Taylor v Minister for Immigration

[2016] FCCA 660

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAYLOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 660

Catchwords:
MIGRATION – Bridging E (Class WE) visa – refusal – review of Refugee Review Tribunal decision – best interests of the child – compliance with s.359A of the Migration Act 1958 (Cth) – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.73, 359AA, 359A, 379A, 424A, 501

Migration Regulations 1994 (Cth), cl.050.223 of sch.2

Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21
Minister for Immigration & Border Protection v WZARH (2015) 90 ALJR 25; [2015] HCA 40
Minister of State for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264
NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494; [2003] FCAFC 262
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
VHAJ v Minister for Immigration &Multicultural & Indigenous Affairs (2003) 75 ALD 609; [2003] FCAFC 186
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559; [2004] FCAFC 82
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134
Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133; [2001] FCA 568

Applicant: ABBY EILEEN TAYLOR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 84 of 2016

Judgment of: Judge Smith

Hearing date: 15 March 2016

Date of Last Submission: 15 March 2016

Delivered at: Sydney

Delivered on: 30 March 2016

REPRESENTATION

Solicitor for the Applicant: Mr R. Turner, Turner Coulson Immigration Lawyers

Solicitor for the Respondents: Mr A. Markus, Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 84 of 2016

ABBY EILEEN TAYLOR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of New Zealand. She last arrived in Australia in March 2009 under an assumed identity on a passport that she had bought in a public hotel. In August 2010 she was arrested by police in the Northern Territory in connection with the possession of prohibited drugs and came to the attention of the Department of Immigration.

2. On 10 September 2010 her visa was cancelled because she had given false information when entering Australia and she was taken into immigration detention. Instead of seeking review of the cancellation decision, the applicant escaped from detention shortly after her visa was cancelled and remained unlawfully in the community until August 2015 when she was located by the Department in Sydney and again placed into immigration detention.

3. On 21 September 2015 the applicant applied for a protection visa which was refused in December 2015. She then applied to the Administrative Appeals Tribunal for review of that decision. In the meantime, on 23 December 2015 the applicant applied for a Bridging E (Class WE) visa. That visa would enable her to return to the community pending the outcome of her application for review of the decision to refuse her a protection visa. The application was accompanied by a lengthy statement in which the applicant addressed her circumstances since arriving in Australia. For present purposes it is relevant to note that she wanted a bridging visa to enable her to have dental treatment and to spend more time with her three year-old son. The applicant stated that she needed root canal therapy and that there was a court hearing in February 2016 to determine her application for custody of her son.

4. The application was refused by a delegate of the Minister on the same day it was made. Essentially, given the applicant’s history, the delegate was not satisfied that the applicant would abide by the conditions that might be imposed on any bridging visa. The applicant applied to the Tribunal for review of that decision.

5. In support of her application to the Tribunal, the applicant lodged written submissions giving further details about her dental condition, her relationship with her son and a number of other matters. She also wrote that she had been targeted by other detainees in detention and assaulted on a number of occasions.

6. The applicant was invited by the Tribunal to attend a hearing on 6 January 2016. Prior to the hearing the applicant sent further written submissions to the Tribunal addressed primarily to certain guidelines about the rule of law and her detention. The submissions included further details about the applicant’s history and the assaults upon her in detention.

7. The applicant attended the hearing on 6 January 2016. The Tribunal gave its decision on the same day. The only evidence of what occurred at that hearing is a summary of it contained in the Tribunal’s reasons for decision.

8. The Tribunal’s decision was to affirm the decision of the delegate to refuse to grant the applicant a bridging visa.

The Tribunal’s decision

1. The issue for the Tribunal was whether the applicant would comply with visa conditions if she was issued with a bridging visa and released into the community: cl.050.223 of sch.2 to the Migration Regulations 1994 (Cth). It noted that, in considering that issue, it must consider which conditions, if any, should be imposed and whether it was satisfied that the applicant would abide by those conditions: [32] of the Tribunal’s reasons. No issue has been taken with that summary of the Tribunal’s task.

2. The Tribunal considered that the following conditions should be imposed on the grant of a bridging visa to the applicant:

   8101The holder must not engage in work in Australia

   8401The holder must report:

   (a)     At a place or times; and

   (b)     At a place:

   Specified by the Minister for the purpose.

   8505The holder must continue to live at the address specified by the applicant before the grant of the visa.

   8506The holder must notify immigration at least 2 working days in advance of any change in the holder’s address.

   8564The holder must not engage in criminal conduct

3. Again, no issue has been taken with that aspect of the Tribunal’s reasons.

4. Next, the Tribunal set out a summary of the applicant’s history leading up to her detention and of her claims in support of the application for a bridging visa: [37]-[38]. It then concluded:

   [38]… These factors when cumulatively considered lead the tribunal to find that the applicant would not comply with visa conditions in the future and that no amount of security would foster such compliance.

5. The Tribunal then explained its reasoning further:

   [39]The evidence before the Tribunal indicates that the applicant has been disdainful of migration law for an extended period after the cancellation of her subclass 444 visa on 10 September 2010 and was unlawful for 5 years before she was detected in the community. The Tribunal is sensitive to the fact that the applicant has ongoing Family Court proceedings and is suffering from a persistent tooth infection and that she has experienced assaults in detention. The Tribunal notes that persons in detention are given access to medical and dental care as needed. The Tribunal also notes the applicant’s evidence that she will be able to attend Bidura Children’s Court on 1 February 2016. The Tribunal also notes that trained security officers are posted at detention centres to ensure the welfare of detainees. Despite these factors raised by the applicant, given the applicant’s history since her last arrival in Australia in March 2009 the Tribunal cannot be satisfied that the applicant would comply with visa conditions if released on a Bridging E visa because of this adverse immigration history and the Tribunal is of the view that no amount of security would satisfy it that the applicant would comply with those conditions.

   (Emphasis added)

6. For those reasons the Tribunal affirmed the decision under review.

Consideration

Ground 1: Best interests of the child

1. There are two parts to this ground: first, it was argued that the Tribunal failed to identify the best interests of the applicant’s child as required if the best interests of the child are to be taken into account; and secondly, the Tribunal failed to afford the applicant procedural fairness because it failed to advise the applicant that it would not be treating the best interests of the child as a primary criteria. Both parts are misconceived.

2. The first part relies on the decision of the High Court in Minister of State for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20 and the Full Court of the Federal Court in Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133; [2001] FCA 568.

3. Teoh concerned a decision to refuse to grant resident status to a Malaysian citizen who had three children with his wife who was an Australian citizen. The power to grant resident status was discretionary. The relevant issue before the High Court was whether, in light of the Executive’s ratification of the United Nations Convention on the Rights of the Child, there was a legitimate expectation that the best interests of the relevant children would be given primary consideration in the exercise of that power. The Court held by majority that there was. Mason CJ and Deane J expressed the relevant principle at 291 and 292:

   … ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision makers will act in conformity with the Convention.

   …

   A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it. …

   (See also 302 per Toohey J)

4. Wan concerned a decision to exercise the discretion in s.501 of the Migration Act 1958 (Cth) to refuse to grant a visa to a person on character ground. The Full Court directly applied the decision in Teoh.

5. The decision in Teoh and the utility of the concept of legitimate expectation that formed the basis for the majority’s reasons have been the subject of significant comment in later cases. For example, in Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6, McHugh and Gummow JJ held, at 28 [83], that the statements about legitimate expectations by McHugh J in Teoh at 311-312 and Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 39 should be accepted as representing the law in Australia and that Teoh did not require any contrary or other understanding of the law. More recently, the plurality in Minister for Immigration & Border Protection v WZARH (2015) 90 ALJR 25; [2015] HCA 40 said, at 32 [30]:

   … Recourse to the notion of legitimate expectation is both unnecessary and unhelpful. Indeed, reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made.

6. In spite of these comments, the principles in Teoh have not been directly overruled. I will proceed on the basis that they remain good law.

7. The answer to the ground is that the legislation makes it clear that the best interests of the child are not a primary consideration. The power to grant a bridging visa only arises if the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa: s.73. The relevant criteria are found in Part 050 in sch.2 to the Regulations. Of particular relevance here is the criterion in cl.050.223 which is that the applicant would comply with visa conditions if she was issued with a bridging visa and released into the community. If the Minister (and, on review, the Tribunal) is not satisfied that the applicant meets this criterion, there is no power to grant the bridging visa. In other words, the legislative scheme leaves no room for consideration of the best interests of the child. For that reason, on the principle stated in Teoh, the Tribunal did not fall into error in either failing to take into account the best interests of the applicant’s child as a primary consideration or informing her that it proposed not to do so.

Ground 2: Failure to comply with s.359A of the Act

1. Section 359A(1) requires the Tribunal, amongst other things and subject to subsections (2) and (3), to give to the applicant clear particulars of any information that it considers would be the reason or part of the reason for affirming the decision that is under review. Section 359A(2) requires the Tribunal to give the information to the applicant by one of the methods specified in s.379A. Section 359A(3) provides that the Tribunal has no obligation to give particulars under s.359A if it has done so under s.359AA that is, orally at a hearing.

2. The High Court examined the analogous requirement in s.424A of the Act in SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26. The plurality explained, at 1195-1196 [17] that, in order to fall within s.424A(1), the relevant information had to contain in their terms a rejection, denial or undermining of the appellants’ claims to meet the relevant criteria for the grant of the visa. Importantly, an applicant must show that the Tribunal considered that the information would be the reason or part of the reason for the decision.

3. The applicant argued that the Tribunal considered that the following information would be part of the reasons for its decision: first, information that persons in detention are given access to medical and dental care as needed; and secondly, that there are trained security officers posted at detention centres to ensure the welfare of detainees (these are emphasised in the passage from the Tribunal’s reasons extracted at [13] above). She argued that, as the Tribunal had not given her clear particulars of that information, it had failed to comply with its obligations and so fallen into jurisdictional error.

4. The Minister argued that there was no obligation under s.359A because the Tribunal did not consider that it would be part of the reasons for its decision and that, in any event, the applicant had failed to establish that the Tribunal had not complied with s.359A by the means provided for in s.359AA.

5. The applicant argued that it was for the Minister to prove that the method set out in s.359AA had been complied with.

6. While I disagree with the Minister’s first argument, it is unnecessary for me to deal with either that or the argument concerning s.359AA. That is because, in my view, there was no obligation under s.359A because the information in question fell within s.359A(4)(a) which provides:

   (4)     This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; …

7. After some initial controversy about the meaning of the equivalent provision in sub-s.424A(3)(a),[1] the Full Court of the Federal Court decided that it means that, in order to fall within s.424A(1), information must be specifically about the applicant or another person and not just about a class of persons of which the applicant or the other person is a member: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264 at 586 [66] (Beaumont J); 598 [132], 599-600 [138] (Merkel and Hely JJ). Subsection 359A(4)(a) has the same meaning.

   [1] See for example, VHAJ v Minister for Immigration &Multicultural & Indigenous Affairs (2003) 75 ALD 609; [2003] FCAFC 186 at 616-617 [25]-[29] per Moore J and 622-623 [46]-[48] per Kenny J; NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494; [2003] FCAFC 262; VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559; [2004] FCAFC 82 and VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134.

8. Here, the information relied on by the Tribunal related generally to detainees in immigration detention. That is to say, it was not specifically about the applicant. For that reason, by operation of sub-s.359A(4)(a), it was not information within the meaning of s.359A(1). In light of that, the Tribunal did not fall into error even if it did not give clear particulars of it to the applicant.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

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

Date: 30 March 2016