SZGLF v Minister for Immigration
[2005] FMCA 1038
•29 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGLF v MINISTER FOR IMMIGRATION | [2005] FMCA 1038 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a Bridging E (Class WE) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 140
Migration Regulations 1994 (Cth), reg.2.20(7)-(11), cl 050.211, 050.212 of Sch 2
Jiang v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 282
Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 285
Lin v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 283
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 312
| Applicant: | SZGLF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1408 of 2005 |
| Delivered on: | 29 July 2005 |
| Delivered at: | Sydney |
| Hearing date: | 19 July 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The applicant appeared in person with the aid of an interpreter.
| Advocate for the Respondent: | Ms S Burnett |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1408 of 2005
| SZGLF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 31 May 2005 for a review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 10 May 2005, affirming the decision of the delegate of the respondent (“the delegate”) made on 28 April 2005 to refuse to grant the Bridging E (Class WE) visa. The applicant seeks unstated relief against the decision of the Tribunal.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZGLF”.
The applicant arrived in Australia on 8 June 1998 on a visitor visa which ceased on 8 September 1998. Condition 8101 applied to that visa (Court Book pp.63-77) (“CB”). On 21 July 1998 he lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act and was, in view of that application, granted a Bridging A (subclass 010) visa. On 14 August 1998 the delegate refused to grant a protection visa and that decision was affirmed by the Refugee Review Tribunal on 1 May 2001 (CB p.66).
On 22 June 2001 the applicant lodged an application with the Federal Court of Australia for a review of the Refugee Review Tribunal’s decision made on 1 May 2001. The applicant applied for a Bridging E (subclass 050) visa on 2 July 2001 on the grounds that he had an ongoing application for judicial review in relation to a substantive visa application. That application for a bridging visa was refused by a delegate of the Minister on 12 September 2001 and on 6 August 2001 the applicant withdrew his application before the Federal Court (CB p.66).
On 13 June 2003 the applicant was picked up by NSW police officers at “Business C” and was detained under s.189 and transferred to Villawood Immigration Detention Centre (“Villawood”) (CB pp.66-67). On 25 June 2003 the applicant applied to the High Court for judicial review of the Refugee Review Tribunal’s decision dated 1 May 2001 and on 26 June 2003 he lodged an application for a Bridging E (subclass 050) visa on the basis of that application. That application for a bridging visa was refused on 27 June 2003 and an application for a review of the refusal was received by the Tribunal on 30 June 2003. On 9 July 2003 the Tribunal affirmed the delegate’s decision (CB p.67).
On 25 August 2003 the applicant’s application to the High Court was remitted for consideration by the Federal Court and that application for judicial review was dismissed by the Federal Court on 23 August 2004. On 14 September 2004 the applicant lodged a s.417 request for Ministerial intervention which was rejected by the Minister on
9 November 2004. Between 25 June 2003 (the date of the applicant’s application to the High Court) and 9 November 2004 (the date request for Ministerial intervention was refused), the applicant lodged eleven applications for a Bridging E (subclass 050) visa all of which were refused by a delegate of the Minister. In respect of four of those delegate’s decisions refusing his applications for bridging visas, the applicant applied to the Tribunal for review. In each case the Tribunal affirmed the delegate’s decision (CB pp.67-71).
The Tribunal’s findings and reasons
Ms S Burnett, Solicitor appearing for the respondent, prepared written submissions prior to the hearing which contained the following summary of the decision of the Tribunal:
a)The Tribunal set out the history of the applicant’s various applications for visas and Court proceedings in its reasons for decision [12]-[72]. The Tribunal noted that during a post-location interview conducted at Villawood on 16 June 2005, subsequent to the applicant’s detention on 13 June 2005, the applicant was reported to have stated that:
i)his Australian residential address was “address A” and he arrived in Australia using a genuine passport but did not know if this document was valid and did not know where the document was located;
ii)he had worked as a textile weaver on a casual basis for a company in Mascot, the name of which he did not know and had been employed on and off since June 1998;
iii)he had permission to work and had no assets in Australia or overseas and has remained in Australia as he did not know that his visa had expired;
iv)he could not return to “Country D” as he had political problems there and did not intend to depart Australia voluntarily.
b)In that report the applicant was also noted to have refused to answer questions relating to departure and preferred destination (CB p.67).
c)The Tribunal also noted that on 12 September 2003 the applicant was escorted to the High Commission of “Country D” and that the High Commission deemed that the applicant was not of “Country D” descent. Subsequently, the Department advised the High Commission of “Country G” that the applicant:
i)arrived in Australia as the holder of a false “Country D” passport;
ii)was deemed not to be of “Country D” descent; and
iii)stated that he was “Country G” descent but could not provide any personal details (CB pp.68-69).
d)The Tribunal noted that on 23 April 2004, at a Departmental interview, the applicant was reported to have said:
i)he still had no identification documents and did not know any telephone numbers and was unable to contact anyone;
ii)he was born in “Country G” in the civil war and his parents were killed and he lived in “Area M” with a “religion N family” for 14 years and that family attempted to convert him;
iii)he went to a tea shop in “location P” which is near the border of “Country D” and spent 13 years there and then went to “Country D”. The person who helped him to get a visa also assisted in getting a false passport (CB pp.70-71).
e)By letter dated 6 May 2005 the Tribunal invited the applicant to provide comments at an interview prior to the hearing scheduled on 9 May 2005 regarding information the Tribunal considered could be the reason, or part of the reason, for affirming the decision under review. The applicant attended and gave oral evidence at the hearing scheduled on 9 May 2005.
f)The Tribunal made the following findings having regard to the evidence before it and the oral evidence given by the applicant at the Tribunal hearing:
i)the Tribunal was satisfied that the applicant made a valid application for a bridging visa and meets the criteria in clause 050.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The applicant is an unlawful non citizen and is not an eligible non citizen of the kind set out in regs.2.20(7)-(11) of the Regulations;
ii)the Tribunal was not satisfied at the time of the application that the applicant made or was the subject of any acceptable arrangements to depart Australia and consequently was not satisfied that the applicant meets the requirements of clause 050.212(2) of Schedule 2 to the Regulations. In relation to this criteria the Tribunal noted the following:
(a)the applicant stated at his post-location interview that he did not intend to depart Australia voluntarily and reportedly refused to answer questions relating to departure and preferred destination;
(b)the delegate found in her decision that the applicant entered Australia using a fraudulent passport and the applicant denied that he did so. However, when interviewed by an officer from the Consulate of “Country D”, the applicant stated he gave them false information as he was afraid he would be deported. Subsequently, in December 2004, the applicant provided the Tribunal with his original passport and there was documentation on the Departmental file to indicate the document was genuine;
(c)the Tribunal was satisfied that the applicant’s passport had now expired and that he was not in possession of a valid passport or travel documents to depart Australia. It noted that the applicant in his evidence stated he did not know how long it would take to obtain a passport or travel documents and there was nothing to suggest how long it would take for “Country D” to issue the applicant with a travel document. The Tribunal cannot be satisfied that the applicant is able to obtain a travel document within a reasonable period;
(d)the applicant had not provided an itinerary in his name, or a ticket to depart Australia and had given evidence to the Tribunal that he was not able to purchase a ticket (CB p.74).
iii)the Tribunal was not satisfied that the applicant meets the requirements of any one of clauses 050.211(3), (3A), (4), (4AA), (4A), (5), (5A), (6), (6A), (7), (8) or (9) of Schedule 2 to the Regulations having found that:
iv)at the time of application and decision the applicant had not made a valid application, or would apply within any specified period, for a substantive visa of a kind which can be granted if he is in Australia as provided for in clause 050.212(3);
v)no merits review or judicial review proceedings involving the applicant were underway which related to an application for a substantive visa;
vi)no application is before the Minister;
vii)the applicant is not in criminal detention;
viii)the applicant is not a holder of a bridging visa (CB p.75).
g)The Tribunal concluded that it was unable to be satisfied that the applicant met any of the criteria in clauses 050.212(2)-(9) of Schedule 2 to the Regulations or that he met any of the criteria at the time of decision such that he could not meet clause 050.221. Consequently, the Tribunal found that it had no alternative but to affirm the decision refusing to grant the applicant a bridging visa and noted that it was therefore not necessary for it to determine whether the applicant would abide by the conditions it would impose on a bridging visa were one to be granted or to consider the issue of a security (CB pp.75-76).
Application for review of the Tribunal’s decision
On 31 May 2005 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
“That the evidence given to the Tribunal in Section 79 was not given sufficient consideration.
It was admitted that the original, genuine, passport was provided.
It was admitted that correspondence is on file between the Department and the Indian Consulate.
It is not the fault of the applicant if it takes a long time for a new passport to be issued.
The applicant submits that his current poor mental health would be significantly improved by the issue of a Bridging Visa.
Furthermore, such a visa would enable him to access the Indian Consulate in an attempt to speed up the issue of a new passport.
The applicant’s only wish is to return to India.
The applicant draws the Court’s attention to the case of Korean visa overstayers mentioned in the Sun Herald on 22 May, who, according to the newspaper, have been granted Bridging Visas whilst awaiting deportation. If visas can be granted to them, why not him?”
Relevant legislation
The requirements for the grant of a Bridging E (subclass 050) visa are set out in Item 1305 of Schedule 1 to the Regulations and Parts 050 and 051 of Schedule 2 to the Regulations. Applicants for a subclass 050 visa must satisfy the primary criteria set out in clauses 050.211 to 050.212 of Schedule 2 to the Regulations, both at the date of the application and date of decision. Under clause 050.211 the applicant must be an unlawful non-citizen and not an eligible non-citizen as prescribed by reg.2.20(7)-(11).
The applicant must then satisfy one of the criteria in clause 050.212 of Schedule 2 to the Regulations which may, in general terms, be reduced to the following:
a)the applicant is making, or is the subject of, acceptable arrangements to depart Australia (050.212(2));
b)the applicant has made, or will make within a period permitted by the Minister, a valid application for a substantive visa of a kind which can be granted if the applicant is in Australia (050.212(3));
c)the applicant (or the Minister) has an outstanding application for judicial or merits review in connection with a substantive visa (050.212(3A) or (4) or (4AA) or (4A));
d)the applicant has an outstanding Ministerial intervention request (050.212(6) or (6A));
e)the applicant’s visa has been cancelled under s.140 of the Act and the primary visa holder has or will apply for review of the cancellation decision (050.212(5) and (5A));
f)the applicant is in criminal detention (050.212(7));
g)the applicant holds a Bridging E (Class WE) visa and certain prescribed circumstances apply (050.212(8));
h)the applicant has applied for a partner or spouse or interdependency visa and was refused an application for judicial review has been lodged (0.50.212(9)).
Submissions
The applicant appeared self represented with the aid of a Bengali interpreter. Prior to the hearing the applicant filed brief written submissions in support of his application. At the hearing the applicant tendered a letter addressed to the Consul General of India requesting the renewal of his passport by the Indian Consulate to be expedited as he was in detention and was seeking the issue of the new documentation to enable him to return to India. The applicant also tendered a typed transcript of the Tribunal hearing held on 9 May 2005. This document had not been served on the respondent prior to the hearing and the advocate for the respondent raised objection as the respondent had not been provided with an opportunity to review and verify the contents of the transcript. It emerged from a submission made by the applicant the reason he had filed the transcript was that an order had been made at the first directions hearing before the Registrar to file any evidence to be relied upon at the hearing and provided the Tribunal hearing transcript as an example. It was apparent that the applicant did not intend to refer to the transcript in his submissions. However, leave was granted to the respondent to file any written submissions should the transcript become relevant during the hearing raising issues the respondent was not on notice.
Ms S Burnett, Solicitor for the respondent, filed detailed written submissions prior to the hearing which were supported by oral submissions.
Reasons
The Tribunal must be satisfied that both at the date of the primary application and the date of its decision criterion in subclass 050.211 and 050.212(1) have been met. As the applicant was an unlawful non-citizen, the criteria in clause 050.211 are satisfied. To satisfy clause 050.212(1) it is necessary for at least one of the grounds in subclause 050.212(2)-(9) to have been met. The significant subclause 050.212(2) requires the applicant to be able to satisfy the Tribunal that he is making or is the subject of acceptable arrangements to depart Australia. The Tribunal considered both the Policy Guidelines set out in MSI 388 and the decisions of Jiang v Minister for Immigration & Multicultural & Indigenous Affairs; Chen v Minister for Immigration & Multicultural & Indigenous Affairs and Lin v Minister for Immigration & Multicultural & Indigenous Affairs. The Tribunal set out its finding in respect of this subclause in paragraph [79] of its decision:
“The Tribunal is not satisfied that at the time of application the visa applicant had made or was the subject of any acceptable arrangements to depart. The visa applicant stated at his post location intervention that he did not intend to depart Australia voluntarily, and reportedly refused to answer questions relating to departure and preferred destination. The visa applicant is now stating that he wants to return home. The delegate found in her decision that the visa applicant entered Australia using a fraudulent passport. The visa applicant denies that he entered Australia on a false passport. He stated that the passport that he entered Australia was a genuine passport. He stated however, that when he was interviewed by an officer from the consulate of Country D, he gave them false information as he was afraid that he would be deported. The visa applicant did not initially provide this passport to the Department. However in December 2004 the visa applicant provided the Tribunal with the original passport. There is documentation on the Department file that the passport is a genuine document of County D. The Tribunal is satisfied that the passport has now expired. The Tribunal is satisfied that the visa applicant is not in possession of a valid passport or travel document to depart Australia. The visa applicant has given evidence that he does not know who long it will take to obtain a passport of travel document. There is correspondence on the Department file between the Department and the Consulate of Country D. There is nothing to suggest how long it will take for Country D to issue the visa applicant with a travel document. The Tribunal cannot be satisfied on the evidence before it that the visa applicant is able to obtain a travel document within a reasonable period. The visa applicant has not provided an itinerary in his name, or a ticket to depart Australia. The visa applicant has given evidence to the Tribunal that he is not able to purchase a ticket until he has a travel document. After considering all of the evidence before it that Tribunal is not satisfied that the visa applicant is making or is subject to acceptable arrangements to depart Australia. The Tribunal is not satisfied that the visa applicant meets subclause 050.212(2).” (CB p.74)
The applicant challenged this section of the decision on the grounds that the Tribunal member failed to give the applicant sufficient consideration on the grounds that the original and genuine passport had now been produced to replace the fraudulent document originally relied upon. The applicant claimed that initially he was fearful to admit his genuine passport because he feared he would be deported at that time. The applicant also claimed there was sufficient correspondence on the file between the Department and the Indian Consulate to demonstrate that he was making every attempt to be issued with a replacement of the genuine passport which had now expired. The applicant claimed he should not be denied a bridging visa because the Indian Consulate was taking such a long time issuing the replacement passport. In paragraph [79] of its decision, the Tribunal considered the evidence available in respect of the requirements to satisfy subclause 050.212(2) and was satisfied that the applicant was not making acceptable arrangements to depart for India. The assessment of evidence before the Tribunal is entirely a matter for it: Minister for Immigration & Ethnic Affairs v Guo & Anor.
The balance of the subclauses was automatically eliminated as the criteria they addressed were not at issue in this matter. Each subclause was dealt with briefly in the following manner:
a)050.212(3) – there is no valid application for any other form of substantive visa
b)050.212(4), 050.212(5), 050.212(9) – there is no merits or judicial review proceedings involving the applicant
c)050.212(6) – there is no application before the Minister
d)050.212(7) – the applicant is not in criminal detention
e)050.212(8) – the applicant was not a holder of a Bridging E (Class WE) visa
As the applicant does not meet these criteria, the Tribunal had no alternative but to affirm the decision to refuse to grant him a bridging visa.
Several days prior to the hearing in this Court, the applicant forwarded a copy of a travel itinerary detailing the airline reservations between Australia and India via Kuala Lumpur, Malaysia. It was pointed out to the applicant that this material was not before the Tribunal at the time of the hearing or provided to it at the time of its decision which would have had to be the case for the applicant to rely on that piece of evidence. That piece of evidence cannot alter the outcome of the decision of this Court.
The applicant in his application and submissions raised two other issues, namely:
a)The applicant submitted that his current poor health would be significantly improved by the issue of a bridging visa. Furthermore, such a visa would enable him to access the Indian Consulate in an attempt to expedite the issue of a new passport; and
b)The applicant only wished to return to India. He drew the Court’s attention to the case of a Korean visa overstayer, mentioned in the Sun Herald newspaper on 22 May 2005, who, according to the newspaper, had been granted bridging visas whilst awaiting deportation.
These two issues challenged the merits of the Tribunal’s decision, a review of which is beyond the jurisdiction of this Court. It was obvious that the applicant, in his written and verbal contentions, was seeking that the Court conduct a merits review of the Tribunal’s decision. This Court is not permitted to undertake such a review: NADR v Minister for Immigration & Multicultural & Indigenous Affairs.
Conclusion
The applicant in these proceedings has failed to identify any ground of review of the Tribunal’s decision. A fair reading of the Tribunal’s decision on its face does not disclose any error in the decision making process. As there is no evidence of jurisdictional error, the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 29 July 2005
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