Tutugri v Minister for Immigration & Multicultural Affairs
[1999] FCA 1785
•17 DECEMBER 1999
FEDERAL COURT OF AUSTRALIA
Tutugri v Minister For Immigration & Multicultural Affairs [1999]
FCA 1785MIGRATION – review of decision of Migration Review Tribunal affirming a decision of the Minister to refuse to grant the applicant a Bridging E visa – whether Tribunal erred in finding hat applicant did not satisfy prescribed criteria – whether Tribunal could require security under s 269 when authorised officer had not done so – whether Tribunal gave adequate reasons.
Acts Interpretation Act 1901 (Cth) s 36
Migration Act1958 (Cth) ss 15, 31, 32, 33, 34, 35, 36, 37, 37A, 38, 45(2), 47, 48, 72, 73, 74, 75, 76, 116(1)(b), 116(3), 172, 189, 196(1), 196(3), 269, 347, 348, 349, 367(1), 368, 475(1)(a), 476(1)(a), 476(1)(d), 476(1)(e), 476(1)(g)
Federal Court Rules O 80
Migration Regulations 1994 regs 2.02, 2.03, 2.07, 2.10(1)(b)(iv), (3), (4), 2.24, 2.40(1), (10), 2.43(1), (2), 4.10(b)(i), Items 1305, 1305(3)(a), (b), (ba), (c), 8101, 050,2, 050.211, (1), (2), 050.212(1), (9), 050.213, 050.244, 050.221, 050.614
Constitution of the Commonwealth s 71Cabal v Minister for Immigration and Multicultural Affairs [1999] FCA 11 cited
Martin v Minister for Immigration and Multicultural Affairs [1999] 1256 cited
Comcare v Burton [1998] FCA 1144 cited
Lees v Comcare [1999] FCA 753 cited
Muralidharan v Minister for Immigration and Multicultural Affairs (1996) 62 FCR 402 cited
Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 citedM. Crock Immigration and Refugee Law in Australia (The Federation Press, Leichkardt, NSW, 1998)
ZUU TUTUGRI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
LEE J
17 DECEMBER 1999
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 69 OF 1999
BETWEEN:
ZUU TUTUGRI
ApplicantAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RespondentJUDGE:
LEE J
DATE OF ORDER:
17 DECEMBER 1999
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The decision of the Migration Review Tribunal be set aside and the matter remitted to the Tribunal for reconsideration according to law.
2.Pursuant to O 80 r 9 of the Federal Court Rules the respondent pay the applicant’s costs fixed at $1,000.00.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 69 OF 1999
BETWEEN:
ZUU TUTUGRI
ApplicantAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent
JUDGE:
LEE J
DATE:
17 DECEMBER 1999
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an application under s 476 of the Migration Act1958 (“the Act”) for review of a “judicially-reviewable decision”, as defined in s 475 of the Act. Pursuant to s 475(1)(a) a decision of the Immigration (sic) Review Tribunal is a “judicially-reviewable decision”. The applicant seeks review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 14 July 1999. The Tribunal “affirmed” the decision of the respondent (“the Minister”) not to grant the applicant a Bridging E (Class WE) visa (“Bridging E visa”).
At the hearing the applicant appeared by counsel appointed pursuant to the “pro bono” scheme operating under O 80 of the Federal Court Rules.
The grounds of the application for review were:
a)that procedures that were required by s 368 of the Act to be observed in connection with the making of the decision were not observed, (s 476(1)(a));
b)the decision was an improper exercise of the power conferred by the Act, (s 476(1)(d));
c)there was no evidence or other material to justify the making of the decision, (s 476(1)(g)).
d)the decision involved an error of law involving an incorrect application of the law to the facts as found, (s 476(1)(e)).
The applicant is a national of Ghana. Relevantly, he entered Australia on 9 May 1997on a visa which permitted him to remain in this country until 25 June 1998 and to obtain employment. On 25 June 1998 he was granted a visa which permitted him to remain in Australia until 25 June 1999. It was a condition of that visa that he not engage in work in Australia.
On 24 June 1999 the applicant attended an office of the Minister’s Department and applied for a further visa, noted in the Department’s records as “form 55 for temp. residence”. The application was supported by two letters from the Australian Islamic Social Association of Perth which stated that the applicant was employed by the Association as a religious teacher until 1 July 2000 and that he had been so employed because there were no suitable applicants in the “local market”. The applicant was interviewed on that day by a ‘compliance officer’, apparently authorised to act as a delegate of the Minister, who invited the applicant to show reasons why the visa, due to expire on the following day, should not be cancelled under s 116(1)(b) of the Act, the officer being satisfied that the applicant had not complied with the condition of the visa that the applicant not engage in work. After recording the reasons provided by the applicant, the officer, on behalf of the Minister, cancelled the visa. A decision to cancel a visa on that ground is in the discretion of the Minister. The ground is not a circumstance prescribed under subdivision 2.43(2) of the Migration Regulations 1994 (“the Regulations”) as one in which the Minister is directed by subsection 116(3) of the Act to cancel a visa. (The reference in subregulation 2.43(2) to “paragraph (1)(a), (b), (c)” is to the paragraphs of subregulation 2.43(1) and not the paragraphs of subsection 116(1) – see: subregulations 2.40(1), 2.40(10)).
Upon cancellation of the visa the applicant became an “unlawful non-citizen” under s 15 of the Act. The applicant was detained, as required by s 189(1) of the Act, and taken by two officers of the Department to an immigration detention centre at about 3pm on that day. One of the officers was a “detention review officer” appointed for the State of Western Australia by the Secretary of the Department.
Under s 196(1) of the Act a person detained under s 189 as an “unlawful non-citizen” must be kept in immigration detention until removed or deported from Australia, or granted a visa. Section 196(3) states that, to avoid doubt, subsection 196(1) prevents the release, “even by a court” of an “unlawful non-citizen” from detention. It is unnecessary to consider the extent to which doubt is avoided by s 196(3) or, whether a residual power to review the detention of a person pursuant to legislative or executive authority is part of the judicial power of Commonwealth vested in federal courts by s 71 of the Constitution of the Commonwealth not able to be excluded by legislation of the Parliament. (see: Re Bolton; Ex parte Beane (1987) 162 CLR 514 per Deane J at 528-529; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 36 per Brennan, Deane and Dawson JJ )
Upon arrival at the immigration detention centre the applicant completed an application form for a Bridging E visa.
Section 37 provides there are classes of temporary visas, to be known as Bridging visas, to be granted under Subdivision AF of the Act (s 72-76). Section 31(3) states that the Regulations may prescribe criteria for a visa of a specified class (emphasis added). Regulation 2.03 provides that the prescribed criteria for the grant to a person of a visa of a particular class (emphasis added) are “the primary criteria” set out in a relevant Part of Schedule 2 of the Regulations. The words “specified” and “particular” seem to be used interchangeably in the Act and Regulations.
According to Regulation 2.02, Schedule 2 of the Regulations is divided into “Parts” which are identified by a heading “Subclass”. The prescribed criteria for a subclass of visas known as Bridging (General), are those set out in Schedule 2 under the heading “Subclass 050”. The relationship between the Act and the Regulations is not well drawn. The Act speaks of classes of visas set out in the Act, and additional classes of visas prescribed by Regulation. In each of ss 32-36, 37A, and 38, the Act describes a particular class of visa. In s 32, 33, 37A and 38, the class of visa described is a class of temporary visa. In s 34 and 35 the class of visa described in each is a class of permanent visa. In s 36 the genus of the nominated class of visa is not described. In s 37 the Act speaks of a plurality of classes of visas known as Bridging visas, such visas being temporary visas.
The classification of visas under the Act is governed by the purpose served by the visa. Although the Regulations refer to Subclasses, on many occasions, for example, Bridging visa (See: Regulations: Schedule 1, Part 3; Schedule 2, Subclass 050) classes and subclasses appear to be conflated.
Section 30 of the Act provides that a visa to remain in Australia indefinitely is a permanent visa and a visa subject to limitation as to the period to remain in Australia is a temporary visa.
Section 31(3) provides that the regulations may prescribe criteria for the visas of a specified class but not for the classes of visas described in ss 33, 34, 35 and 38, the criteria for which are set out in those sections.
Perhaps s 31(2) provides scope for the Regulations to prescribe the various classes of temporary visas contemplated under s 37, collectively described as Bridging visas, and it may be that Part 3 of Schedule 1 of the Regulations purports to do so by describing as Bridging visas five classes of visa which include the Bridging E visa. It may be noted however that Regulation 2.07 to which Part 3 of Schedule 1 relates does not prescribe a class or classes of visa for the purpose of s 31(2). Regulation 2.07 purports to prescribe for a particular class of visa the approved form to be used for the application; the fee, if any, to be paid; and “other matters relating to the application” as set out in the “relevant Part of Schedule 1”. The “relevant Part of Schedule 1” in respect of Bridging visas is Part 3.
In respect of a Bridging E visa, Item 1305 in Part 3 of Schedule 1 of the Regulations sets out some requirements which may be said to prescribe the way for making an application as provided for in s 45(2) of the Act which states that the Regulations may prescribe the way for making an application in specified circumstances; an application for a visa of a specified class; or an application in specified circumstances for a visa of a specified class. It is debateable whether items 1305(3)(a), (b), and (ba) are requirements which prescribe the way of making an application in specified circumstances or the way of making an application for a visa of a specified class. Item 1305 (3)(ba), for example, does no more than repeat the limitation upon the Minister’s power to grant a Bridging visa set out in s 73 of the Act. The Item does not prescribe a way to make an application.
Item 050.2, under the subheading “Primary criteria”, prescribes the criteria to be satisfied thereunder as those set out in item 050.211(1), (2) and any one of the requirements set out in 050.212(1)-(9).
Section 73 provides that the Minister may grant an “eligible non-citizen”, who satisfies the criteria for a Bridging visa prescribed pursuant to s 31(3), a Bridging visa permitting the non-citizen to, inter alia, remain in Australia during a specified period. Under s 72(1) an “eligible non-citizen” means, inter alia, a person who has been “immigration cleared”. Section 172 provides that a person who has entered Australia in the manner set out in that section is “immigration cleared”. The applicant was an “eligible non-citizen” for the purpose of s 75. Under s 48 of the Act the applicant was able to apply for a visa of a class prescribed for the purpose of that section. Regulation 2.12 provides that the classes of visas prescribed for the purpose of s 48 include a Bridging E visa.
The applicant supported his application for a visa with a written statement. In the material before the Court the applicant contended that on the afternoon of 24 June 1999 he sent to the Department by facsimile transmission an application for a Bridging E visa. Under s 75 of the Act where an application for a Bridging visa of a prescribed class is made by an “eligible non-citizen” in immigration detention the Minister is to decide to grant or to refuse to grant the visa within a prescribed period and is taken to have granted the visa at the end of that period. By regulation 2.24 the class of visa prescribed is a Bridging E visa, and the prescribed period for the making of a decision by the Minister is “2 working days”.
Section 47 of the Act provides that the Minister is to consider a “valid” application for a visa. Section 46 states that an application for a visa is “valid” if, and only if, inter alia, it is made in the way required by subsection 45(2).
Regulation 2.10(1)(b)(iv) provides that an application for a visa is to be made at an office of the Department. Regulation 2.10(4) states that an office occupied by an officer of the Department at a “detention centre” is an office of the Department. Regulation 2.10(3) also provides that an “unlawful non-citizen” who is “located” by an officer of the Department may apply for a Bridging visa directly to that officer.
Applying a purposeful construction to Regulation 2.10 the applicant could have made application to the detention review officer who took him into custody and delivered him to the immigration detention centre on 24 June 1999, and for the purpose of Item 1305(3)(c) of Part 3 Schedule 1 of the Regulations the detention review officer would have been informed of the application at that time.
Whether an office at the immigration detention centre is “occupied” by an officer of the Department is unknown. It appears that the detention centre is staffed and operated by a contractor to the Department. It is agreed that on 25 June 1999 an employee of the contractor operating the detention centre sent a copy of the applicant’s application, by facsimile transmission, to the detention review officer who had delivered the applicant to the centre the day before.
As noted above, under s 75(1) of the Act, the period within which a decision to grant or to refuse to grant a visa must be made by the Minister is 2 working days. It is to be noted that the period prescribed for the purpose of s 75(1) is merely 2 working days and not 2 working days from a given day, act or event. (See: s 36(1) Acts Interpretation Act 1901 (Cth).) Regulation 4.10(1)(b)(i) provides that the period in which the applicant could have lodged an application with the Tribunal for review of the decision to cancel his visa was 2 working days after the day on which the applicant received notice of the decision. By contrast Regulation 4.31(2) provides that the period of 7 working days within which an application for review is to be lodged by a “non-citizen” under s 412 of the Act, begins on the first working day that occurs “on or after” the day on which that person is notified of the decision. If, as submitted by the Minister, a “valid” application was made when a detention review officer was “informed” of the application, the detention review officer was so informed on a working day, (25 June 1999), and it could be said that according to the terms of the Act and Regulations the relevant period under s 75(1) expired at the end of the next working day, (28 June 1999).
The Minister’s decision was not made by the detention review officer as the Minister’s delegate, until 29 June 1999. It is unnecessary to consider what consequences, if any, may have flowed from that circumstance (See: Cabal v Minister for Immigration and Multicultural Affairs [1999] FCA 11; Martin v Minister for Immigration and Multicultural Affairs [1999] FCA 1256).
In the statement attached to the application for a Bridging E visa the applicant requested time to finish a manuscript and to deliver a paper at an international conference to be held at the University of Western Australia. The applicant understood that conference was to be held in October 1999. The applicant stated that if granted a visa he would leave Australia by 31 October 1999 and had "a ticket that is valid until then”.
In support of the applicant’s application the organisers of the conference, by a letter addressed to the detention review officer, confirmed that the applicant had been invited to deliver a paper at the conference to be held at the University on 26 – 28 November 1999.
As noted above the detention review officer refused to grant the Bridging E visa. The applicant, forthwith, applied to the Tribunal for review of that decision. The applicant’s request to the Tribunal for review of the refusal to grant a Bridging E visa substantially reduced the indulgence sought in the application considered by the detention review officer. In a written submission forwarded to the Tribunal on 6 July 1999 the applicant sought a visa, effectively, for a period of 2 weeks to allow him to collect and organise his research materials and papers and prepare an orderly departure from Australia. Apparently it had been conveyed to the applicant that if an officer removed the applicant from Australia “as soon as reasonably practicable”, as provided by s 198 of the Act, the applicant would not be given any opportunity to collect personal belongings.
Airline bookings had been made for the applicant to depart Australia on 29 July 1999. He abandoned his request to be permitted to meet his commitment to deliver a paper at the conference to be held on 26-28 November 1999.
In support of the application an Imam of a local Mosque undertook to retain the applicant's airline ticket and passport whilst the applicant organised himself and his belongings to leave Australia and to ensure that the applicant departed Australia as arranged.
An associate professor at the English Department of the Edith Cowan University who had seen the applicant’s work supported the request the applicant be given time to retrieve his personal effects, including research papers and draft manuscripts, pointing out, if that were necessary, that the loss of such materials would be devastating for any author.
The balance of funds the applicant possessed when taken into detention were applied to the purchase of an airline ticket. A further contribution of $700.00 for that purpose had been made by friends of the applicant.
Meanwhile, the cost to the applicant of being held in detention accrued at $139.00 per day. As at 14 July 1999 it was said that he had a liability to the Commonwealth of $2641.00.
The Tribunal conducted a hearing on 8 July 1999 at which time the applicant, under oath, presented oral evidence in support of his application. The application was supported by testimony from a person who knew the applicant and was familiar with his work and confirmed that the applicant accepted that he was to leave Australia on 29 July 1999.
On 15 July 1999 the Tribunal “affirmed’ the decision not to grant the applicant a Bridging E visa. The decision in fact was a decision of the Tribunal to the same effect as the decision reviewed.
Of the criteria prescribed in “Subclass 050 Bridging (General)” as those to be met before a visa could be granted, Sub-Items 050.211-050.214 had to be satisfied at the time of application of the visa. Sub-Items 050.221 had to be satisfied at the time the decision was made. The latter required the applicant to continue to satisfy the criteria set out in Sub-Items 050.211-050.214.
The Tribunal found that the applicant satisfied the criteria specified in Sub-Items 050.211 and 050.212 but did not satisfy the criteria set out in Sub-Items 050.213 and 050.214.
Whilst the Tribunal stated that the applicant satisfied Sub-Item 050.212(2) in that the applicant “had made acceptable arrangements to depart Australia” the conclusion was expressed in confusing term as follows:
“13.3 Subclause 050.212(1)
This provision requires the Applicant to meet the requirements prescribed under at least one of the remaining subclauses (2) to (9) at the time of lodgement of the Bridging ‘E’ visa application. There is no evidence to indicate that the Applicant is able to satisfy any of those requirements. Whilst he had indicated to the Tribunal and has provided an itinerary showing that he is scheduled to travel from Perth to Accra via Nadi and Los Angeles, he has only purchased a ticket for travel to Nadi. The Tribunal accepts that has (sic) made acceptable arrangements to depart Australia thereby meeting the requirement prescribed under clause 050.212(2) of the Regulations.”
The Tribunal did not distinguish between circumstances existing at the time of the application and at the time of decision. There was material before the Tribunal on which it could conclude that at the time of the application the applicant was making, or was in a position to make, “acceptable arrangements” to depart Australia. At the time of the decision the material before the Tribunal no other conclusion was available to the Tribunal than that the applicant was the subject of “acceptable arrangements” to depart Australia.
Whether arrangements for departure are “acceptable” is likely to be related to whether the period sought for a Bridging visa is acceptable in the circumstances. In this case the arrangements made were for the applicant to depart Australia on 29 July 1999, 14 days from the date of the decision. If the arrangements for departure were acceptable it is likely that the period sought for the Bridging visa, viz 14 days, was also acceptable. That consideration may have been relevant when determining whether other criteria required to be met under the Regulations had been satisfied by the applicant.
The criteria said not to have been satisfied read as follows:
“050.213The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.
050.214A security has been lodged by the applicant, if asked for by an officer authorised under section 269 of the Act (which deals with security for compliance with the Act).”
It is appropriate to deal with the Tribunal’s conclusion in respect of Sub-Item 050.214 before turning to the conclusion in respect of Sub-Item 050.213.
It is to be noted that the Tribunal did not ask whether the applicant satisfied that requirement at the time of application, or continued to satisfy that requirement thereafter, as required by Sub-Item 050.221. Obviously the applicant did satisfy that criterion at the date of application. He had not been asked to lodge a security by an officer authorised under s 269 of the Act. Equally obviously the applicant continued to satisfy that criterion at the time of the decision by the Tribunal.
The Tribunal set out the following reasons for concluding that the applicant did not satisfy criterion 050.214:
“13.5 Clause 050.214
In the circumstances the Tribunal has determined it appropriate to require a security in the sum of $5000 in respect of the Applicant’s compliance with the conditions which the Tribunal proposes to impose. At his request the Tribunal granted the Applicant until 5 p.m. EST on 14 July 1999, to arrange such security. At 4.30 p.m. EST on that day, the Applicant advised (through his agent), that he had been unable to obtain the required $5,000 security from any third party and requested that a decision be made on the information at hand.”
The Tribunal did not deal with Subitem 050.221 and failed to ask whether the applicant satisfied Subitem 050.214 at the time of the application. If it had done so, as noted above, it had to conclude that the applicant met the requirement.
The Tribunal appears to have exceeded the function it was authorised to perform under s 348 and 349 of the Act. Under s 348 of the Act the Tribunal must review a decision if an application for review is properly made under s 347. Section 349 provides that the Tribunal may, for the purposes of the review, exercise all the powers and discretions conferred by the Act on the person who made the decision (emphasis added).
First, the role the Tribunal is limited to review of a decision made under the Act. The function of the Tribunal is to determine whether the decision under review was the correct or preferable decision. (See: Drake v Minister for Immigration and Multicultural Affairs. (1979) 24 ALR 577; Minister for Immigration and Multicultural Affairs v Sharma (1999) 161 ALR 53, 56). In carrying out that function the Tribunal may exercise the powers and discretions conferred on the person who made the decision, limited, however, to the purpose of the review. That is not an authority to make a new and separate decision which, had it been made by an officer authorised to make it under the Act, may itself have been subject to review under the Act. The task of the Tribunal was to “address the same question that was before the decision-maker” and not a distinct and separate question and the Tribunal was not able to make any decision an officer may have been authorised to make under the Act, (See: Comcare v Burton [1998] FCA 1144; Lees v Comcare [1999] FCA 753; Fletcher v F.C.T. (1988) 19 FCR 442, 453).
Second, even if it were the fact that the detention review officer was an “authorised officer” for the purpose of s 269 of the Act, an issue not addressed by the Tribunal, and it could be said that the Tribunal, for the purpose of review could make a decision under s 269 to require and take a security for compliance with the condition imposed for the purpose of the Act or Regulations, the Tribunal was not empowered to act as it purported to do as recorded in its reasons.
The Tribunal could not require and take a security for compliance with conditions it may have imposed if it had decided to grant a visa. Section 269 empowers an authorised officer to require and take a security for compliance with the provisions of the Act or Regulations or with any condition imposed in pursuance of, or for the purposes of, the Act or Regulations (emphasis added). Persons providing security must know the terms of the condition that is being secured and, therefore, what act, or conduct, will amount to a failure to comply with the condition and make the security liable to forfeiture.
The Tribunal was not empowered to require the applicant to provide a deposit of cash in advance of the grant of a visa and, therefore, before any condition had been imposed on the visa granted. If the Tribunal made a decision to grant a visa its power would then be spent. It could not make a further decision thereafter requiring the applicant to provide security under s 269. It may also be noted that the conditions which may have been imposed on the grant of a visa did not include a condition that the applicant provide security for compliance with a condition imposed (See: Regulations: Schedule 2 Sub-Item 050.614).
At the time the Tribunal conducted the review hearing on 8 July 1999 on the application for review received by the Tribunal on 1 July 1999, only 2 working days remained before the Tribunal was required to make a decision and notify the applicant of that decision (s 367(1); Regulation 4.27). It may be observed that it appears the applicant was advised on 8 July 1999 that he, or a third party, was to deposit $5,000.00 in cash (and not, it seems, any other form of security) within 2 working days, later extended by a further 2 days. The applicant, of course, remained in detention. The Tribunal purported to rely upon the failure of the applicant to meet that requirement as failure to satisfy a prescribed criterion for the grant of the visa.
The decision making process carried out by the Tribunal miscarried entirely when the Tribunal erred in the foregoing purported application of the Act to the relevant facts of the application.
Counsel for the Minister submitted that if it were held that the Tribunal had made such an error of law it would not follow that the decision of the Tribunal should be set aside, because, it was said, the applicant would not have shown that but for that error the decision of the Tribunal would not have been made. That is, to obtain an order for review the applicant would have to show that the Tribunal also erred in concluding that it was not satisfied that the applicant would “abide” by the conditions imposed on the visa. I am not satisfied that the error of the Tribunal was a discrete event which had no impact on the deliberations of the Tribunal when it considered whether the applicant would “abide” by the conditions that may be imposed on the visa.
The only prospective condition to which the Tribunal turned its attention was the condition that the applicant not engage in work. The Tribunal said it was not satisfied that the applicant would not work “as there is no evidence to indicate that he would otherwise be able to support himself”.
Putting to one side any fallacy in the reasoning that the Tribunal could not be satisfied that the applicant would not obtain employment in the restricted period he would be at liberty before he departed Australia if the applicant was unable to support himself from his own means, I am far from satisfied that any view the Tribunal may have formed of the applicant’s circumstances based upon the failure of the applicant, or a third party, to provide a security to the Tribunal in an amount the Tribunal apparently thought was reasonable in the circumstances, did not affect the conclusion of the Tribunal that it could not be satisfied the applicant would not abide by the condition that he not engage in work. Indeed it is probable that the Tribunal was so influenced because it appeared to discount any prospect that in the period of a few days in which the applicant would be engaged in gathering his materials and preparing for departure, the applicant would be supported by his friends, or by fellow adherents of the religion to which he had provided service whilst in Australia. Indeed it may have been the case that the Tribunal regarded non-compliance with its requirement that funds be deposited on behalf of the applicant as an indication that financial support would not be available to him. If the Tribunal concluded that the applicant had a compelling need to work to support himself it is surprising that it did not consider whether it would be appropriate to impose reporting conditions under Item 8401 of Schedule 8 of the Regulations, or a condition under Item 8104 restricting the hours the applicant could work in a week. Although not so intended the decision operated as a condign punishment for the prior failure of the applicant to observe a condition of the visa that had been cancelled. It left the applicant in detention for a period which now spans almost 6 months. It is not an answer to say that the applicant could have brought that detention to an end by abandoning his claim that his application had not been determined according to law.
In deciding what was the preferable decision to have been made in the circumstances the Tribunal had to have regard to what interests were served by continuing to hold the applicant in custody at the community’s cost and by having him removed from Australia, also at the community’s cost, denying the applicant the opportunity to gather his academic papers and materials.
It is difficult to see what national interest was to be served by that course. If regard was given to the need to emphasise the serious view to be taken of non-compliance by visitors to this country with the conditions they are required to meet to enter and remain in this country, that need was met when the applicant was summarily detained and removed from the community and kept in custody thereafter.
The object of the Parliament in providing a right to apply for a Bridging E visa is to bring detention to an end in appropriate circumstances and to have detainees “regularize” their position to enable them to leave Australia with dignity, within an appropriate period and at their own cost (See: M. Crock Immigration and Refugee Law in Australia at 217 (Federation Press)). If an applicant’s circumstances meet the general purpose of such a visa cogent reasons should be demonstrated if a decision is made to refuse to grant the visa.
The conclusion of the Tribunal that it was not satisfied that the applicant would not engage in work in the period of the Bridging visa was a conclusion which required relevant findings on questions of fact material to that conclusion to be recited, and for the evidence relied upon for those findings to be identified, if the Tribunal was to be seen performing its function under the Act. (See: Muralidharan v Minister for Immigration and Multicultural Affairs (1996) 62 FCR 402 per Sackville J at 414; Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 15.)
The failure of the Tribunal to set out what findings it made about employment likely to have been available to the applicant in the few days before he departed and why it found it unlikely that he would obtain sufficient assistance from other sources in that period meant that the conclusion of the Tribunal adverse to the applicant remained unexplained and an apparently arbitrary step in what should have been a transparent process. The only evidence referred to by the Tribunal was the applicant’s statement that his brother had given him some funds from time to time, on which, the Tribunal said, it placed little weight. Indeed in the short period for which the applicant sought the Bridging E visa the prospect of the brother abroad providing assistance in that time was not of great relevance. The important part of the applicant’s case was that he had been providing services for institutions of the Islamic faith for nominal compensation, approximately $150.00 per fortnight, for some time and that he had been supported by friends throughout.
In stating that there was “no evidence to indicate that (the applicant) would otherwise be able to support himself” the Tribunal either misunderstood, or did not deal with, the applicant’s implied case that he would be supported by friends. If the Tribunal discounted the evidence from which the inference could be drawn that the applicant would be so supported it was obliged to set out its findings thereon and the evidence relied upon for those findings. (See: Muralidharan at 414). In addition to the material referred to above there was also before the Tribunal information to show that friends of the applicant had provided $700.00 to assist the applicant to obtain the airline ticket to return him to Ghana and that he would be “spoken for” by a senior figure in the Islam religion. The inference was clearly available on the whole of the material that the applicant would receive support to maintain him over the short period before he departed. The applicant was entitled to know how the Tribunal dealt with that material.
The decision of the Tribunal will be set aside and the matter remitted to the Tribunal for reconsideration according to law.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 17 December 1999
Counsel for the Applicant: MT Ritter Counsel for the Respondent: PR MacLiver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 18 November 1999 Date of Judgment: 17 December 1999
15
13
0