SZQCE v MINISTER FOR IMMIGRATION & ANOR
[2011] FMCA 313
•1 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQCE v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 313 |
| MIGRATION – Review of decision of Migration Review Tribunal – application for an extension of time – refusal of a bridging visa – request for Ministerial intervention – application for a child visa – request for an interlocutory injunction – Tribunal’s findings were reasonably open to it – not in the interests of the administration of justice to extend time to hear the substantive application – application dismissed as not competent. |
| Federal Magistrates Court Rules (Cth), r.13.10 Migration Act 1958 (Cth), ss.91X, 477 Migration Regulations 1994 (Cth), Sch.2 |
| Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684 Re Ruddock; Ex Parte LX [2003] FCA 561 Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331 Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 186 Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21; (2004) 205 ALR 198 M211 of 2003 v Minister for Immigration and Multicultural Affairs [2004] FCAFC 293; (2004) 212 ALR 520 SZJYR v Minister for Immigration and Citizenship [2010] FCA 135 SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457 SZGPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 683 Applicants M160/2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 195 NAGG of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2007] FMCA 84 SZHEH v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FMCA 1301 SZFGO v Minister for Immigration and Citizenship [2008] FCA 1478 Gararth v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 316 SZEEF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 661; (2006) 233 ALR 331 SZMKK v Minister for Immigration and Citizenship [2009] FCA 1340 |
| Applicant: | SZQCE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 592 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 1 April 2011 |
| Date of Last Submission: | 1 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 April 2011 |
REPRESENTATION
| The Applicant: | In Person (via telephone) |
| Appearing for the Respondents: | Mr R Baird |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application for an extension of time made on 31 March 2011 is dismissed.
The application made on 31 March 2011 is dismissed as not competent.
The applicant pay the first respondent’s costs set in the amount of $1,175.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 592 of 2011
| SZQCE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
What I have before me today is an application brought in certain urgent circumstances by the Minister for Immigration who has asked this Court today to summarily dismiss, pursuant to r.13.10(a) of the Federal Magistrates Court Rules 2000 (Cth) (“the Rules”), an application made by SZQCE on 31 March 2011. That is, yesterday, in which the applicant sought review by this Court of the decision of the Migration Review Tribunal (“the Tribunal”) made on 8 February 2011 to affirm a decision made by a delegate of the Minister not to grant a Bridging Visa E to the applicant. [The applicant is currently held in immigration detention and is scheduled to be removed from Australia this evening.] In separate proceedings the applicant sought a protection visa in Australia. As such, s.91X Migration Act1958 (Cth) (“the Act”) applies to him even in proceedings involving the refusal of a bridging visa.
Mr Baird appears for the Minister. The applicant appeared in person. He was assisted by his friend, Ms Price.
A number of things must be immediately noted. The first is that the Tribunal decision was made on 8 February 2011. The application to the Court was made on 31 March 2011. Section 477(1) of the Act provides that applications of this type must be made to this Court within 35 days of the Tribunal’s decision. This application was not made within that time limit. It was, in fact, made some 15 or 16 days out of time.
This immediately means that consideration must be given to the provisions in s.477(2) of the Act, which provide for a discretion in this Court to extend the time set out in s.477(1) if it is in the interests of the administration of justice to do so.
So in effect, today the Court is faced with two succeeding tests that must be borne in mind and applied. The first is the test set out at r.13.10(a) of the Rules that the Court may, in its discretion, dismiss a matter generally, or in relation to any claim for relief sought by an applicant, if the Court is satisfied that the party prosecuting the proceedings, in this case the applicant, has no reasonable prospect of successfully prosecuting the application.
Within that consideration is the second test, which is whether it is in the interests of the administration of justice for me to extend the time by which the application can be brought. Here a number of elements are relevant. They include the extent of the delay. In this case, two weeks cannot be said on any basis to be a lengthy delay. Further, whether there is any satisfactory explanation for that delay. In that regard, I find that no satisfactory explanation, as that term is properly understood, has been put before the Court.
The explanation that the applicant sought advice, albeit from someone who was not a lawyer or a registered migration agent, who advised that the applicant should pursue Ministerial intervention to obtain a substantive visa to remain in Australia for some lengthy period, as opposed to pursuing judicial review of the refusal by the Tribunal of his bridging visa application, is a matter, as Mr Baird in my view correctly submitted, that does not weigh in favour of the applicant in providing a satisfactory explanation.
It is of course a matter of concern that there are persons in the community who feel that they can provide advice to persons such as the applicant without any proper basis for doing so. But ultimately it is for the applicant to make his decisions, even if the advice received turns out to be poor advice. The applicant must live by that advice, but more particularly by the choice that he made.
In this case the explanation for the delay is not one that I can accept as being satisfactory. I note relevant authorities for the proposition that seeking Ministerial intervention carries with it a contrary intention to seeking judicial review. It is not a satisfactory explanation as it presumes a choice, or an intention, or an election by an applicant not to pursue judicial review, but to pursue other avenues (see Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [29] per Jessup J (Gyles and Besanko JJ agreeing); Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 at [9]; Batuwantudawa, in the matter of an application for Writs of Certiorari & Prohibition against Ruddock [2003] FCA 684 at [9] per Gray J; Re Ruddock; Ex Parte LX [2003] FCA 561 at [42] per Heerey J; Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266; Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1331 at [18] to [20] per Weinberg J (see also Applicant VUAD of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 186); Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 21; (2004) 205 ALR 198; M211 of 2003 v Minister for Immigration and Multicultural Affairs [2004] FCAFC 293; (2004) 212 ALR 520; SZJYR v Minister for Immigration and Citizenship [2010] FCA 135; SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457; SZGPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 683. But see contrary: Applicants M160/2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 195; NAGG of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2007] FMCA 84; SZHEH v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FMCA 1301 (“SZHEH”); SZFGO v Minister for Immigration and Citizenship [2008] FCA 1478; Gararth v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 316 (“Gararth”); SZEEF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 661; (2006) 233 ALR 331 (“SZEEF”); SZMKK v Minister for Immigration and Citizenship [2009] FCA 1340).
In this case, this has been compounded by the fact that the applicant, as Mr Baird in my view quite correctly submitted, had not been an applicant for a protection visa. It is only recently that he apparently has applied for a protection visa, contemporaneous to having been scheduled for removal from Australia. In such a case, seeking to pursue Ministerial intervention to obtain a protection visa may, on some bases, be seen to be a consistent course of action, even though the authorities would suggest that a presumption otherwise should properly be made.
Nonetheless, in this case the applicant had the choice of seeking judicial review of a bridging visa matter, as opposed to seeking Ministerial intervention presumably to obtain some long term visa, perhaps a protection visa or other, from the Minister. That the Minister chose not to intervene, or decided not to consider, or the matter was not referred to the Minister for consideration, does not mean that the applicant, having elected to go down that track, can somehow say: “Well, now I want to go back on that and go back and pursue judicial review.”
As to the question of the delay, as I said, the time is not of such great moment. Two weeks is clearly not an extensive time for delay. But given that the only basis on which this Court can extend is whether it is in the interests of the administration of justice, one of the elements in that consideration is whether a satisfactory explanation has been provided for the delay. In my view, the explanation proffered by the applicant is not satisfactory in that sense.
But even weightier than that is the issue of whether, as against both tests referred to above (at [5] to [6]), there are reasonable prospects of successfully prosecuting this matter, or whether it is otherwise in the interests of the administration of justice. On both tests regard may be had to the merits of the substantive application. On neither test can I see that the applicant can succeed.
I have listened very carefully to the submissions made by Mr Baird. Other than for the one factual matter of the applicant’s age, I accept those submissions. The applicant’s age is not a matter of relevant consequence as it is only relevant as to whether the applicant was over the age of 25, which clearly he was at the time relevant to these proceedings.
In particular I note the following. The decision that has been put before this Court for judicial review is the Tribunal decision affirming the earlier decision made by a delegate of the Minister to refuse a bridging visa to the applicant. As Mr Baird, correctly in my view, submitted, the task for the Tribunal therefore, was to consider whether the applicant met the relevant criteria for the grant of that visa. Not some other visa, but that visa.
The submissions were comprehensive and, as I said, I accept the submissions. In particular I note, so that there is no misunderstanding, from Mr Baird’s submissions that the relevant criteria for the Tribunal were set out in Sch.2, Item 050.212 of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal’s analysis is plain. It is contained in the “Findings and Reasons” in its decision record, which has been put before the Court by the applicant, or on the applicant’s behalf.
On my reading of that Tribunal decision it is clear that the Tribunal addressed each, and all, of the relevant criteria. It is not necessary now to recount what Mr Baird said in that regard, other than to say that I accept and adopt what Mr Baird said in relation to the way that the Tribunal approached that part of its task.
Turning immediately to the applicant’s grounds as expressed in the grounds of the application. The grounds are: first, that the Tribunal overlooked the changes in the circumstances and the request to the Minister. As Mr Baird correctly submitted, in a very important sense this complaint misconstrues the Tribunal’s task, which was to see whether the applicant satisfied the relevant criteria for the bridging visa.
Matters of changes in the applicant’s circumstances or requests to the Minister for intervention are not part of the relevant criteria. The changes in circumstances may indeed have been relevant to the matter that was before the Minister, that is the request for Ministerial intervention, but I cannot see that it was relevant in itself to the matters or the criteria that the Tribunal was required to examine. See Sch.2, item 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).
(4AB) An applicant meets the requirements of this subclause if the applicant is:
(a) a member of the immediate family of a person who meets the requirements of subclause (4AAA); or
(b) a brother or sister who has not turned 18, of a person who:
(i) meets the requirements of subclause (4AAA); and
(ii) has not turned 18.
Note Regulation 1.12AA defines member of the immediate family.
(4A) For the purposes of subclauses (3A), (4) and (4AAA), the applicant is taken to have applied for judicial review if the applicant:
(a) is described or identified, in an application or document filed for the purposes of section 33H of the Federal Court of Australia Act 1976, as a group member to whom a representative proceeding relates; or
(b) is a person on whose behalf or for whose benefit a person sues under Order 16 Rule 12 of the High Court Rules.
(5) An applicant meets the requirements of this subclause if:
(a) he or she held a visa that was cancelled under subsection 140 (1) or (3) of the Act (which deals with cancellation because of the cancellation of a visa held by another person); and
(b) either:
(i) the other person whose visa was cancelled has applied for review of the decision to cancel his or her visa; or
(ii) the Minister is satisfied that that other person will make an application of that kind.
(5A) An applicant meets the requirements of this subclause if:
(a) the applicant held a visa that was cancelled under subsection 140 (1), (2) or (3) of the Act because another person's visa was cancelled under section 137J of the Act; and
(b) one of the following applies in relation to the person whose visa was cancelled under section 137J of the Act:
(i) he or she has applied under section 137K of the Act for revocation of the cancellation of the visa;
(ii) he or she has applied for merits review of a decision under section 137L of the Act not to revoke the cancellation of the visa;
(iii) the Minister is satisfied that he or she will make an application of a kind mentioned in subparagraph (i) or (ii).
(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.
(9) An applicant meets the requirements of this subclause if:
(a) the applicant has made a valid application for a Spouse (Migrant) (Class BC) visa, an Interdependency (Migrant) (Class BI) visa or a Partner (Migrant) (Class BC) visa; and
(b) that application was refused; and
(c) either:
(i) the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant's substantive visa application; or
(ii) the applicant
(A) is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in subparagraph (i); and
(B) made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i);
and the applicant or family unit member does not satisfy the criterion in paragraph 010.211 (6) (c) for the grant of a Bridging A (Class WA) visa; and
(d) the judicial review proceedings (including proceedings on appeal, if any) are not completed.”
As to the Ministerial intervention issue, the Tribunal plainly did not overlook what had been put to it by the applicant, and on behalf of the applicant, in the sense of failing to consider it. It plainly did.
As to the second ground, that it failed to investigate the application for a child visa, Ms Price (the applicant’s friend) clearly explained, and I accept her explanation, that what she and the applicant were seeking to do was to put before the Tribunal, and indeed they thought subsequently before this Court, their complaint about the actions of the Department of Immigration in relation to an application for a child visa made by the applicant.
I note that, in the Tribunal’s decision record, the very long history of the applicant’s dealings with the Department of Immigration and the Tribunal since 1997 are set out at [12] to [53], and to the extent necessary I adopt that factual record for the purposes of this judgment:
“[12] On 23 March 1997, the applicant first arrived in Australia on a Subclass 771 (Transit) visa granted on 2 March 1997. This visa was valid until 26 March 1997.
[13] Between the 25 March 1997 and 3 June 1997 the applicant was granted a series of Subclass 050 (Bridging E) visas. The visas were subject to the following conditions: 8101 (No Work); 8201 (Max 3 Months Study); 8505 (Reside at Specified Address) and 8506 (Notify Change of Address). The Subclass 050 (Bridging E) visa granted on 3 June 1997 also had condition 8511 (Present Valid Ticket) attached. During this period the applicant was an unlawful non-citizen between 29 May 1997 and 2 June 1997. The applicant failed to contact the Department to regularise his status.
[14] On 10 June 1997 the applicant’s Subclass 050 (Bridging E) visa was cancelled under s.116 of the Act. On the same day the applicant lodged another Subclass 050 (Bridging E) visa application. This application was refused and he was detained under s.189 of the Act as he was an unlawful citizen.
[15] On 13 June 1997 the applicant lodged a Protection visa application with the Department and was granted an associated Subclass 050 (Bridging E) visa. He was subsequently released from detention. The Subclass 050 (Bridging E) visa was subject to the following conditions: 8101 (No Work); 8201 (Max 3 Months Study); 8505 (Reside at Specified Address); 8506 (Notify Change of Address) and 8401 (Report as Directed).
[16] The applicant was granted a number of Subclass 050 (Bridging E) visa’s to keep him lawful whilst his Protection visa application was being considered.
[17] On 18 December 1998 the Department refused the applicant’s Protection visa application.
[18] On 14 January 1999, the applicant lodged an application with the Refugee Review Tribunal (RRT) for review of the Department’s decision to refuse him a Protection visa.
[19] On 24 August 2000 the Tribunal affirmed the Department’s decision not to grant the applicant a Protection visa. The decision was handed down on 12 September 2000.
[20] On 21 September 2000 the applicant’s Subclass 050 (Bridging E) visa ceased. The applicant became an unlawful
non-citizen at this time.
[21] On 6 May 2009 the applicant lodged a further application for review of the delegate’s decision with the Tribunal on the basis that the applicant may be case law affected.
[22] On 14 May 2009 the Tribunal found it had no jurisdiction to review the decision.
[23] On 25 August 2009 the applicant lodged a Ministerial Intervention request pursuant to s.417 of the Act.
[24] On 6 October 2009 the applicant lodged a s.48 request with the Minister requesting the Minister to personally determine that s.48A does not apply to prevent a further application for a protection visa.
[25] On 15 October 2009 the applicant was granted a Subclass 050 (Bridging E) visa valid until 12 January 2010. The visa was subject to the following conditions: 8101 (No Work); 8401 (Report as Directed); 8506 (Notify Change of Address) and 8207 (No Study).
[26] On 22 January 2010 the applicant was granted a further Subclass 050 (Bridging E) visa which was valid until 22 April 2010 and was subject to the same conditions.
[27] On 26 February 2010 the applicant’s s.48B Ministerial request was finalised as ‘subsequent application not allowed’.
[28] The applicant was granted two further Bridging E visas on 1 June March [sic] and 6 June 2010 in association with his Ministerial intervention request. Both visas were subject to the same conditions as his previously held Bridging E visas.
[29] On 26 July 2010 the applicant’s request for Ministerial intervention pursuant to s.417 request was finalised as ‘not considered’.
[30] On 30 August 2010 a Community Status Resolution Interview was held with the applicant. The applicant was informed he must present a fully paid ticket to depart from Australia on 13 September 2010 with a departure date of no later than 11 October 2010. The applicant stated at the time he understood and would be able to receive financial assistance from friends. The applicant was advised of the importance of abiding by his visa conditions and was informed if he did not follow these conditions he may be detained for the purpose of removal from Australia. The applicant was subsequently granted another Subclass 050 (Bridging E) visa which was valid until 13 September 2010 and was subject to the following conditions: 8511 (Present valid ticket); 8101 (No Work); 8207 (No Study); 8401 (Report as Directed) and 8506 (Notify Change of Address).
[31] On 11 September 2010 the applicant lodged his second s.417 Ministerial Intervention request.
[32] On 13 September 2010 another Community Resolution Interview was held with the applicant. The applicant only provided the department with an itinerary for departure on 10 October 2010. The applicant stated his friends are willing to help him purchase the ticket and decline IOM assistance. The applicant was reminded repeated non-compliance may lead to detention for the purposes of removal from Australia. He was subsequently granted a further Subclass 050 (Bridging E) visa which was valid until 28 September 2010 and was subject to the following conditions: 8511 (Present valid ticket); 8101 (No Work); 8207 (No Study); 8401 (Report as Directed) and 8506 (Notify Change of Address).
[33] On 27 September 2010 the applicant presented at the compliance counter. The delegate asked the applicant if he intended to apply for a partner visa as mentioned in his interview on 30 August 2010. The applicant advised he was not in a serious relationship and has no plans to marry his girlfriend. He replied that he did not want to use his girlfriend for the purpose of gaining a visa. The applicant advised he was still considering lodging a partner visa application. The applicant was reminded that his Subclass 050 (Bridging E) visa was due to expire the next day and that he was required to present a fully paid ticket to depart from Australia. The applicant advised he had not yet purchased a ticket as he was hoping that his repeat Ministerial Intervention request would be considered. The applicant was advised failure to abide by his visa conditions may lead to detention and removal.
[34] On 28 September 2010 the applicant presented at the compliance counter. The applicant stated he does not want to depart Australia without receiving an outcome letter for his repeat Ministerial Intervention request. The applicant stated he fears what will happen if he returns to Country A. The delegate advised they would request to have his Ministerial Intervention finalised before his departure but the applicant was still required to depart from Australia on 10 October 2010 whether he receives an outcome or not. The applicant was once again advised of the importance of abiding by visa conditions and the possibility of detention to be removed if he did not abide.
[35] On 28 September 2010 the applicant was granted a further Subclass 050 (Bridging E) visa on departure grounds which was valid until 10 October 2010. The visa contained the same conditions as the previous Subclass 050 (Bridging E) visa with the addition of 8512 (Depart by Specified Date).
[36] On 11 October 2010 the applicant lodged a combined Subclass 820/801 (Combined Partner) visa. He was granted two further Subclass 050 (Bridging E) visas whilst this application was being considered. The latter being valid until 26 November 2010.
[37] On 13 October 2010 the applicant’s second request for Ministerial intervention pursuant to s.417 request was finalised as ‘not referred’.
[38] On 29 October 2010 the applicant withdrew his application for the combined Subclass 820/801 (Combined Partner) visa.
[39] Also on 29 October 2010 the applicant lodged a Subclass 461 (NZ Family) visa application. This application was considered invalid because the applicant was s.48 barred.
[40] On 26 November the applicant was granted a further Subclass 050 (Bridging E) visa on departure grounds. This visa was valid until 16 December 2010 and was subject to the following conditions: 8511 (Present valid ticket); 8101 (No Work); 8207 (No Study); 8401 (Report as Directed); 8506 (Notify Change of Address) and 8207 (No Study).
[41] On 7 December 2010 the applicant lodged his third s.417 Ministerial Intervention request.
[42] On 16 December the applicant was granted a further Subclass 050 (Bridging E) visa valid until 7 January 2011 and had the same conditions as previously imposed. At this time the applicant provided the Department with an itinerary with Singapore airlines showing a reservation for departure on 17 January 2011.
[43] On 7 January 2011 the applicant was granted his last Subclass 050 (Bridging E) visa which was valid until 17 January 2011 and was subject to the following conditions: 8512 (Present valid ticket); 8101 (No work); 8207 (No Study); 8401 (Report as Directed); 8506 (Notify Change of Address) and 8207 (No Study). The applicant was required to provide departure arrangements when he reported to the compliance office.
[44] On 10 January 2011 the applicant’s migration agent wrote to the Department’s Ministerial Intervention Unit. The agent stated it is not possible for the applicant to return to Country A and urged the Minister to reconsider the applicant as a genuine refugee.
[45] On 17 January 2011 the applicant presented at the compliance counter with his migration agent to advise he would not be departing Australia as he had sent in more detailed information to the Minister in support of his Ministerial Request with ‘significant change in circumstances’. The applicant was advised that if he chose not to depart by midnight he would be in breach of his visa conditions an may be detained.
[46] On 18 January 2011 the applicant presented at the compliance counter as an unlawful non-citizen. He provided a booking for departure on 24 January 2011 to Country A with a small deposit placed on it. During an initial interview with the Department the applicant stated he had not departed due to new information he had provided with this new Ministerial Intervention request. When asked if he intended to depart on 24 January 2011 even if the minister had not made a decision, he stated he would have to discuss this with his partner. After the initial interview was completed a decision was made not to grant the applicant a further Subclass 050 (Bridging E) visa. He was detained under s.189 of the Act as he was an unlawful citizen.
[47] Also on the 18 January 2011 a Compliance Client Interview was held with the applicant. The following notes were recorded by the Department in relation to this interview.
· The applicant presented a copy of his Country A passport valid until 2016.
· The applicant was recorded as being an unlawful
non-citizen since 17 January 2011.· The applicant stated he had previously applied for a protection visa which had been refused.
· The applicant stated he did not have any money or assets in Australia.
· The applicant stated he is not working.
· The applicant stated he can support himself in Australia through friends, family and his partner.
· The applicant stated he was in a de facto relationship with Person B.
· The applicant stated he had a close relationship with Person C.
· The applicant stated he cannot return to his home country because his life will be in danger due to religious reasons.
· The applicant stated he is not willing to depart Australia and return to Country A.
· The applicant stated he did not have a valid air ticket to depart Australia but he had a booking for 24 January 2011.
· The applicant stated if air ticket was paid for in full he would not go back on that ticket to Country A.
· The applicant was recorded as cooperative but with a history of repeatedly refusing to comply with visa conditions.
[48] During the CCI with the applicant the Department was contacted by Person C who stated he would like the applicant to be granted a Subclass 050 (Bridging E) visa so that he would be able to see him. Person C was advised that the only way the Subclass 050 (Bridging E) visa could be granted was on departure grounds. Because the applicant had not been willing to depart he may not be eligible, the applicant’s history and circumstances would need to be examined.
[49] On 25 January 2011 the applicant applied for a Subclass 802 (Child-Residence) visa. This application was considered invalid because the application was s.48 barred.
[50] Also on 25 January 2011 the applicant applied for a Subclass 050 (Bridging E) visa which is the subject of this review. The application was validly received and sighted by a Detention Review Officer as required by Item 1305(3)(c) of Schedule 1 to the Regulations on that same day.
[51] On 27 January 2011 the Department refused the applicant’s Subclass 050 (Bridging E) visa application, finding that the visa applicant was unable to meet any of the grounds under clause 050.212, including the subclause 050.212(2) of the Regulations, whether the visa applicant is making, or is the subject of, acceptable arrangements to depart Australia. As the delegate concluded that the visa applicant did not meet any of the time of application criteria under clause 050.212, the delegate did not consider whether the visa applicant would abide by the conditions of a bridging visa, or whether a security would be required to ensure that the visa applicant would abide by any conditions.
[52] On 28 January 2011, the applicant lodged an application with the MRT for review of the Department’s decision to refuse him a Subclass 050 (Bridging E) visa. No supporting documents were included with this application.
[53] Also on 28 January 2011 the applicant lodged a s.48 request with the Minister requesting the Minister to personally determine that s.48A does not apply to prevent a further application for a protection visa.”
Ms Price and the applicant were under some misapprehension, quite understandably given that neither are lawyers and neither appear to have been advised by a lawyer in these matters, that their complaint that the Tribunal failed to investigate the application for a child visa, which is in the wording of the grounds of review before the Court, was a significant point in their favour. Unfortunately for them, this is not the case.
The Tribunal did not overlook or fail to investigate this issue. It was a matter that the Tribunal considered. It ultimately found that there was no evidence before it to find that, in fact, a valid application had been made by the applicant for a substantive visa. That finding by the Tribunal, as was submitted earlier, was a finding that, on what was before it, was reasonably open to it. I cannot see that error arises in that regard.
The third ground was that the Tribunal overlooked and ignored the critical conditions in the applicant’s country of origin. Again, in a sense, as Mr Baird again correctly submitted, this is the same error, or the same misconstruction or misconception, as is contained in ground one. Further, this complaint was not a matter that was directly relevant in that sense to the criteria to which the Tribunal was compelled, by the Act and the Regulations, to have regard.
Ground four merely again repeats the concern about the child visa matter. It really has no reasonable prospects of success even if it were to be allowed to be more fully explored at some later date. On what is before the Court the Tribunal properly dealt with this matter and made findings which were reasonably open to it. This Court cannot intervene to overturn these factual findings and substitute its own.
Even if I were minded on the material before me to reach a different conclusion, that is not the power, or the role, or the function of this Court. A legal error arises, relevantly, if the Tribunal had made some finding that was not open to it to make or for which there was no probative basis for it. Plainly none of that is evident in the current case.
I should just note that ground five of the substantive application is, as Mr Baird submitted, a request for an interlocutory injunction. It is not an assertion of a ground for judicial review and therefore obviously cannot assist in showing error in what the Tribunal has done. That is, the critical issue that arises from the applicant’s substantive application is: what are the prospects of success?
In all, the applicant and Ms Price have not been able to articulate an arguable case in relation to the grounds of the application. I cannot see that those grounds have any merit, nor more relevantly have any prospects of success if this matter were allowed to proceed to hearing. That is the critical consideration.
I should just note also, in particular, that a matter for consideration is the balance of convenience, as between an element that would weigh as to the impact on the applicant (and the interests of the applicant), as against the interests of the Minister, which is in the proper enforcement of the Act and the Regulations. A matter of some significance.
In that balance, the fact that what has been brought before the Court is an application to review a bridging visa decision and not a protection visa decision is one of some relevance. The impact on the applicant if this had been a protection visa application clearly would have been one for some different consideration or weight. I am persuaded by Mr Baird’s submission that this consideration should weigh in favour of the Minister.
I say this because the applicant earlier made submissions to the Court that he had fears of returning to his home country because of religious conversion and the difficulty faced by apostates in certain countries. But the fact remains that, whatever else may have occurred and may be going on in the applicant’s life, this Court can only focus, and can only look at, those matters that are properly and relevantly before it. In this regard the matter that is properly before the Court today, and indeed the only matter that the applicant has brought and in a sense is able to bring to this Court, is the decision of the Tribunal in relation to the bridging visa.
As Mr Baird correctly said, ultimately even if the Court were to find some reasonable prospect of success, and were to therefore grant the extension of time and allow the matter to go to some further hearing, and the matter was then sent back to the Tribunal which reversed its decision, all that the applicant would have is a bridging visa.
But even here it is a bridging visa that has a limited purpose. From the material that is before the Court it is a bridging visa that is to enable the applicant to be at liberty while he is organising his travel out of Australia. That is a far different circumstance than there would be, had there been a protection visa decision before the Court.
So in that sense, and it is important that I emphasise this because the applicant specifically raised this issue with the Court today, while I hear what the applicant is saying, I accept Mr Baird’s submission that the balance of convenience, whether it is in the context of the injunction and the injunctive relief that the applicant is seeking, in the sense of reasonable prospects of success, or in the sense of whether it is in the interests of the administration of justice, a decision involving a bridging visa to enable him to arrange his own travel out of Australia as opposed to the Minister making those arrangements weighs less than the proper enforcement of the Act. In the current context it does not weigh as heavily in the applicant’s favour.
An element of whether the Court should exercise its discretion in extending the time permitted to bring an application to this Court is the impact on the applicant. The balance of convenience as between the Minister’s legitimate concerns and the applicant’s relevant concern needs to be put into perspective. Based on the fact that we have a bridging visa decision from the Tribunal in the substantive application before the Court, not some longer term substantive visa, nor indeed a protection visa, the balance weighs in the Minister’s favour in this consideration.
In short, I am not satisfied that it is in the interests of the administration of justice to extend the time so that the substantive application can be brought within time. No satisfactory explanation has been put forward for the, albeit very short, delay. But far more importantly, I cannot see that the grounds of the application contain such merit that it can be said that there are prospects of success, or indeed that even an arguable case can be made. Nor on the material that is before me can I otherwise see that there could have been grounds that may have revealed some prospect of success for pursuing some other complaint or assertion of jurisdictional error on the part of the Tribunal.
Further is the matter of the other elements in weighing up the balance of convenience, that is, any prejudice to the Minister in allowing the proceedings to go beyond today. Ordinarily that prejudice would not weigh very highly in migration matters. It would not be a matter that would, on its own, necessarily cause the Court not to grant any extension of time. In this case, the best put by the applicant is that the Minister can make other arrangements if the applicant were ultimately unsuccessful. This is to be balanced with the consideration that, if the applicant were to be given the extra time, the most or best that the applicant could hope for would be a bridging visa that would enable him to make his own arrangements to leave Australia, as opposed to the Minister making those arrangements for him.
Conclusion
In all it is not in the interests of the administration of justice that the substantive application be extended. There is no reasonable prospect of success in the applicant prosecuting a case for the simple reason that the first finding means that there is no application before the Court. The application that the applicant has sought to put before the Court remains not competent.
I am going to grant the Minister’s application that the substantive application, made by the applicant on 31 March 2011, is to be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 6 June 2011
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