SZBJP v Minister for Immigration
[2007] FMCA 1944
•28 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBJP v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2007] FMCA 1944 |
| MIGRATION – Application to review decision of Migration Review Tribunal – application for bridging visa – whether an error of fact evident on the face of the record of the Tribunal decision gives rise to a jurisdictional error – where substantive visa subsequently granted to applicant – whether relief should be withheld on discretionary grounds. |
| Migration Act 1958, s.359A Migration Regulations |
| The King v Commonwealth Court of Conciliation and Arbitration, Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 Wang v Minister for Immigration & Citizenship [2007] FCA 488 |
| Applicant: | SZBJP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2109 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 11 September & 17 September 2007 |
| Date of Last Submission: | 13 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2007 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2109 of 2007
| SZBJP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background to these proceedings
This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) affirming a decision of a delegate of the first respondent not to grant the applicant a Bridging E (Class WE) Visa. The delegate’s decision to refuse the visa application was made on 20 June 2007 and the applicant sought review by the Tribunal on 21 June 2007. The applicant, who was in immigration detention, attended a Tribunal hearing on 29 June 2007. The Tribunal decision was made on that date. The applicant sought review by proceedings commenced in this court on 9 July 2007.
After the matter was listed for hearing before me the applicant filed a notice of motion seeking that I disqualify myself from hearing the application. I heard argument in relation to the notice of motion. The application that I disqualify myself was dismissed (see SZBJP v Minister for Immigration & Anor [2007] FMCA 1570.
In his application for a bridging visa made on 15 June 2007 the applicant indicated that he was an applicant for a substantive visa and that he was awaiting a decision in relation to an application for a visa other than a bridging visa. He did not provide any details of the claimed application for a substantive visa. He did not make any claims as to a request for Ministerial intervention, commencement or continuance of judicial review proceedings or proceedings in relation to cancellation of a substantive visa. Nor did he claim to be making or the subject of arrangements to depart Australia.
On 20 June 2007 a delegate of the first respondent refused the application for a bridging visa on the basis that the applicant did not satisfy any of the criteria for grant of such a visa in Clause 050.212 of Schedule 2 to the Migration Regulations. In reasons for decision the delegate noted that the applicant had applied to the Administrative Appeals Tribunal (AAT) on 12 June 2007 for an extension of time and for “merits review” of a decision made by a delegate of the Minister to refuse the grant of a protection visa. However, the delegate found that as that visa application had been finally determined by the High Court in judicial review proceedings (and as another judicial review application been finally determined by the Full Court of the Federal Court), the applicant did not have an application for a substantive visa that had not been finally determined. Hence, he did not satisfy the criterion in subclause 050.212(3).
The delegate also stated that the applicant had previously been granted bridging visas on the grounds that he was the subject of departure arrangements, but that he had stated to departmental officers that he would not depart Australia. He had not complied with the requirement to present a valid airline ticket. Nor had he attempted to make departure arrangements, despite the assignment of a security bond and did not satisfy the criterion in subclause 050.212(2).
On the same day that the decision of the delegate was made (20 June 2007) the applicant was detained under s.189 of the Migration Act 1958 (Cth) and transferred to the Villawood Detention Centre.
Application to the Tribunal
On 21 June 2007 the applicant sought review by the Migration Review Tribunal of the delegate’s decision in relation to his bridging visa application. He also submitted a letter to the Tribunal regarding treatment he claimed he had received from departmental officers.
I note that it appears that on 18 June 2007 the applicant had lodged an application to the Tribunal that did not specify what decision he sought to have reviewed. In a decision of 2 July 2007 (a copy of which was provided to the Court by the applicant with post-hearing written submissions) the Tribunal found it had no jurisdiction because the Department had not made a decision to refuse a visa application by the applicant or to cancel any visa held by him at that time. That Tribunal decision is not the subject of these proceedings. The Tribunal decision in issue is the decision in relation to the application lodged on 21 June 2007.
It is not disputed that the Tribunal invited the applicant to attend a hearing on 29 June 2007. Prior to the commencement of the hearing the Tribunal handed the applicant a letter under s.359A of the Migration Act 1958 (Cth) inviting him to comment at an interview to be held before the hearing on information the Tribunal considered would be the reason or part of the reason for affirming the decision under review.
Tribunal decision
In its reasons for decision the Tribunal set out the evidence of the applicant in the interview and hearing. It appears from that material, and also from the applicant’s claims before this Court that he may have considered that his application to the AAT lodged on 12 June 2007 was such that he met a criterion for a bridging visa.
In its findings and reasons the Tribunal accepted that the applicant had made a valid application for a bridging visa on 15 June 2007 and that as an unlawful non-citizen he met the criterion in clause 050.211. However, it was not satisfied that any of the criteria in subclauses 050.212(2)-(9) had been met.
In particular, the Tribunal was not satisfied that the applicant had made a valid application for a substantive visa that had not been finally determined. While the applicant had made a past application for a protection visa, such application had been finally determined. Judicial review proceedings had been unsuccessful. The Tribunal stated that it had indicated to the applicant in the hearing that his AAT matter did not meet any of the requirements for a bridging visa. It observed that the basis for the application to the AAT was not clear and that the matter was yet to be finalised. The Tribunal found that the Refugee Review Tribunal had not referred any matter to the AAT. It concluded that it was not satisfied that at the time of application for the bridging visa or decision the applicant had made a valid application (or that he would apply within any specified period) for a substantive visa of a kind that could be granted if he was in Australia and that had not been finally determined as provided for in subclause 050.212(3).
The Tribunal was not satisfied that there were any merits review proceedings in the Migration Review Tribunal or Refugee Review Tribunal or judicial review proceedings involving the applicant under way. It was unable to be satisfied that he met subclauses relating to such criteria. Nor, for reasons which it gave, did the Tribunal find that the visa applicant met the criteria in any of the other subclauses of clause 050.212 (including the criterion relating to arrangements to depart Australia).
In making such findings the Tribunal found that the applicant “was not a holder of a Bridging E (Class WE) visa as required by subclause 050.212(8) either at the time of application or decision”.
The tribunal also stated
“The visa applicant has twice requested Ministerial Intervention under s.417 of the Act. The first request was finalised, with ‘Not considered’ recorded on ICSE. [The Department’s databases] No decision has yet been made on his current application, and it is not personally before the Minister for his consideration. The Tribunal finds that the visa applicant does not meet the requirements of subclause 050.212(6), 050.212(6AA) or 050.212(6A) at either the time of application or decision, as his second application for Ministerial Intervention is not personally before the Minister.”
The Tribunal concluded that it was unable to be satisfied that the visa applicant met any of the criteria in subclauses 050.212(2) to (9) at the time of application or at the time of decision and hence he did not meet criteria for the visa in subclause 050.212(1) or clause 050.221.
This application
In his application for review of the Tribunal decision and in submissions the applicant claimed that the Tribunal had failed to consider his application properly. He took issue with its findings that he did not meet the criteria for a bridging visa. He claimed that he had a valid visa, a visa application and proceedings in the AAT in relation to an earlier refusal of a protection visa application at the time of his application for the bridging visa in issue in these proceedings. He claimed that the Tribunal erred in failing to “accept” either these matters or that the Departmental decision to refuse his bridging visa application was “wrong”. He contended that the AAT had accepted his application for review of the protection visa refusal decision. He also claimed that the Tribunal had failed to explain to him why the Department of Immigration “put [him] in detention centre and then handed the visa refusal decision copy.”
In written and oral submissions the applicant made a number of serious allegations about claimed mistreatment by officers of the Department of Immigration both before and during his detention. In his latest written submissions he took issue with the lawfulness of his detention and claimed that he should be compensated for unlawful detention.
However, these proceedings relate only to the decision of the Migration Review Tribunal of 9 July 2007 to affirm the decision not to grant the applicant a bridging visa. The applicant’s wider concerns cannot be resolved by this court, although he may have other avenues in which to seek such resolution or may chose to raise such matters with the Commonwealth Ombudsman.
The bridging visa issue
The applicant took issue with the Tribunal’s suggestion in the s359A letter that he had been unlawfully in Australia for periods totalling at least three months (in particular from 15 June 2007 until his “location and detention on 20 June 2007”) as he was of the view that he had always been the holder of a visa of some kind. However, while these issues had been raised by the Tribunal in relation to whether the applicant was making or was the subject of acceptable arrangements to depart Australia (subclause 050.212(2)), the Tribunal’s findings in relation to that criterion did not refer to any periods of unlawfulness in Australia. Even if the Tribunal was in error in relation to when the applicant was unlawful, and there is no evidence before the court to establish that this was so, its reference to these matters in the s.359A letter does not establish jurisdictional error.
Associated with this contention was a submission by the applicant that he made a valid application for a bridging visa because he held a valid visa at the time of the application. The applicant’s contention is that on 18 June 2007 a departmental officer threatened to deport him from Australia and that, being concerned, he visited the Migration Review Tribunal and explained the actions of the departmental officer to a particular Tribunal officer. In submissions he claimed that the Tribunal confirmed that he “had a valid visa at the time” and an ongoing appeal with the AAT as well as a request for Ministerial intervention under s.417. The applicant’s concern about the alleged conduct of departmental officers does not establish jurisdictional error on the part of the Tribunal. There is no evidentiary basis for his contention about what occurred on 18 June 2007 (although I note that, as set out above, he made a separate application to the Tribunal on that day).
It appears that the applicant contends that he was not an unlawful non-citizen on 15 June 2007 on the basis that he had a current bridging visa at that time. He annexed to his written submissions copies of departmental decisions in relation to previous bridging visas held by him which referred to Ministerial requests under s.417. However, apart from the Tribunal decision, there is no evidence before the Court as to the applicant’s actual bridging visa status after 17 May 2007. The Tribunal found that he was an unlawful non-citizen on 15 June 2007.
The Tribunal accepted that the applicant had made a valid application for a bridging visa and that he met the criterion in clause 050.211. However, it did so on the basis that the applicant was an unlawful non-citizen (paragraph 050.211(1)(a)) at the time of the application rather than because he was the holder of a Bridging E (Class WE) visa (paragraph 050.211(1)(b)). There was limited information (and no court book) before the court in connection with the review application. The solicitors for the first respondent filed further relevant information, but the material did not address the issue of the date on which the applicant last held any bridging visa. However, it is not necessary for such issue to be determined in these proceedings. The Tribunal accepted that the applicant met clause 050.211(1). Even if its finding that he did so because he was an unlawful non-citizen rather than as the holder of a Bridging E (Class WE) visa was shown to be in error, any such error would not be a jurisdictional error as it could not affect the Tribunal’s exercise of power insofar as it turned on satisfaction of subclause 050.211(1) (see Minister for Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]-[83] per McHugh, Gummow and Hayne JJ) and Craig v South Australia (1995) 184 CLR 163 at 179).
Moreover, no jurisdictional error is established in relation to the Tribunal’s finding that the applicant was not the holder of a bridging visa granted as a result of a valid application for a substantive visa (as distinct from a bridging visa granted on some other basis) as required by subclause 050.212(8). There is nothing in the material before the Court to suggest that the applicant had made a valid application that had not been finally determined for a substantive visa of a kind that could be granted to him as required by subclause 050.212(8). The only basis on which the applicant contended that he met subclause 050.212(8) was because of his application to the AAT. The Tribunal rejected this contention. No error is apparent in the Tribunal finding that the applicant was not the holder of a bridging visa granted as a result of a valid application for a substantive visa.
It may be that the applicant held a Bridging E visa prior to the bridging visa application of 15 June 2007 that had been granted on the basis of his making arrangements to depart Australia or being the subject of an application to the Minister under s.417 of the Act. He did not clarify the basis on which he claimed to hold such a visa. I note that a s.417 application was finalised on 14 June 2007. The Tribunal did not specifically address this issue. Its findings in relation to subclause 050.212(6A) (which includes a requirement that the applicant hold a Bridging E visa) were confined to consideration of the status of requests for Ministerial intervention under s.417 of the Migration Act in relation to the applicant.
Hence, while the applicant’s bridging visa status at the time of the application is understandably an issue of concern to him, it need not be resolved in these proceedings, as even if he did hold a bridging visa as at 15 June 2007, this would not establish any jurisdictional error on the part of the Tribunal.
I note that if the applicant pursues his claim that he was unlawfully detained by the Department of Immigration in an appropriate forum, his bridging visa status at the time of detention (20 June 2007) would be significant. However, this court has no jurisdiction in these proceedings in relation to that claim.
Section 417 application issue
The Tribunal’s findings in relation to the status of applications to the Minister for Immigration to substitute a more favourable decision for the decision of the Refugee Review Tribunal in relation to the applicant’s protection visa application are set out above. The Tribunal found that there had been two applications and that no decision had been made on the applicant’s “current” application which was not personally before the Minister for his consideration. On this basis it found that the applicant did not meet any of subclauses 050.212(b), 050.212(6AA) or 050.212(6A) either at the time of application or decision in relation to the bridging visa application.
However, these findings reveal an error on the part of the Tribunal. The Tribunal stated in its initial outline of evidence that the status of s.417 applications for Ministerial intervention in relation to the applicant was as follows:
·On 18 March 2005 an application for Ministerial intervention under s.417 of the Act was lodged.
·On 24 May 2006 that request was finalised with the result recorded on ICSE as “not considered”.
·On 10 January 2007 a second application for Ministerial intervention under s.417 of the Act was lodged.
·That application was finalised on 16 January 2007 with the result recorded as “not referred”.
·On 27 February 2007 a third request for Ministerial intervention under s.417 was lodged.
·That application was finalised on 14 June 2007 (the day before the bridging visa application in issue) with the result recorded as “not referred”.
On the basis of the affidavits of Bernadette Rayment of 13 September 2007 and 9 October 2007 which provide details of correspondence in relation to such applications, and consistent with the Tribunal summary of the facts in the initial part of its decision, I am satisfied that there were, relevantly, three s.417 requests in relation to the applicant, all of which had been finalised by the time of the bridging visa application. These were the requests of 18 March 2005, 10 January 2007 and 27 February 2007.
In written submissions it was conceded for the first respondent that the Tribunal was incorrect in the findings and reasons part of its decision in referring to there being two requests under s.417 of the Act and stating that “no decision has yet been made on his current application”.
The issue that arises is whether this factual error is such as to give rise to a jurisdictional error. It was submitted for the first respondent that because the evidence was correctly stated in the Tribunal’s s.359A letter and in the introductory part of its decision, the preferable inference was that the passage in the findings and reasons part of the Tribunal decision was a mistake in the nature of a typographical error which did not reflect a failure to have regard to or a misconstruction of the evidence before the Tribunal.
I brought to the attention of counsel for the first respondent the decision of Greenwood J in SZIFI v Minister for Immigration & Multicultural Indigenous Affairs [2007] FCA 63 and gave the parties an opportunity to make further written submissions.
In SZIFI Greenwood J found that a misstatement of the country of origin of a Pakistani protection visa applicant at the commencement of the findings and reasons part of a decision of the Refugee Review Tribunal (it was stated that the applicant had claimed and the Tribunal accepted that he was a national of Indonesia) and a conclusion that the Tribunal was not satisfied on the evidence before it that the applicant faced a real chance of persecution should he return to the “People’s Republic of China” gave rise to jurisdictional error. Despite the fact that the Tribunal had discussed the applicant’s claims and contentions in relation to Pakistan in the body of the findings and reasons part of its decision the errors were said to be such as to “suggest that the deliberative process going to the merits of the appellant’s case was infused with notions which are erroneous and thus irrelevant to the applicant’s case and suggested that the Tribunal member may have had in mind facts, circumstances and considerations referrable to other cases” (at [33]).
Greenwood J recognised that an inference was open that either having regard to the workload before the Tribunal or perhaps because of the proximity of determination of other cases involving nationals from Indonesia and the People’s Republic of China “the required immediacy of focus and deliberation of the specific claims of the appellant and the justice and merits of the case were influenced by erroneous considerations” (ibid). His Honour characterised such failures as jurisdictional failures which went to the valid exercise of the Tribunal’s power (at [39] – [45]) and rejected the view that the references to the wrong countries were merely typographical errors or errors of fact at the margin of the Tribunal’s review.
Similarly, in this case it can be said that the Tribunal’s deliberative process in relation to the merits of the applicant’s case (albeit in relation to particular criteria in the Migration Regulations in relation to bridging visas) was “infused” with notions “which are erroneous and thus irrelevant” to the applicant’s case and which suggest that the Tribunal member “may have had in mind facts, circumstances and considerations referrable to other cases” (at [33]).
The Tribunal could thus be said to have taken into account irrelevant considerations (being the incorrect facts) and hence to have failed to provide the applicant with procedural fairness in the sense considered in SZIFI in which Greenwood J suggested that jurisdictional error arose on the basis that the decision was “made in light of a failure to act reasonably” (at [43]). His Honour observed that “The obligation to undertake an undistracted, focussed and deliberative assessment of only those facts and circumstances referrable to the case of the Appellant is an essential element of the discharge of the review function” (at [44]).
It is important to note that in SZIFI his Honour took this view notwithstanding the fact that the Tribunal had, in the body of its decision, analysed the claims made by the appellant in relation to his actual country of origin. Nonetheless, his Honour was persuaded that the erroneous initial reference to Indonesian nationality and the concluding reference to whether the appellant had a well-founded fear of persecution should he return to the People’s Republic of China could “only lead to the conclusion that the errors have affected the exercise of power”. On that basis the Tribunal decision was said to be a “nullity” (at [45]).
In SZHFC v Minister for Immigration & Multicultural Affairs [2006] FCA 1359 Allsop J considered the difficulty of drawing the distinction between a failure by a Tribunal to attend to the jurisdictional task and the making of an error “of a factual character within jurisdiction” (at [31]-[42]) (and see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1. However, in light of the statement in SZIFI (at [44]) that the Tribunal’s obligation is “to undertake an undistracted, focussed and deliberative assessment of only those facts and circumstances referrable to the case of the [applicant] is an essential element of the discharge of the review function”, the fact that the Tribunal recited the correct factual position in relation to the applicant’s application for Ministerial intervention in the introductory part of its decision (and also put the correct position to the applicant in the s.359A letter) does not establish that the misstatement in the findings and reasons part of the decision was simply a mistake in the nature of a typographical error. Rather this error, which related to satisfaction of a criterion for the class of visa sought, must be taken to indicate that the Tribunal failed to undertake an assessment of “only those facts and circumstances referrable to the case of” the applicant and hence failed to discharge its review function in the manner considered in SZIFI. There is no indication in the findings and reasons part of its decision that the Tribunal did in fact consider the actual evidence before it in relation to those criteria for the bridging visa sought by the applicant that related to any application to the Minister under s.417 of the Act. Rather, consistent with the approach taken in SZIFI, the correct inference to be drawn in all the circumstances is that the Tribunal failed to have regard to or misconstrued the evidence before it on this issue in making its decision. On balance, in light of the approach taken in SZIFI, I consider that the Tribunal fell into jurisdictional error.
Discretion
However, even if the Tribunal did fall into error in this way, I am satisfied that relief should be refused as a matter of discretion because remittal to the Tribunal would be of no utility given that the applicant is now the holder of a substantive visa.
I note that it was initially contended for the first respondent that no useful result or utility could ensue from granting the relief sought by the applicant because the Tribunal would be bound to come to the same result if the matter were remitted, as the evidence before the Tribunal in fact indicated that there was no s.417 request being considered by the Minister at the time of the application for the visa, so that the applicant could not satisfy any of subclauses 050.212(6), (6AA) or (6A) and as no error had been identified in the Tribunal’s consideration of any other criteria for the visa. On this basis it was said that the Tribunal’s decision that the applicant did not satisfy the criteria for a bridging visa was inevitable given the material before the Tribunal.
Reliance was placed by counsel for the Minister on the decision of the High Court in SZBYR v Minister for Immigration & Citizenship& Anor (2007) 235 ALR 609 in support of this proposition. In SZBYR this argument was put on the basis that even if the appellants in that case established a jurisdictional error in relation to one issue (the operation of s.424A of the Migration Act) they could not overcome the Refugee Review Tribunal’s finding that their claims lacked the requisite Convention nexus. Such an alternative basis for the decision was not affected by the breach of s.424A (see Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [29]). However, this is not a case in which there is a second unimpeachable basis for the Tribunal’s decision. It was necessary for the Tribunal to consider each of the criteria in clause 050.212 and it fell into error in its consideration of certain of those criteria.
I am not persuaded by this argument. I have had regard to the fact that the undisputed evidence in relation to whether there was a s.417 request extant at the time of the bridging visa application is such that the applicant could not have satisfied those criteria that relate to such a request (subclauses 050.212(b), (6AA) and (6A)) if the matter were remitted to the Tribunal. (see Jankovic v Minister for Immigration & Ethnic Affairs (1995) 56 FCR 474; Morales v Minister for Immigration & Ethnic affairs (1995) 60 FCR 550 Wang v Minister for Immigration & Citizenship [2007] FCA 488 and Jiang v Minister for Immigration & Citizenship [2007] FCA 907. However, a reconstituted Tribunal would consider afresh each of the criteria in clause 050.212. Other issues might have emerged in any such reconsideration, given that not all of the grounds in clause 050.212 turn on objective criteria or facts (see eg. subclauses 050.212(2) and 050.212(3)(b)).
However, the first respondent also contended that if (before judgment) the applicant were to be granted a bridging visa in connection with a further protection visa application which the Minister had decided to allow the applicant to make, the relief sought would be futile. In fact, on 1 November 2007 the first respondent filed an affidavit sworn by Bernadette Marie Rayment, solicitor, on 31 October 2007 annexing a coy of a decision of a delegate of the first respondent made on 23 October 2007 granting the applicant a Subclass 785 Protection (Class XA) visa. It is apparent from this decision that the applicant applied for such a visa on 18 September 2007 (having been allowed under s.48B of the Migration Act 1958 (Cth) to make such an application). Thus he is now the holder of a substantive visa.
While it had been foreshadowed in the hearing that a decision to grant applicant a visa might render remittal to the Tribunal of the decision to refuse a bridging visa futile, when given an opportunity to make submissions on the affidavit evidence, the applicant did not address this issue. In written submissions of 13 November 2007 he again addressed the issue of whether he had a valid visa at the time of the bridging visa application (without providing evidence or identifying the precise nature of the visa claimed). He reiterated claims about his treatment by departmental officers (in relation to which he stated that he seeks compensation).
As set out above, insofar as the applicant’s concerns relate to the lawfulness of his detention by the Department of Immigration and the actions of departmental officers, these are not matters that can be resolved by this court in these proceedings. This court’s jurisdiction in these proceedings extends only to whether the Migration Review Tribunal fell into jurisdictional error in its decision by 29 June 2007 to affirm the decision of the delegate not to grant the applicant a bridging visa. The issue of the relevance of whether the applicant held a valid visa at the time of the bridging visa application is discussed above.
In any event, I am of the view that, even if the Tribunal fell into jurisdictional error, as the applicant is now the holder of a substantive visa it would be of no utility to remit the matter to the Tribunal to reconsider its decision to affirm the decision not to grant him a bridging visa.
I have taken into account that the discretion to refuse relief on the ground of futility should only be exercised if it is ‘quite clear that a reconsideration is or will be futile’ as stated by Besanko J (with whom Moore and Buchanan JJ agreed) in Lee v Minister for Immigration and Citizenship [2007] FCAFC 62 at [48]. It is clear that if the question of futility is assessed at a time in the future (the “forward – looking test” preferred in Lee) it would be futile to grant the relief sought by the applicant, as he is now the holder of a substantive visa and hence not an unlawful non-citizen or the holder of a bridging visa as required by subclause 050.211(1) and clause 050.221 of Schedule 2 to the Migration Regulations). Moreover as he holds a substantive visa he is lawfully in Australia and has no need of a bridging visa to regularise his visa status. Hence “no useful result could ensue” from remittal (see The King v Commonwealth Court of Conciliation and Arbitration, Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400 per Latham CJ, Rich, Dixon, McTiernan and Webb JJ, the discussion of the discretionary nature of the constitutional writs in Re Refugee Review Tribunal& Anor; Ex parte Aala (2000) 204 CLR 82 at [42] – [58] per Gaudron and Gummow JJ and SZBYR v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 at [28]-[29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). The circumstances are such that it is “just that the remedy should be withheld” (Ozone Theatres (Aust) Ltd at 400).
Hence the application should be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 28 November 2007
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