the applicant did not meet Clause 050.223 and added that the applicant had continued to mislead the Department as to her correct identity. The delegate also referred to the applicant’s past non-compliance and period of unlawfulness in Australia and found that no amount of security would act as an incentive for the visa applicant to comply with any conditions that she could be subjected to.

8. On 9 August 2001, the applicant applied to the Tribunal for a review of the delegate’s decision. When the matter was before the Tribunal, the applicant confirmed that she had lodged two protection visa applications in different names. She stated before the Tribunal that her correct identity was Chen, Rui Yu. The correctness of this claim, was supported by a letter on the part of another adviser known as Mr Peter Coroneous, which stated that he held a photostat copy of a Chinese ID card, the original of which was in China. The applicant claimed that she had decided to return to China to care for her two children and she wished to obtain moneys owed to her prior to returning to China in order that she may support them. She said that previously she thought that her application as a refugee would be successful and as a consequence she would be able to bring her two children to Australia. She claimed that she now realised that this was a hopeless possibility and since the children cannot come to Australia it was pointless for her to remain here.

9. The Tribunal noted that a Ms Ruang Li, was prepared to lodge a $20,000.00 bond for compliance with the conditions of any visa granted to the applicant. Such money would be borrowed from four friends who did not give evidence before the Tribunal nor provided any statutory declaration to such effect.. Furthermore, the applicant would be residing at Ms Li’s home which is situated in the suburb of Guildford in Sydney.

   The Tribunal’s decision

10. The Tribunal accepted that the applicant made a valid application for a bridging visa and met the criteria set out in Clause 050.211 of the Migration Regulations 1994 (Cth), namely that she was an unlawful non-citizen and was not an eligible non-citizen of the kind set out in subregs 2.20(7) to (11). The Tribunal proceeded to consider whether the requisite criteria set out in sub-clause 050.212(2) had been met. In order to do so, the applicant was required to satisfy at least one of the grounds set out in sub-clauses 050.212(2) to (9). The applicant, argued that she satisfied this clause on the ground that she had been making acceptable arrangements to depart Australia.

11. As was correctly pointed out by the Tribunal, what may constitute an acceptable arrangement to depart Australia will depend on the facts of each case. The Tribunal accordingly had regard to the policy guidelines in MSI 313. Such guidelines were described by the Tribunal to be as follows:

    “·       Whether the applicant is in possession of a valid travel document or could obtain one in a reasonable period.

    ·Whether the applicant had a ticket for travel to an acceptable destination and booking/reservation to depart Australia or could obtain one within a reasonable time.

    ·The applicant’s capacity to travel.

    ·The decision-maker is satisfied that the applicant will depart as arranged.”

12. In determining whether the applicant had made, or, was the subject of, acceptable arrangements to depart Australia, the Tribunal found:

    “The Tribunal is not satisfied that the visa applicant genuinely intends to depart Australia on 2 September as claimed. She has used a variety of names in dealings with the Department from before her first entry to Australia. She has pursued various applications to remain in Australia using different names and as recently as the time of her detention sought to provide a false name to the Department in order to secure her release from detention.

    Furthermore, the visa applicant’s explanation for her failure to organise a genuine travel document over the past twelve months appears to indicate she is not being truthful with the Tribunal. She claims that she initially paid a friend $1,000.00 to arrange a passport in her real name some twelve months ago and received this some six months ago. Realising this document was probably fraudulent she claimed that she took steps to get an official document in the past six months because she was unable to local the Chinese Consult. This explanation is not accepted by the Tribunal…. The visa applicant had adequate opportunity to arrange an appropriate travel document prior to her detention and did not do so. The Tribunal is not therefore satisfied that the visa applicant is making acceptable arrangements to depart Australia…

    The Tribunal finds that the visa applicant does not satisfies any of the other criteria in clauses 050.212(3) to 050.212(9). On the evidence before it the Tribunal is not satisfied that at the time of application the visa applicant had made a valid application for a substantive or that she will apply, within a period allowed, for a substantive visa of a kind which can be granted if she is in Australia. No court proceedings are on foot. The visa applicant has no outstanding application for judicial review either at the time of application or the time of decision. The visa applicant has no outstanding application for merits or judicial review or outstanding request to the Minister that is one of a number of prescribed requests.”

13. The Tribunal then went on to consider whether irrespective of the applicant’s failure to satisfy sub-clauses 050.212(2), she would abide by the conditions of the visa if one were granted. The conditions which would be appropriate in this case, according to the Tribunal, included:

    “8101

    0101.     The holder must not engage in work in Australia.

    8401

    8401The holder must report:

    (a)at a time or times; and

    (b)at a place;

    specified by the Minister for the purpose.

    8505

    8505The holder must continue to live at the address specified by the holder before grant of the visa

    8510

    8510Within the time specified by the Minister for the purpose, the holder must, either:

    (a)show an officer a passport that is in force;

    (b)make an arrangement satisfactory to the Minister to obtain a passport.

    8512

    8511The holder must leave Australia by the date specified by the Minister for the purpose.”

14. In determining whether the applicant would comply with the conditions that would be imposed were a visa to be granted in her favour, the Tribunal concluded:

    “The visa applicant has repeatedly arranged for fraudulent documentation in her efforts to travel to and remain in Australia. She has used three identities to pursue applications or seek to avoid detention in Australia. She has remained unlawfully in Australia, working without authority to do so for a substantial portion of that time. She now claims that she will voluntarily return to China to assist her children. The Tribunal is not, on the evidence satisfied that the visa applicant would return to China on the flight booked for 2 September as she claims. Nor is that (sic) Tribunal satisfied that in the interim she would continue to report to the Department. She has so persistently breached the law in her efforts to travel to and remain in Australia the Tribunal is not satisfied that she is on this occasion being truthful about her intention.”

15. The Tribunal then went on to consider the bond which the applicant’s friend Ms Li was prepared to provide to secure the applicant’s compliance with the conditions of any visa that may be granted in her favour. The Tribunal said:

    “In any case, the visa applicant has so persistently breached the law to travel to and remain in Australia and invested significant amounts of money to do so, that the Tribunal is not satisfied that any amount of security which could reasonably be requested would act as an incentive for the visa applicant to comply with conditions. The visa applicant’s friend Ms Li clearly has faith in the visa applicant’s integrity, however, the Tribunal was not satisfied the visa applicant is being truthful. The money proposed is being raised by borrowing from four friends of Ms Li none of whom gave evidence to the Tribunal. Considering the matter overall the Tribunal believes that the decision not to request the security was the appropriate decision.”

    The application for review

16. The application for review refers to four unparticularised grounds of review which were once available pursuant to s 476 of the Migration Act, that is to say, prior to the enactment of Part 8 of the Act in its present form. Such grounds of review were set out in s 476(1)(a), (d), (e) and (g). In addition to this, the application for review indicates that the applicant seeks to rely upon this court having jurisdiction to entertain her present application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“The ADJR Act”) or the Migration Act. As was correctly pointed out by counsel for the respondent, as a consequence of the legislative amendments which came into force on 2 October 2001, the Federal Court no longer has jurisdiction under either legislation to review decisions of the Migration Review Tribunal. So much is clearly set out in Schedule 1 Item (da) of the ADJR Act and the new part 8 and 8A of the Migration Act. It is also clear that in order to apply to the Federal Court for review of a decision of the Migration Review Tribunal, such application must be brought pursuant to s 39B of the Judiciary Act 1903 (Cth). Such an avenue of review, however, as pointed out by the respondent is substantially limited in operation by s 474 of the Migration Act, which is a privative clause applying inter alia to decisions of the Tribunal. For the reasons which I will now give, there is no need for me to address the impact of the privative clause on the present application for review.

17. Even if the applicant had sought review of the decision pursuant to s 39B of the Judiciary Act 1903 (Cth), it appears readily to me, upon my examination of the Tribunal’s decision in this case, that there is no discernible error in its reasons for decision. Although the applicant claims that she had been making acceptable arrangements to depart Australia, the Tribunal was entitled to consider other factors in assessing the veracity of this claim, namely those set out in the passage extracted at [12] above. Those factors constituted a sound basis upon which the Tribunal was able to proceed in finding that the applicant did not satisfy the criteria set out in clauses 050.212(3) to 050.212(9) of the Migration Regulations.

18. In addition to what I have already referred to, the Tribunal was also careful in evaluating whether or not the applicant would comply with the conditions to which the applicant would be subject, were a visa to be granted in her favour. In light of its findings of fact that the applicant has persistently breached the law in travelling to and remaining in Australia, and has also repeatedly misled the Department with respect to her identity, such findings constituted a proper and adequate basis upon which the Tribunal decided that a security ought not be requested on the part of Ms Li for the benefit of the applicant, were a visa to be granted in her favour. Accordingly there is no error in the Tribunal’s reasons for affirming the delegate’s decision that the applicant should be refused the grant of a bridging visa E (Class WE).

19. The application should be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             20 December 2001

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	19 December 2001
Date of Publication of Reasons:	20 December 2001