SZAUJ v Minister for Immigration
[2003] FMCA 353
•18 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAUJ v MINISTER FOR IMMIGRATION | [2003] FMCA 353 |
| MIGRATION – Review of a Migration Review Tribunal decision – refusal of a bridging visa – no reviewable error found. |
Minister for Immigration v NAOS [2003] FCAFC 142
Minister for Immigration v SBAN [2002] FCAFC 431
SBBS v Minister for Immigration (2002) 194 ALR 749
| Applicant: | SZAUJ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1096 of 2003 |
| Delivered on: | 18 August 2003 |
| Delivered at: | Sydney |
| Hearing date: | 18 August 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondent: | Mr A J McInerney |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1096 of 2003
| SZAUJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 23 May 2003. The MRT affirmed a decision to refuse to grant the applicant a bridging E Class WE subclass 050 visa. The application for review filed on 17 June 2003 sets out three grounds. The first is that the applicant contends that the MRT acted in bad faith. The second ground is that the applicant disputes the MRT finding that it was not satisfied that the applicant was making acceptable arrangements to leave Australia at the time of the decision. The third ground relates to medical evidence which was before the MRT and the delegate and additional medical evidence referred to by the applicant, which does not appear to have been before the MRT. The applicant also complains about a factual finding made by the MRT.
The applicant contends that he is willing to depart Australia once he has completed legal proceedings arising out of an assault upon him. The applicant also contends that he needs to remain in Australia for some time, for medical treatment. Those are matters going to the merits of the decision under review.
The applicant also presented to me a bundle of documents and sought to tender them as evidence. Mr McInerney, for the Minister, objected to the tender. I declined to accept those documents as they were created after the decision of the MRT. In addition, they went only to the merits of that decision or to the merits of an earlier decision to refuse the applicant a protection visa. I explained to the applicant that the proceedings before me were limited to a consideration of any legal errors that may have been committed by the MRT. The applicant was unable to present any argument concerning the legal validity of the MRT decision. However, I have read the decision of the MRT and also the book of relevant documents. As I told the applicant during the hearing, it does not appear to me that any legal error has been made by the MRT.
The respondent relies upon written submissions filed in court this afternoon. Those written submissions deal with the background facts and circumstances and the decision of the MRT. Those submissions also deal with each of the grounds of view advanced by the applicant. I am in complete agreement with Mr McInerney's submissions. I adopt his submissions for the purposes of this decision:
On 8 May 2003, the applicant applied for a Bridging E (Class WE) visa ("BVE").
On 12 May 2003, the delegate of the Minister for Immigration made a decision to refuse to grant the BVE.
On 14 May 2003, the applicant lodged an application for review of the decision of the delegate to the MRT.
On 23 May 2003, the MRT affirmed the decision of the delegate, which was under review, finding that the applicant was not entitled to the grant of a BVE.
In this Court, the applicant made an application under s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision made by the MRT.
Decision of the MRT
The MRT identified the correct approach in determining the application for a BVE.
The only sub-clause in respect to which any claims were advanced by the applicant was sub-clause 050 (Bridging) General).
The MRT correctly observed that it must be satisfied, both at the date of the primary application and at the date of the decision, that the applicant met the criteria in sub-clause 050.212(1).
The MRT was not satisfied at the date of the application that the applicant met the relevant criteria.
Furthermore, the MRT was not satisfied at the time of decision that the applicant met the relevant criteria.
In order for that criterion to be satisfied, it had to be established that at least one of the grounds in sub-clauses 050.212(2) to (9) had been met.
In respect to each of the following sub-clauses referred to by the MRT, the MRT made the following findings:
a)050.212(2) – The MRT was not satisfied that at the time of application, or decision, the applicant had made, or was the subject of, any acceptable arrangements to depart Australia.
b)050.212(3) – The MRT was not satisfied that at the time of application, or decision, the applicant had made a valid application, or had applied within any specified period, for a substantive visa of a kind which would satisfy sub-clause 050.212(3).
c)Sub-clauses 050.212(3A), 050.212(4), 050.212(4AA), 050.212(4A), 050.212(5), 050.212(5A) and 050.212(9) – The MRT was not satisfied, at the time of application, and at the time of decision, that the applicant had any outstanding application for merits or judicial review.
d)Sub-clauses 050.212(6), and 050.212(6A) – The MRT was not satisfied that the applicant had any application before the Minister.
e)050.212(7) – The MRT was not satisfied that the applicant was in criminal detention at the time of the application, or at the time of decision.
f)050.212(8) – The MRT was not satisfied that the applicant was the holder of a BVE at the time of application, or at the time of decision.
In summary, the MRT was not satisfied that the applicant had made, or was the subject of, any acceptable arrangements to depart Australia at the time of his application, or at the time of the decision (050.212(2)).
There was no evidence before the MRT to suggest that the applicant met any of the other grounds (050.212(3) to (9)), at the time of his application, or at the time of decision.
The application before the MRT failed on the facts. The application made to the court is, in substance, an attempt to re-argue the merits of the case before the MRT.
I will now turn to each of the grounds supporting the application made in this Court.
Ground 1
The applicant contends that the MRT acted in bad faith. The principles applicable to a determination whether a decision constitutes a bona fide attempt to exercise a statutory power of review are set out in the decision of the Full Court of the Federal Court of Australia in SBBS v Minister for Immigration (2002) 194 ALR 749.
In Minister for v SBAN [2002] FCAFC 431, His Honours Heerey and Keiffel JJ adopted the principles stated by the Full Court in SBBS at [43-[47]] but qualified the ninth proposition at [48].
SBBS and SBAN were recently considered by the Full Court of the Federal Court of Australia in Minister for Immigration v NAOS of 2002 [2003] FCAFC 142. In NAOS the Full Court observed that the qualification added by Heerey and Keiffel JJ in SBAN to the ninth proposition stated by the Full Court in SBBS is important, and that the Full Court agreed with it. Indeed, the Full Court in NAOS indicated that that proposition should be extended to the seventh proposition as stated by the Full Court in SBBS so as to make it clear that want of bona fides will only be made out in such circumstances where a whim or fancy has consciously been preferred to considered judgment.
In the present case, there is no evidence that the MRT acted in bad faith in the relevant sense described in the Full Court decisions referred to above. There is no evidence that the MRT did not give sufficient time to the Applicant to explain his situation to the MRT. To the contrary, the MRT had given the applicant an invitation to comment on 21 May 2003.
The applicant claims that the interpreter to the MRT spoke a different dialect from the applicant and that that hindered the applicant's ability to explain his situation to the MRT.
At the hearing on 22 May 2003, the applicant gave oral evidence, and an accredited interpreter assisted the MRT.
There is no evidence in the present case to challenge the interpretation given by the accredited interpreter to the MRT. The fact that the interpreter was appropriately qualified is an important consideration to be taken into account by the Court. There is no evidence put forward by the applicant which would support his contention that the interpretation provided to the MRT was incompetent such that there was a departure from the relevant standard of interpretation. In any event, even if there was a departure from the relevant standard that does not indicate bad faith on the part of the MRT.
Ground 2
The applicant disputes the finding made that the MRT was not satisfied that the applicant was making, or was the subject of, acceptable arrangements to depart Australia at the time of the decision. This ground is not relevant in circumstances where the applicant did not meet the relevant criteria at the time of application.
In making that finding, the MRT weighed the evidence put before it by the applicant that he needed to remain in Australia until 14 August 2003.
In his application two matters are referred to as justifying the applicant's claim that he needed to remain in Australia until 14 August 2003. The first is the applicant's claim for victims' compensation. The second is the Applicant's claim for workers compensation.
As to the victims' compensation claim, the MRT was not satisfied with the applicant's explanation why he had to remain in Australia until 14 August 2003 for two reasons. The first is that there was no evidence that the applicant would be required to give in person evidence in his victims' compensation matter. The second is that there was no evidence from the Victims Compensation Tribunal that that application would be finalised by 14 August 2003.
So long as there was some material before the MRT capable of supporting the conclusions reached then no error of law is demonstrated in the fact finding of the MRT. The weighing of evidence in the finding of facts is quintessentially a matter for the MRT. A conclusion that the MRT made an error in its fact finding would not result in the MRT failing to exercise its jurisdiction so as to form a basis for relief in the exercise of this Court's jurisdiction.
Even if the reasoning process leading to a factual conclusion could be described as illogical or unreasonable, which is not the case here, that would not in itself amount to jurisdictional error. A relevant error would only be found if the faulty reasoning was itself evidence of (for example) a failure to act judicially or to appreciate what the relevant issues were.
The applicant's claim turns on an argument that the MRT made a mistake of fact. No mistake was made by the MRT. Even if there had been (which is denied) no error of law is disclosed in simply a wrong finding of fact.
As to the workers compensation claim made by the applicant the following points are made.
First, the listing for hearing of the applicant's workers' compensation claim on 10 July 2003 was not relevant to the applicant's explanation as to why he needed to remain in Australia until 14 August 2003.
Secondly, and in any event, the material relevant to the workers' compensation claim was not forwarded to the MRT until it was sent by facsimile at about 11.05am on 23 May 2003. The MRT made its decision on 23 May 2003. There is no evidence that the listing for hearing of the workers compensation claim on 10 July 2003 was brought to the attention of the MRT by the applicant before the MRT made its decision.
Ground 3
Ground 3 of the application refers to matters which the applicant did not raise with the MRT. The medical evidence which was before the delegate was before the MRT. There is no reference in the medical evidence to "Dr Chandra Deve, orthopaedic surgeon", or any evidence that that doctor has "claimed that the applicant required a priority operation to remove wires from his patella and to seal his left knee". Ground 3 of the application founds no basis for judicial review.
Ground 4
Ground 4 makes a complaint about a factual finding made by the MRT.
The MRT weighed the evidence before it and was not satisfied that the applicant was making, or was the subject of, acceptable arrangements to depart Australia at the time of the application, and the time of the decision.
For the reasons set out in respect to Ground 2 above, no error is disclosed by the MRT's findings of fact.
Conclusion
The application made to the MRT failed on its facts. The MRT was not satisfied that the applicant met the relevant criteria for a BVE at the date of the application. The complaints made by the applicant cannot overcome that fatal defect in his claim.
No error of fact was made by the MRT, let alone an error of law. The findings made by the MRT were open on the materials before it. No jurisdictional error is disclosed. The application should be dismissed with costs.
No legal error was made by the MRT in coming to its decision. There is no substance to the applicant's claim of bad faith. Although he asserted interpretation difficulties at the time of the MRT hearing, I have no reliable evidence of any interpretation difficulties. I am not satisfied that the MRT proceedings were unfair. No jurisdictional error having been identified in the MRT decision, the decision of the MRT is a privative clause decision. The application for review must be dismissed. I will so order.
On the question of costs, the applicant having been wholly unsuccessful and the Minister wholly successful, Mr McInerney has sought an order for costs. The applicant has drawn attention to the fact that he is the victim of an assault and has committed no wrong in Australia. That may well be right, but the applicant chose to commence these legal proceedings. The Minister should receive a costs order in accordance with the principle that costs follow the event.
I will order that the applicant pay the respondent Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 August 2003
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