SZGVV v Minister for Immigration
[2006] FMCA 1045
•25 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGVV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1045 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a bridging visa – applicant subsequently granted a visa subject to a condition preventing him from working – applicant unable to meet criterion for the grant of a bridging visa with work rights – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.357A, 359A, 368, 417 |
| SZDJA v Minister for Immigration [2004] FMCA 636 SZDJA v Minister for Immigration [2004] FCA 1499 SZDJA v Minister for Immigration [2006] FMCA 38 |
| Applicant: | SZGVV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG2003 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 25 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2006 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms J Bautista Sparke Helmore |
ORDERS
The Court directs that the title of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
The application is dismissed.
The applicant is to pay the first 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 |
SYG2003 of 2005
| SZGVV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (“the MRT”). The MRT decision was made on 20 July 2005. It was communicated to the applicant by letter dated the same date. The MRT affirmed a decision of a delegate of the Minister not to grant the applicant a bridging A class WA visa. Relevant background is set out in the Minister’s outline of written submissions filed on 20 July 2006. I adopt as background with minor amendments for the purposes of this judgment paragraphs 1 through to 6 of those written submissions and the annexed chronology:
This proceeding was commenced by an application filed in the Federal Magistrates Court of Australia on 28 July 2005. The applicant seeks judicial review of a decision of the MRT handed down on 20 July 2005, being a decision to affirm a decision by a delegate of the Respondent made on 10 December 2004 to refuse the applicant a Subclass 010 (Bridging visa).
Background and claims
The applicant’s litigation history is outlined in the attached chronology.
The applicant entered Australia on 12 March 2000 as the holder of a Temporary Business Entry (Class UC) Subclass 456 visa which was valid until 12 April 2000. On 7 April 2000, the applicant lodged a protection visa application and was granted a Subclass 010 Bridging A (“BVA”) visa associated with that application on the same day. That BVA ceased on 22 July 2002. No further BVAs have been issued to the applicant since that time.
The applicant’s protection visa application was refused by a Delegate on 2 May 2000 and that decision was affirmed by the Refugee Review Tribunal (“the RRT”) on 29 May 2002. The applicant then commenced and was unsuccessful in a number of judicial review proceedings in the Federal Court, High Court and Federal Magistrates Court.[1] The applicant was also unsuccessful in an application to the Minister pursuant to s.417 of the Migration Act 1958 (Cth) (“the Migration Act”).
[1] Citations for previous judicial review proceedings instituted by the applicant include: SZDJA v Minister for Immigration [2004] FMCA 636, SZDJA v Minister for Immigration [2004] FCA 1499 and SZDJA v Minister for Immigration [2006] FMCA 38.
On 7 December 2004, the applicant lodged an application for special leave to appeal in the High Court and on 9 December 2004 applied for a further BVA in connection with that application. The delegate refused the application for a BVA on 10 December 2004. On 20 December 2004, the applicant applied for review to the RRT.
Chronology
Applicant born in India 3 August 1972
Applicant arrived in Australia 12 March 2000
DIMIA
Application for protection visa lodged 7 April 2000
Application for bridging visa A granted 7 April 2000
Delegate’s decision 2 May 2000
RRT
Application for review lodged 30 May 2000
RRT hearing 15 February 2002
RRT decision handed down 29 May 2002
Federal Court – N587 of 2002
Application for judicial review 21 June 2002
Directions hearing,
Sackville J transferred matter to FMC 19 July 2002
Applicant’s bridging A visa
granted on 7 April 2000 ceased 22 July 2002
Driver FM, by consent,
dismissed application with $2,500 costs 16 September 2002
Scheduled hearing before Driver FM 16 September 2002
High Court– S448 of 2003
Draft order nisi filed 6 August 2003
Consent orders for remittal filed 28 October 2003
Heydon J made orders by consent
remitting matter to FC 12 November 2003
Federal Court – N2536 of 2003
Emmett J refused order nisi 9 February 2004
Federal Magistrates Court – SZ1146 of 2004
Application for judicial review filed 19 April 2004
Notice of objection to competency filed 2 June 2004
Notice of motion for summary dismissal
and affidavit filed 16 June 2004
Raphael FM dismissed application
as vexatious and an abuse of processwith $1,300 costs 17 September 2004
Federal Court – NSD1411 of 2004
Application for extension of time
to file and serve notice of appeal 21 October 2004
Jacobson J dismissed the application
for an extension of time with costs 16 November 2004
High Court – S472 of 2004
Application for special leave to appeal 7 December 2004
Gummow and Kirby JJ dismissed
the application for special leave 6 October 2005
Federal Magistrates Court - SYG 2003 of 2005
Application for judicial review
of the MRT decision re BVE 28 July 2005
Scheduled hearing before Driver FM 5 July 2006
Federal Magistrates Court – SYG 3131 of 2005
Application for judicial review
of the Delegate’s decision 27 October 2005
Application dismissed by Raphael FM 16 January 2006
Federal Court – NSD142 of 2006
Application for leave to appeal
judgment of Raphael FM filed 31 January 2006
Hearing of application of leave
to appeal before Ryan J 2 May 2006
Application for leave to appeal
dismissed by Ryan J 4 May 2006
High Court – S164 of 2006
Application for special leave
to appeal judgment of Ryan J 31 May 2006
Application for special leave to appeal
deemed abandoned by High Court 28 June 2006
As already noted, this proceeding began with a judicial review application filed on 28 July 2005. The applicant now relies upon an amended application filed on 11 October 2005. On 5 July 2006, I gave leave for the applicant to file in court a further document headed “Grounds” which augments the amended application.
The matter came before me on 5 July 2006 at a callover. At that time, I decided that the case should be listed for final hearing this month rather than in 2007, as had been ordered earlier by a registrar. I was also concerned that the issue arising on the judicial review application may be moot. The applicant was seeking to review a decision refusing him a bridging visa. At the hearing on 5 July 2006, the applicant told me from the bar table that since commencing this proceeding he had been granted a bridging visa. However, he was concerned that the visa he held did not permit him to work. This morning, Ms Bautista, who appeared for the Minister, informed me that the class of bridging visa sought by the applicant which was refused would have carried work rights with it. On that basis, I decided that the issue arising on the judicial review application is not moot.
The amended application and the grounds document which augments it are not easy to follow. The applicant is plainly concerned that he is currently denied the right to work. His concern centres upon the no work condition attaching to his current visa as much as it does to the refusal of the bridging visa he had earlier sought. In his oral submissions the applicant dealt with that concern.
To the extent that the amended application and grounds document raises legal issues, those are dealt with in the Minister’s written submissions. I agree with and adopt paragraphs 7 through to 19 of the Minister’s written submissions for the purposes of this judgment:
The amended application raises one ground of review. That ground has four purported particulars namely, that the MRT made an error of law in failing to follow the Act.
Particular 1 – Failure to indicate the relevance of subclause 010.211(3)
The applicant alleges that (i) the MRT failed to indicate the relevance of subclause 010.211(3) and that the MRT mentioned a time limit at paragraph 32 but (ii) did not give any details of the relevance of the subclause or the time limit.
The MRT outlined the relevant criteria to be established by the applicant at paragraph 31 of its reasons. At paragraph 32, the MRT quoted the crucial requirements to be established by the applicant, namely that at the time of the application, the applicant must have applied “within statutory time limits for judicial review of a decision in relation to the applicant’s substantive visa application and at the time of making that application must have held either a Bridging A (Class WA) or Bridging B (Class WB) visa.” (emphasis retained)
The MRT considered those crucial requirements for the grant of the visa and found that the applicant satisfied the criteria contained in subclause 010.211(3)(b)(i) because he made an application to the High Court for special leave to appeal on 7 December 2004. However, the Tribunal found that the applicant failed to satisfy subclause 010.211(3)(c) because he did not hold a Bridging A (Class WA) or a Bridging B (Class WB) visa at the time that he made the application for special leave to appeal in the High Court on 7 December 2004. No jurisdictional error is established in this regard.
The reference to the time limit in paragraph 32 related to the time limits for the applicant’s judicial review proceedings. The MRT accepted that the applicant filed an application for special leave in the High Court. However, the reason for the MRT’s finding that the applicant did not satisfy the criteria for the grant of the visa was that the applicant did not hold either a Bridging A (Class WA) or a Bridging B (Class WB) visa at the time he made his application. The applicant himself confirmed at the MRT hearing that he had not been granted a Bridging A (Class WA) since his first Bridging A (Class WA) visa ceased on 22 July 2002.[2]
[2] court book (“CB”) p 101.1
The terms of the subclause were plainly relevant to the application for review. There is an obligation on the MRT to give to the applicant particulars of information that forms the reason or part of the reason for affirming the decision under review.[3] The MRT provided particulars of the above matters to the applicant for comment in a s.359A letter.[4] Accordingly, no s.359A issues arise. Furthermore, s.357A of the Act applies to ensure that Division 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. The MRT’s findings in this regard were open to it on the evidence before it and no jurisdictional error is established.
[3] s.359A of the Act
[4] CB p 33-35
Particular 2 – Failure to indicate the relevance of paragraph 33
The applicant alleges that the MRT did not indicate how the information contained in paragraph 33 was relevant to the review. In paragraph 33, the MRT outlined the applicant’s litigation history and his application for special leave to the High Court. That information was clearly relevant to the criteria to be satisfied at subclause 010.211(3)(b)(i), but since the MRT accepted that the applicant met that criteria it did not form part of the reason for affirming the decision under review and was not required to be provided to the applicant for comment pursuant to s.359A of the Act. No jurisdictional error is established.
Particular 3 – Erroneous application of subclause 010.211
The nature of the error that is pleaded in this particular is unclear. It appears that the applicant is alleging that the MRT applied subclause 010.211 in error as it did not apply to him. This allegation is misconceived. Subclause 010.211 sets out the criteria to be satisfied by an applicant “at the time of application” for a Bridging A visa.. Accordingly, subclause 010.211 was relevant to the review and clearly applied to the applicant. No jurisdictional error is apparent in the MRT’s consideration and application of that subclause.
Particular 4 – Failure to comply with s.368 of the Act
The applicant states that the MRT did not confirm how the issue of statutory time limits arose thereby resulting in an error of law and a failure to comply with s.368 of the Act. In relation to the allegations referring to the statutory time limits, the respondent repeats the submissions above.
Section 368 of the Act relates to the obligation on the MRT to record its decision. The MRT clearly drafted a decision outlining the evidence, findings, decision and reasons for its decision in compliance with s.368 of the Act. No jurisdictional error is established in this regard.
On 5 July 2006, the applicant filed a further document titled “Grounds”. That document raised various submissions and matters which are not supported by any particulars or evidence and do not correspond to the facts of the case. For example, some of the matters raised in the document relate to errors alleged in the decision of the delegate of the first respondent and the validity of the notification of the delegate’s decision.
The applicant’s document titled “Grounds” also seeks merits review and alleges that the applicant was “always prompt in their visa affixation and have been regularly honouring the intimation to the DIMIA and on this occasion it was the error in the part of the administration departments clerks (sic) and the MRT must agree that there are errors in such departments from time to time…why does the Court not agree the human error of their staff as the first application made was the right and each different clerks have their different suggestions each time.” No evidence has been provided in support of the applicant’s allegations of error and no jurisdictional error is established.
The matters sought to be raised by the applicant in this document fail to advance his case in this Court in any meaningful sense. The contentions and bland statements of jurisdictional error contained in the document do not identify any proper basis for impugning the approach and decision of the MRT in affirming the delegate’s decision of 10 December 2004 to refuse the applicant a bridging visa.
It is plain from a reading of the decision of the MRT that the applicant was unable to satisfy the criteria set out in Migration Regulation 010.2113 for the grant of a Bridging A (Class WA) visa. In particular, at the time the applicant applied for the visa, he did not hold a bridging A or bridging B visa. Because of that fact, he was ineligible for the further bridging visa he sought. The MRT simply applied the migration regulation. The MRT had no option but to do so.
Although not dealt with by the MRT, it is, in my view, probable that the applicant also failed to qualify for the grant of the visa he sought because he had not applied within statutory time limits for judicial review of a decision in relation to a primary visa application. At the relevant time, the statutory time limits depended upon the decision under review being a privative clause decision. However, the decisions made in relation to the protection visa earlier sought by the applicant in this Court and the Federal Court establish to my satisfaction that the Refugee Review Tribunal decision handed down on 29 May 2002 refusing the applicant a protection visa was a privative clause decision. It follows that the relevant statutory time limits in the Migration Act in relation to judicial review applied, and to the extent those time limits had not been met that failure presented a further obstacle to the applicant obtaining the bridging visa he sought.
I am satisfied that the decision of the MRT is free from any jurisdictional error. It is therefore a privative clause decision and the application should be dismissed.
In accordance with the Minister’s request, I will also direct that her title be amended to the Minister for Immigration and Multicultural Affairs.
The application having been dismissed, costs should follow the event. The applicant did not wish to be heard on costs. The Minister sought an order for costs fixed in the sum of $4,300. This was a relatively straightforward matter. Although representation was required on three occasions, counsel was not required. In my view, $3,000 would be adequate recompense to the Minister in this matter when assessed on a party and party basis.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 28 July 2006
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