VBA v Minister for Immigration and Multicultural Affairs

[2001] FCA 1797

FEDERAL COURT OF AUSTRALIA

VBA v Minister for Immigration and Multicultural Affairs [2001] FCA 1797

MIGRATION – application to review decision of Migration Review Tribunal to refuse Bridging visa – whether challenge to finding as to applicant’s credibility gives rise to judicially reviewable error.

Migration Act 1958 (Cth) ss 116(3), 474(2)
Judiciary Act 1903 (Cth) s 39B

Karras v Minister for Immigration and Multicultural Affairs; Cabal v Minister for Immigration and Multicultural Affairs [1998] FCA 1705 referred to
Kanwar v Minister for Immigration and Multicultural Affairs [1999] FCA 943 referred to

R v Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598 at 615-616 referred to
R v Murray; Ex Parte Proctor (1949) 77 CLR 387 at 399-400 referred to
Re Minister of Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 74 ALJR 405 referred to

VBA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V1163 of 2001

WEINBERG J
13 DECEMBER 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1163 OF 2001

BETWEEN:	VBA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WEINBERG
DATE OF ORDER:	13 DECEMBER 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs, save for any costs incurred by reason of senior counsel having been retained.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1163 OF 2001

BETWEEN:	VBA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WEINBERG
DATE:	13 DECEMBER 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

1. This is an application for review of a decision made by the Migration Review Tribunal (“the Tribunal”), the reasons for which were published on 26 October 2001.  The applicant, an Indian national, entered Australia on 24 September 2000 as the holder of a Student (Temporary) (Class TU) visa, subclass 560, which was issued pursuant to the Migration Act 1958 (“the Act”). That visa was valid until 4 October 2000. On that date the applicant was issued with a further subclass 560 visa, valid until 13 October 2002.

2. The further subclass 560 visa was cancelled on 2 August 2001, pursuant to s 116(3) of the Act because the applicant had failed to meet course requirements. He had thereby breached condition 8202 of his visa.

3. On 2 August 2001 the applicant applied for a Bridging E visa.  In his application he stated that he “just wanted some financial funds so that I can leave the country by buying my own ticket”.  He was granted a Bridging visa valid for one week, until 9 August 2001, subject to conditions that included that he produce a passport and valid ticket by that date and leave Australia by 20 August. 

4. The applicant did not attend the offices of the Department of Immigration and Multicultural Affairs (“DIMA”) by 9 August 2001.  He therefore became an unlawful citizen as from the following day.  He was traced to the Alfred Hospital on 13 August.  He had been admitted to hospital suffering from depression.  He advised DIMA officers that he would be discharged the next day.  He said that he would present to DIMA at once and apply for a new Bridging visa.  However, he failed to attend DIMA or otherwise make contact until 27 August, despite several attempts having been made to contact him. 

5. On 27 August, he claimed that he had been discharged from hospital only the previous day. He was detained under s 189 of the Act, and said that he did not want apply for a Bridging visa.

6. On 11 September 2001 the applicant applied for a Protection Visa, and also for a Bridging visa.  The application for a Bridging visa was refused on the following day.  The application for a Protection Visa has not yet been determined. 

7. On 12 October 2001, the applicant made another application for a Bridging visa.  Four days later, that application was refused.  On 17 October, the applicant sought review of the delegate’s decision by the Tribunal.  The Tribunal conducted a hearing on 25 October and on the following day published its reasons for affirming the delegate’s decision to refuse the grant of the Bridging visa. 

   THE APPLICANT’S CLAIMS

8. The applicant gave evidence before the Tribunal and also provided it with a written submission prior to the hearing. 

9. In that submission, the applicant acknowledged that his purpose in entering Australia was to seek asylum, and not to study. 

10. The applicant claimed that he had suffered depression, insomnia, loss of appetite and influenza since his detention and felt that those conditions had been exacerbated by his having been detained.  He was also concerned about the costs which he was incurring by reason of the detention.  He claimed that he only became an unlawful citizen as a result of his hospitalisation for depression.  He reiterated that he was a genuine asylum seeker and that his intentions were honest.  He submitted that he had sufficient support from the local community to live independently.  He further submitted that he would abide by any conditions imposed by the Bridging visa if it were granted. 

11. In oral evidence before the Tribunal, the applicant confirmed what he had set out in his written submissions.  He also added that he had had no intention, when he entered Australia, of studying and that his sole purpose had been to migrate permanently.  He explained that he had originally applied for the student visa which he had been granted because it was the easiest way to obtain immediate entry to Australia.  He claimed that he had no funds in Australia or India, and that his father, a public servant in the Indian central government was, at best, able to send him $200 per week pocket money.

    THE APPLICATION FOR REVIEW IN THIS COURT

12. The application before this Court was filed on 7 November 2001.  It is in a form which is defective in several respects.  However, nothing turns upon that.  The applicant is unrepresented and should be given every latitude in terms of any non-compliance with the Rules of Court. 

13. The application does not set out any recognisable grounds of judicial review.  Nor does the applicant’s outline of contentions of fact and law, which merely makes claims as to the merits of his application for a Bridging visa. 

14. It is clear that the decision under challenge is that of the Tribunal of 26 October 2001 to affirm the delegate’s refusal to grant a Bridging visa. That decision is a “privative clause decision” within the meaning of s 474(2) of the Act, as amended, as from 2 October 2001. The Court has jurisdiction to entertain the application pursuant to s 39B of the Judiciary Act 1903 (Cth). It has no other jurisdiction.

    THE TRIBUNAL’S DECISION

15. The Tribunal summarised the criteria which the applicant needed to meet in order to be eligible for the Bridging visa which he sought. It found that he met the threshold criteria required in Part 050 subdivision 050.21 of the Regulations to the Act. It also found that he met the criteria required by clauses 050.221 and 050.222.

16. The Tribunal then noted that clause 050.223 requires that, if a Bridging visa is granted, the applicant will abide by the conditions (if any) imposed on that visa.  The delegate did not determine what conditions should be imposed but instead found that the applicant’s immigration history indicated that it was highly improbable that he would abide by the conditions of any further visa issued to him. 

17. The Tribunal considered what conditions should be attached to the visa if one were to be issued.  It found that a series of conditions would be appropriate.  It referred to Karras v Minister for Immigration and Multicultural Affairs; Cabal v Minister for Immigration and Multicultural Affairs [1998] FCA 1705 where Merkel J held that the Tribunal was required to be positively satisfied that an applicant would abide by conditions which it might impose. It also referred to Kanwar v Minister for Immigration and Multicultural Affairs [1999] FCA 943 where Kiefel J held that where the Tribunal finds that if even one of the possible conditions will not be abided by, the applicant will not satisfy the relevant criteria.

18. The Tribunal concluded that various conditions should be attached to any Bridging visa granted to the applicant.  These included conditions 8101, 8201, 8401, 8505, 8506 and 8507.  It noted that that applicant had assured the Tribunal that he would abide by each of those conditions.  However, it rejected those assurances.  Its  reasons were expressed on the following terms:

    “…he has, since arriving in Australia, in September 2000 breached the conditions of his visa on a number of occasions.  The visa applicant also produced a bogus document to DIMA in connection with his application for the subclass 560 visa.  He has advanced excuses for those breaches but the offers of support that he now has will not ensure that the breaches do not  continue in the future…The Tribunal finds that the visa applicant is not a credible witness.  The Tribunal finds that the visa applicant will not abide by the conditions and the provision of security pursuant to clause 050.224 will not ensure compliance, as the visa applicant has no personal or family assets as risk.  The Tribunal therefore finds that the visa applicant does not satisfy clause 050.223.”

    CONCLUSION

19. The decision under challenge is a “privative clause decision” within the meaning of s 474(2) of the Act. Judicial review may nevertheless take place, albeit in limited circumstances. The scope of such review is discussed in the judgment of Dixon J in R v Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598 at 615-616. See also R v Murray; Ex Parte Proctor (1949) 77 CLR 387 at 399-400. It is necessary for the applicant to demonstrate something at least akin to “jurisdictional error” on the part of the Tribunal (see for example Re Minister of Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 74 ALJR 405 per McHugh J).

20. The applicant submitted in argument that the Tribunal had erred in finding that he was not a credible witness.  That was, in part at least, because it had failed to accept his explanation for having told DIMA that he would obtain a passport and ticket, and leave Australia by 20 August 2001, when he had no intention of doing so.  The applicant claimed that he had made that representation under duress.  However, the delegate had rejected that claim and so too, implicitly, had the Tribunal.  The applicant insisted that he had told the Tribunal the truth, and argued that it had erred by rejecting his account.  He claimed that the Tribunal had thereby demonstrated a lack of independence. 

21. The respondent submitted that the applicant’s argument did not demonstrate a judicially reviewable error of any kind, still less an error of the kind necessary to attract relief under s 39B of the Judiciary Act (as affected by the privative clause provisions recently introduced into the Migration Act).  The respondent submitted that the applicant was simply inviting this Court to engage in merits review. 

22. In my opinion, the respondent’s submissions must be accepted.  The applicant has sought to do nothing more than challenge an adverse finding of fact, essentially going to his credit, made by the Tribunal.  Such a challenge cannot give rise to review in this Court. 

23. The application must be dismissed.  The respondent acknowledged that it would not be appropriate to visit upon the applicant the additional costs incurred by the retention of senior counsel.  Accordingly the applicant will pay the respondent’s costs other than those costs incurred as a result of senior counsel having been retained.  

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:             13 December 2001

The Applicant appeared in person.
Counsel for the Respondent:	Mr A.L. Cavanough QC with Ms M.E. Kennedy
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 December 2001
Date of Judgment:	13 December 2001