Singh v Minister for Immigration

[2015] FCCA 1916

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1916

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugee Division) – Bridging E (Class WE) visa – applicant seeking to lodge fresh visa application – application for an extension of time – no arguable jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477, 359A

SZLIH v Minister of Immigration and Citizenship [2009] FCA 108

Applicant: JASPAL SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1414 of 2015

Judgment of: Judge Street

Hearing date: 15 July 2015

Date of Last Submission: 15 July 2015

Delivered at: Sydney

Delivered on: 15 July 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A. Carr
DLA Piper

ORDERS

1. The name of the second respondent be corrected to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application for an extension of time under s.477 is dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $4100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1414 of 2015

JASPAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the court’s jurisdiction under s.476 of the Migration Act1958 (Cth), in respect of a decision of the Tribunal, made on 16 April 2015, affirming a decision of the delegate not to grant the applicant a Bridging E (Class WE) visa.

2. The applicant is a citizen of India and arrived in Australia on 17 January 2006, holding a Transit (TX-771) visa.  The applicant overstayed on this visa and applied to the Department for a Protection (Class XA) visa on 10 February 2006.  The applicant’s application for protection was refused on 27 March 2006 and affirmed by the Refugee Review Tribunal on 25 July 2006.  The applicant appealed the decision of the RRT to the Federal Magistrates Court, which upheld the Department’s decision.

3. The applicant became an unlawful non-citizen in 2006 and remained unlawfully in Australia until 29 November 2010.  The applicant contacted the Department and advised that he wished to return to India and was granted a Bridging visa E on departure grounds.  The applicant did not depart Australia, and his last bridging visa ceased on 12 December 2011.  The applicant lodged an application for ministerial intervention on 24 March 2015 and at the same time lodged a further application for a Bridging visa E, which is the subject of these proceedings.

4. The applicant had been unlawfully in Australia since the time that his last bridging visa ceased on 12 December 2011.  The applicant was interviewed at the detention centre on 1 April 2015 and his application for a Bridging visa E was refused by the delegate on 2 April 2015.

5. The decision of the delegate was made on the basis that the delegate was not satisfied that the applicant would abide by the conditions of the visa.  It was in those circumstances that the applicant sought a review of the decision of the delegate and appeared before the Tribunal on 15 April 2015 to give evidence and present arguments. He was assisted by an interpreter and represented by a registered migration agent.

6. Prior to the hearing, the Tribunal served upon the applicant a letter under s.359A in relation to the potentially dispositive issue as to whether the Tribunal could be satisfied that the applicant would abide the conditions that may be imposed on a Bridging visa if one was granted to him. That letter set out the full migration history and unlawful periods by the applicant remaining in Australia without a visa and the failure to comply with the conditions imposed.

7. The grounds in the application are as follows: 

   1. I wish to relodge protection visa application based on new evidence.

   2. The Tribunal made Administrative error to take into account that I still have rights to lodge protection visa based on new evidence to grant me BVE visa.

8. Orders were made on 11 June 2015, providing for an opportunity to the applicant to amend the application and put on any further evidence and also provide written submissions.  No documents were filed by the applicant.

9. At the hearing today, the applicant said that his life is in danger and that he should be allowed to stay in Australia.  The applicant indicated that there was nothing further he wished to say in answer to the submissions of the first respondent or in support of his application.

10. The first respondent submitted that this was an application that required an extension of time under s.477 and that the requirements in that regard were a satisfactory explanation for the delay, as well as the extent of the delay, and whether there is a sufficiently arguable ground of jurisdictional error to warrant an extension of time in the interests of the administration of justice.

11. The first respondent submitted that although the delay was brief, the explanation was inadequate and, in particular, that it was the applicant’s responsibility to ascertain his review rights, referring to SZLIH v Minister of Immigration and Citizenship [2009] FCA 108 at [33].

12. The first respondent also submitted that ground 1 was misconceived and failed to identify a matter capable of being a jurisdictional error.  The first respondent submitted that the desire to make a further application for protection is not a matter that went to the issues before the Tribunal, which, critically, were whether or not the applicant would abide the conditions on the visa.

13. The first respondent drew attention to the nature of those conditions which would be imposed on the visa under condition 8101 – being no work; condition 8401 – a requirement to report to the Department at a specified time and place; condition 8505 – to reside at a specific address; and condition 8506 – to notify a change of address. Those conditions were identified by the Tribunal at para.7.

14. The first respondent submitted that there was no substance in relation to ground 2 as it did not identify any legal error relating to the decision of the Tribunal. It was further submitted that the Tribunal provided the applicant with a genuine hearing, complied with the requirements in relation to the provisions of s.359A, complied with the obligations under Division 5, Part 5 and that the Tribunal made adverse findings that were open on the material available to the Tribunal.

15. The first respondent submitted that the oral submissions by the applicant failed to identify any ground of error by the Tribunal. The applicant when invited to reply to the first respondent’s submissions indicated that he had nothing further to say.

16. I accept the first respondent’s submission that the explanation for the delay is in the circumstances of this case inadequate. I also accept the submission of the first respondent that the applicant has not identified any sufficiently arguable jurisdictional error to warrant an extension of time under s.477 in the interests of the administration of justice.

17. I accept the first respondent’s submission that the issues raised in relation to the applicant’s desire to obtain a protection visa were not relevant to identifying any jurisdictional error by the Tribunal. I find that the grounds in the application fail to disclose any arguable jurisdictional error.  I accept the first respondent’s submission that the oral submissions of the applicant failed to identify any jurisdictional error.

18. Relevantly, the Tribunal held:  

    9. The evidence before the Tribunal indicates that the applicant has been unlawful for significant periods of time. The first of these periods was between August 2006 and November 2010, a period of some four years. The second period of unlawfulness was between December 2011 and April 2015, a further period of some four years. Thus, since his arrival in Australia in 2006 the applicant has been unlawful for some eight years. The applicant has also failed to depart Australia when he was granted Bridging visas on that basis and failed a number of times to regularise his immigration status upon the expiry of his visas. …

    10. …The applicant stated that his expenses are minimal. In response to the Tribunal’s comments that he has given conflicting information about his residence, the applicant stated that sometimes he stayed with friends for a short period but he has primarily lived at the temple.

    …

    14. The Tribunal has considered the applicant’s claims that he intends to abide by the conditions on the visa if granted. The Tribunal considers that the applicant’s immigration history indicates that he has shown a considerable disregard of Australia’s immigration laws over a significant period of time. As set out above, the applicant has resided in Australia unlawfully for a period of eight years and whilst he has at times voluntarily approached the Department, at other times he has failed to report to the Department as required and has failed to abide by conditions on Bridging visas requiring him to depart Australia by a specified date. The Tribunal considers it unlikely that the applicant’s only employment has been on a volunteer basis at the temple during the nine years he has been in Australia, particularly given the regularity with which he telephoned the Department to request permission to work due to his need to support his family in India. The Tribunal also considers it unlikely that the applicant’s primary accommodation for the last nine years was at the temple in Griffith. The Tribunal is not satisfied that the letter from Mr Nagra establishes that the applicant’s residence was at the temple prior to his detention. However, even accepting that the applicant has resided at the temple and has only been engaged in volunteer activities for some nine years, the Tribunal is not satisfied that the applicant’s assertions in relation to his remorsefulness establish that he will abide by the conditions on the visa if it is granted. The Tribunal considers that the applicant’s past conduct raises considerable concerns that if released from detention he would continue to show disregard and disinterest in complying with Australia’s immigration laws. The Tribunal also considers that his past conduct indicates a considerable desire to remain living in the Australian community and that he will do whatever he considers necessary to remain in Australia. The Tribunal does not accept that the applicant has any intention of returning to India and considers his evidence that he will be in danger in India does not indicate that he would willingly return to India. The Tribunal has considerable concerns that if the applicant’s application to the Minister is unsuccessful that he would conceal himself in the community.

    15. The Tribunal has considered the applicant’s evidence as to how he will support himself if he is released from the detention centre. The Tribunal accepts the bank statement provided after the hearing which shows that Mr Parshotam Singh has a bank balance of approximately $44,000 as of 16 April 2015. The Tribunal accepts the statements from Mr Parshotam Singh and Mr Sukwinder Singh that they are both willing and able to support the applicant. However, the Tribunal is not satisfied that their support will act as sufficient incentive to ensure the applicant will abide by the conditions on the visa. As stated above, the Tribunal has found that the applicant’s immigration is poor and indicative of disregard for Australia’s immigration laws. The Tribunal is prepared to accept that the applicant is remorseful at present for his poor immigration history, but is not satisfied that such remorse will result in the applicant complying with the conditions on his visa if his current application to the Minister is unsuccessful. Accordingly, the Tribunal is not satisfied that the applicant will reside at a specified address, report to the Department as required, and notify the Department of a change of address, thereby breaching conditions 8401, 8505 and 8506.

    …

    17. …The Tribunal has also not accepted that the applicant will depart Australia if his application for Ministerial intervention is unsuccessful. The Tribunal is not satisfied, having considered all of the evidence, that a sum of $15,000, or even a higher amount, will act as an incentive for the applicant to abide by the conditions on the visa. Therefore, on the evidence before it, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223.

    18. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

    19. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible non-citizen as set out in cl.051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.

19. I accept in the first respondent’s submissions that the adverse findings by the Tribunal were open and that the application fails to identify any arguable jurisdictional error and that the application for an extension of time under s.477 should be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 20 July 2015