SZMCE v Minister for Immigration

Case

[2011] FMCA 383

26 May 2011


FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMCE v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 383

MIGRATION – Review of Migration Review Tribunal (“Tribunal”) decision – visa – bridging visa – refusal – whether application to High Court concerning unsuccessful request for ministerial intervention under s.417 of the Migration Act 1958 was an application in relation to a substantive visa.

WORDS & PHRASES – “in relation to”.

Migration Act 1958, ss.5, 48, 189, 417, 474
Migration Regulations 1994, cl.050.212 of sch.2
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301
Kennon v Spry (2008) 238 CLR 366
Applicant: SZMCE
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 474 of 2011
Judgment of: Cameron FM
Hearing date: 10 May 2011
Date of Last Submission: 10 May 2011
Delivered at: Sydney
Delivered on: 26 May 2011

REPRESENTATION

Counsel for the Applicant: Mr L. Karp
Solicitors for the Applicant: Parish Patience
Counsel for the First Respondent: Mr J.A.C Potts
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 474 of 2011

SZMCE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. The applicant is a citizen of Bangladesh.  He lodged an application for a Bridging E (Class WE) visa on 15 February 2011 which was refused by a delegate of the first respondent (“Minister”) on 16 February 2011.  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

  2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

  3. For the reasons which follow, the application will be dismissed.

Relevant law

  1. The Bridging (Class WE) visa is a visa for unlawful non-citizens seeking permission to remain temporarily in Australia. This class of visa relevantly contains subclass 050 (Bridging (General)) which is, among other things, primarily for unlawful non-citizens detected or detained by the Minister’s department. Section 5 of the Act provides that a bridging visa is not a “substantive visa”.

  2. The criteria for a subclass 050 visa are set out in part 050 of sch.2 to the Migration Regulations 1994 (“Regulations”). Clause 050.212 relevantly provides the criteria which must be satisfied:

    050.21  Criteria to be satisfied at time of application

    050.212

    (1)The applicant meets the requirements of subclause (2), (3), (3A), (4), (4AAA), (4AA), (4AB), (5), (5A), (5B), (6), (6AA), (6A), (6B), (7), (8) or (9).

    (2)An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

    (3)     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 that application has not been finally determined; or

    (b)the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.

    (3A)  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

    (b)     either:

    (i)     the applicant has applied for judicial review of a decision to refuse to grant the visa and the judicial proceedings (including any proceedings on appeal) have not been completed; or

    (ii)     the Minister has applied for judicial review of


    a decision in relation to a refusal to grant


    the applicant’s substantive visa, and the judicial review proceedings (including any proceedings on appeal) have not been completed.

    (4)     An applicant meets the requirements of this subclause if:

    (a)the applicant has applied for judicial review of a decision in relation to a substantive visa, other than a decision to refuse to grant a visa; or

    (aa)the Minister has applied for judicial review of a decision in relation to the applicant’s substantive visa application, other than a decision relating to a refusal to grant the substantive visa; or

    (b)the applicant has applied for merits review of a decision to cancel a visa; or

    (ba)the applicant has applied under section 137K of the Act for revocation of the cancellation of a visa; or

    (bb)the applicant has applied for merits review of a decision under section 137L of the Act not to revoke the cancellation of a visa; or

    (c)the Minister is satisfied that the applicant will make an application of a kind referred to in paragraph (b), (ba) or (bb); or

    (d)the applicant has applied for judicial review of the validity of a law that affects:

    (i)     the applicant’s eligibility to apply for a substantive visa; or

    (ii)     the applicant’s entitlement to be granted or to continue to hold a substantive visa.

    (4AAA)An applicant meets the requirements of this subclause if the applicant has applied for:

    (a)a declaration from a court that the Act does not apply to the applicant; or

    (b)judicial review or merits review of a decision made


    in relation to the applicant under the Australian Citizenship Act 1948 or the Australian Citizenship Act 2007;

    and the proceedings for the declaration or review have not been completed.

    (4AA)  An applicant meets the requirements of this subclause if:

    (a)the applicant is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in:

    (i)          paragraph (3A) (b); or

    (ii)     paragraph (4) (a); or

    (iii)    paragraph (4) (aa); or

    (iv)    paragraph (4) (d); and

    (b)the person whose substantive visa application is the subject of the judicial review proceedings is not a party to a representative proceeding; and

    (c)the applicant made a substantive visa application that was combined with the substantive visa application mentioned in:

    (i)      paragraph (3A) (a); or

    (ii)     subclause (4).

    (5B)An applicant meets the requirements of this subclause if the applicant:

    (a)is a person to whom section 48A of the Act applies; and

    (b)has made a request to the Minister to determine under section 48B of the Act that section 48A of the Act does not apply to prevent an application for a protection visa by the applicant; and

    (c)has not previously sought, or been the subject of a request by another person for:

    (i) a determination under section 48B of the Act; or

    (ii) the exercise of the Minister’s power under section 345, 351, 391, 417 or 454 of the Act.

    (6)     An applicant meets the requirements of this subclause if:

    (a)     the applicant is the subject of:

    (i)     a decision in relation to an application made in Australia for a visa; or

    (ii)     a decision to cancel a visa; and

    (b)in relation to the decision mentioned in paragraph (a), the applicant:

    (i) is the subject of a decision for which the Minister has the power to substitute a more favourable decision under section 345, 351, 391, 417 or 454 of the Act; and

    (ii) has made a request to the Minister to substitute a more favourable decision under section 345, 351, 391, 417 or 454 of the Act; and

    (c)the applicant has not previously sought, or been the subject of a request by another person for:

    (i) the exercise of the Minister’s power under section 345, 351, 391, 417 or 454 of the Act; or

    (ii) a determination under section 48B of the Act.

    (6AA)An applicant meets the requirements of this subclause if the Minister has decided, under section 345, 351, 391, 417 or 454 of the Act, to substitute a more favourable decision for the decision of a review authority but the applicant cannot, for the time being, be granted a substantive visa because of a determination under section 85 of the Act.

    (6A)  An applicant meets the requirements of this subclause if:

    (a)the applicant holds a Bridging E (Class WE) visa granted on the basis of the applicant meeting the requirements of subclause (6AA); and

    (b)the Minister has decided, under section 345, 351, 391, 417 or 454 of the Act, to substitute a more favourable decision for the decision of a review authority but the applicant cannot, for the time being, be granted a substantive visa because of a determination under section 85 of the Act; and

    (c)the Minister is satisfied that the applicant has a compelling need to work.

    (6B)  An applicant meets the requirements of this subclause if:

    (a)the applicant holds, or has held, a Bridging E (Class WE) visa granted before 1 July 2009 on the basis of the applicant meeting the requirements of subclause (6) or (6A); and

    (b)the applicant is the subject of a decision for which the Minister has the power to substitute a more favourable decision under section 345, 351, 391, 417 or 454 of the Act; and

    (c)before 1 July 2009, the applicant made a request to the Minister to substitute a more favourable decision under section 345, 351, 391, 417 or 454 of the Act; and

    (d)the Minister has not yet made a decision to substitute a more favourable decision under section 345, 351, 391, 417 or 454 of the Act.

    (7)An applicant meets the requirements of this subclause if he or she:

    (a)is in criminal detention; and

    (b)if he or she has been sentenced to imprisonment or periodic detention, has actually served a period of imprisonment; and

    (c)no criminal justice stay certificate or criminal justice stay warrant about the non-citizen is in force.

    (8)     An applicant meets the requirements of this subclause if:

    (a)     the applicant holds a Bridging E (Class WE) 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)the Minister is satisfied that the applicant has a compelling need to work; and

    (c)in the case of an applicant who was 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 reasons for the delay in making the application for a protection visa are acceptable to the Minister; or

    (ii)     the applicant is in a class of persons specified by the Minister by instrument in writing for this subparagraph.

  3. Section 417 of the Act relevantly provides:

    417 Minister may substitute more favourable decision

    (1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

    (3) The power under subsection (1) may only be exercised by the Minister personally.

    (7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

Background facts

  1. The applicant arrived in Australia on 24 July 2007 on a tourist visa.  
    He lodged an application for a protection visa on 6 August 2007 which was refused by a delegate of the Minister on 19 October 2007.  In March 2008, the Refugee Review Tribunal (“RRT”) affirmed the delegate’s decision not to grant the applicant a protection visa.  The applicant sought judicial review of that decision with this Court, the Federal Court and the High Court but he was unsuccessful at each stage.

  2. In 2009 the applicant made two unsuccessful requests for ministerial intervention pursuant to s.417 of the Act in relation to his claim for a protection visa. According to the Tribunal they were made in May and October 2009 respectively. Requests under s.417 seek the substitution of an RRT decision with one which is more favourable to the applicant. The applicant’s first s.417 request was finalised as “not considered” (presumably by the Minister) and the second was finalised as “not referred” (presumably by the department to the Minister). With his second s.417 request the applicant also lodged a request that the Minister lift the s.48 bar on him making a further protection visa application but this too was unsuccessful. During this period the applicant was granted bridging visas associated with his various applications. His last bridging visa expired on 17 June 2010 and thereafter he remained in Australia unlawfully. He was located by the department’s compliance officers on 3 February 2011 and detained under s.189 of the Act.

  3. On 11 February 2011 the applicant filed in the High Court an application for an order to show cause, ostensibly in relation to his first s.417 request for ministerial intervention in connection with the RRT’s decision. As noted earlier in these reasons, on 15 February 2011 he lodged an application for a bridging visa which was refused the next day. On 18 February 2011 he lodged with the Tribunal his application for review of the decision to refuse him a bridging visa.

  4. The applicant attended a Tribunal hearing on 1 March 2011.

The Tribunal’s decision and reasons

  1. The Tribunal was not satisfied that the applicant met any of the criteria in subclauses 050.212(2) to (9) and concluded that he did not meet the requirements for the grant of a Bridging E (Class WE) visa.

  2. Relevantly, the Tribunal found that at the time of the application for a bridging visa the applicant did not have on foot an application for judicial review of a decision in relation to a substantive visa. In para.75 of its decision the Tribunal observed, by reference to documentation attached to the application filed in the High Court, documentation which was not before this Court, that there appeared to be nothing on the face of the document recording the Minister’s decision which related it to a substantive visa. The Tribunal was not satisfied that the Minister’s decision that it would not be in the public interest to intervene in the applicant’s case pursuant to s.417 of the Act was a decision in relation to a substantive visa. Although omitting some words of the question, in para.76 of its decision the Tribunal gave a negative answer to the question which it had identified in para.69 of its decision:

    The question is whether in light of MIAC v Khandakar [2011] FCAFC 22, an application to the High Court under s.75(v) of the Constitution for review of a decision of the Minister under s.417 of the Migration Act 1958 is an application for judicial review of a decision in relation to a substantive visa, other than a decision to refuse a visa, for the purposes of cl.050.212(4)(a) of the Migration Regulations 1994.

    It thus found that the applicant had not met the requirements of cl.050.212(4)(a).

Evidence

  1. The applicant tendered a copy of his application filed in the High Court on 11 February 2011.  The first defendant in that proceeding is the Minister and the second defendant is the Secretary of the Department of Immigration and Citizenship.  Relevantly, that application seeks relief in the following terms:

    1.That the Defendants show cause why a DECLARATION ORDER should not issue that the Second Defendant denied the Plaintiff procedural fairness in the assessment of his application for Ministerial intervention under Section 417 of the Migration Act 1958 dated 26 May 2009.

    2.That the Defendants show cause why a WRIT OF MANDAMUS should not issue directing the Second Defendant to conduct and reassess the application in accordance with the law.

    5.That the Defendants show cause why a WRIT OF CERTIORARI should not issue, bringing the decision of the First Defendant notified by letter dated 08 October 2009, declining to consider the Plaintiff’s application for ministerial intervention under Section 417 of the Migration Act 1958.

  2. The grounds on which the applicant seeks relief from the High Court were relevantly pleaded and particularised in the following terms:

    2.The Minister through the Ministerial Intervention Unit in relation to the decision of the First Defendant notified on 08 October 2009 failed in their duty of procedural fairness to the Plaintiff.

    3.Jurisdictional error occurred notwithstanding the applicable privative clause Section 474 (2) relative to the exercise of Section 417 of the Migration Act 1958.

    Particulars

    1.The First Defendant under the Act has a statutory discretion under Section 417 of the Migration Act 1958.

    2.The First Defendant has issued Guidelines directing the Second Defendant and his staff in relation to the matters to be considered for the purposes of assisting him in the exercise of this statutory power and discretion.

    3.The Second Defendant for the Minister through the Ministerial Intervention Unit exercises power under Section 417 pursuant to the Guidelines in purporting to make an assessment as to whether the applicant met the Guidelines.

    4.The Plaintiff believes that Second Defendant through an officer of the Ministerial Intervention Unit who conducted the assessment denied procedural fairness to the Plaintiff in that the officer took into account material for the purpose of the assessment which was not disclosed to the Plaintiff for his comment.

    5.The Plaintiff believes that Second Defendant through an officer of the Ministerial Intervention Unit provided an assessment including adverse comments without giving the Plaintiff the opportunity to respond to the matters on which the adverse assessment was made, which adverse assessment flawed the decision making process.

    6.The Second Defendant through an Officer of the Ministerial Intervention Unit failed to apply the Ministerial Guidelines correctly.

  3. The applicant also tendered a copy of the Court Book containing documents relevant to his application for a bridging visa and the subsequent Tribunal review.

Proceedings in this Court

  1. The grounds of the amended application in this Court were pleaded and particularised as follows:

    1.The Tribunal erred in finding that the applicant had not applied for judicial review of a decision in relation to a substantive visa in terms of paragraph 050.212(4)(a) of Schedule 1 [sic] of the Migration Regulations, 1994.

    Particulars

    (a)Error in failing to characterise the refusal of the Minister to consider exercising the discretion in terms of s.417 of the Migration Act as a decision in relation to a substantive visa.

    2.The Tribunal misconstrued and misapplied the words, “in relation to” in paragraph 050.212(4)(a) of Schedule 2 of the Migration Regulations, 1994.

    Particulars

    (a) Error in requiring there to be a “clear necessary connection” between s.417 and a substantive visa.

Applicant’s submissions

  1. The applicant submitted that s.417 provides the Minister with a very wide discretion whereby he may grant a substantive or a bridging visa or may refuse to consider a request for his intervention. The applicant submitted that:

    a)a s.417 request is a request for the grant of a visa, whether substantive or bridging;

    b)the Minister’s power to substitute a decision “more favourable to the applicant” could be thought to raise consideration of the grant of a substantive visa; and

    c)s.417 contemplated that a substantive visa might be granted in cases where the Minister wished to consider the applicant’s request for his intervention.

  1. The applicant therefore submitted that his proceedings in the High Court were ones for judicial review “of a decision in relation to a substantive visa” as contemplated by cl.050.212(4)(a). In this regard, he referred to PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 where it was said:

    Inevitably, the closeness of the relationship required by the expression “in or in relation to” in s 48 of the [Commercial Arbitration Act 1985 (NT)] – indeed, in any instrument – must be ascertained by reference to the nature and purpose of the provision in question and the context in which it appears.  (at 313 per Brennan CJ, Gaudron and McHugh JJ)

    and:

    It is apparent that the words “in or in relation to” are particularly wide. We have already referred to the idea that, as a facultative provision, there is no apparent call to read down the words used, or to give them any constricted operation. Cases concerning the interpretation of this phrase in other statutory contexts are of limited assistance. However, the cases do show that the words are prima facie broad and designed to catch things which have sufficient nexus to the subject. The question of sufficiency of nexus is, of course, dependent on the statutory context. …

    The connection which is required by the phrase “in relation to” is a question of degree. There must be some “association” which is “relevant” or “appropriate”. The question of the relevance or appropriateness of the connection is a question which cannot be divorced from the particular statutory context.  (at 330-331 per Toohey and Gummow JJ)

  2. The applicant also cited the statement of Kiefel J in Kennon v Spry (2008) 238 CLR 366 that:

    The expression “in relation to” is of wide and general import and should not be read down in the absence of some compelling reason for doing so. As Toohey and Gummow JJ said in PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service, the words are prima facie broad and designed to catch things which have a sufficient nexus to the subject. The question of nexus is dependent upon statutory context. (at 440 [217]) (references omitted)

  3. The applicant submitted that as a s.417 request is preliminary to the consideration of whether a substantive visa is to be granted and might lead to the grant of such a visa, there was sufficient nexus between such a request and a substantive visa to attract the operation of cl.050.212(4)(a). He submitted that as cl.050.212 is, amongst other things, designed to allow unlawful non-citizens to remain in Australia legally whilst the Minister’s department, a tribunal or the courts are considering applications of various types, there was no reason to read down the words “in relation to” where they appear in cl.050.212(4)(a).

  4. The applicant referred to the Tribunal’s discussion of the expression “in relation to” and to its statement at para.74 of its decision that:

    … there does not appear to be any clear necessary connection between s.417 and a substantive visa. Under s.417(1) “the Minister may substitute for a decision of the Tribunal under s.415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision” (emphasis added). While the Minister is bound by the provisions of the Migration Act (with some specified exceptions), the s.417 power is a broad power that is not limited to the Tribunal’s powers. And while a decision under s.415 must be a “more favourable decision”, and will often involve consideration of the grant of a substantive visa, it is not, in its terms, necessarily limited to decisions relating to a substantive visa. In that context, to determine whether a particular decision made under s.417 is a decision in relation to a substantive visa, it is necessary to look at the nature of the decision in question.

  5. The applicant submitted that by saying in para.74 of its reasons that there did not appear to be any “clear necessary connection” between s.417 and a substantive visa, the Tribunal impermissibly substituted the words appearing in the clause with ones of its own devising. He submitted that the Tribunal thereby ignored the correct meaning of the words “in relation to” as properly inferred from the context in which they appeared. He submitted that as the Tribunal had misinterpreted and misapplied the expression “in relation to” where it appears in cl.050.212(4)(a), it had mischaracterised the refusal of the Minister to consider exercising his discretion under s.417 of the Act as not being a decision in relation to a substantive visa.

Consideration

  1. As the authorities cited by the applicant indicate, the expression “in relation to” is one of wide meaning. However, those authorities also make it clear that the meaning to be attributed to that expression depends on the context in which it is used and that for things to be “in relation” to each other there must be an association which is relevant or appropriate by reference to the statutory context. As a result, in this case cl.050.212 is the reference point for determining whether the nexus between the decision on the applicant’s first s.417 request and a substantive visa is such that they should be considered to be “in relation to” each other.

  2. The extensive list of criteria for the grant of a bridging visa set out in cl.050.212 indicates that an attenuated relationship between a substantive visa and the relevant decision is not a circumstance to which cl.050.212(4)(a) applies. Clause 050.212 is generally concerned with decisions which have a direct relationship to visas, not with decisions which may simply have a connection with them. For instance, in cl.050.212(6) it is abundantly clear that “in relation to” involves close and direct, not more remote, relationships. Further, in the specific circumstances of this case and the question whether cl.050.212(4)(a) may comprehend an application for judicial review of a decision on a s.417 request, regard must be had to cl.050.212(6) which provides for the grant of a bridging visa in circumstances where a s.417 request has been made but has not yet been determined. If it had been intended that judicial review of determined s.417 requests would be grounds for the grant of a bridging visa then it is to be expected that such a provision would have been included in cl.050.212(6).

  3. More generally, although cl.050.212 speaks principally of decisions to grant, refuse or cancel visas it can be accepted that not every decision concerning the continuation of, or applications for, a visa will involve the granting, refusal or cancellation of that visa. It appears from the terms of cl.050.212 that to address situations where a decision concerning a visa is something other than a grant, refusal or cancellation, the drafter has employed the verbal formula of “in relation to”. That is to say, in cl.050.212 that expression speaks of a decision which is not a grant, refusal or cancellation but is nevertheless directly concerned with a visa.

  4. The close nexus between a decision and a visa which “in relation to” implies in cl.050.212 excludes decisions on s.417 requests from falling within its scope. The grant of a visa, and in particular a substantive visa, is only one of a number of possible outcomes of a s.417 request and, as a result, a s.417 request lacks the certain relationship to a visa, and still less to a substantive visa, which the expression “in relation to” implies in cl.050.212 generally and in cl.050.212(4)(a) in particular. For that reason a decision on a request pursuant to s.417 has an insufficient nexus with a substantive visa to be “a decision in relation to a substantive visa” for the purposes of cl.050.212(4)(a) and the Tribunal did not err when it concluded that the proceedings brought by the applicant in the High Court were not ones in relation to a substantive visa.

  5. But in any event, the proceedings which the applicant has initiated in the High Court are not ones which are “in relation to” a substantive visa whether in the direct fashion required by cl.050.212(4)(a) or the less direct manner posited by the applicant. Notwithstanding references in the High Court application to dates which could relate only to the first s.417 request, and what appears from the Tribunal’s decision to be references in the documents accompanying that application to an exercise of the Minister’s s.417 discretion, those parts of the High Court application quoted above at [13] and [14] indicate that the applicant has sought review of the exercise, by a departmental officer, of a discretion whether to refer a s.417 request to the Minister. In other words, although by referring to the relevant s.417 request by reference to particular dates the High Court application is expressed to relate to the applicant’s first s.417 request, the particulars of the allegations appear to refer to his second s.417 request. Whatever the case, on the basis that the application to the High Court is limited to the case as pleaded and particularised, the matters which the applicant wishes to raise with the High Court are not ones which concern the exercise by the Minister of his personal discretion under s.417 to substitute the RRT decision with one more favourable to the applicant. Consequently, even were cl.050.212(4)(a) to be interpreted in the manner advocated by the applicant, this would be of no assistance to him as the conduct the subject of the application in the High Court was not an exercise by the Minister of his discretion to substitute the RRT’s decision with one more favourable to the applicant, but a departmental officer’s decision whether to refer the applicant’s s.417 request to the Minister for the exercise of that discretion.

  6. Consequently, even if I am incorrect in my understanding of cl.050.212, based on the terms of High Court application which was the basis of the claim for a bridging visa, it would be futile to remit the matter the Tribunal and in the exercise my discretion I would not do so.

Conclusion

  1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

  2. Consequently, the application will be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate: 

Date:  26 May 2011

Actions
Download as PDF Download as Word Document


Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

2

MIAC v Khandakar [2011] FCAFC 22