Tian v Minister for Immigration
[2013] FMCA 138
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TIAN v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 138 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a bridging visa – applicant seen as a flight risk – no jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) |
| Htun v Minister for Immigration (2001) 194 ALR 244 SZEHN v Minister for Immigration [2007] FCA 1451 |
| Applicant: | CHUNJI TIAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2443 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 28 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Samarasinghe |
| Solicitors for the Respondents: | Ms E Warner Knight Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2443 of 2012
| CHUNJI TIAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant, Ms Tian, seeks review of a decision of the Migration Review Tribunal (Tribunal) affirming a decision of a delegate of the Minister not to grant her a bridging visa. She had sought that visa as a result of being taken into immigration detention after having being detected living in the community without any current visa. She has been in this country for more than a decade and, for the greater part of that period, has been an unlawful non-citizen.
The following statement of background facts relating to the applicant’s immigration history and visa application and the Tribunal’s decision on is derived from the Minister’s outline of submissions filed on 19 February 2013.
The applicant is a citizen of China.
A short chronology of relevant events is set out below:
27.2.02
Applicant arrives in Australia on a false South Korean passport using a false name 'Kim Young Sun' as holder of a visitors visa with 'no work' condition valid to 27 May 2002
12.4.02
Applicant applied for a protection visa using her false name
28.6.02
A delegate of the Minister refused the protection visa
12.6.03
Refugee Review Tribunal affirmed delegate's decision to refuse protection visa. Associated bridging visa ceased on 21 July 2003. Applicant became an unlawful non citizen
24.1.11
Applicant was located by the Minister’s Department (DIAC), Compliance section and granted a bridging visa ‘E’ with reporting and 'no work' conditions valid to 27 January 2011
27.1.11
Applicant failed to attend the DIAC interview and again became an unlawful non citizen
9.9.12
Applicant came to attention of DIAC after being questioned by police when a car in which she was a passenger was stopped, due to the driver making an illegal turn
10.9.12
Immigration detention client interview
The applicant gave evidence that she worked as a tiler on a construction site. She began this work three months after her arrival in Australia. The car which was stopped by the police contained other of her fellow tilers.
The issue for the Tribunal was whether it was satisfied that the applicant would abide by the conditions of a bridging visa ‘E’ and thus meet clause 050.223 establishing eligibility criteria. The applicant and three witnesses gave evidence. The Tribunal's account of the hearing is set out at Relevant Documents (RD) 131-135 [22]-[43].
The Tribunal's Decision
In its consideration of whether the applicant would meet clause 050.223, the Tribunal set out various conditions which it considered should be imposed in the present case, namely: condition 8401 (reporting); 8101 (no work); 8505 (live at specified address); and 8506 (notify DIAC at least 2 days before any change in address)[1].
[1] RD136 [48]
The Tribunal then considered whether the applicant would comply with these conditions and had regard to the applicant's past conduct[2]:
a)The applicant had used a falsified South Korean travel document and entered Australia on a tourist visa in February 2002. Notwithstanding the applicant's claim that she experienced racial discrimination in China as an ethnic Korean, the Tribunal found that using a false passport in a false name to enter Australia was a significant breach of Australian immigration law and indicated that the applicant was willing to mislead the Department to achieve a desired migration outcome[3].
b)The applicant's bridging visa (which was associated with her Tribunal application) expired in July 2003. The applicant remained unlawfully in the community until being located by the Department’s compliance section in January 2011. The applicant claimed that she did not receive the Tribunal’s decision because she had changed her address. The Tribunal found the applicant's failure to inform the Tribunal of her new address or to make contact with the Department or the Tribunal to check the status of her review application indicated she was indifferent to the outcome, that the Tribunal review was lodged for the purpose of extending her stay and that she had little interest in her protection visa application[4]. It did not believe the applicant was unaware her Tribunal application had been determined long ago. It found the applicant was unconcerned that she was living in Australia without a visa in breach of Australian immigration law[5].
c)The Tribunal did not believe the applicant's explanation for her lack of attempts to regularise her status since the expiry of her bridging visa in July 2003 as being due to her lack of English skills or education, given that she had been able to find employment and housing and live for years in Australia[6]. It found the applicant's breaches of immigration law were made knowingly and intentionally, that she was indifferent about her immigration obligations and that had she not been located in January 2011, she would have remained unlawful (and undetected)[7].
d)The Tribunal noted that after the applicant's location by the Department’s compliance section in January 2011 she was given a bridging visa with the requirement to report on 27 January 2011, but she did not comply with this requirement. It found this breach to be significant for the purpose of the present bridging visa ‘E’ application. The applicant's explanation that she breached the reporting condition in January 2011 because she feared being deported showed her willingness to disregard her immigration requirements because it better suited her circumstances[8]. It did not believe the applicant's explanation of why she had made no attempt to regularise her status since January 2011[9]. The Tribunal found the applicant had deliberately tried to avoid the Minister’s Department’s detection by changing addresses and that this suggested she understood the consequences of her actions by taking rational and effective measures to evade the Department[10].
e)The Tribunal found that the applicant appeared unconcerned that she had worked in Australia ever since a few months after her arrival and continued to do so when she had no permission and was in breach of Australian immigration law[11]. It found furthermore that the applicant chose to be untruthful about her ability to support herself at her Department interview where she claimed she could not support herself without working, but claiming in her bridging visa ‘E’ application that there were people in the community able to support her. It found she had “little regret about providing untruthful information to DIAC”[12].
[2] RD136 [49]
[3] RD136 [50]
[4] [51]
[5] RD137 [52]
[6] RD137 [53]
[7] [54]
[8] RD137 [55]
[9] RD138 [56]
[10] RD138 [57]
[11] RD138 [58]
[12] RD138 [59]
On the basis of the above, the Tribunal found that the applicant had shown a complete disregard for Australian immigration laws in the past and had been deliberately untruthful in her dealings with the Minister’s Department[13]. It rejected the assurances of the applicant that her circumstances had changed and she was now willing to comply with visa conditions.
[13] RD138 [60]
The Tribunal found that she will again engage in employment when she has no permission to do so, even with or despite community support[14]. The Tribunal was not satisfied that the applicant would abide by the relevant visa conditions (set out at [7] above) without a security. It then considered whether the security of $20,000 which was available to the applicant would act as an incentive to abide by the visa conditions. Having regard to the applicant's circumstances and the seriousness of her past non compliance the Tribunal was not satisfied that any amount of security would act as an incentive to abide by the visa conditions. It thus concluded that that applicant did not meet clause 050.223.
[14] RD139 [61]-[62]
The Tribunal noted that the application was also an application for a subclass 051 Bridging (Protection Visa Applicant) visa, however, as the applicant is not a relevant eligible non-citizen as set out in clause 051.211, she did not meet the requirements for the grant of such visa.
Finally, the Tribunal considered the general material enclosed with the post hearing submission regarding the mental and physical health risks of detention. On this basis the applicant's representative had submitted there were “compassionate and compelling circumstances” for the visa to be granted. The Tribunal acknowledged that evidence. It observed, however, that having found that the applicant does not meet the criteria for the visa, it had no power to grant a visa on the basis of “compassionate or compelling reasons”. Furthermore, the only question for the Tribunal was whether the applicant met the visa criteria, not what steps she might or might not take if she were unsuccessful in her application for a business visa.
These proceedings began with a show cause application filed on 25 October 2012. There is one ground in that application:
1. The tribunal erred in failing to consider a claim that clearly arose on the information and evidence before the Tribunal.
Particulars
(a) The applicant would comply with conditions which may be imposed on a Bridging E visa because her guarantor had agreed to cover the medical expenses associated with treating her heart disease or condition.
At the time that application was filed, the applicant was represented by the law firm of Parish Patience. I made consent orders for the further conduct of the matter on 11 December 2012, including an order listing the matter for a final hearing today.
On 31 January 2013, the applicant’s solicitors filed a Notice of Intention to Withdraw as the applicant’s lawyers, and on 11 February 2013 they filed a Notice of Withdrawal. I am satisfied that the Notice of Intention to Withdraw and Notice of Withdrawal comply with the Federal Magistrates Court Rules 2001 (Cth) (Federal Magistrates Court Rules). Since 11 February 2013 therefore, Ms Tian has not been represented by that firm.
Mr Samarasinghe, who is both a migration agent and a legal practitioner, appeared on behalf of Ms Tian today and sought an adjournment. He told me that he has only very recently been instructed to assist the applicant and conducted an initial interview with her at Villawood on 26 February 2013. He sought an adjournment on the basis that he wished to seek to instruct counsel to represent Ms Tian at a later hearing.
I refused the adjournment application on the basis that Ms Tian has been on notice for some weeks that she would need to arrange alternative legal representation, and also because it did not appear to me that there was a great deal that could be advanced on her behalf at a later hearing in terms of asserted jurisdictional error by the Tribunal. The allegation in the application is that the Tribunal overlooked relevant material concerning support available to Ms Tian for an asserted heart condition.
The solicitor for the Minister took me to RD 47, which I received as evidence. There is there a document signed by Mr Philip Chong, the director of a company called Teammembers Project Pty Ltd, who refers to his wish to continue employing Ms Tian, and also his willingness to provide accommodation, food, nurture and medical expenses.
It does not appear from the Tribunal decision that there is any express reference to Mr Chong’s offer to pay for such medical expenses as Ms Tian might require. However, it is plain from the Tribunal’s decision that Ms Tian’s state of health, and how medical expenses necessary because of her state of health might be met, was not a concern to the Tribunal in considering whether the applicant should receive the bridging visa she sought. What is plain from the Tribunal’s findings and reasons[15] is that the Tribunal was extremely concerned about Ms Tian’s migration history, and in particular, her willingness to work without permission and to live in the community without regularising her migration status over a very long period. The Tribunal identified[16] the conditions that would attach to the bridging visa sought by Ms Tian. These included condition 8101, the no-work condition. The Tribunal noted[17] that security of $20,000 was available to Ms Tian. However, the Tribunal was not willing to accept that that security was sufficient to ensure compliance with the conditions that would attach to the visa. In short, the Tribunal reasoned that if the applicant were released from immigration detention on a bridging visa, she was likely to disappear into the community, as she had previously.
[15] RD 135
[16] RD 136 [48]
[17] RD 139 [64]
I see nothing unreasonable about the Tribunal’s decision in a legal sense. The assertion in the application has no substance in the context of the Tribunal’s reasons. In other respects, I agree with the Minister’s submissions.
There is a distinction between a failure to consider a claim and a failure to attend to some piece of evidence, even probative evidence, and by such route to commit a factual error[18]. The latter will not amount to jurisdictional error[19]. Here, however, it is not shown that the Tribunal failed to consider any of the applicant’s evidence.
[18] Htun v Minister for Immigration (2001) 194 ALR 244 at [42] per Allsop J, with whom Spender J agreed; Singh v Minister for Immigration [2006] FCA 1113 at [25]-[34] and [39]-[41] per Jacobson J
[19] SZEHN v Minister for Immigration [2007] FCA 1451 per Lindgren J at [58]
As was abundantly open to the Tribunal, it found that, in light of her long history of utter disregard for her obligations under Australian immigration law, the applicant would not comply with the relevant visa conditions “even with, or despite community support”[20].
[20] RD139 [61]-[62]
I find that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision, and the application must be dismissed. I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the amount of $5,500, which is somewhat below the scale amount in the Federal Magistrates Court Rules.
The solicitor for Ms Tian objected to a costs order, noting that she is held in immigration detention, and is unable to work. The issue for me, however, is not Ms Tian’s capacity to pay costs, but whether the costs have been reasonably and properly incurred. I find that they have been, when considered on a party and party basis.
I will order that Ms Tian pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 March 2013
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