S345 of 2003 v Minister for Immigration (No.2)

[2005] FMCA 986

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S345 OF 2003 v MINISTER FOR IMMIGRATION (No.2) [2005] FMCA 986

MIGRATION – Application to review decision of Migration Review Tribunal – Bridging Visa – whether lack of procedural fairness.

Migration Act 1958, s.189

Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 284
Ahmed vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 38

Applicant: APPLICANT S345 OF 2003

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG1197 of 2005

Judgment of: Barnes FM

Hearing date: 30 June 2005

Delivered at: Sydney

Delivered on: 30 June 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr S. Lloyd

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent’s costs fixed in the amount of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1197 of 2005

APPLICANT S345 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application seeking review of a decision of the Migration Review Tribunal (the Tribunal) made on 3 May 2005 affirming a decision of a delegate of the respondent that the visa applicant was not entitled to the grant of a Bridging E (Class WE) Subclass 050 visa and also affirming the decision to request a security of $10,000.

2. The background to this application is set out in the Tribunal reasons for decision.  The applicant first came to Australia in 1995 on a student visa.  He was granted a further student visa.  Each of these visas was subject to work limitations.  In February 1997 he lodged an application for a protection visa and was granted a Bridging visa which came into effect on the expiration of the applicant's student visa.  That visa was not subject to any conditions.  However the protection visa application was refused.  On 23 October 1998 the Refugee Review Tribunal affirmed the decision to refuse the grant of a protection visa.  The applicant’s Bridging visa expired on 27 November 1998.  He remained in Australia.

3. In January 1999 the applicant was granted a Bridging E visa (Subclass 050) associated with his inclusion in a class action seeking judicial review.  That visa was subject to a number of conditions including condition 8101 (no work).  It was valid until July 2003.  On 25 November 2003 the applicant was granted a further Subclass 050 bridging visa also subject to condition 8101 (the “no work” condition).  The application for judicial review was finalised on 30 April 2004.  The applicant was unsuccessful.  

4. The applicant’s bridging visa ceased on 28 May 2004. He remained in Australia after the expiry of that visa. On 14 January 2005 the applicant was located and detained under s.189 of the Migration Act 1958.  The Tribunal reasons for decision record that the applicant told the Department that he had worked from 1995 to the present and that he had permission to work when he had started to do so.  On 24 January 2005 the applicant filed an application for review of the 1998 Refugee Review Tribunal decision in this court.  On 31 January 2005 the applicant lodged an application for a Subclass 050 Class WE Bridging visa on the ground of his application for judicial review.  That application was refused by the Department on 2 February 2005 and the decision was affirmed by the Tribunal. 

5. A fresh application for a Bridging visa was lodged on 18 April 2005 on the basis of the applicant’s application for judicial review filed on 24 January 2005.  At 12.27pm on 20 April 2005 the Department faxed a letter to the applicant requesting lodgment of a security of $10,000 by 1.30pm on 20 April 2005.  A decision of the delegate dated 20 April 2005 records that while the visa applicant met threshold criteria on the basis of his ongoing application for judicial review, concerns were held about whether he would abide by conditions.  According to the assessment of the application security of $10,000 and evidence of ongoing financial support was requested by telephone call to the applicant on 20 April 2005 (and he was advised of the option of requesting an extension of time).  The requested security was not lodged.  Nor was an extension of time requested.  The delegate refused the application and the applicant sought review by the Migration Review Tribunal on 21 April 2005. 

6. In his application for review by the Tribunal the applicant claimed that the Departmental officer was unfair, unreliable and did not understand his case and circumstances.  He complained in writing to the Tribunal that the Department had faxed “the paper” requesting the security to the Villawood Detention Centre at 12.27pm on Wednesday, 20 April 2005.  That document required that the security be lodged with the Department by 1.30pm on that day.  The applicant stated that he did not in fact receive the letter from Villawood staff until 6.30pm the same evening.

7. The Tribunal wrote to the applicant under s.359A of the Migration Act 1958.  The applicant attended a Tribunal hearing.  In its findings and reasons the Tribunal indicated that it was satisfied that at the time of the application and decision the visa applicant met the criteria in clauses 050.211, 050.212 and 050.221 of Part 050 of Schedule 2 to the Regulations because he currently had an application before the court in relation to the decision to refuse him a protection visa.  However it was necessary for the Tribunal to consider whether, if the applicant was released from detention, he would abide by any conditions (clause 050.223), whether the decision to request a security of $10,000 was appropriate and if not, what amount should be sought (clause 050.224).

8. Pursuant to clause 050.612A of Part 050 of Schedule 2 the Tribunal was required to impose condition 8101 which provides “The holder must not engage in work in Australia”.  It considered that, for reasons that it gave, a number of other conditions should also be imposed.  It had regard to policy factors and the applicant’s visa immigration history and past dealings with the Department in considering whether the applicant would abide by conditions.  It expressed concern that the applicant may work in breach of condition 8101 as he had done so in the past.  It was not satisfied that he would abide by the conditions and hence he did not meet clause 050.223. 

9. The Tribunal then considered whether payment of security would provide the added assurance necessary that the applicant would abide by visa conditions.  It referred to policy guidelines in relation to the amount of security, and to the evidence of the visa applicant that he had about $750, that friends owed him a further $400 to $500 and that he could lodge a security but not an amount of $10,000 as the Department had requested.  In light of that evidence and the visa applicant's migration history, particularly his preparedness to work for more than five years knowing that he did not have permission to do so, the Tribunal considered that a security of $10,000 was needed to provide a sufficient compliance incentive. 

10. The Tribunal stated that the Department had given the applicant an opportunity to lodge such security and the applicant had failed to do so.  The Tribunal went on to say that the applicant had indicated to the Tribunal that he was not able to lodge such security.  The visa applicant therefore failed to meet clause 050.224.  The Tribunal affirmed the decision to request a security of $10,000.

11. The applicant sought review of the Tribunal decision by application filed on 5 May 2005.  He complained of bad faith and that the application was unfairly decided.  In oral submissions he clarified that his concern was that he had put to the Tribunal that the Department had been unfair, unreliable and had not understood his case and that this had not been taken into account by the Tribunal.  The essence of his concerns appear to relate to the amount of time allowed by the delegate of the respondent for him to provide a security and that he was not given the documents in relation to the request for security until after the time for providing the security had expired.  It is understandable that the applicant has such concerns if these events occurred as he contended in his submission.  However, even if this is the case, such Departmental actions would not establish a jurisdictional error by the Tribunal (and see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 284 and Ahmed vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 38 to the effect that any defect in the delegate’s decision or procedures will be “cured” by the Tribunal review).

12. There is nothing to support the allegation that the Tribunal acted in bad faith or in any way denied procedural fairness to the applicant.  The Tribunal found that the applicant met part of the criteria for a bridging visa.  He failed not only because of the Tribunal’s lack of confidence that he would comply with visa conditions but also because it could not be confident that he would do so without the provision of a security of $10,000 and, importantly, he had indicated to the Tribunal that he was unable to lodge such a security. 

13. Insofar as the applicant now contends that he did not have a meaningful opportunity to provide the Department with the security sought, the critical issue in these proceedings is that he also told the Tribunal that he was not able to lodge a security in the amount of $10,000 and on that basis the Tribunal found that he failed to meet clause 050.224.  It was not necessary for the Tribunal to address any “error” or possible lack of procedural fairness by the Department in the “de novo” review it conducted. 

14. Counsel for the respondent contended that no jurisdictional error was established but that, in any event, bearing in mind that it would have been open to the applicant to lodge a security with the Tribunal had he been able to do so and given that he could also make a fresh bridging visa application (albeit after 30 days), the application should be refused as a matter of discretion even if there were a jurisdictional error.  However I do not need to consider the exercise of any discretion as I am not persuaded that the claimed conduct of the Department and the treatment of such conduct in the Tribunal decision is such as to establish bad faith or any jurisdictional error on the part of the Tribunal as contended by the applicant.

15. In these circumstances, as no jurisdictional error on the part of the Tribunal has been established, the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  The respondent seeks that he pay their costs of these proceedings in the sum of $3,000.  The applicant indicated that he was in detention and had no funds.  That is not a reason for not awarding costs although it may be a matter taken into account by the respondent in determining when and how to seek to recover any costs.  I consider that the amount sought is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  19 July 2005