SZJOH v Minister for Immigration
[2007] FMCA 1978
•12 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJOH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1978 |
| MIGRATION – Visa – Bridging A (Class WA) visas – Migration Review Tribunal – no reviewable error. |
| Migration Act 1958 (Cth), ss.412, 474(2) Migration Regulations Act 1994 cl. 010.211, 010.221 |
| Applicant: | SZJOH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2348 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 November 2007 |
| Date of Last Submission: | 12 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| The Applicant: | Appeared in person |
| Appearance for the Respondents: | Ms McDonald |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $4,000.00.
I will allow four (4) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2348 of 2007
| SZJOH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant is a citizen of India. He asks the Court to set aside a decision of the Migration Review Tribunal. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant and his wife and son Bridging A (Class WA) visas. The applicant asks the Court to make an order that the notification by the delegate and the Tribunal invalid. He claims a writ of certiorari quashing the Tribunal decision, and an order that no action should be taken to remove him from Australia while the decision is pending.
He sets out four grounds in his amended application.
(1)That the decision of the Migration Review Tribunal was affected by jurisdictional error in that the Tribunal did not take in to account certain relevant considerations or ‘integers’ are central to the applicant's claims.
(2)That the Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
(3)The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied the applicant procedural fairness in that the Tribunal failed to accept the applicant's genuine claims with the requirements of the Migration Act.
(4)That the Tribunal failed to accept that the Tribunal made an error in not publishing on its webpage or in any other material the fact that an application should be sent by registered post only.
Not all of those grounds are particularised. The amended application provides particulars which appear after the first and second grounds. Those particulars are:
a)The Tribunal did not consider the applicant had been under immense and intimidating pressure because of his lack of knowledge about Immigration rules and strict time limit for review.
b)In relation to above the Tribunal did not consider the applicant's claim that he made a valid application by ordinary post.
The third and fourth grounds are not particularised.
The particulars that appear in (a) and (b) do not appear to show any particular jurisdictional error. The amended application and the applicant's oral submissions referred more to the applicant's original complaint about the Refugee Review Tribunal than about his complaints about the Migration Review Tribunal.
In order to understand the background to this matter it is necessary to look in some detail to the chronology. The applicant is a national of India, who arrived in Australia on 21st December 2005.
He applied for a protection visa on 18th January 2006. On 4th April 2006, a delegate of the Minister refused the applicant's application for a protection visa.
The applicant sought a review of that decision from the Refugee Review Tribunal, however, from the material available before the Court it appears that the application to the Refugee Review Tribunal was not received in any form by the Tribunal until 22nd May 2006.
The Tribunal found that it did not have jurisdiction to review the application under the provisions of s. 412 of the Migration Act because the application had been lodged out of time. The applicant then commenced proceedings in this Court claiming the Tribunal was in error.
That application was dealt with by the Court on 15th December 2006 and dismissed. No appeal was filed in respect of that decision.
What had happened in the meantime, however, is that when the applicant had applied for his protection visa along with his wife and child, the Department of Immigration & Multicultural & Indigenous Affairs, as it was then titled, wrote to the applicant on 1st February 2006.[1]
[1] Copy of letter can be found at pages 60 to 61 of the Court Book
In that letter the department told the applicant that whilst his application for protection visa was being considered, he would benefit from a bridging visa. The letter says:
The protection visa application you have lodged also serves as an application for a Bridging visa if you are eligible for a Bridging visa. You have found to be eligible for a Bridging visa, class WA with permission to work. This Bridging visa provides you with lawful status in Australia while your application for protection is being processed. This Bridging visa remains valid for 28 days after your application is finally determined (an application is finally determined when the decision made on the application is no longer subject to any form of merit review where if the deadline for applying for review has ended). Your Bridging visa will come into effect when granted unless you hold a substantive visa, in which case it comes into effect when that visa ceases.[2]
[2] See Court Book page 51
On 4th April 2006, the department wrote to the applicants advising that the application for protection visa had been refused. That letter set out the situation in respect of the applicant's bridging visa. The letter said:
You have been granted a visa allowing you to remain in Australia for 28 days after notification of this decision (which are taken and are received seven working days from the date of this letter). If you make a valid review application within this 28 day period your visa remains valid whilst the review is considered. If that decision is adverse a bridging visa remains valid for 28 days after you receive the decision. If your case is referred back to the department for reconsideration a bridging visa remains valid until the finalisation of your case. As your visa expires 28 days after notification of this decision you should make arrangements to leave Australia as soon as possible. If you
. do not apply for review;
. no further application is made to the department;
. do not have a substantive visa.[3]
[3] See Court Book pages 62 to 63
As I indicated earlier the applicant commenced proceedings for review with the Refugee Review Tribunal but the application was found to be out of time. What that meant was that the applicant's bridging visa had expired. What the applicant then did, on 22nd November 2006, was to apply for a fresh bridging visa. That visa, however, was refused on
7th December 2006.
The letter refusing the visa set out these reasons for refusing:
A requirement for granting a Bridging Visa A where the applicant has applied for judicial review is that the applicant is the holder of either a Bridging Visa A or Bridging Visa B at the time of application to the Court for judicial review. (Regulation 010.211((3)(c)) of the Migration Regulations). You lodged an application for judicial review to the Federal Magistrates Court on 24 October 2006. At the time of the lodgement you did not hold either a Bridging Visa A or Bridging Visa B (your Bridging Visa B ceased on 11 May 2006). You did not meet regulation Clauses 010.211(3)(c).[4]
[4] See Court Book page 81
The letter went on to tell the applicant about his right to seek a review of this decision by applying to the Migration Review Tribunal.
The applicant did that on 28th December 2006. The Tribunal then wrote to the applicant on 29th December acknowledging receipt of his application. The applicant then wrote a letter addressed to the Department of Immigration & Multicultural & Indigenous Affairs on 16th January asking the department to consider his request for issuing in the work rights condition in his visa. At that stage, of course, he did not have a visa.
The Migration Review Tribunal wrote to the applicant on 24th May 2007 inviting him to attend a hearing on 18th June. The applicant responded indicating a wish to attend and give evidence and both this applicant and his wife attended and gave evidence.
The applicant's explanation given to the Tribunal related to his complaint about the Refugee Review Tribunal's finding that his application for a protection visa was out of time and stated it was due to an error by Australia Post and not his fault.
The Tribunal handed down its decision on 11th July 2007. A copy of the Tribunal decision record can be found at pages 151 through 157 of the Court Book. In its findings and reasons, the Tribunal set out the requirements of each of the subclauses in clause 010.211 of the Migration Regulations.
The Tribunal reviewed each of those subclauses and is not satisfied that the applicants met any of the subclauses. The Tribunal also noted that at the time of the decision the judicial review proceedings commenced by the applicant had been completed, and there was no evidence before the Tribunal that there was any appeal in respect of those proceedings. The Tribunal found the applicants had not met the requirements of clause 010.211 or clause 010.221 and affirmed the decision.
The applicant told the Court that he is seeking another visa relating to skilled employment with the advice of another migration agent.
He told the Court that in order to continue with those proceedings he has to have a visa and that is the reason why he seeks a bridging visa. The applicant did not indicate that the migration agent had given him any idea about what a bridging visa involves, and it does not appear that in respect of this issue that he has received any more informative advice from his present migration agent than he received from the first migration agent.
The application brought by the applicant misconceived the nature of a bridging visa. The practical affect of a bridging was explained by the letter from the Department of Immigration & Multicultural & Indigenous Affairs of 1st February 2006. Essentially, it provides an applicant with lawful status in Australia whilst - for a limited period of time whilst either an application for a visa has been processed or some other event is due to happen such as the applicant being in Australia.
However, the bridging visa must have a starting point and an end point. The starting point is either the date of - the date when a substantive visa ceases or the date of application for another visa is being processed. It provides a bridge until the visa which is being applied for is subject to the decision. If there are proceedings for review either through the Refugee Review Tribunal or the Migration Review Tribunal, a bridging visa continues until 28 days after notification of the decision of that Tribunal.
If there are proceedings for judicial review of the Refugee Review Tribunal or the Migration Review Tribunal the visa continues until 28 days after those proceedings have been completed. The other eventually for a completion date is the applicants leaving Australia.
In this case as the department and the Tribunal have attempted to make clear to the applicant, there has neither been a commencement point nor an end point. The applicant's difficulties in this regard started when his original bridging visa expired. It expired because there was no evidence that he had commenced proceedings for review of the decision to refuse him a protection visa within 28 days of an application of a decision.
As was noted the bridging visa expired on 11th May 2006. On the evidence before the Court no notification that his application for review was received by the Refugee Review Tribunal until 22nd May 2006. He did not apply for another bridging visa until later that year. That is why the visa was refused. After the Court heard his application for review of the decision of the Refugee Review Tribunal the applicant did not apply to the Court to appeal against that decision, but instead chose to seek review of the decision to refuse the bridging visa through the Refugee Review Tribunal. That, of course, was unsuccessful.
The applicant claimed that the Migration Review Tribunal erred by not considering errors allegedly made by the Refugee Review Tribunal. The forum for correction of any errors made by the Refugee Review Tribunal would have been the Federal Magistrates Court. The Court had already heard the application for review of the decision of the Refugee Review Tribunal and found that no jurisdictional error had been established.
Therefore, it did not avail the applicant to complain at the Migration Review Tribunal failed to consider any errors made by the Refugee Review Tribunal. The function of the Migration Review Tribunal is to review a decision made by a delegate of the Minister not to review the decision of the Refugee Review Tribunal.
The fact is that there were no grounds of law for the applicant to be eligible for a bridging visa and the applicant's grounds do not show any jurisdictional error by the Migration Review Tribunal. There is no jurisdictional error, the MRT decision is a privative clause as defined under sub-s. 474(2) of the Migration Act. It follows that the application must be dismissed.
There is an application for costs on behalf of the Minister in the sum of $4,000.00. The applicant asks that this figure should be reduced.
I note that it is below the amount provided by the Federal Magistrates Court Rules. There does not seem to me to be any reason why the Court should reduce a figure which is clearly below the amount the rules provide. However, as with any order for costs it is appropriate to consider time to pay. I propose to allow four months to pay.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 26 November 2007
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