Soh, Jay Ho v Minister for Immigration and Multicultural Affairs
[1998] FCA 1512
•27 NOVEMBER 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION - appeal from Immigration Review Tribunal (“IRT”) decision refusing bridging visa – whether the applicant was likely to work without permission – whether, having failed to renew his passport, the applicant would cease reporting and move from his notified address to avoid detection – whether the imposition on the applicant of requirements that he should have an Australian sponsor willing to provide support and financial assistance was “manifestly unreasonable”
Migration Act 1958 (Cth)
Migration Regulations (Cth)
Minister for Aboriginal Affairs v Peko-Wallsend (1986-1987) 162 CLR 24, cited
Sun Zhan Quai v Minister for Immigration and Multicultural Affairs (1997) 151 ALR 505, cited
Wu Shan Liang v Minister for Immigration and Multicultural Affairs (1996) 185 CLR 259, cited
Chemaly v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Sakcville J, 26 October 1998), cited
JAY HO SOH
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 916 OF 1998
O’CONNOR J
SYDNEY
27 NOVEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 916 of 1998
BETWEEN:
JAY HO SOH
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
O'CONNOR J
DATE OF ORDER:
27 NOVEMBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application be dismissed with costs.
NOTE:SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 916 of 1998
BETWEEN:
JAY HO SOH
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
O'CONNOR J
DATE:
27 NOVEMBER 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application to review a decision of the Immigration Review Tribunal (“the Tribunal”) made on 6 August 1998 to refuse the applicant a bridging visa class 050 (general) pursuant to the Migration Act 1958 (Cth) (“the Act”) and the Migration Regulations (“the Regulations”). The applicant claims that the Tribunal failed to consider relevant factors and to observe procedures required to be observed by the Act. In so doing, failing to act according to substantial justice and the merits of the case, review being available pursuant to s 476(1)(a) and s 476(1)(e) of the Act.
The applicant’s grounds of review, as particularised in the application, are as follows:
That the Tribunal in determining that the applicant was unlikely to abide by conditions put on a bridging visa took into account the fact of the applicant having expressed his unwillingness to return to Korea and his determination to seek any way to stay in Australia, failed to take into account the fact of the applicant having made legally permissible applications to the Tribunal in the past and has during the currency of those applications abided by the lawful directions of the Tribunal’s servants.
That the Tribunal in requiring the applicant to renew his passport failed to take into account the applicant’s prior application for refugee status and the fact of renewal of the passport being an overt act of availing himself of the protection of the Republic of South Korea, the country that the applicant claimed protection from.
That the Tribunal in requiring evidence of an Australian citizen or permanent resident providing the applicant with accommodation and support and further acting as a “guarantor” on a bond of $5,000.00 and detention costs was on balance unreasonable and beyond the applicant’s means and therefore operated to prevent his release.
That there was no evidence that the applicant would cease reporting and move from his notified address to avoid detection by Departmental officers.
The applicant applied for a bridging visa on 23 July 1998 and the decision refusing the visa was made on 27 July 1998 by a delegate of the Minister for Immigration and Multicultural Affairs (the Department). The application for review was given to the Tribunal on 28 July 1998 and an application to review the Tribunal’s decision was made on 3 September 1998.
BACKGROUND
The applicant, who is from Korea, arrived in Australia on 24 April 1997 when he ‘jumped ship’ in an Australian port. Since his arrival, the applicant has made several applications to the Minister for permanent residence in Australia including the following:
.an application for permanent residence on defacto spouse grounds made on 13 December 1993;
. an application for a protection visa made on 30 March 1995;
. a letter dated 5 January 1997 to the Minister pursuant to s 417 of the Act;
.on 20 March 1998 the applicant became a party to a Federal Court action in the matter of Kagi v Minister for Immigration and Multicultural Affairs, NG 1041 of 1997 and he applied for a resolution of status visa; and
. an application for a subclass 050 bridging visa made on 11 June 1998.
All these applications were unsuccessful.
On 23 July 1998 the applicant made a further application for a subclass 050 bridging visa which was refused by the Minister on 27 July 1998. The Minister’s decision was affirmed by the Tribunal on 18 August 1998 and that decision is now the subject of these reasons for judgment.
During this time the applicant had also been convicted of offences and has served time in prison and at the Villawood Detention Centre.
THE REGULATIONS
The criteria that must be satisfied before a bridging visa subclass 050 can be granted are set out in Part 050 of Schedule 2 of the Regulations. The Tribunal summarised the criteria which must be satisfied under the Regulations as follows:
“1.The applicant is an unlawful non-citizen or the holder of a Bridging E (Class WE) visa (Subclause 050.211(1)); and
2.The applicant is not an eligible non-citizen of the kind set out in subregulation 2.2(7), (8), (9), (10) or (11) (Subclause 050.211(2)); and
3.The applicant meets the requirements of one of the subclauses (2), (3), (3A), (4), (5), (6), (7) or (8) of clause 050.212. Clause 050.212, subclauses (2) to (8) read as follows:
(2)An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.
(3)An applicant meets the requirements of this subclause if:
(a)the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined, or
(b)the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.
(3A) An applicant meets the requirements of this subclause if:
(a)the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and
(b)either:
(i)the applicant has applied for merits review of a decision under section 501 of the Act to refuse to grant the visa; or
(ii)the applicant has applied for judicial review of a decision to refuse to grant the visa and the judicial proceedings (including any proceedings on appeal) have not been completed; or
(iii)the Minister is satisfied that the applicant will make an application of the kind referred to in subparagraph (i)
(4)An applicant meets the requirements of this subclause if:
(a)the applicant has applied for judicial review of a decision in relation to a substantive visa, other than a decision to refuse to grant a visa; or
(b)the applicant has applied for merits review of a decision to cancel a visa; or
(c)the Minister is satisfied that the applicant will make an application of a kind referred to in paragraph (b); or
(d)the applicant has applied for judicial review of the validity of a law that affects:
(i)the applicant’s eligibility to apply for a substantive visa; or
(ii)the applicant’s entitlement to be granted or to continue to hold a substantive visa.
(4A)For the purposes of subclauses (3A) and (4), the applicant is taken to have applied for judicial review if the applicant:
(a)is described or identified, in an application or document filed for the purposes of section 33H of the Federal Court of Australia Act 1976, as a group member to whom a representative proceeding relates; or
(b)is a person on whose behalf or for whose benefit a person sues under Order 16 Rule 12 of the High Court Rules.
(5)An applicant meets the requirements of this subclause if:
(a)he or she held a visa that was cancelled under subsection 140(1) or (3) of the Act (which deals with cancellation because of the cancellation of a visa held by another person); and
(b)either:
(i)the other person whose visa was cancelled has applied for review of the decision to cancel his or her visa; or
(ii)the Minister is satisfied that the other person will make an application of that kind.
(6)An applicant meets the requirements of this subclause if he or she is the subject of a request to the Minister under section 345, 351, 391, 417 or 454 of the Act (which deal with the Minister’s power to substitute a more favourable decision for the decision of a review authority) that has not been decided.
(7)An applicant meets the requirements of this subclause if he or she:
(a)is in criminal detention; and
(b)if he or she has been sentenced to imprisonment or periodic detention, has actually served a period of imprisonment; and
(c)no criminal justice stay certificate or criminal justice stay warrant about the non-citizen is in force.
(8)An applicant meets the requirements of this subclause if:
(a)the applicant holds a bridging visa Class E that:
(i)was granted as a result of a valid application made in Australia, for a substantive visa of a kind that could be granted if the applicant was in Australia; and
(ii)is subject to condition 8101; and
(b)in case of an applicant who applies for a Protection (Class AZ) visa on or after 1 July 1997 either:
(i)the applicant has been in Australia for a period less than 45 days, or for periods totalling less than 45 days, (not including any day for part of which the applicant was not in Australia) in the 12 months immediately before the date of that application; or
(ii)otherwise the applicant is within the class of persons specified by Gazette Notice for this subparagraph; and
(c)the Minister is satisfied that the applicant has a compelling need to work.
4.The Tribunal is satisfied that if a bridging visa is granted, the applicant will abide by the conditions imposed on it (Clause 050.213); and
5.A security (if requested) has been lodged (Clause 050.214).”(IRT Decision pp 3-5)
Conditions which may be imposed if the visa is granted are set out in Schedule 8 of the Regulations.
The Tribunal made the finding that the applicant had made a valid application for a subclass 050 bridging visa (General) on 23 July 1998. If granted a visa pursuant to clause 050.212, the Tribunal considered it appropriate to impose conditions pursuant to clause 050.213 and a security of $5,000.00.
The Tribunal however refused the applicant a Bridging E subclass 050 Bridging visa (General) for three reasons. These were (as set out in submissions for the applicant made at the hearing):
that he was unlikely to abide by the conditions which the Tribunal would put on a bridging visa, in particular, the Tribunal considered the applicant likely to work without permission;
that he has failed to renew his passport and that if the applicant is not successful in the matter of Kagi v the Minister for Immigration and Multicultural Affairs, No 1041 of 1997 it is likely he will cease reporting and move from his notified address to avoid detection by Departmental officers; and
that he has failed to provide evidence of an Australian who would act as a guarantor by putting up a bond, provide accommodation and support and pay his detention costs.
Counsel for the applicant made the concession that, to succeed in this application, each of these reasons must be legally flawed.
In the course of the hearing, however, counsel for the applicant abandoned the challenge to (iii) (above) and sought leave, once the consequences of this were pointed out to him, to add or perhaps substitute another ground of review. This leave was granted. The amended ground was not precisely formulated by the applicant during the hearing but it appears to be that the imposition by the Tribunal of a requirement for a bond and guarantor to provide accommodation and support was “manifestly unreasonable” because the new regulatory regime for applicants such as this, required, as a matter of justice, the Tribunal to abandon the imposition of the kind of conditions which it had imposed under the old regime so as to ameliorate the harshness of the new regulations.
To deal with each matter in turn –
The finding that the applicant was likely to work without permission. The applicant challenges this finding on two bases:
Firstly, the Tribunal failed to consider relevant factors, in particular that the applicant had not derogated from his past obligation to serve periodic detention after his conviction for assault. The applicant said the Tribunal had noted the matter but gave it no weight or alternatively failed to draw a positive inference which should have been drawn. Also the Tribunal failed to take into account the level to which the applicant had rehabilitated himself, in particular “giving honest answers against his own interest”.
The applicant relied, as authority for this submission, on a passage from Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986-1987) 162 CLR 24 at 41 where Mason J (as he then was) said:
“ … a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”.”
A passage which had been cited with approval by Wilcox J in Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 151 ALR 505 at 549 when deciding that notwithstanding s 476(2)(b)of the Act, an act by the decision maker which is manifestly unreasonable was equivalent to a denial of “substantial justice” (see s 352(2)(b) of the Act) and, as such, reviewable under s 476(1)(a) and/or s 476(1)(e).
The respondent, however, submits, correctly in my view, that these remarks in Sun were obiter and even if it were not, the principle relied on there was restricted to “procedural injustice” and not the merits of the case in question. This case is not one which raises the same extreme situation, as in Sun. In this case the matters complained of were noted by the Tribunal and to the extent no inferences as to character were drawn which might have been open, this was part of the merits of the case and not, as such, reviewable by the Court. (See Wu Shan Liang v Minister for Immigration and Multicultural Affairs (1996) 185 CLR 259 at 272, 281-2).
Secondly, the Tribunal failed to put material matters to the applicant, in particular, the Tribunal’s opinion as to the likelihood of the applicant abiding by the “no work” condition. This the applicant submits amounted to procedural error amounting to a denial of a right to be heard. The respondent submitted that this applicant was aware of this issue and knew the case he had to meet because he had previously applied for a permit of this kind and the likelihood of his non-compliance with a “no work” condition had been the basis of the refusal. The issue had also been raised at the Tribunal hearing with “some frankness” albeit not presented as a preliminary view by the decision maker.
In my view the failure to present a preliminary view in a case like the present does not amount to a failure to follow correct procedures and no error of law has been made.
The finding that, having failed to renew his passport, it is likely he will cease reporting and move from his notified address to avoid detection.
The applicant repeated the submissions made in relation to the first finding discussed above.
The respondent submits that a fair reading of the Tribunal’s decision would lead one to the conclusion that the applicant’s position was considered fairly.
The applicant also argued that the failure of the Tribunal to enquire about the passport issue was “manifestly unreasonable”, relying once again on the principle enunciated in Sun and discussed above.
The respondent relied in response on a passage from Chemaly v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, 26 October 1998) where Sackville J said:
“It is important to appreciate, as Mr Bromwich accepted, that the RRT is not under a general obligation to search for all information that might bear on the issues in a case. As Wilcox J acknowledged in Sun, the duty of the Tribunal to make inquiries on its own initiative is a limited one. The obligation arises where the decision-maker is able to obtain important information on a central issue which he or she knows is readily available. The limited nature of the duty is reinforced by the observations made in the joint judgment of Black CJ, von Doussa, Sundberg and Mansfield JJ in Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 (FC). Their Honours noted (at 561) that the circumstances in which the RRT “could be found to be under an obligation to make a particular inquiry will no doubt be rare, as they have been in cases under the ADJR Act”. (Underlining added.)
In this case the transcript shows the Tribunal could find no evidence that the applicant had requested passport forms from the Department file and told the applicant this was the case. The applicant’s adviser did not request that further enquiries be made and in fact indicated that the applicant should or would provide such evidence. In such circumstances, enquiries by the Tribunal itself were not required and failure to do so could not amount to “manifestly unreasonable” conduct. No error of law is made out.
The imposition on the applicant of requirements that he should have an Australian sponsor willing to provide support and financial assistance.
This was submitted by the applicant as being “manifestly unreasonable” because, in the light of the changed administrative system, they were in effect draconian. This seemed to amount to an attack on the legal regime under which the decision was made. However, no authority, or even cogent argument was presented to support this proposition. There would be no obligation on the Tribunal to modify its requirements in relation to bridging visas merely because the law had become more restrictive and the consequences are detrimental to the applicant provided proper consideration were given, by the Tribunal to the matters raised.
In my view, none of the grounds of review are made out. I have not considered the reference to s 39B of the Judiciary Act 1903 (Cth) made in the application because Counsel for the applicant made no reference to it at the hearing.
The application is dismissed with costs.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor
Associate:
Dated: 27 November 1998
Counsel for the Applicant: A Rayment Solicitor for the Applicant: Corby Levingston, Solicitors Counsel for the Respondent: S Lloyd Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 13 November 1998 Date of Judgment: 27 November 1998
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