SZMYO v Minister for Immigration and Anor (No.2)
[2010] FMCA 448
•28 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMYO v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2010] FMCA 448 |
| MIGRATION – Review of decision of Migration Review Tribunal – Tribunal finding of no jurisdiction – applicant seeking review of delegates’ actions – applicant released from detention and granted bridging visa – applicant not “immigration cleared” – bridging visas granted “in error”– application for bridging visa not a valid application – Tribunal’s finding of no jurisdiction open to it – no legal error in delegates’ actions – application dismissed. |
| Migration Act 1958 (Cth), ss.5, 13, 14, 45, 45A, 45B, 46, 47, 72, 116, 172, 189, 195A, 196, 338, 347, 474, 476 Migration Regulations 1994 (Cth), sch.1 item 1305, reg.2.07, 4.02 |
| Cujba v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 11; [2001] FCA 146 |
| Applicant: | SZMYO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 75 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 15 June 2010 |
| Date of Last Submission: | 15 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2010 |
REPRESENTATION
| Appearing for the Applicant: | In person, with the assistance of Ms A Valassis |
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 18 January 2010 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2,900.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 75 of 2010
| SZMYO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 18 January 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 23 December 2009, which found that it did not have jurisdiction to review the subject of an application made to it by the applicant now before the Court.
The applicant also seeks review of what are said to be decisions of Ministerial delegates that the applicant had not been “immigration cleared”, and consequently that he had not lodged a valid application for a bridging visa.
Before the Court
The Minister has put a bundle of relevant documents before the Court (the Court Book – “CB”). A “Supplementary Court Book” (“SCB”) is also in evidence before the Court.
At the hearing of this matter the applicant appeared in person. He was assisted by his “de facto” partner, whom I understood to be an Australian citizen or resident. Ms L Clegg appeared for the first respondent.
Written submissions have been filed on behalf of the first respondent. No objection was taken to the applicant’s affidavit of 15 January 2010 being read into evidence.
Background
The applicant is a citizen of Nigeria. He currently has another matter before this Court seeking review of the decision of the Refugee Review Tribunal to affirm an earlier decision of a delegate of the Minister to refuse a protection visa to him. For this reason, I made an order on 7 May 2010 that the applicant be referred to as “SZMYO (No 2)” in these proceedings.
The applicant arrived in Australia on the most recent occasion on 11 July 2008 (CB 47.2). He had previously arrived on 23 December 2007 (CB 47.5) and departed on 7 February 2008 (CB 47.3).
On arrival at Sydney International Airport his visa was cancelled pursuant to s.116 of Act (CB 20.6 and CB 62.3). The applicant was taken to the Villawood Immigration Detention Centre (“VIDC”) (CB 20.6).
While the actual instrument is not in evidence before the Court, I am satisfied (given what is at SCB 1) that the Minister exercised his power under s.195A of the Act to grant the applicant a Bridging E (WE-050) visa (“BVE”). This was granted on 8 October 2008 (CB 46.7). It was not in dispute that the applicant was subsequently released from the VIDC.
The BVE was said to expire on 8 January 2009 (SCB 1.4). Further BVEs were purportedly granted to the applicant on 9 December 2008, 18 June 2009, 25 June 2009, and 20 August 2009 (CB 46 and CB 49). There is nothing to show that these were granted by the Minister personally pursuant to s.195A or otherwise. The last of these BVEs was said to expire on 25 September 2009 (CB 46.2).
It is not in dispute that on 25 September 2009 the applicant attended an office of the Minister’s department ([4] of the applicant’s affidavit and [7] of the Minister’s submissions).
The applicant claims that he was told by an officer of the Minister’s department that he was not entitled to a further bridging visa. However, subsequently he states that he lodged another application for a bridging visa on 29 September 2009 ([5] of the applicant’s affidavit). This was done on his behalf by the migration agent whom he had authorised to act for him (CB 1 to CB 16).
By letter dated 2 October 2009 an officer of the Minister’s department notified the applicant that his application was not valid. Reference was made to s.72 of the Act and “Item 1305” of the “Migration Regulations”. I understand this to be a reference to Item 1305 of Schedule 1 to the Migration Regulations 1994 (Cth) (“the Regulations”). (See CB 17 to CB 19 and [5] of the applicant’s affidavit and “Annexure A” to the affidavit.)
These are in the following terms:
Schedule 1, Item 1305(1) to (3):
“1305. Bridging E (Class WE) [ see Note 4]
(1) Form: 47PT, 47SP, 47SP (Internet), 47CH, 47PA, 47OF, 47SK, 47ES, 47BU, 47SV, 147, 157A, 852, 866, 918, 1002, 1003, 1005, 1008, 1066, 1096, 1150, 1150E (Internet), 1276 or 1276 (Internet).
(2) Visa application charge: Nil.
(3) Other:
(a) Application must be made in Australia but not in immigration clearance.
(b) Applicant must be in Australia but not in immigration clearance.
(ba) Applicant must be an eligible non-citizen within the meaning of section 72 of the Act.
(c) If applicant is in immigration detention, an officer appointed under subregulation 2.10A (2) as a detention review officer for the State or Territory in which the applicant is detained has been informed of the application.
(d) Application by a person claiming to be a member of the family unit of a person who is an applicant for a Bridging E (Class WE) visa may be made at the same time and place as, and combined with, the application by that person.
If the applicant has applied at the same time and on the same form for a substantive visa, the application for the substantive visa is valid.”
Section 72(1):
“(1) In this Subdivision:
‘eligible non-citizen’ means a non-citizen who:
(a) has been immigration cleared; or
(b) is in a prescribed class of persons; or
(c) the Minister has determined to be an eligible non-citizen.”
The explanation for the notification of 2 October 2009 therefore is to be understood as being that one of the requirements for making a valid application for a BVE is that the applicant must be an eligible non-citizen within the meaning of s.72 of the Act. This relevantly requires that the person has been “immigration cleared”. The notification was that as the applicant had not been immigration cleared, he was therefore not an eligible non-citizen, and was therefore unable to make a valid application for a BVE.
The applicant applied to the Tribunal for review of that “decision” on 9 October 2009. He was again represented by a migration agent (CB 20 to CB 29). The argument submitted by the agent was that (CB 21):
1)The applicant was entitled to a BVE because he had filed proceedings in this Court in relation to seeking judicial review of a decision of the Refugee Review Tribunal which affirmed a decision of the Minster’s delegate that the applicant be refused a protection visa. This proceeding had not been finalised. (See SZMYO (No 1) v Minister for Immigration & Anor – SYG 2365/2009.)
2)An issue was whether the application for the BVE was valid.
3)With reference to s.72(1):
a)It was conceded that the applicant had not been immigration cleared on arrival (s.72(1)(a)).
b)It was also conceded that he did not fall into the relevant class of prescribed persons (s.72(1)(b)).
c)The Minister for Immigration & Citizenship may determine a person to be an eligible non-citizen (s.72(1)(c)). This power may only be exercised by the Minister personally. It was unstated in the letter but this appears to be a reference to s.72(3).
d)By the Minister exercising his power on 8 October 2008 under s.195A (which can only be exercised by the Minister personally) to grant the applicant a BVE and the applicant’s release from detention this meant that the applicant became an eligible non-citizen.
e)He was granted two subsequent BVEs and therefore the “question of validity does not arise.”
By letter dated 30 November 2009 and sent to his migration agent who was the authorised recipient for such correspondence the Tribunal invited the applicant’s comments on the validity of his application for review to it (CB 52).
The Tribunal’s letter put the applicant on notice that a preliminary view of the matter was that the “application” lodged for a BVE on 29 September 2009 was the subject of a letter from the Minister’s department on 2 October 2009 which advised that the application was not valid. It was put to the applicant that the application for review to the Tribunal was itself “not a valid application” because the Tribunal did not: “… have the power to review advice from the department that a visa applicant is invalid” (CB 52.5). The applicant’s comments were invited.
The applicant’s response was provided by his migration agent by letter dated 1 December 2009 (CB 53 to CB 54).
In this letter the agent conveyed his instructions that, contrary to what had been put in the application for review, the date of the application for the BVE and the date of the impugned “decision” were not 29 September and 2 October 2009 respectively. This was described as a “clerical error” in the application for review.
The date of the application was now asserted to be the date when the applicant last attended at the Minister’s department, that is, 25 September 2009. This was also asserted as the date on which the Department refused the applicant the visa.
The agent confirmed that the “… subsequent application for a BVE on 29 September 2009” which “was declared invalid by the Department” was “… not the subject of the review.” It is therefore unclear why in the succeeding paragraph the agent asserts that the Tribunal “… is able to make determination whether or not the application of 29 September 2009 is a valid application” (CB 54.5).
Following enquires of the Minster’s department (CB 55) the Tribunal was advised that (CB 56 to CB 57):
1)The BVEs were granted “in error” to the applicant on 18 June, 25 June and 20 August 2009.
2)No application for a BVE was made on 25 September 2009.
3)The applicant was advised that, if in the event that the Department were to received such an application, no decision would be made because such an application would not be a valid application.
4)An application was received on 29 September 2009. It was found to be an invalid application.
The Tribunal considered that the threshold issue in the case before it was whether the Tribunal had jurisdiction. It reasoned that this question depended on whether the application for review lodged on 9 October 2009 was: “… properly made under section 347 of Act for review of an MRT reviewable decision” ([3]-[4] at CB 62).
The Tribunal noted relevant legislation (ss.338, 347, 348 of the Act and reg.4.02(4) of the Regulations).
The Tribunal found that what was told to the applicant by way of the letter of 2 October 2009, that is, that his application for a BVE was invalid, was an “advice” and did not purport to be a decision to refuse a BVE application. Therefore, this “advice” was not an “MRT reviewable decision” under s.338(2) and reg.4.02(4). Nor was it reviewable under any other part of s.338 and reg.4.02(4) ([11] at CB 63).
The Tribunal also noted that the applicant’s representative stated that the applicant was seeking review of a refusal of an application for a BVE made on or before 25 September 2009 when the applicant attended at the Department’s office. The Tribunal also noted the statement that the applicant “was not given any letter to confirm the refusal” but was merely told “… that his matter was finalized and therefore his application for visa is refused.” The Tribunal found that no decision was made on or before 25 September 2009 to refuse a BVE to the applicant ([13]-[14] at CB 63).
Ultimately, the Tribunal found that the application before it was not for the review of an MRT reviewable decision. Given ss.347 and 348 of the Act, the Tribunal did not have jurisdiction in this matter.
Application to the Court
The application to the Court is in the following grounds:
“1. The Tribunal erred in holding that it did not have jurisdiction in the matter because there was no decision.
Particulars:
(a) on or before 25 September 2009 the applicant attended the office of the 2nd respondent and was refused a bridging visa.
2. The delegate of the 2nd respondent erred in deciding that the applicant was not immigration cleared. When under S.196(3) of the Act, an unlawful non-citizen in detention is prevented from release, unless the non-citizen has been granted a visa.
Particulars:
(1) The applicant was in detention. He was granted a visa and released on 1 October 2008.
3. The delegate of the 2nd Respondent erred in deciding that the application for a bridging visa lodged by the applicant on 29 September 2009 is not valid by reason of the applicant not being immigration cleared. When on being granted a visa and released from detention the applicant is taken to have been immigration cleared.
Particulars:
(a) The applicant was in detention. He was given a visa on 1 October 2008 and released from detention.
(b) The applicant was granted a further bridging visa on 8 October 2008, 9 December 2008, 18 June 2009, 25 June 2009 and 20 August 2009.”
Hearing before the Court
Before the Court the applicant’s partner initially submitted that the applicant had been “immigration cleared” when he was released from the VIDC and entered the Australian community where he had been integrated into the community. For example, his church activities and the relationship with her. For the reasons that appear below, it was clear that she understood by the end of the hearing that the applicant had not been immigration cleared and the consequences of this in subsequent events.
What she continued to press, however, was that it was unfair that the Department had renewed the applicant’s BVEs, then abruptly told him that a further BVE would not be granted to him.
Consideration
It is convenient to deal first with grounds two and three of the application. Both grounds assert error on the part of Ministerial “delegates”.
Ground two asserts error on the part of the delegate in deciding that the applicant was not “immigration cleared”. This was with reference to s.196(3) of the Act.
Ground three asserts error on the part of the delegate in deciding that the application for a bridging visa lodged on 29 September 2009 was not valid. The applicant pleads that on being granted a visa and being released from detention the applicant was thereby immigration cleared. This is confirmed by subsequent visa grants to him.
The events of 25 September 2009 and the subsequent events of the application for a BVE on 29 September and the Department’s letter of 2 October 2009 can only properly be understood and explained with reference to the relevant legislative scheme and concepts unique to the Act.
The concept of “immigration cleared” is defined in s.5 of the Act as having the meaning given by s.172(1) of the Act:
“ (1) A person is immigration cleared if, and only if:
(a) the person:
(i) enters Australia at a port; and
(ii) complies with section 166; and
(iii) leaves the port at which the person complied and so leaves with the permission of a clearance authority and otherwise than in immigration detention; or
(b) the person:
(i) enters Australia otherwise than at a port; and
(ii) complies with section 166; and
(iii) leaves the prescribed place at which the person complied and so leaves with the permission of a clearance authority and otherwise than in immigration detention; or
(ba) the person:
(i) enters Australia by virtue of the operation of section 10; and
(ii) at the time of the person's birth, had at least one parent who was immigration cleared on his or her last entry into Australia; or
(c) the person is refused immigration clearance, or bypasses immigration clearance, and is subsequently granted a substantive visa; or
(d) the person is in a prescribed class of persons.”
Relevantly, s.172(3) provides:
“(3) A person is refused immigration clearance if the person:
(a) is with a clearance officer for the purposes of section 166; and
(b) satisfies one or more of the following subparagraphs:
(i) the person has his or her visa cancelled;
(ii) the person refuses, or is unable, to present to a clearance officer evidence referred to in paragraph 166(1)(a);
(iii) the person refuses, or is unable, to provide to a clearance officer information referred to in paragraph 166(1)(b);
(iv) the person refuses, or is unable, to comply with any requirement referred to in paragraph 166(1)(c) to provide one or more personal identifiers to a clearance officer.”
(Section 166 deals with providing certain evidence of identity.)
Section 5 defines a “port” as:
“‘port’ means:
(a) a proclaimed port; or
(b) a proclaimed airport.”
Section 5 defines “immigration detention” as follows:
“‘immigration detention’ means:
(a) being in the company of, and restrained by:
(i) an officer; or
(ii) in relation to a particular detainee--another person directed by the Secretary to accompany and restrain the detainee; or
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii) in a police station or watch house; or
(iv) in relation to a non‑citizen who is prevented, under section 249, from leaving a vessel--on that vessel; or
(v) in another place approved by the Minister in writing;
but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).
Note 1: See also section 198A, which provides that being dealt with under that section does not amount to immigration detention .
Note 2: This definition extends to persons covered by residence determinations (see section 197AC).”
The applicant arrived at Sydney International Airport most recently on 11 July 2008. It was not in dispute that this was a proclaimed port for the purposes of the Act. On arrival the applicant’s visa was cancelled pursuant to s.116. There was no attack or complaint about this process.
The applicant left Sydney International Airport but was in immigration detention when he did so. It was not in dispute that he was subsequently held at the VIDC which was at the relevant times a detention centre established under the Act. The applicant therefore was not immigration cleared at the airport because he left the airport in immigration detention. It was not in dispute that the applicant was in detention under s.189 of the Act. He remained there until 8 October 2008. This means that he remained in immigration detention until that date.
Section 5 of the Act defines a “lawful non-citizen” as:
“‘lawful non-citizen’ has the meaning given by section 13.”
Section 5 of the Act defines “unlawful non citizen” as:
“‘unlawful non-citizen’ has the meaning given by section 14.”
Sections 13 and 14 are in the following terms:
“Sect 13
Lawful non-citizens
(1) A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.
(2) An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen.
Sect 14
Unlawful non-citizens
(1) A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.
(2) To avoid doubt, a non-citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen.”
“Migration zone” is defined in s.5 as:
"‘migration zone’ means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:
(a) land that is part of a State or Territory at mean low water; and
(b) sea within the limits of both a State or a Territory and a port; and
(c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a port.”
Relevantly therefore the relevant statutory scheme requires that for the applicant to physically and lawfully leave the VIDC he would need to have a visa granted to him.
What relevantly occurred on 8 October 2008 is critical therefore to understanding the disposition of the matter before the Court.
The applicant was permitted to physically leave the VIDC because the Minister exercised his power under s.195A of the Act to grant the applicant a BVE.
Having regard to the relevant statutory scheme, the notion of “immigration clearance” operates as set out in s.172. There is nothing in s.195A or elsewhere in the Act to say that by exercising his power under s.195A, the Minister thereby also granted the applicant immigration clearance or determined him to be “immigration cleared”.
I agree with the Minister that the words: “… if, and only if …” appearing in s.172(1) mean that a person is immigration cleared if, and only if, the circumstances set out in that section are met. (See also Cujba v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 11; [2001] FCA 146 at [16] per Branson J.)
The applicant entered at a port. This engaged s.172(1)(a)(i). The applicant’s circumstances do not satisfy the requirements of s.172(1)(b) or (ba) which do not relate to entry at a port.
While the applicant’s circumstances on arrival satisfied s.172(1)(a)(i) and 172(1)(a)(ii), he did not for the purposes of s.172(1)(a)(iii) leave with the permission of a clearance authority. He left in immigration detention.
There is no evidence before the Court that the applicant comes within the prescribed class of persons referred to in s.172(1)(d).
This leaves s.172(1)(c). The applicant was refused immigration clearance. The issue then is whether the Minister’s subsequent grant of a BVE is such that the applicant can be said to have been granted a substantive visa. If in the affirmative, then the applicant would be immigration cleared as the grant of such a visa is not limited to what happens at the airport.
The definition of substantive visa is set out in s.5 of the Act:
“‘substantive visa’ means a visa other than:
(a) a bridging visa; or
(b) a criminal justice visa; or
(c) an enforcement visa.”
Clearly, a BVE being a class of bridging visa is not a substantive visa for the purposes of the Act. The applicant therefore was not granted a substantive visa by the Minister on 8 October 2008
Given that the applicant did not fulfil any of the requirements set out in s.172, even after being granted a BVE and physically released from the VIDC, he cannot be said to have been immigration cleared as at 8 October 2008. Nor, on the evidence before the Court, was he ever granted a substantive visa since that time.
In ground two of his application to the Court the applicant asserts that s.196(3) of the Act provides that an unlawful non-citizen who is in detention is prevented from release unless the non-citizen is granted a visa. I understood the applicant’s complaint to be that, in being granted a visa and released from detention, the applicant was thereby immigration cleared. It was argued that he entered the Australian community and participated in community activities.
It is quite understandable that lay persons such as the applicant and his partner would comprehend that immigration clearance should equate to being given a visa to leave immigration detention in circumstances where a visa was cancelled at the airport, and the detention of the applicant was instigated and continued because he did not have a visa and he needed one to be released into the Australian community.
What this understanding lacks is that apart from the complexity (as set out above) in the relevant statutory scheme, the Act creates a number of “fictions” or requirements that are counter intuitive to the physical reality relevant to the applicant’s circumstances. The primary one is that immigration clearance, despite its clear connotation that a person is “cleared” for immigration purposes to enter the Australian community, has a number of important limitations which in the applicant’s circumstances mean that even though he is physically in the Australian community, he is not taken to be “cleared” for immigration purposes.
Further, not all permissions to travel to, enter, and remain in Australia (that is, a visa) are equal for the purposes of the Act. The Act distinguishes between substantive and non-substantive visas.
I do not make these observations in any critical sense. It is, of course, the right of the government to formulate relevant policy and for the Parliament to express the law though its enactments.
Rather my concern is that given the complexity and “fictions” involved nowhere in this sorry case have the applicant and his partner been given any explanation as to why in his circumstances the grant of a visa and release from detention has left him still not “immigration cleared”.
The applicant’s unchallenged evidence put before the Court by way of his affidavit of 18 January 2010, and without objection from the Minister, reveals that all he was told by an officer of the Minister’s department on 25 September 2009 was that he was not entitled to a further bridging visa. He was “promptly” refused the grant of a bridging visa.
No explanation was offered. Nor was any explanation provided as to why in identical circumstances BVEs had been granted on a number of previous occasions. The first of these on 9 December 2008 in circumstances where the applicant already had a BVE granted personally by the Minister and set to expire on 8 January 2009.
Further, the letter of 2 October 2009, which was said to be in answer to the “… application Form 1008 lodged on 29 September 2009 …”, does little to explain the situation. It is an incomplete formulaic response. Particularly so to a lay person who is required to comprehend legal complexity and “fictions”. Even further, despite the reference to “immigration cleared” no reference whatsoever is made to s.172. The very section of the Act dealing with “immigration clearance”.
It must be observed that on the face of the first page of this letter (CB 18.9) appears the logo: “people our business”. There must be some reason for the inclusion of this logo on Departmental stationery and with the word “people” formatted in bold. Implicit, if not explicit, in the statement is the intention to convey the idea that the Department and its officers accept responsibility for dealing with applicants in a particular manner.
In context this should include some specific focus on the circumstances of the person (“people”) with whom they are dealing (conducting “our business”). The letter is deficient in this regard also. No mention whatsoever is made of the four previous BVEs granted to the applicant. It is not an answer to the “application Form 1008” to simply put extracts of one section of the Act and an extract of one part of one item in a Schedule to the Regulations in circumstances where the applicant was granted four previous BVEs in apparently identical circumstances.
It is quite understandable that the applicant, being one of the “people” who appears to be part of the Department’s “business”, would assert that following the events of 25 September 2009 and the letter on 2 October 2009 he did not know why his application was declared “invalid”.
Nor with reference to the representative’s letter of 9 October 2009 does the applicant (and his partner) appear to have received any better understanding. The representative who assisted the applicant before the Department continued to represent him before the Tribunal.
This letter also makes no reference to s.172. The thrust of the argument is that with the Minister’s grant of the BVE on 8 October 2008, and the release from detention, the applicant became an eligible non-citizen under the Act. There is nothing put in the letter to support the contention that the Minister’s action constituted a determination that the applicant was an eligible non-citizen.
At best, the only argument put forward is that the determination referred to in s.72(1)(c) may only be exercised by the Minister personally. He exercised his power personally pursuant to s.195A. Therefore, presumably this made the applicant an eligible non-citizen.
I cannot see how the Minister acting personally in exercising one power (s.195A) can be said to have exercised a different power (s.72(1)(c)) simply because both require personal Ministerial exercise.
This distinction is emphasised by the provisions of s.195A(3). In exercising his power under s.195A(2) to grant a visa, in this case a BVE, the Minister is not bound by the provisions found in subdivisions AA, AC, or AF of Division 3 of Part 2 of the Act.
Section 72, on which the migration agent appeared to base his argument, appears in subdivision AF of Division 3 of Part 2 of the Act.
Ultimately, there was no evidence that the Minister made any determination pursuant to s.72(1)(c) or that any statement in relation to any determination under s.72(1)(c) was put before Parliament as is required by s.72(4).
Nor in all the circumstances above does the representative’s letter explain how the grant of “two subsequent BVEs” leads to the statement that: “… the question of validity does not arise” (CB 21.10). This being said following the earlier statement in the letter that: “… There is a question whether the application is valid” (CB 21.4).
The representative sent a second letter to the Tribunal dated 1 December 2009 (CB 53 to CB 54). This was in response to a Tribunal officer’s letter of 30 November 2009 seeking comment on the validity of the application for review (CB 51 to CB 52). The Tribunal’s letter very clearly drew attention to information which it had received that led to a view that the application for review was not a valid application: “… because the Tribunal does not have the power to review an advice from the Department that a visa application is invalid.”
The response is, to say the least, inadequate and in part nonsensical. For a start, it is not responsive to the question of the validity of the application to the Tribunal, as distinct from the question of the validity of any application to the Minister’s department for a BVE. It does not properly address the question as to whether any application was made in any event for a BVE on 29 September 2009.
The thrust of the letter appears to be that, contrary to what is set out in the application for review (CB 28), the date of the decision in respect of which the applicant seeks review is a purported decision made on 25 September 2009, when the applicant attended the Departmental office. What is set out in the application for review is described as a “clerical error”.
The letter confirms that: “… At issue now is whether on 25 September 2009 when the Department refused the visa, it was correct to do so” (CB 54.4). There is nothing further in the letter as to whether it was “correct to do so” or not.
Importantly, the letter is also absolutely silent on the “issue” specifically raised by the Tribunal in its letter. That is, the issue of the Tribunal’s own jurisdiction.
The last paragraph of the letter contradicts what precedes it in that after just having described the “issue” as being related to what occurred on 25 September 2009, the letter argues that the Tribunal can make a determination as to: “… whether or not the application of 29 September 2009 is a valid application.” The paragraph and letter then ends with: “… therefore the question of validity of the application of 29 September 2009 does not arise” (CB 54.6).
Before turning again specifically to the grounds as pleaded, it is important to also note the provisions of ss.45, 46, and 47 of the Act.
The requirements relating to applications for visas by non-citizens and relevantly the validity of any such application is governed by subdivision AA of Div 3 of Part 2 of the Act. Sections 45 to 47 are part of that subdivision.
Section 45 compels a non-citizen who wants a visa to apply for a visa of a particular class (s.5 defines a non-citizen as a “… person who is not an Australian citizen”). Section 45A and 45B are concerned with the liability and amount of charges to be paid in respect of any such application.
Section 46 deals with the circumstances in which an application for a visa is a valid application and where it is invalid:
“Valid visa application
(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
(a) it is for a visa of a class specified in the application; and
(b) it satisfies the criteria and requirements prescribed under this section; and
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c) any fees payable in respect of it under the regulations have been paid; and
(d) it is not prevented by section 48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 91K (temporary safe haven visa), 91P (non-citizens with access to protection from third countries), 161 (criminal justice), 164D (enforcement visa), 195 (detainees) or 501E (visa refused or cancelled on character grounds).
…
(2) Subject to subsection (2A), an application for a visa is valid if:
(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b) under the regulations, the application is taken to have been validly made.”
Relevantly, reg.2.07 is in the following terms:
“Application for visa -- general
(1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a) the approved form (if any) to be completed by an applicant;
(b) the visa application charge (if any) payable in relation to an application;
(c) other matters relating to the application.
(3) An applicant must complete an approved form in accordance with any directions on it.
(4) An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:
(a) in the form; or
(b) in a separate document that accompanies the application.”
Item 1305 of Schedule 1 to the Regulations is the part of the Regulations as referred to in reg.2.07 and relevant to the circumstances of this case. That is, to an application for a BVE:
“1305. Bridging E (Class WE) [ see Note 4]
(1) Form: 47PT, 47SP, 47SP (Internet), 47CH, 47PA, 47OF, 47SK, 47ES, 47BU, 47SV, 147, 157A, 852, 866, 918, 1002, 1003, 1005, 1008, 1066, 1096, 1150, 1150E (Internet), 1276 or 1276 (Internet).
(2) Visa application charge: Nil.
(3) Other:
(a) Application must be made in Australia but not in immigration clearance.
(b) Applicant must be in Australia but not in immigration clearance.
(ba) Applicant must be an eligible non-citizen within the meaning of section 72 of the Act.
(c) If applicant is in immigration detention, an officer appointed under subregulation 2.10A (2) as a detention review officer for the State or Territory in which the applicant is detained has been informed of the application.
(d) Application by a person claiming to be a member of the family unit of a person who is an applicant for a Bridging E (Class WE) visa may be made at the same time and place as, and combined with, the application by that person.
(e) If the applicant has applied at the same time and on the same form for a substantive visa, the application for the substantive visa is valid.
(4) Subclasses:
050 (Bridging (General))
051 (Bridging (Protection Visa Applicant))
Note Regulation 2.07A sets out the circumstances in which an application for a substantive visa made on a form mentioned in this item is not a valid application for a Bridging A (Class WA), Bridging C (Class WC) or Bridging E (Class WE) visa.”
Section 47 is in the following terms:
“Consideration of valid visa application
(1) The Minister is to consider a valid application for a visa.
(2) The requirement to consider an application for a visa continues until:
(a) the application is withdrawn; or
(b) the Minister grants or refuses to grant the visa; or
(c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.”
What can be noted for relevant purposes is that a non-citizen who wants a visa must apply for a visa of a particular class (s.45). An application for a visa is valid only if it is for a visa of a class specified in the application (s.45(1)(a)). The “application” satisfies the criteria and relevantly the requirements prescribed for the purposes of s.46 (s.46(1)(b)).
Item 1305 of Sch 1 to the Regulations sets out the approved form to be completed by the applicant for a BVE. In these circumstances the applicant must complete the approved form (reg.2.07(1)(a)) and must do so in accordance with any direction on it (reg.2.07(3)).
Ground one of the application pleads that the Tribunal was in error in finding that it did not have jurisdiction in this matter because there was no decision made by the Minister’s department. The applicant’s particulars state that when he attended at the Minister’s department on 25 September 2009 he was refused a bridging visa.
Having regard to the relevant provisions set out above, such a refusal could only be said to emanate from circumstances where a valid application for a BVE was made.
The Tribunal found that it did not have jurisdiction from what was said to have occurred on 25 September 2009 at the offices of the Minister’s department. This was because on what was before it no decision was made on that date to refuse the applicant a BVE.
The Tribunal correctly noted that its jurisdiction to review decisions arises pursuant to s.347 of the Act in relation to an “MRT reviewable decision” which comes within the meaning given to that term by s.338 of the Act ([6] at CB 62). The Tribunal found that no decision was made on that day to refuse the application for a BVE. Absent a decision there was, therefore, nothing to engage the Tribunal’s jurisdiction.
The applicant’s own evidence before the Court as to the events of 25 September 2009 are that he was told by an officer of the Department that he was not entitled to the grant of a further bridging visa. The applicant states that the officer: “… promptly refused to grant me the visa.”
The difficulty now for the applicant is that there is no evidence that he made any application for a BVE up to and including on 25 September 2009. This is said bearing in mind the relevant statutory and regulatory regime set out above.
Nor does the applicant say that he made an application that complied with the relevant statutory and regulatory requirements. At its highest his evidence is that he approached the Department with the intention of applying for another visa. He was told orally that he was not entitled to the grant of another BVE.
This is consistent with the advice provided to the Tribunal by the Department on 17 December 2009. That is, that the applicant did not make any application for a BVE on 25 September 2009 (CB 56.10):
“[The applicant] during his meetings with Case Management on 25/09/09 did not make any application for a BVE and was advised that if DIAC received an application it would not be able to make a decision, as it would not be a valid application.”
As the Minister submits, an essential criterion for the making of a valid application for a BVE requires the making of any such application by lodgement of the prescribed form. As set out above, at least one form has been prescribed for such a purpose. There is no evidence before the Court, nor was there before the Tribunal, to show that any such lodgement was attempted, let alone made on 25 September 2009.
On what was before it, therefore, it was clearly open to the Tribunal to find that no decision had been made to refuse the applicant a BVE on 25 September 2009. No error is revealed in the Tribunal’s finding as to the events of that day. The applicant’s particulars at ground one may reflect, at best, a lay person’s hopeful gloss on the relevant events of that day, but the advice that any application if made would be invalid does not rise to a decision, let alone an MRT reviewable decision.
But even if an application had been validly made on 25 September 2009, contrary to the applicant’s assertion, what occurred, even based on the applicant’s own evidence, was not a refusal of a bridging visa application, but at best, a decision that the application was not valid.
Given the provisions of s.47(4) such a decision is not a decision to refuse to grant the visa. The consequence is that such a decision does not come within any of the provisions of s.338. It would not fall within the circumstances set out in s.338(1). Sections 338(2) to 338(8) all require the decision to be a decision to refuse the grant of a visa. Further, the refusal of a grant of a BVE does not fall into any of the prescribed circumstances in reg.4.02.
Ground one of the application as pleaded is not made out. The Tribunal lacked jurisdiction in this regard.
It is unclear whether as a result of the applicant’s representative’s letter of 1 December 2009 the applicant pressed his original position before the Tribunal that he sought review of a purported decision to refuse the grant of a BVE because of an application said to have been made on 29 September 2009 and refused by the delegate on 2 October 2009.
Given the view of the representative’s letter set out above, it was open to the Tribunal to take the view that it was required to address the issue of what is contained in the delegate’s letter of 2 October 2009.
The Tribunal reasoned that the letter constituted advice by the delegate that the application for a BVE lodged on 29 September 2009 was invalid. As such, it did not purport to be a decision to refuse a BVE and therefore was “advice” that was not reviewable by the Tribunal because it did not fall within the scope of s.338. On what is before the Court there is no error in the Tribunal’s finding in this regard.
Even if the “advice” were to be characterised as a “decision”, given the provision of s.47(4), such a “decision” is also not reviewable by the Tribunal.
Grounds two and three of the application to the Court seek review of what are said to be delegates’ “decisions”.
This Court’s jurisdiction is that which is relevantly set out at s.476 of the Act. This Court has no jurisdiction to review a “primary decision” (s.476(2)(a)). The definition of a “primary decision” includes two broad elements: a privative clause decision or purported privative clause decision that is reviewable under, relevantly, Part 5 of the Act.
A privative clause decision is defined in s.474. The following are relevant:
“(2) In this section:
‘privative clause decision’ means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3) A reference in this section to a decision includes a reference to the following:
…
(j) a failure or refusal to make a decision.
…”
I am satisfied that the Court has jurisdiction to consider grounds two and three given that what is complained about in those two grounds is not reviewable under Part 5 of the Act.
Ground two complains that the Minister’s delegate erred in deciding that the applicant was not immigration cleared. It is not clear whether the applicant’s complaint is directed to the events of 25 September 2009 or to the letter of 2 October 2009.
Even if directed to both the thrust of the complaint is that the applicant was immigration cleared because of the provisions of s.196(3) of the Act and the delegate (whether on 25 September 2009 or 2 October 2009) was in error in holding that the applicant was not immigration cleared when he was granted a BVE by the Minister and released from detention on 1 October 2008.
Section 196(1) to (3) is in the following terms:
“Duration of detention
(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:
(a) removed from Australia under section 198 or 199; or
(b) deported under section 200; or
(c) granted a visa.
(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.
…”
The difficulty for the applicant is that, as the Minister submits, that section says nothing about “immigration clearance”. Section 196 is directed to the duration of detention of an unlawful non-citizen detained under s.189. The fact that the applicant may have applied for and may have been granted a BVE by the Minister and released from detention says nothing about “immigration clearance”.
This is additionally and particularly so given the terms of s.172(1) as set out above.
Ground two does not succeed.
Ground three complains specifically that the Minister’s delegate erred in holding that the application for a BVE made on 29 September 2009 was not valid because the applicant was not immigration cleared. The applicant’s particulars in support are that he was given a visa and released from detention on 1 October 2008 and subsequently granted further visas.
Given what is set out above, this ground is not made out. Section 172(1), as the Minister submits, is the exhaustive statement of the circumstances when a person is immigration cleared. The BVE granted to the applicant was not a substantive visa. Neither were the subsequent visas even if they were issued “in error”. The physical release from immigration detention does not of itself fall within any of the circumstances set out in s.172(1). Ground three also fails.
I cannot find relevant legal error in the in the Tribunal’s determination as to its lack of jurisdiction, nor to the relevant actions of the Minister’s delegates. For these reasons the application to the Court is dismissed.
Postscript
I have made reference above to certain actions by officers of the Minister’s department. In particular I note:
a)Following the applicant’s release from detention on 10 October 2008 he was subsequently granted BVEs on a number of occasions in circumstances where such a grant was not lawful.
b)The quality of the contents of the letter of 2 October 2009.
In relation to the first matter there is nothing before the Court to show that the applicant or his partner were ever offered an explanation let alone a satisfactory explanation as to why this occurred.
At best it was not until they appeared before the Court that the Minister’s counsel offered the explanation that the applicant’s case “had fallen between the cracks”. No criticism whatsoever is implied of the Minister’s counsel. She was clearly dealing with the instructions she had been given.
The criticism must be directed to the poor administration of the relevant provisions of the Act displayed by the Minister’s department in “granting” subsequent BVEs in the applicant’s circumstances. In addition, and critically given its self professed regard for “people”, the failure to provide any explanation and the dismissive manner with which the applicant appears to have been dealt with on 25 September 2009 is also of concern. It is quite understandable that the applicant’s partner expressed her great sense of “unfairness” about this matter to the Court.
The deficiencies in the letter of 2 October 2009 have been referred to above. They reinforce the view that in this instance at least the department failed to deliver on the promise implicit in the logo: “people our business”.
However, as I indicated to the applicant and his partner, such deficiencies on their own do not reveal legal error. They may, however, be the subject of complaint to the Commonwealth Ombudsman.
In my view the two letters from the applicant’s migration agent/representative do not require any depth of reading to bring into question the representative’s competence as a registered migration agent. The applicant was not well served in this regard. This too does not reveal such error as to assist the applicant before the Court. It may be, however, that the applicant and his partner may consider a complaint to the relevant authority dealing with the registration and conduct of migration agents.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 28 June 2010
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