SZMLB v Minister for Immigration

[2009] FMCA 660

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMLB v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 660

MIGRATION – MRT decision – refusal of bridging visa E – applicant in detention after breach of earlier bridging visa conditions – Tribunal not satisfied that applicant would abide by conditions – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), s.417

Migration Regulations 1994 (Cth), Sch.2 cl.050.212(6), 050.223, 050.224, Sch.8 conditions 8101, 8401, 8505, 8506

Applicant VAAN of 2001 v Minister for Immigration & Multicultural Affairs (2003) 70 ALD 289
SZMLB v Minister for Immigration & Citizenship [2008] FCA 1921
SZMLB v Minister for Immigration & Anor [2008] FMCA 1248

Applicant: SZMLB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 923 of 2009

Judgment of: Smith FM

Hearing date: 6 July 2009

Delivered at: Sydney

Delivered on: 6 July 2009

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr R Baird

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $3,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 923 of 2009

SZMLB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia from China in October 2007 on a subclass 580 student guardian visa, granted in conjunction with the grant to her son of a student visa allowing him to attend high school in Australia.  Her visa was valid until 31 March 2008.  On 14 December 2007, she applied for a protection visa.  Her eligibility for that visa was found against her by a delegate, and by the Refugee Review Tribunal on 27 May 2008. 

2. In particular, the Tribunal refused to accept the credibility of her claims to have suffered persecution by corrupt officials in the course of conducting a duck farm in Fujian.  The Tribunal noted that this was inconsistent with the family’s business shown in the student visa applications.  There were also other reasons for disbelieving the applicant’s refugee claims. 

3. An application for judicial review of the Refugee Review Tribunal’s decision was dismissed by Driver FM on 3 September 2008 (see SZMLB v Minister for Immigration & Anor [2008] FMCA 1248), and this order was upheld by Rares J on 28 November 2008 (see SZMLB v Minister for Immigration & Citizenship [2008] FCA 1921).

4. The applicant then made an application to the Minister for discretionary intervention under s.417 of the Migration Act 1958 (Cth). Her request was made on 6 January 2009, and a bridging visa E was issued based on the applicant’s eligibility under Sch.2 cl.050.212(6) of the Migration Regulations 1994 (Cth).

5. Her s.417 request was still outstanding in March 2009 when the applicant was taken into immigration detention, where she remains. There is no evidence before me today indicating what has happened in relation to her request since that time.

6. The applicant’s bridging visa E was subject to conditions, including conditions 8101 and 8505 which respectively required her not to work and to reside at an address specified to the Department.  On 6 March 2009, compliance officers found the applicant in a brothel in Sydney “wearing work clothes”.  There was other confirmation from the receptionist that she was working in the establishment.  

7. However, the applicant attempted to deny that she was working.  She gave inconsistent evidence about her presence, and refused to tell the officers her address.  She did not have her passport with her, to allow them to inspect the nature of her visa.  She was taken into detention, and a breach of condition 8101 was found, giving rise to the cancellation of her then bridging visa E. 

8. On 17 March 2009, the applicant applied for a further bridging visa E based upon the outstanding s.417 request. This was refused by a delegate on 26 March 2009, after considering material submitted by a migration agent acting for the applicant, who presented a guarantor for future compliance by the applicant with visa conditions.

9. The delegate noted that inconsistent information had been provided by the applicant during her interviews with the Department, and formed the view that “it is quite likely that the applicant will not comply with conditions 8401, 8505, and 8506”.  Condition 8401 concerned reporting to the Department, condition 8505 concerned continuing to live at an address specified to the Department, and condition 8506 concerned notifying the Department of Immigration by at least two working days in advance of any change of address.  The delegate formed the view that “no amount of security would act as a strong incentive for the applicant to abide by conditions imposed on a bridging visa”. 

10. The applicant appealed to the Migration Review Tribunal and attended two hearings, the second of which was also attended by the proposed guarantor.  Matters of concern were indicated to the applicant by a written invitation to comment served in advance of the hearing, inviting her to comment at the hearing.  A record of the hearing is not in evidence, and the Tribunal makes only brief reference to the applicant’s evidence in its statement of reasons. The Tribunal’s description includes:  

    44.The applicant stated that she had not worked in Australia until about a month before being detained.  When asked why she started working then, she said that she had become bored and had had an argument with the man with whom she was living.  When I asked why she had chosen her particular line of employment, she said at the first hearing that she had had no choice.  At the second hearing, she said that she had not thought much about it.  She said that she had found the job through a newspaper advertisement.  She had worked 1‑2 days a week. 

    45.Her friend, Ms. S, confirmed that she would provide room and board for the applicant.  She also indicated that she would provide the funds to cover the applicant’s obligations to the Commonwealth arising from her stay at IDC Villawood. 

11. The Tribunal made a decision on 14 April 2009, which affirmed the delegate’s decision. 

12. The Tribunal identified the critical issues as those previously addressed by the delegate, arising under Sch.2 cll.050.223 and 050.224. They provide:

    050.223The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it. 

    050.224If an authorised officer has required a security for compliance with any conditions that the officer has indicated to the applicant will be imposed on the visa if it is granted, the security has been lodged. 

13. The Tribunal referred to the judgment of Finkelstein J in Applicant VAAN of 2001 v Minister for Immigration & Multicultural Affairs (2003) 70 ALD 289, which explains how issues arising under these criteria should be addressed by a decision‑maker. In particular at [10], [18], [21] and [22], his Honour explained that a decision‑maker must first decide what conditions should be imposed. It must then consider whether they would be complied with without security being taken and, if not satisfied, whether the Tribunal is satisfied that the applicant would abide by the conditions if given a financial incentive to do so by the taking of security.

14. In my opinion, the Tribunal’s reasoning shows clearly that it was not satisfied that the applicant would comply with appropriate visa conditions, with or without the taking of security as offered by her friend.  Its reasoning that explained this conclusion is found in the following paragraphs: 

    59.The question for determination is whether or not the applicant would abide by these conditions if a bridging visa were granted.  My great difficulty is that there are aspects of the applicant’s story which I find scarcely credible. 

    60.The applicant claims that she spent more than a year in Australia not working and became bored.  After a fight with the man with whom she and her son were living, she decided to go to work in a brothel.  I find her explanation for that sequence of events unconvincing.  In particular, she gave a different explanation at each hearing.  Her friend, Ms. S, works as a cleaner and surely could have suggested an alternative source of employment.  Her willingness to meet the applicant’s expenses certainly suggests a close enough relationship. 

    61.When I asked the applicant about her son, she was vague.  She did not know his address or his telephone number.  She said he was studying at night but did not know what he was studying.  I do not find this in its totality credible. 

    62.Finally, according to the applicant, she only met Ms. S late last year.  It was her husband that she had known for most of her time in Australia.  Yet Ms. S had no difficulty accepting the possibility of having to part with $5‑6000 on the applicant’s account to meet the cost of her stay at IDC Villawood.  This was a quick decision made in front of me at hearing.  It was not the decision of a person with less than $3,000 in the bank to support a person who she had met only about 6 months earlier – at least not without some time for thought and for consulting her husband and son, both of whom are working. 

    63.For these reasons, I do not find the picture painted for me by the applicant persuasive.  I believe that the real story is something else.  I cannot say what it is, but there is much more to her situation than she has chosen to disclose.  For this reason, I do not accept her assurance that she would not work if granted a bridging visa.  In particular, I am not satisfied that the applicant would not work to repay the cost of her stay at Villawood, despite her claim that Ms. S had told her that the $5‑6,000 would be a gift. 

    64.I am therefore not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet the requirements of cl.050.223.

15. Although the Tribunal did not exactly follow the sequenced approach suggested by Finkelstein J in Applicant VAAN at [22], I am satisfied that the Tribunal did address relevant issues when arriving at an adverse opinion in relation to cl.050.223.

16. On the evidence before the Tribunal, it was, in my opinion, well open to the Tribunal not to be satisfied by the evidence and witness presented by the applicant, that she would comply with condition 8101 if she were issued a bridging visa E again even with the taking of the offered security. 

17. The applicant applied to this Court for judicial review of the Tribunal’s decision.  She has been given an opportunity to file an amended application and additional evidence, but has not done so.  The grounds of her application are found in her original application: 

    1.That the tribunal impermissibly exceeded its authority and committed jurisdictional error. 

    2.That the tribunal failed to appreciate the context of the applicant’s evidence or otherwise failed to take account of a relevant consideration. 

18. The applicant has not presented any written or oral argument to explain the contentions in these grounds, and I am unable to give them meaningful particulars unaided by such submissions. 

19. I am not satisfied that the Tribunal’s decision was affected by any jurisdictional error, and I must therefore dismiss the application. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  15 July 2009