Suryono v Minister for Immigration and Multicultural Affairs

[2001] FCA 1224

FEDERAL COURT OF AUSTRALIA

Suryono v Minister for Immigration and Multicultural Affairs [2001] FCA 1224

MIGRATION – previous Student (Temporary) (Class TU) visa expired – previous Bridging A Class visa cancelled – subsequent application for Bridging E Class visa refused – application made for Protection visa and also for Bridging WE Class visa – refusal of applicant to withdraw Protection visa application notwithstanding assurances to Migration Review Tribunal that Protection visa application would be withdrawn once the Bridging WE Class visa was granted – Tribunal refused grant of Bridging WE Class visa in absence of withdrawal of Protection visa applications within stipulated time – Tribunal’s apprehension that once Bridging WE Class visa be granted, application for Protection visas would be pursued – Applicant unable in any event to satisfy Regulatory conditions during the time likely to be involved in pursuit of Protection visa application.

Migration Regulations1994 (Cth) cl 050.212(1), 050.212(2), 050.212(3), 050.223, 050.224, 050.613A, condition 8401, 8505, 8506 and 8512

MADENAN SURYONO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1119 OF 2001

CONTI J
22 AUGUST 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1119  OF 2001

BETWEEN:	MADENAN SURYONO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	22 AUGUST 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Application be dismissed.

2.Applicant pay the Respondent’s costs of the proceedings

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	N 1119 OF 2001

BETWEEN:	MADENAN SURYONO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	22 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of the decision of the Migration Review Tribunal (“MRT”) made on 29 June 2001, whereby the MRT affirmed the decision of the Department, made on 13 June 2001, not to grant the Applicant’s application for a Bridging E Subclass 050 Visa. Prior to the lodgment of that application, the Applicant had made on 8 June 2001 an Application for a Protection visa to the Department, in order to meet the requirements of clause 050.212(3) of the Migration Regulations.

2. The said decision of the Department gave the following reasons for rejection of the Bridging visa application:

   “Despite being aware that the applicant had an ongoing application with the department and the MRT, the applicant did not advise the Department or the MRT of any change of address. Additionally, despite being subject to condition 8105 on his existing Bridging Visa A, he increased his work from 20 hours per week to full time (which was in breach of condition 8105). At interview the applicant stated that he ceased study and had taken up full-time employment in order to support his family and further stated that he would continue to work in breach of any work conditions imposed on the grant of a visa, in order to support his family.

   The applicant was given the opportunity to allow his wife to be accompanied by DIMA officers to go back to their house for the purpose of collecting personal items and documentation. However, the applicant refused his wife permission to do so despite continued offers by DIMA staff to allow the applicant’s wife to collect the families (sic) personal belongings [and] the applicant remained adamant in his refusal.

   In this officer’s dealings with the applicant his general demeanour was unco-operative with departmental officers being argumentative and generally obstructive.

   After due consideration to the applicant’s previous immigration history, his statements made at interview and his general behaviour towards the department I believe that the applicant presents an unacceptable risk of non-compliance with any conditions that would be imposed on the grant of a Bridging Visa E.”

   The Department accepted however that the Applicant had met “… the criteria for time of application specifically for having an unfinalised application for a substantive visa before the Department”. However the Department’s view was that the Applicant did not satisfy the criterion of 050.223 and 050.224 of the Migration Regulations, which respectively read as follows:

   “050.223The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.

   050.224If an authorised officer has required a security for compliance with any conditions that the officer has indicated to the applicant will be imposed on the visa if it is granted, the security has been lodged.”

   The reference in 050.223 above to “a bridging visa” is to a Bridging E Subclass 050 visa (see [1] above).

3. The hearing before the MRT was in the nature of a combined hearing of the abovementioned application of the Applicant, and of related applications for review by his wife and two daughters aged fifteen and eleven years. The MRT enlisted the assistance of an Indonesian interpreter. The Applicant and his wife gave sworn evidence, but no sworn evidence was taken from the daughters, because of their status as minors; nevertheless the eldest daughter proffered some evidence informally to the MRT.

4. The relevant history of prior visa applications made by the Applicant to the Department was summarised by the MRT as follows:

   “13.The visa applicant applied to the Department and the Tribunal in the name of Suryono Madenan but the movement records indicate he entered Australia on a passport in the name of Suryono. A photocopy of a passport in this name is on the Department file.

   14.The visa applicant entered Australia on 14 July 1996 on a Student (Temporary) (Class TU) Subclass 560 visa. This visa was due to expire on 3 August 1998. On 21 July 1998 the visa applicant was granted a further Student (Temporary) (Class TU) Subclass 560 visa. This visa was due to expire on 15 March 1999.

   15.On 12 March 1999 the visa applicant applied for a further Student (Temporary) (Class TU) Subclass 560 visa and was granted a Bridging A Subclass 010 visa on the same date in association with this application. Visa condition 8105 (work limitation) was attached to this visa.

   16.On 9 June 1999 the University of Canberra wrote to the Department stating that the visa applicant had ceased study in a Master of Business Management prior to completing his course. This letter stated that the University had withdrawn its support for the visa applicant and he had ceased study on 21 November 1998.

   17.On 10 June 1999 the Department refused to grant the visa applicant a Student (Temporary) (Class TU) Subclass 560 visa. The visa applicant applied to the Migration Review Tribunal for a review of this decision on 15 July 1999.

   18.On 30 July 1999 the University of Canberra wrote to the visa applicant advising him that the University had not allowed him to continue studies because he had a debt of $3732 owing to the University.

   19.The decision to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 560 visa was subsequently affirmed by the Migration Review Tribunal, Canberra Registry, on 4 January 2001. The Bridging visa associated with this application ceased on 8 February 2001.”

5. As a consequence of the last of the foregoing history of events, the Department located the Applicant, his wife and daughters on 17 May 2001 in residential accommodation in Canberra, and they were physically transferred to the Villawood Detention Centre, where they presently reside. On 18 May 2001, the Applicant applied for a Bridging E Subclass 050 visa, but the same was refused on the same day, since the Applicant did not meet any of the threshold criteria for the grant of such Bridging visa. The Applicant told the Departmental officer that he had not departed from Australia due to financial difficulties, that he had to work to support his family, and further that he was not in any event willing to depart Australia voluntarily because of such financial difficulties, and that he did not have the funds to purchase air tickets to Indonesia. Later, the Applicant informed the Department that he did not want to stay in detention and would apply for a Bridging visa and leave voluntarily. His passport had expired on 6 August 2000, and he claimed that he had no money or assets in Australia, though he had been working in Australia at a hotel as a kitchen-hand.

6. The Applicant had earlier sought review by the MRT of the Departmental decision to refuse to grant him a Bridging E Subclass 050 visa, the application being lodged for that purpose on 18 May 2001. The MRT affirmed the delegate’s above decision on 31 May 2001, finding that the Applicant had failed to meet the primary criteria under clause 050.212 of the Migration Regulations. This is a lengthy Regulation, but of particular relevance, for present purposes, is sub-clause (2) reading 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.”

7. On 6 June 2001, that is to say, prior to the hearing of his application for review by the MRT, the Applicant applied for Protection visas for himself and his family members. Such applications were accompanied by Bridging E (Class WE) visas (“Bridging WE visas”). Such Bridging WE visa applications are the subject of the present Court proceedings. On 13 June 2001, the Department of Immigration and Multicultural Affairs decided not to grant such Bridging WE visas.

8. On 14 June 2001, the Applicant applied to the MRT for review of the Department’s refusal to grant the Bridging WE visas. The Applicant wrote on the application form as the ground for review “different meaning [from] what orally explained and in written explanation”. An early hearing was made available by the MRT for 22 June 2001. For that purpose, the Applicant and his wife agreed that his application for review was made on the ground that all four members of the family, including the Applicant, had outstanding applications for Protection visas.

9. Because of the developing procedural complexity of the matter, it is appropriate that I next reproduce from the MRT’s Statement of Reasons for Decision of 29 June 2001 the circumstances attending the application for review before me as follows:

   “28.The Tribunal proceeded to discuss the conditions that the Tribunal considers appropriate to impose on the visas if visas were to be granted to the visa applicants in question. The Tribunal began by informing the visa applicant and his wife that condition 8101 (no work) is a mandatory condition in the present cases and asked the visa applicant how they would support themselves if they were released on visas that would carry this condition. The visa applicant said he would appeal to the Australia (sic) government to provide “family assistance… accommodation during our stay (in Australia)”. He added that if possible he would perform some voluntary work in return for such support from the Australia (sic) government. He said he would expect this to continue for approximately 2 years. If after 2 years the Australian government “is not happy with us we will return to Indonesia”.

   29.The Tribunal informed the visa applicant that if it were to consider reaching a decision in favour of the visa applicant and his family, it would require to be satisfied of more concrete and adequate arrangements of the provision of accommodation and financial support for their living expenses [though] such support may be provided by relatives of the visa applicant or members of the Australian community.

   30.In response, the visa applicant stated that if he and his family were to be granted bridging visas, he would arrange to depart Australia in one week.

   31.The Tribunal informed the visa applicant that this is a significantly different ground upon which to assess the applications and the Tribunal would on this basis need to be satisfied that he and his family are making acceptable arrangements to depart Australia. He understood and confirmed, as did his wife, that they wish the hearing to proceed on the basis of seeking to satisfy that they are making acceptable arrangements to depart Australia.

   32.The Tribunal brought to the visa applicant’s attention evidence on file which indicates that the passports belonging to him and his family have expired. He stated that he has been advised by the Consulate General of the Republic of Indonesia in Sydney that the passports have been renewed. He said that a DIMA officer at Villawood had confirmed that the passports have been renewed and are held by DIMA at the airport.

   33.The visa applicant also said that he spoke with his previous employer in Jakarta earlier this day and he was advised that air travel tickets for him and his family were purchased and dispatched through DHL couriers addressed to visa applicant C/- the Consulate General of the Republic of Indonesia, Sydney.

   34.The visa applicant provided names and contact telephone numbers of personnel from a company named Sata Fe Energy Resources Ltd in Jakarta. The Tribunal contacted Mr Budi Setiadi at this company in Jakarta during the hearing. He identified himself and said that he holds the position of Vice President, Administration. He confirmed that he had signed the approval for the purchase of air travel tickets for the visa applicant and his family to be repatriated to Indonesia. He said they were sent in the visa applicant’s name addressed to the Consulate General of the Republic of Indonesia, Sydney.

   35.The Tribunal informed the visa applicant that the Tribunal would need to be satisfied of confirmation of a flight booking being made for departure of all 4 applicants from Australia in approximately one week, valid passports, and evidence of withdrawal of the protection visas (sic) applications. The Tribunal would then (sic) consider appropriate to impose the following conditions in addition to condition 8101, 8401, 8505, 8506 and 8512. These conditions are set out below.

   36.He said that they would need to return to Canberra to collect their personal belongings and arrange for some items to be shipped to Indonesia. He and his wife said that they continue to hold a lease on the house they occupied in Canberra. They provided friends with their bank account key cards and personal identity number and their friends have withdrawn money to pay the rent. They said that have approximately $1,500 in the bank. The rent is $580 a month and it was due to be paid.

   37.The visa applicant’s wife agreed that she would remain in Villawood Immigration Detention Centre while the visa applicant and their daughters travelled to Canberra for the purpose of packing their belongings and arranging some items to be shipped to Indonesia. The visa applicant said he needed to arrange the packing, as only he does not wish to keep all their belongings and it would be too costly to ship them all. Only he knew which items he wanted to ship.”

10. Against the foregoing context, the MRT wrote to the Applicant, following the conclusion of the hearing on 22 June 2001, and invited the submission of evidence as to the obtaining by the Applicant and the members of his family of valid passports, together with airline tickets for travel out of Australia within 7 to 10 days of the grant of the Bridging visas being sought, and details of the Sydney address where the family would be residing prior to departure. In addition, the MRT sought evidence of withdrawal of the Protection visa applications. The provision of all such information and documentation had been undertaken by the Applicant at the hearing before the Tribunal.

11. However on 25 June 2001, the Applicant notified the Tribunal that he would not be withdrawing the Protection visa applications unless and until the Bridging WE Class visas had been granted. Yet on the following day, the Applicant made flight reservations for departure from Canberra to Jakarta on 8 July 2001. The response of the Tribunal was that it was inconsistent for the Applicant to have made all such departure arrangements, and maintain on foot the applications of he and his family for Protection visas. Nevertheless the Applicant took no steps to withdraw the Protection visa applications, with the consequence that the applications for Bridging WE Class visas were subsequently rejected by the Tribunal upon the ground set out in Regulation 050.212(2), which is extracted already in [6] above.

12. The Tribunal considered the application for review thus placed before it additionally by reference to Regulation 050.212(3) reading as follows:

    “(3)     An applicant meets the requirements of this sub-clause 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.”

    A Protection visa would qualify as a “substantive visa”.

13. The confusingly obscure ground for review appearing in the application for review made to the Court is as follows:

    “The decision was made by Migration Review Tribunal on 29 June 2001 had not received any evidence a withdrawal protection visa application which was lodged to case officer.”

    When the matter was called on for hearing before me, the Applicant was unable to articulate any viable ground in law for review of the Tribunal’s decision, despite several invitations to do so.

14. The Tribunal rejected the application for review before it upon the basis additionally of non-compliance with Regulation 050.212(3). The reason for so doing is conveniently summarised in the Tribunal decision as follows:

    “54.The Tribunal must now consider whether the visa applicant satisfies clause 050.223. The Tribunal must be satisfied that the visa applicant, if released from detention, will abide by any conditions imposed. To consider this issue, the Tribunal must decide, which [conditions] must be imposed and which conditions would be appropriate to impose in this case. The visa applicant’s circumstances fall within clause 050.613A of the Regulations. This clause provides that condition 8101 must be imposed. The Tribunal considered that in addition to condition 8101 it would be appropriate to impose conditions 8401, 8505, 8506 and 8512 in this case. Those conditions are set out below:

    8101The holder must not engage in work in Australia

    8401The holder must report:

    (a)at a time or times; and

    (b)at a place;

    specified by the Minister for the purpose.

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

    8506The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.

    55.As can be seen from the evidence above, the Tribunal began to discuss condition 8101 with the visa applicant and how he would support himself and his family if released on the basis of having an outstanding Protection visa application. He soon changed the grounds to that of making acceptable arrangements to depart Australia. To assess whether the visa applicant would abide by this condition on the basis of having an outstanding application for a Protection visa is significantly different from that of (sic) on the grounds of making acceptable arrangements to depart Australia.

    56.On the basis of the former, the Tribunal would need to be satisfied that the visa applicant is able to support himself and his family for a period of months and possibly years. On the basis of the latter, it would need to be satisfied that he can do so for a number of days.

    57.The visa applicant by his own volition requested the latter. As a result of this and the visa applicant’s subsequent manoeuvring, the visa applicant created the situation where no proper assessment was made by the Tribunal at the hearing of whether he is able to satisfy the Tribunal that he might be able to support himself and his family on the basis of having an outstanding Protection visa application without contravening the no work condition.

    58.The Tribunal has considered the relevant evidence on file. It notes that the visa applicant stated that he has no assets, he had to work to support his family and he was experiencing financial difficulty. The Tribunal also considered the little evidence given at the hearing in this regard. The Tribunal does not accept as satisfactory the visa applicant’s possible approach to the Australian government to provide the necessary financial assistance for him and his family for what he projected to be 2 years. Consequently, the Tribunal is not satisfied that he would abide by the conditions, in particular condition 8101 if released on the basis of having an outstanding Protection visa application. Therefore the Tribunal has no alternative but to find that he does not satisfy clause 050.223. Failure to meet this clause means this application must fail. Accordingly the appropriate course is to affirm the decision under review.

    59.In this case the delegate decided against requiring a security, as she was not satisfied that a security of any amount would be sufficient to ensure the visa applicant’s compliance with conditions.”

1. I informed the Applicant that if his family abandoned their respective Protection visa applications, it is possible that the Department would allow him to return to Canberra to collect such of the family’s belongings as were needed before the family was to fly home to Indonesia on a scheduled flight. Unfortunately, he was wholly intransigent as to keeping the family’s Protection visas on foot, and pressed for review of the MRT Decision of the Minister’s refusal of grant of Bridging WE visas for himself and his family. Counsel for the Minister explained to the Court the lengths which the Department had already undertaken to go to enable the Applicants to return home to Indonesia, with such of their belongings still in Canberra which they might wish to take with them, but the Applicant was unfortunately unmoveable from his above stated position. I therefore finally repeated once more the request for him to identify any legal error in the MRT’s decision to refuse the grant of a Bridging WE visa to him and also for his family members, for which decision he was of course seeking review from the Court, but he was unable to articulate any reason having even remote viability. Nor am I hopeful that as a consequence of the orders which I must obviously make by way of dismissal of the proceedings, the Applicant will have the good sense of withdrawing the families’ pending Protection visa applications, and so resecure Bridging WE visas which his family have been unable to secure from the Tribunal, due to the Applicant’s persistent intransigence. I should add that nothing was disclosed to me, in the course of the hearing, to the effect that the Department has conducted itself otherwise than sympathetically towards the Applicant and his family (see again [2] above).

2. I am unable for my part to distil any error on the part of the Tribunal in the formative of its decision the subject of review. I merely would add that if the Applicant demonstrated good faith and commonsense by withdrawing the Protection visa applications made on behalf of himself and his family, I would imagine that the Department would still allow him to leave detention to collect his belongings in Canberra, if that remains his genuine desire as part of arrangements to depart Australia forthwith.

3. I order that the Application be dismissed, and that the Applicant pay the Respondent’s costs of the Application.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             31 August 2001

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Ms N Abadee
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	22 August 2001
Date of Judgment:	22 August 2001