SZANA v Minister for Immigration
[2003] FMCA 460
•9 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZANA v MINISTER FOR IMMIGRATION | [2003] FMCA 460 |
| MIGRATION – Review of MRT decision – application for a bridging visa – where the applicant did not comply with conditions – whether these conditions were reasonable in all the circumstances – where the applicant is known to have breached other visa conditions in the past – where the application to have the matter transferred to the Federal Court was dismissed – whether the MRT made a jurisdictional error. |
Braun v Minister for Immigration (1991) 33 FCR 152
Myeong Kim v Ron Witton (1995) 59 FCR 258
| Applicant: | SZANA |
| Respondent: | MINISTER FOR IMMIGRATION & MUTLICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1846 of 2003 |
| Delivered on: | 9 October 2003 |
| Delivered at: | Sydney |
| Hearing date: | 9 October 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Self-represented |
| Solicitors for the Respondent: | Ms S Hanstein Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $2,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1846 of 2003
| SZANA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this matter the applicant seeks review of a decision of the Migration Review Tribunal (MRT) made on 15 August 2003 which affirmed the decision of a delegate finding that the applicant was not entitled to the grant of a bridging visa E (Class WE) and affirming a decision under review to request security of $10,000.
In the course of these reasons I shall refer without further acknowledgment to the helpful written submissions provided to me by Ms Hanstein on behalf of the respondent. The applicant had applied for a bridging visa (Class WE) on 28 July 2003. That application was refused by a delegate of the respondent on 30 July 2003. He then applied for a further bridging visa on 31 July 2003 on the basis that he had made an application for a protection visa which had not been finally determined.
On 1 August 2003 the delegate wrote to the applicant informing him that if he were to be granted a bridging visa conditions 8108, 8207, 8401, 8505, 8506 and 8507 would be imposed upon the visa and in addition a security bond of $10,000 for compliance with those conditions was required to be lodged prior to a decision on the bridging visa application being made. The applicant was told that the decision would be made on 4 August.
The applicant did not lodge the $10,000 security bond and on 4 August the delegate refused the bridging visa. On 6 August the applicant sought review by the MRT of the delegate's decisions of 30 July 2003 and 4 August 2003. In respect of the first of those decisions the MRT found that it had no jurisdiction because the application was not lodged within the time frame permitted. But it did deal with the second of the applications, namely, a review of the delegate's decision of 4 August 2003, refusing to grant the visa and requiring a security of $10,000.
In the Tribunal's statement of decision and reasons, found between [CB 59 and 68], it sets out in detail the history of the applicant's sojourn in Australia which originally commenced on 20 October 1987. The Tribunal noted that since that date, the applicant had remained unlawfully in Australia for the following periods, 29 February 1988 to 1 July 1997; 27 November 1998 to 13 May 1999; 6 August 1999 to 18 April 2000 and 28 April 2000 until 26 February 2003 when he was taken into immigration detention. The Tribunal also found on admissions from the applicant that he had worked for various periods, although not being permitted to do so prior to 1997. After 1997 the applicant says that he did not work but at [CB 65], the Tribunal makes the following finding:
“The Tribunal is satisfied that the visa applicant worked without permission during these (previously set out) periods. The visa applicant told the Tribunal that he only worked until 1997 but the Department told him he did not have permission to work. He stated that from 1997, he only worked for friends in return for accommodation and the payment of his expenses. This work including serving customers in a business. The Tribunal considers that such work would normally attract remuneration and although the visa applicant may have been paid in kind, he was working as defined in the regulations. The Tribunal finds that the visa applicant has worked in breach of Condition 8101 and has worked without permission for extensive periods of time since arriving in Australia.”
The conditions which were sought to be placed upon the applicant's bridging visa were conditions which would effectively prevent him from working and require him to report regularly to a place specified by the Minister and he must continue to reside at the address he has given and to inform the Minister if he changes his address. The Tribunal came to the conclusion that these conditions were reasonable in all the circumstances. The Tribunal also considered the imposition of the bond of $10,000. The Tribunal came to the view that in the light of the applicant's admitted breaches of previous visa conditions in particular the prohibition upon work, a bond of this amount was not unreasonable. In this regard, the Tribunal said at [CB 66]:
“The Tribunal is particularly concerned about the significant breaches of migration law, particularly the long periods during which the visa applicant has remained in Australia unlawfully and that he has worked without permission.”
The applicant's application for review states that he has been living in Australia for 16 years and has had a good record. It refers to Australia's reputation as a country standing up for human rights and states that he belongs to a category which would entitle him to convention category status. The application deals with the payment of a previous sum of $5,000 and some other matters concerned with where the applicant was living and what work he was doing to earn his living expenses.
Neither that document nor the affidavit which was filed with it indicates any alleged jurisdictional error on the part of the Tribunal. The applicant also issued a notice of motion, the purpose of which was to have this matter transferred into the Federal Court where on
29 October 2003 His Honour Allsop J is to hear an appeal from a decision of Federal Magistrate Driver dismissing an application for review of a decision dated 21 March 2003 concerning the applicant's attempt to lodge a second protection visa application. I have declined to refer this matter to Allsop J believing that it would be best to deal with it here so that if the applicant wishes, he can take any appeal from this decision to Allsop J on 29 October 2003 subject to the usual formalities being completed including the assignment of the case by the Chief Justice to Allsop J.
The Court book reveals that the Tribunal assessed the applicant's application against the appropriate visa class and properly identified sub-class 050 as the relevant sub-class. The Tribunal found the applicant would not comply with the conditions to be imposed on the bridging visa without the imposition of a security, a security in the sum of $10,000 was appropriate and no such security had been lodged. As such, criterion 050.224 was not satisfied. The Tribunal's findings in relation to these matters are open to it on the material before it. Further, I am satisfied that the applicant was afforded procedural fairness in so far as the Tribunal's hearing was concerned.
Before me today the applicant sought to tender a number of documents. These documents, he said, proved conclusively that he had not worked since 1997. Firstly, these documents were not before the Tribunal and were therefore strictly irrelevant for these proceedings. Secondly, the applicant has admitted to what the Tribunal has found was a form of work. There are authorities to the effect that the carrying on of an activity for which a person is normally remunerated can constitute work and the Tribunal, by relying on those authorities, was correct in law (see Braun v Minister for Immigration (1991) 33 FCR 152 and Myeong Kim v Ron Witton (1995) 59 FCR 258). It matters not that the applicant fails to understand the nuances of these decisions.
The applicant has not put to me any reason why the Tribunal's decision to require security in the sum of $10,000 was a decision reached through the making a jurisdictional error. His sole complaint about the decision was that he did not have $10,000, that he had once paid $5000 and that he had not worked. These are matters of fact. They represent an attempt by the applicant to have the merits of this decision considered by this Court. This is not something which the Court is able to do.
In all the circumstances, I can only dismiss the application which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $2,500 pursuant to order 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 9 October 2003
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