SZECY v Minister for Immigration

[2004] FMCA 766

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZECY v MINISTER FOR IMMIGRATION [2004] FMCA 766

MIGRATION – Application to review decision of Migration Review Tribunal refusal to grant bridging visa – whether acceptable arrangements to depart – whether Tribunal failed to consider relevant criteria, failed to give applicant an opportunity to present his case or made decision contrary to law. 

Applicant: SZECY

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2285 of 2004

Delivered on: 29 October 2004

Delivered at: Sydney

Hearing date: 29 October 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr J. Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent’s costs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2285 of 2004

SZECY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) dated the 18 June 2004 affirming a decision of a delegate of the respondent to refuse to grant the applicant a Bridging (Class WE) visa. The applicant is a citizen of Peoples Republic of China who first entered Australia on 29 November 1994 as the holder of a tourist visa. He applied for a protection visa. The application for a protection visa was unsuccessful as was an application to the Refugee Review Tribunal. That Tribunal decision was made in June 1998. It is not the subject of these proceedings. The applicant commenced judicial review proceedings in the Federal Court in January 2000 which were withdrawn in May 2000. He then joined a class action in the High Court. He was withdrawn from that class action in June 2003. In the meantime (in May 2003) the applicant had made a request to the Minister to exercise her powers under section 417 of the Migration Act 1958 to make a more favourable decision than that of the Refugee Review Tribunal.  On 11 March 2004 the Minister chose not to consider exercising her power.  The applicant was informed of this by letter on 20 May 2004. 

2. It is apparent from the Tribunal reasons for decision that the applicant's last visa, a bridging visa, ceased on 18 July 2003.  On 2 June 2004 he approached the Department through his solicitor to apply for a Bridging E visa.  In the bridging visa application it is stated that he was making arrangements to depart Australia.  The letter to the Department from his solicitor also indicated that the bridging visa E was sought on the basis that the applicant was making suitable arrangements to depart Australia, that he had begun to finalise his affairs and was looking to sell his property in Sydney.  The applicant was invited to attend a Departmental interview on 8 June 2004.  He did so. 

3. In the Departmental decision in relation to the application for a bridging visa it was stated the during that interview the applicant had indicated that he had no intention of leaving Australia for another six to 12 months.  According to the delegate, the applicant was asked to provide a travel document or arrange to obtain a passport from the Chinese Consulate but refused to do so and had advised that he had property in Australia and needed to ‘finalise it’ within the next six to 12 months.  On the information provided during the interview the delegate of the respondent was not satisfied that the applicant was making acceptable arrangements to depart Australia.  The bridging visa application was refused on 8 June 2004.  The applicant was detained. 

4. On 9 June 2004 the applicant sought review by the Tribunal. The Tribunal wrote to the applicant by letter sent by email to him in the detention centre and also to his solicitor by facsimile, under section 359A of the Migration Act inviting his comment on information in relation to the time he had spent in Australia unlawfully and also on what the delegate had recorded he had said in the Departmental interview. On 18 June 2004 the applicant’s solicitor provided a written response in which issue was taken with certain aspects of what had been said in the delegate's decision. In particular it was claimed that it was not true to say that the applicant refused to leave the country and that the applicant's solicitor had not received the letter from the Department requesting that he attend an interview and provide it with certain documentation until the day of the interview and that, hence, the applicant had not had sufficient time to obtain the requested documents (being evidence of his residential address and a passport or other identification). It was also claimed that the applicant was disposed to comply with the reasonable directions of the Department, had acted in good faith and would continue to do so.

5. The Tribunal held a hearing and made a decision on 18 June 2004. In its reasons for decision the Tribunal set out that the essential issue before it was whether the visa applicant met one of the primary criteria in clause 050.212 of Schedule 2 to the Migration Regulations. The Tribunal addressed, in particular, the criterion in sub-clause 050.212(2), that being the ground brought to its attention by the applicant's adviser. That ground provides, as one of the alternative criteria that must be met at the time of application, that an applicant meets the requirements of the sub-clause if the Minister is satisfied ‘that the applicant is making or is the subject of acceptable arrangements to depart Australia.’ The Tribunal also considered each of the alternative grounds in sub-clause 050.212, one of which must be met at the time of application for the bridging visa. It found that none of the criteria in clause 050.212 were met at the time of application. The Tribunal decision sets out the applicant's migration history, recounts his application for a bridging visa and its fate at the hands of the Departmental delegate, refers to the response by the applicant's legal representative to the section 359A letter and sets out the evidence given by the applicant in the Tribunal hearing including his comment that he believed that he had not been given things he was promised when interviewed by the Department and that he had understood that he was to be given six months to remain in Australia to sort things out but that this had not been granted.

6. The Tribunal set out relevant policy guidelines in relation to whether an applicant is making arrangements to depart Australia and also relevant authorities.  It had regard first to what arrangements had been made at the time of application for departure.  The Tribunal was not satisfied that any arrangements which had been made at the time of application for departure from Australia were acceptable.  The visa applicant had not purchased a ticket nor applied for the issue of a valid travel document.  There was also a serious question about whether such a document would be issued, based on his evidence that he had been refused a passport on two occasions when he had sought to have one issued.

7. The Tribunal found, based on the applicant's evidence, that he had not yet formed the intention to depart Australia, this being dependent on advice he regarding the interest of Chinese authorities his return to China.  The Tribunal took into account that he had contacted the Department on a voluntary basis seeking a bridging visa and that this suggested a strong intention to comply with the visa requirements.  However, it found that the applicant’s oral evidence and the lack of any real action taken to secure his departure overrode that positive factor.  The Tribunal was not satisfied on the evidence before it that at the time of decision the visa applicant intended to depart Australia.  It also found that no real arrangements had been taken for his departure.  The Tribunal concluded that at the time of application he was not making nor the subject of acceptable arrangements to depart Australia and that he did not meet sub-clause 050.212(2) at the time of application.  Nor was it satisfied that the applicant met any of the other criteria in clause 050.212 at the time of application or at the time of decision as is required by clause 050.221.  Accordingly, the Tribunal found that the visa applicant was not entitled to the grant of a Bridging Visa E (Class WE).

8. The applicant sought review of that decision by application filed in this Court on 16 July 2004.  In his application the applicant contended that the decision of the Tribunal was not correct as he was eligible to be granted a Bridging Visa E.  He recounted his migration history and his claimed need to be released from detention to sell properties and make arrangements to depart.  He claimed that the Tribunal decision was unreasonable and that he would provide additional evidence and documents such as his passport and ticket within ten days of lodging the application. 

9. It appears from this application that the applicant may have been under the mistaken impression that he could, in effect, make a fresh bridging visa application to the Court rather than making such a fresh bridging visa application to the Department.  However, the applicant also filed written submissions on 25 October 2004 in which he contended that the Tribunal did not properly consider the relevant criteria and did not give him an opportunity to present his case.  However much of the written submission takes issue with the conduct of the Department in relation to his application for a bridging visa.  It is contended that the Tribunal obtained the wrong information from the Department without any proof and was dealing with the Bridging Visa E contrary to law.

10. The applicant is self-represented.  I have considered whether any jurisdictional error is apparent on the material before me in the decision or procedures of the Tribunal.  This is not, however, an application for review of the delegate's decision.  The complaints that he makes about the conduct of the delegate do not establish any jurisdictional error on the part of the Tribunal.  In that respect I note, in particular, that the applicant was given an opportunity to respond to matters relied upon by the delegate, in particular, what he was alleged to have stated in a Departmental interview in relation to making arrangements to depart Australia and that he took the opportunity to respond by way of written submission from his solicitor as well as having the opportunity to do so at an interview prior to the Tribunal hearing.

11. I am not satisfied on the material before me that the Tribunal failed to accord the applicant procedural fairness or otherwise failed to meet its obligations to provide the applicant with an opportunity for a hearing and hence to present his case.  Moreover, the Tribunal hearing and decision involved a full merits review and the applicant had the opportunity in the course of that process to provide any information or evidence and make any submission he wished to make in connection with making arrangements to depart Australia or as to any other way in which he might have met the criteria for a bridging visa. 

12. Nor am I satisfied that the Tribunal failed to consider the relevant criteria for a bridging visa.  The Tribunal reasons for decision make it clear that the Tribunal properly considered whether the applicant met the applicable criteria in Schedule 2 to the Migration Regulations in relation to each subclass of the class of visa sought.  It found first that the applicant had made a valid application for a bridging visa and met the criterion clause 050.211 as an unlawful non-citizen.  It considered each of the criteria in sub-clauses 050.212(2) to (9).  In particular there is no jurisdictional error apparent in the Tribunal consideration of the criterion in sub-clause 050.212(2).  It is apparent from the Tribunal survey of the evidence before it, its findings and statement of issues that it understood the question it had to ask itself and that it made findings consistent with that understanding which were determinative and which were open to it on the material before it.  No jurisdictional error is apparent in the manner in which it considered whether it was satisfied that the applicant was making or was the subject of acceptable arrangements to depart Australia.  The Tribunal also properly considered whether the applicant met the criteria for a subclass 051 visa.  There is no substance in the general contention that the Tribunal did not properly consider the relevant criteria or that it dealt with the application contrary to law. 

13. In oral submissions the applicant raised issues about his difficulties in the past in relation to the period of time when he did not hold a bridging visa and the difficulties that he experienced with the Department, particularly his complaint that the letter of 3 June 2004 inviting him for an interview was not received by his solicitor until 8 June 2004.  These complaints do not establish any jurisdictional error in the Tribunal decision.  Indeed it is apparent from the Tribunal reasons for decision that it had regard to the applicant's explanation for the past and also his view that he had not been given things that he was promised when interviewed by the Department.  Thus he had an opportunity to address any perceived ‘wrong information’ from the Department. 

14. The applicant's oral submissions about his present situation again do not establish any jurisdictional error in the decision of the Tribunal. The Court is not deciding whether he would be entitled to a bridging visa were he to make a fresh application to the Department now, but rather whether the decision of the Tribunal made on 18 June 2004 not to grant him a Bridging Visa E was attended by jurisdictional error. 

15. In his written and oral submission the applicant suggested that he had understood that he was to be offered time to remain in Australia to re-apply to the Federal Court in relation to the 1998 Refugee Review Tribunal decision.  Such ‘understanding’ does not establish any error on the part of the Tribunal.  Importantly, there is no suggestion, nor is it apparent on the material before me, that he had made such an application at the time at which he had applied for the bridging visa in question or at the time of the Tribunal decision on 18 June 2004. 

16. Insofar as the applicant contends that his conduct in contacting the Department was evidence of his acting in good faith, such complaint takes issue with the merits of the Tribunal decision and does not establish a ground for judicial review.  As no jurisdictional error is apparent the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful and it is appropriate that he meet the costs of the respondent in these proceedings.  In light of the nature of this and other similar matters I consider that the amount of $4000 is appropriate.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date: