Swierczynski and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 4615

Swierczynski and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4615 (18 November 2020)

Division:GENERAL DIVISION

File Number:2020/5447  

Re:Scott Swierczynski   

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D.J Morris

Date of written reasons:        18 November 2020

Place:Melbourne

The Tribunal dismisses the application under section 42B(1)(b) of the AdministrativeAppeals Tribunal Act 1975 because the Tribunal is satisfied that the application has no reasonable prospect of success.

......................[sgd]........................................

Senior Member D.J Morris

Catchwords

PRACTICE AND PROCEDURE – Application for review of decision to refuse Bridging E (Class WE) visa under s 501 of Migration Act – applicant has voluntarily departed Australia – category of visa requires a person to be within the Australian migration zone for grant of the visa – Tribunal cannot grant relief that Applicant is seeking – whether application is frivolous – whether application for review has no reasonable prospect of success – no possibility of decision of any practical benefit to applicant – application for review dismissed – written reasons for oral decision

MIGRATION – Refusal of Bridging E (Class WE) visa under s 501 of Migration Act – character grounds – risk to Australian community that Applicant would re-offend

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958, ss 14, 116, 501(1), 501E
Migration Regulations 1994, Sch. 2, cl. 050.211, 050.212, 050.411, Sch 4, 4013(1)(a)

Tribunals Amalgamation Act 2015, Sch 2, item 116

Cases

Negri v Secretary, Department of Social Services [2016] 70 AAR 103
Gowing and Civil Aviation Authority, Re: [1990] AATA 56; (1990) 11 AAR 411
Reddish and Civil Aviation Authority, Re: [1991] AATA 721
Surf Air and Civil Aviation Authority, Re: [1991] AATA 50; (1991) 22 ALD 118
Williams and Australian Electoral Commission, Re: (1995) 21 AAR 467

REASONS FOR DECISION

Senior Member D.J Morris

18 November 2020

PROCEDURAL AND IMMIGRATION BACKGROUND

1. The Applicant, Mr Scott Swierczynski, was born in 1985 and is a citizen of New Zealand. He first entered Australia in 2002.  He was the holder of a Special Category (subclass TY444) visa (444 visa), a temporary visa granted to New Zealand citizens which allows holders to reside and work in Australia on an indefinite basis.

2. On 30 July 2019, the 444 visa was cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) under section 116 of the Migration Act 1958 (the Act).

3. The reason which prompted the attention of the delegate, and which led to the cancellation of the 444 visa was that on 31 May 2019, Mr Swierczynski was convicted by the County Court of Victoria at Shepparton of six offences, five crimes against the person, one breach of a family violence safety notice and one breach of a condition of bail.  It is not necessary to set out the nature of the offences in this decision. Mr Swierczynski received a total effective sentence of seven months’ imprisonment in relation to these offences.  On release from prison on 30 December 2019, he was taken into immigration detention, because he was a non-citizen in the migration zone and therefore an unlawful non-citizen under section 14(1) of the Act.

4. Mr Swierczynski sought review of the cancellation of that visa by the Migration and Refugee Division of this Tribunal and a hearing was held on 21 February 2020.  On 1 April 2020, the Tribunal affirmed the decision.

5. On 30 April 2020, Mr Swierczynski applied for a Bridging E (Class WE) visa (BVE visa). On 28 August 2020, a different delegate of the Minister decided that they were not satisfied that the Applicant passes the character test set out in section 501 of the Migration Act 1958 (the Act), and further decided to exercise the discretion available under section 501(1) of the Act to refuse Mr Swierczynski’s application for the bridging visa. The delegate made this decision relying on section 501(6)(d) of the Act, that in the event the person was allowed to enter or remain in Australia, there is a risk that the person would engage in criminal conduct in Australia.

6. On 9 September 2020, Mr Swierczynski lodged an application with the General Division of the Tribunal for review of this 28 August 2020 decision to refuse to grant him a BVE visa.

7. On 15 September 2020, Mr Swierczynski was removed from Australia, at his own request, and repatriated to New Zealand, where he now is.

8. On 2 November 2020, a hearing by telephone under section 33A of the AdministrativeAppeals Tribunal Act 1975 (the AAT Act) was held on the application of the Respondent for the matter to be dismissed, on the ground that there was no utility in further considering the application for review. The Respondent was represented by Mr Keith Sypott of The Australian Government Solicitor. The Applicant was self-represented.

9. After hearing oral submissions from both parties and considering written submissions from the Respondent, the Tribunal dismissed the application under section 42B of the AAT Act, and gave an oral decision. In accordance with section 43(2A) of the AAT Act, these are the reasons in writing for the Tribunal’s decision.

   Written reasons

10. In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (Negri),

    
    

    Bromberg J considered a matter before the Tribunal where an oral decision had been made and a statement of written reasons had been subsequently supplied. In considering the extent to which the Tribunal could edit or elaborate its oral reasons when producing written reasons, His Honour stated at [27]:

    … as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).

11. In preparing the written reasons which follow, the Tribunal is satisfied that they reflect the hearing held on 2 November 2020, consistent with the approach suggested in Negri.  New reasoning for the decision has not been introduced, but this written statement is a fuller explanation of the reasons given orally.

    Respondent’s submissions

12. The Respondent submitted that the Applicant cannot satisfy clause 050.221 of Schedule 2 of the Migration Regulations 1994 (the Regulations).  That clause provides that, at the time of a decision on the visa application, the Applicant continues to satisfy clause 050.211, which requires that he be an unlawful non-citizen (or the holder of a BVE or Subclass 041 visa).  As Mr Swierczynski has departed the migration zone, he is no longer an unlawful non-citizen and he is not the holder of a BVE or Subclass 041 visa.

13. The Respondent submitted that Mr Swierczynski also cannot satisfy clause 050.411 of Schedule 2 of the Regulations which requires that, at the time the BVE visa is granted, the Applicant must be in Australia, a condition he cannot satisfy because he departed Australia on 15 September 2020.

14. The Respondent submitted that the proceeding ‘lacks utility’ because the Applicant cannot be granted the visa to which the application for review relates.

15. The Respondent submitted that ‘no bar’ applies to an offshore visa applicant who has had a visa refused under section 501(1) of the Act making further visa applications, so a dismissal of the current application for review would not prejudice Mr Swierczynski’s entitlement to make a future visa application.

16. At the hearing, Mr Sypott expanded upon this submission by saying that the Applicant was not a person to whom section 501E of the Act applies. Section 501E relevantly provides that a person is not allowed to make an application for a visa or have an application for a visa made on the person’s behalf at a particular time that occurs during a period throughout which the person is in the migration zone, if at an earlier time in that period the Minister made a decision under section 501 to refuse to grant a visa to the person or to cancel a visa that has been granted to the person. This prohibition does not apply to an application for a protection visa or another specifically applied visa.

17. In making a case that the matter should be dismissed, the Respondent submitted that the current proceeding is without practical effect or benefit, and cited the decisions in Re: Williams and Australian Electoral Commission (1995) 21 AAR 467, at [40], and Re: Reddish and Civil Aviation Safety Authority [1991] AATA 721 at [33] (Reddish).

    Applicant’s submissions

18. Mr Swierczynski told the hearing that he agreed that he had voluntarily departed Australia on 15 September 2020 and had signed a document lodged with the Department to that effect.  He confirmed that the main reasons he had sought the BVE visa were twofold, to spend some time with and farewell his children who reside in Australia with his ex-partner and to make arrangements in regard to some personal effects which he had in Australia and which he had left in the custody of his father, who lives in this country.

19. Mr Swierczynski said that he had lodged the application because he wanted to make submissions to the Tribunal that the BVE visa should not be refused under section 501 of the Act and would have asked the Tribunal to remit the matter to the Department so that he would have the capacity, in the future, to apply for a different category of visa if he wanted to visit, or return to live in, Australia. Mr Swierczynski said that he fully understood that cancellation of his 444 visa under section 116 had certain consequences in terms of a three-year period during which the visa holder cannot apply for a visa to re-enter Australia except in certain special circumstances (see cl. 4013(1)(a) of Schedule 4 of the Regulations).

    Consideration

20. Section 42B of the AAT Act sets out the powers of the Tribunal if a proceeding is ‘frivolous, vexatious, etc’:

    (1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

    (i)Is frivolous, vexatious, misconceived or lacking in substance; or

    (ii)has no reasonable prospect of success; or

    (iii)is otherwise an abuse of the process of the Tribunal.

21. The power under section 42B of the AAT Act is a discretionary power, and one not to be exercised lightly. I consider that where an application is sought for the Tribunal to exercise the power, or whether the Tribunal decides to exercise it of its own motion, it must do so keeping in mind the purpose of the Tribunal as set out in the Tribunal’s objectives in section 2A of the AAT Act. This is particularly so in considering that one of the reasons Parliament established the Tribunal was to provide an accessible mechanism of review for persons and one that is fair and just. This is an added element to consider, especially when an applicant is representing him or herself.

22. One of the tests that the Tribunal must consider in deciding whether to exercise this discretion is to assess whether there is any utility in the Tribunal conducting a merits review in relation to the application before it.  That does not necessarily mean whether an applicant or respondent considers whether there is any utility, but whether the Tribunal itself, examining the law and the material before it, thinks that there is something in the decision that the applicant has brought to the Tribunal for merits review which, on the grounds of fairness and the reasonable exercise of a power, especially a discretionary power, demands consideration.

23. In Reddish, Deputy President Blow, QC (as Blow CJ then was), considered a group of applications lodged by Mr Reddish with the Tribunal, such as reinstatement of his approval by the Civil Aviation Authority as a Chief Pilot for a specified period, and as chief flying instructor for aeroplanes and helicopters, each for different specified periods which had already expired, for a named flying school which had ceased to operate.  The Respondent argued, and the Tribunal accepted, that it would be futile to substitute a decision restoring Mr Reddish as a Chief Pilot for a period that had expired, and as chief flying instructor for aeroplanes and helicopters for periods which had since expired by the effluxion of time, and it would be also futile to remit the matters before the Tribunal to the decision-maker for reconsideration, as the flying school had ceased to function.

24. The learned Deputy President stated, at [32-33]:

    The Tribunal has a discretion to dismiss the applicant’s three applications by virtue of section 42B(1)(a) of the AAT Act which reads as follows:

    “Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious: (a) dismiss the application.

    In this context, “frivolous” means “obviously unsustainable”: Attorney-General of the Duchy of Lancaster v London and North Western Railway [1892] 3 Ch. 274.  The cases of Gowing, Surf Air and Williams are all authority for the proposition that an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant, and it would be a waste of everyone’s time and money for any of these three applications to be allowed to remain on foot. I have therefore decided to dismiss them all pursuant to section 42B(1)(a) of the AAT Act.

25. Eligibility for grant of a BVE visa is governed by Schedule 2 of the Migration Regulations 1994, made under the Act. The Regulations set out that, where a BVE visa is granted, the applicant for the visa must satisfy and must continue to satisfy the criteria set out in clauses 050.211 and 050.212 of Schedule 2. Relevantly, clause 050.411 of the Regulations stipulates, under the heading ‘Circumstances applicable to grant’, that the person applying for the visa must be in Australia but not in immigration clearance. That essentially means that the person must be in the Australian migration zone and, if at a port of entry, the person must have passed through immigration clearance to enter Australia.

26. As Mr Swierczynski departed Australia on 15 September 2020, he is not factually in a class of persons able to be granted a BVE visa, because he ceased on that departure from Australia to be an unlawful non-citizen in the migration zone.

27. In plainer terms, a BVE visa may be granted to an unlawful non-citizen who is preparing to depart Australia.  In Mr Swiercyznski’s case, he made submissions to the delegate that he wanted time to farewell his three children who reside in Australia and attend to some personal matters in relation to disposing of some assets and storing some items at his father’s residence here.

28. Because Mr Swierczynski has departed Australia, i.e. has left the Australian migration zone, he is not an unlawful non-citizen in terms of section 14 of the Act.  He is also no longer a person preparing to depart Australia who may be eligible for the grant of a BVE visa.

29. The Tribunal is not able to grant the relief that Mr Swierczynski is seeking (by lodging his application for review) which is for the Tribunal to conduct a merits-review, standing in the shoes of the original decision-maker (the Minister’s delegate), to decide whether the decision taken to exercise the discretion not to grant the Applicant a BVE visa was the correct decision in law, and the preferable decision in terms of the exercise of the discretionary power available to the decision-maker.

30. Even if the Tribunal were, after examining all the evidence and hearing submissions from the parties, to ultimately make a finding on either the decision to refuse the visa on character grounds or that the discretionary power that there was another reason to grant the visa should have been exercised, it cannot direct the Respondent that the BVE visa be granted to the Applicant, because, in law, the BVE visa is not a visa that can be granted to Mr Swierczynski as a person no longer in Australia.

31. The Respondent sought that the Tribunal dismiss Mr Swierczynski’s application on the basis that it was ‘frivolous’ in the terms of section 42B(1)(a) of the AAT Act, citing Deputy President Blow’s discussion of that term in Reddish.  The Tribunal notes that Reddish was decided in 1991 with reference to the former wording of section 42B of the AAT Act. Section 42B of the AAT Act was wholly repealed by item 116 of Schedule 1 of the Tribunals Amalgamation Act 2015, and a new section 42B substituted in the terms set out above. That new section expanded the reasons for which the Tribunal could exercise the discretionary power to dismiss an application. In this matter, when Mr Swierczynski lodged his application for review, he was still in Australia, in the migration zone. He was capable at that time of being granted a BVE visa if the Tribunal decided to set aside or vary the decision under review. The Tribunal finds that Mr Swierczysnki ceased to be eligible for a BVE visa on 15 September 2020 when he departed Australia.

32. A preferable interpretation of the new wording of section 42B of the AAT Act (i.e. since the 2015 amendments), when considering whether a person has brought a ‘frivolous’ application or whether there might be another ground for dismissal, is, in the Tribunal’s view, that in making such an assessment there has been some mental element in the Applicant’s motivation or conduct in lodging the application. For example, it might be evident there was no merit in the application at the time it was lodged or no practical relief that could be given to the Applicant if successful because of the passage of time, as was the case with Mr Reddish. That is not the case here when the application was made, even though by the action of leaving Australia, the relief of being granted the BVE visa became in law unavailable to Mr Swierczynski. That is why the Tribunal chose to exercise the discretionary power given to the Tribunal by the Parliament in 2015, to dismiss the application because it has no reasonable prospect of success.

    DECISION

33. The Tribunal dismisses the application under section 42B(1)(b) of the AdministrativeAppeals Tribunal Act 1975 because the Tribunal is satisfied that the application has no reasonable prospect of success.

I certify that the preceding  33 (thirty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

……[sgd]…………………
Associate
Dated: 18 November 2020

Dates of hearing:	2 November 2020
Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Mr Keith Sypott
Solicitors for the Respondent:	Australian Government Solicitor