SZDHF v Minister for Immigration
[2007] FMCA 2088
•12 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDHF v MINISTER FOR IMMIGRATION | [2007] FMCA 2088 |
| MIGRATION – Review of delegate’s decision granting the applicant a Bridging visa with a no work condition attached – jurisdiction of the Court to review the decision considered – application of the criteria applicable to the no work condition considered – observations on administrative errors made in relation to the applicant over a period of five years and the consequences for the applicant. |
| Migration Act 1958 (Cth), ss.51A, 474, 476 Migration Regulations 1994 |
| Applicant: | SZDHF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2220 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 12 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Ms B Anniwell Australian Government Solicitor |
ORDERS
The application is dismissed.
There be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2220 of 2007
| SZDHF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application seeking review of a decision of the Minister's Department made on 2 July 2007 granting the applicant a Bridging visa C with a no work condition attached[1]. The applicant's concern is with the absence of work rights. He relies upon his amended application filed on 24 August 2007 that asserts a denial of natural justice and a failure to understand the applicable law and principles. The applicant has also taken the opportunity to file written submissions and to make oral submissions.
[1] Condition 8101
The evidence I have before me is limited to the book of relevant documents filed on 21 September 2007. The decision in issue is evidenced in the book of relevant documents at pages 146 and 162.
The background to this matter is rather confusing and unfortunate. It was only at the trial of this matter today that the complete circumstances became apparent. I incorporate in this judgment as background paragraph 2 of the Minister's submissions filed on 7 December 2007 with additions:
31.10.2002
Applicant arrived in Australia.
07.11.2002
Applicant lodged a Protection (Class XA) visa application.[2]
13.11.2002
Applicant granted Bridging visa E with no work rights attached.
12.12.2002
Applicant granted Bridging visa E with work rights.
17.12.2002
Delegate refused a protection visa.
07.01.2003
Applicant lodged an application for review with the Refugee Review Tribunal (“the Tribunal”).
23.03.2004
The Tribunal affirmed the decision of the delegate.[3]
13.04.2004
Applicant filed an application for review in the Federal Magistrates Court.[4]
18.05.2004
Applicant granted Bridging visa E with no work rights attached.
27.05.2004
Applicant granted Bridging visa C with work rights.[5]
08.05.2006
Emmett FM ordered that the decision of the the Tribunal made on 3 March 2004 be quashed and the matter be remitted back to the the Tribunal for reconsideration.[6]
20.06.2006
Applicant granted Bridging visa C with work rights.[7]
17.08.2006
The Tribunal affirmed the decision of the delegate.[8]
12.09.2006
Application for review filed in Federal Magistrates Court.[9]
25.09.2006
Applicant granted Bridging visa C with work rights.[10]
29.01.2007
Application for review in the Federal Magistrates Court dismissed.
14.02.2007
Notice of Appeal filed in the Federal Court.[11]
30.05.20007
Federal Court Appeal dismissed.
19.06.2007
Application for Special Leave to Appeal filed in the High Court.[12]
02.07.2007
Immigration Status Letter sent to the applicant stating Bridging visa C granted with work rights.[13]
02.07.2007
Applicant files application for Bridging visa C.[14]
02.07.2007
Correspondence to the applicant from Onshore Protection.
Applicant granted Bridging visa C without work rights.[15][2]Relevant Documents (RD): 3
[3] RD: 56
[4] RD: 75
[5] RD: 85
[6] RD: 86
[7] RD: 91
[8] RD: 93
[9] RD: 127
[10] RD: 132
[11] RD: 133
[12] RD: 136
[13] RD: 139
[14] RD: 140
[15] RD: 146
The first issue for consideration is the Court's jurisdiction to review the decision. I accept the Minister's submissions on that matter as set out in paragraphs 4 and 5 of the written submissions, which I adopt with minor amendments for the purposes of this judgment.
The Court has jurisdiction to hear this application. The Bridging visa “determination” made by the delegate on 2 July 2007 was a “decision” characterised by s.474(3) of the Migration Act 1958 (Cth) (“the Migration Act”) and therefore a migration decision as defined in s.5(a) of the Act. The decision is not a “primary decision” as defined by s.476(4) of the Migration Act because a decision which grants a visa is not reviewable under Part 5 or 7 of the Migration Act. Nor is the decision one identified by s.476(2)(b) to (d) of the Migration Act. Therefore, the Court has jurisdiction to hear this application pursuant to s.476 of the Act.
The Minister's submissions also reproduce the Migration Regulations (“the Regulations”) relevant to the granting of Bridging visas C which set out the relevant criteria. I incorporate in this judgment paragraphs 7 through to 10 of those submissions:
Clause 030.212 of Schedule 2 of the Regulations prescribes the criteria to be satisfied at the time of an application for a Bridging visa C. Relevantly, subclause 030.212(5) of the Regulations provides:
(5) An applicant meets the requirements of this subclause 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
(aa)that application was refused; and
(b)either:
(i) the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant’s substantive visa application; or
(ii) the applicant:
(A)is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in subparagraph (i); and
(B)made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i); and
(c)at the time of that application, he or she held a Bridging C (Class WC) visa; and
(d)the judicial review proceedings (including proceedings on appeal, if any) are not completed.
Clause 030.22 of Schedule 2 of the Regulations provides that criteria contained in clauses 030.211 to 030.212 must be satisfied at the time of the decision.
The respondent submits that the applicant satisfied the criteria contained in subclause 030.212(5) in the following ways:
a)the applicant had made an application for a substantive visa which was refused;
b)the applicant has applied for judicial review of that decision, most recently filing an application for Special Leave to Appeal in the High Court on 19 June 2007; and
c)at the time of that application, the applicant held a Bridging visa C which was granted to the applicant on granted on 25 September 2006.
Having satisfied the criteria in subclause 030.212(5) for a Bridging visa C, attached to that visa are conditions prescribed by clause 030.612. As the applicant has satisfied the criteria of subclause 030.212(5), condition 8101 attaches to the applicant’s Bridging visa C.[16] Condition 8101 states “the holder must not engage in work in Australia”.
[16] Clause 030.612, Schedule2, Migration Regulations 1994
It appears correct that the decision in issue was made consistently with the Regulations. In that regard, I agree with and adopt with minor amendments for the purposes of this judgment paragraphs 11 through to 15 of the Minister's submissions.
Whether the applicant has or does not have work rights as a condition of his Bridging visa C is not a discretionary determination. Prescribed conditions to Bridging visas are completely dependant on the operation of the Regulations and which prescribed criteria are satisfied by the applicant’s circumstances. Thus the question of whether the applicant has work rights as a condition attached to his Bridging visa C is purely an application of statutory criteria to the applicant’s circumstances.
In the present case, the applicant did not satisfy subclause 030.212(3) to which condition 8101 is not attached. Subclause 030.212(3) of the Regulations provides:
(3) An applicant meets the requirements of this subclause if:
(a) the applicant holds a Bridging C (Class WC) visa that:
(i) was granted as a result of a valid application, made in Australia, for a substantive visa of a kind that could be granted if the applicant was in Australia; and
(ii) is subject to condition 8101; and
(b)in the case of an applicant for a Protection (Class AZ) visa in the period from 1 July 1997 to the end of 19 October 1999, or for a Protection (Class XA) visa on or after 20 October 1999 – either:
(i) the applicant has been in Australia for a period less than 45 days, or for periods totalling less than 45 days, (not including any day for part of which the applicant was not in Australia) in the 12 months immediately before the date of that application; or
(ii) otherwise – the applicant is within a class of persons specified by Gazette Notice for the purposes of this subparagraph; and
(c)the Minister is satisfied that the applicant has a compelling need to work.
The applicant did not satisfy this subclause as the bridging visa previously held by the applicant was not subject to condition 8101. Rather, the applicant, at the time of the application, satisfied the criteria under subclause 030.212(5) to which condition 8101 was not attached. It is ironic that the visa formerly held by the applicant should have been subject to condition 8101, but even if it had been, the applicant still could not have satisfied the short stay criterion in subparagraph 030.212(3)(b)(i).
With respect to the letter sent to the applicant from the Department on 2 July 2007 incorrectly stating that the applicant had work rights, the first respondent submits that a bridging visa can only be granted to an eligible non-citizen who satisfies the criteria for a bridging visa prescribed under the Regulations. Despite the letter incorrectly stating that the applicant had work rights, such a condition could not attach to the applicant’s Bridging visa C under the Regulations. This was correctly explained to the applicant by the second letter of 2 July 2007.[17]
[17] RD: 146
The applicant was not denied procedural fairness in the making of this decision. Section 51A(1) of the Migration Act provides that subdivision AB of Part 2, Division 3 of the Migration Act is an exhaustive statement of the requirements of natural jusitice hearing rule. However, in this case, the decision under review is purely an application of statutory criteria to the applicant’s circumstances thus there was no requirement either under the Migration Act or at common law to advise the applicant before the decision that he did not satisfy the criteria for a grant of work rights. At a more general level the outcome offends against a sense of justice and fair play because the applicant was led to believe for five years that he was entitled to work, but that does not impact upon the validity of the decision.
For the same reasons there was no misunderstanding by the delegate of the applicable law. The problem for the applicant is that several of the earlier decisions appear to have been incorrectly made. In particular, the decisions made on 27 May 2004, 26 June 2006, 25 September 2006 and the initial decision made on 2 September 2007 granting the applicant Bridging visa C with work rights were all incorrectly made.
Ironically, it does not appear that the applicant needed to apply for a further Bridging visa C so long as his rights of judicial review had not been exhausted. The applicant appears to have done the right thing as he saw it by applying for a new Bridging visa C whenever a new proceeding was commenced. He has enjoyed the benefit of work rights that ought not to have been granted. However, he has now been abruptly denied the right to work. Having been extended the right to work for five years, it seems harsh and unjust to have that right suddenly withdrawn.
I say nothing of the applicant's rights under the general law to seek compensation for any losses he may have incurred in reliance on the incorrect decisions formerly made.
Under the Regulations as they stand it appears that the only possibility of the applicant being granted a Bridging visa C with work rights would be based upon clause 30.212(3), which relevantly provides that an applicant meets the requirements of that subclause if the applicant has applied for a protection visa, the applicant is within a class of persons specified by gazette notice for the purposes of subparagraph 30.212(3)(b)(ii) and the Minister is satisfied that the applicant has a compelling need to work.
There may not be a relevant applicable gazette notice establishing a class of persons of which the applicant is a member. However, given the unfortunate circumstances of the matter and the position the applicant now finds himself in, the Minister's Department could properly consider whether a gazette notice should be issued dealing with the class of persons including the applicant who were granted a Bridging visa with work rights attached between 2002 and 2007. It would then be a matter for the applicant to satisfy the Minister that he has a compelling need to work. That is a matter for the Minister and his Department to consider.
On the material before me I find that the decision the subject of the present application is free from jurisdictional error. Indeed, it is free from any legal error. In the circumstances, I will dismiss the application and I so order.
The Minister does not seek costs. I will order that there be no order as to costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 December 2007
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