Waks v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1621
•8 DECEMBER 2004
FEDERAL COURT OF AUSTRALIA
WAKS v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1621MIGRATION - judicial review – detention of unlawful non-citizen under Migration Act – refusal of grant of protection visa by delegate – refusal to grant Bridging E visa – decision of Refugee Review Tribunal affirming refusal to grant protection visa – no viable grounds for review – application dismissed
Migration Act 1958 (Cth) s 75
Migration Regulations 1994 reg 2.24
WAKS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W192 OF 2004FRENCH J
8 DECEMBER 2004
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W192 OF 2004
BETWEEN:
WAKS
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
FRENCH J
DATE OF ORDER:
8 DECEMBER 2004
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant pay the respondent’s costs of the application.
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
W192 OF 2004
BETWEEN:
WAKS
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
FRENCH J
DATE:
8 DECEMBER 2004
PLACE:
PERTH
REASONS FOR JUDGMENT
Introduction
A United States citizen entered Australia on a visitors visa in 2002. He remained in Australia long after his visa expired. In February 2004, he was apprehended by officers of the Department of Immigration and taken into detention pending his removal from Australia. He subsequently made a number of applications for bridging visas and an application for a protection visa. All were ultimately unsuccessful. He now seeks to challenge various decisions made in relation to his various applications.
It is plain that the applicant is not, and never has been, as he claims, a refugee from the United States within the meaning of the Refugee Convention, and his various applications and challenges are part of a desperate stratagem to remain in Australia. He has not shown any basis for the grant of any relief by this Court. The application is dismissed with costs.
Factual and Procedural History
The applicant is a citizen of the United States who was born in Minnesota on 4 March 1980. On 27 July 2002, he entered Australia on a visitors visa, which was valid until 27 October 2002. He made no application for a further visa prior to its expiry. Nor did he make any such application until March 2004 when he had been located and taken into detention by the Department of Immigration. In November 2003, the Department of Immigration instituted action to locate the applicant pursuant to s 18 of the Migration Act 1958 (Cth) (the Act). On 28 February 2004, officers of the Department took the applicant into detention as an unlawful non-citizen under the provisions of the Act.
On 4 March 2004, the applicant applied for a Bridging E visa, subclass 050. On 8 March 2004, that application was refused by an officer of the Department. One of the question on the application form was:
‘Q.Why did you not depart Australia before the expiry of your visa or after your application was refused?’
The applicant answered:
‘A. Fear and people need me here.’
Asked whether he intended to apply for a visa other than a bridging visa he indicated that he intended to apply for a spousal visa. In the event it was clear that the applicant did not meet the criteria for the grant of a Bridging E visa subclass 050. In the decision record the delegate who refused his application said, inter alia:
‘After having regard to [WAKS’s] immigration history and taking his current circumstances into account I am not satisfied that he would abide by all of the conditions appropriately imposed on any bridging visa granted to him. I note [WAKS’s] desire to remain in Australia and his advice that “there is no way I’m stepping foot on American soil again it is tainted with blood and tragedy” acts as a strong disincentive for him to abide by the conditions of a bridging visa. [WAKS] has demonstrated his willingness to remain in Australia unlawfully if he must.’
Following this decision the applicant applied, on 23 March 2004, for a protection (Class XA) visa. This application was rejected as invalid for reasons which are not material for present purposes. On 5 April 2004 however, the applicant made a fresh application for a protection visa.
In support of his claim to be a refugee, the applicant said he was seeking protection in Australia so that he did not have to go back to the United States of America. He was asked on the application form ‘Why did you leave that country?’. His answer was rambling and disconnected. He referred to an inability to function or stay focussed and said he remained ‘on the edge of suicide’. He referred to operations against the Mexican mafia and threats made on his life. He referred to post-traumatic stress syndrome. He claimed to have been victimised, abused, raped, assaulted and taken from his home as a conscientious objector to America’s selfish and dishonest way of life. He said he was ashamed of being labelled an American and constantly being oppressed with injury and punishment for adherence to the principles by which he lived. He said his hatred for America showed and that he was many times assaulted and abused because of his beliefs. He said every time he ‘would get things going successfully in life’ the government would wipe him off his feet and not let him live a normal life. He claimed that the government started drugging him when he was 11 years old by pumping pills through him to do scientific experiments, drastically reducing his physical and mental health and teaching him a need for drugs. For this reason he had become mentally and physically addicted. He said he would never have a life in America and would be cast into a world of selfishness, racism, shame and dishonesty. He claimed he would be murdered by a corrupt government. He said he would be killed or gaoled for his anti-American beliefs or for being labelled an American by those who have been victimised by America’s violent, strong-arm tactics.
Following his application for a protection visa the applicant made a further application for a Bridging E visa on 15 April 2004. That application was refused on 16 April 2004. The officer refusing it was not satisfied that the applicant would abide by the conditions of the visa if it were granted. The applicant sought review of the decision in the Migration Review Tribunal (the MRT). On 3 May 2004, the MRT made an order in the following terms:
‘The Tribunal remits the application made by the visa applicant for a bridging visa E (Class E) Subclass 050 Bridging (General) visa to the Department of Immigration and Multicultural and Indigenous Affairs, for reconsideration with the directions:
1.That conditions 8101, 8401, 8505, 8506 and 8507, of Schedule 8 be attached to the visa.
2.That the visa applicant meets the following criteria:
.subdivision 050.21 of Schedule 2
.subclauses 050.221 and 050.222 of Schedule 2
3.That a security of $10,000 for compliance with conditions is required to be lodged to enable the visa applicant to meet subclauses 050.224 and 050.223.’
The conditions which the Tribunal required to be satisfied, which are set out in Schedule 8 of the Migration Regulations, include condition 8507 which provides:
‘The holder must, within the period specified by the Minister for the purpose:
(a)pay; or
(b)make an arrangement that is satisfactory to the Minister to pay;
the costs (within the meaning of Division 10 of Part 2 of the Act) of the holder’s detention.’
Conditions 8505 and 8506 require the holder of a bridging visa to continue to live at the address specified by the holder before the grant of the visa and require that the holder must notify the Department at least two working days in advance of any change in address. Condition 8401 requires the holder to report at a time or times and at a place specified by the Minister for the purpose. Condition 8101 requires that the holder not engage in work in Australia.
The applicant was notified of the Tribunal’s decision on the same day as it was delivered. He was also sent a facsimile message from the Department advising, inter alia, that he was required to make arrangements to pay detention costs of $33,962.50 in order to satisfy condition 8507. A follow up letter dated 7 May 2003 attached guidelines for the use of instalments to repay debt. The letter from the Department referred to a telephone conversation on the same day in which the applicant had indicated that he was working on the possibility of arranging an initial lump sum payment of his detention costs. He was advised that the delegate had agreed to allow him until close of business on 10 May 2004 to provide details of his payment plan.
On 10 May 2004, the applicant advised the Department by telephone that he would not be able to abide by the conditions of the visa and asked that they proceed to make a decision on his Bridging E visa application.
On 13 May 2004, the applicant’s application for a protection visa was refused by a delegate of the respondent. The delegate referred to the claims made in the application, additional claims which had been faxed on 10 May 2004 and claims made at interview on 12 May 2004. The additional ‘claims’ made on 10 May 2004, as described by the delegate in the decision record, comprised the following:
.A newspaper clipping stating that fear of terrorist attacks within the USA may be justified.
.The statement in the applicant’s fax that the article showed a real chance of persecution for reasons of nationality.
.The claim that Americans are primary targets of some terrorists and that the US President says in the news clipping that he can understand that the USA may be hit again.
.The claim that the applicant should not be required to submit himself to that real chance ever again.
At interview the applicant gave further information to justify his feelings of persecution. These included the statement that he was unable to get a good job without a better education and was trying to get a better education when he was taken from school to serve a three-month gaol sentence. He claimed he was not allowed to live amongst friends on land belonging to native Americans and had to move as he could not register to live there because he was not a native American even though he lived in harmony with the environment. Further details were offered of alleged persecution by police in connection with the applicant’s involvement in demonstrations about mining, forestry and other environmental issues. This included information about his activities handing out pamphlets for the Sierra Club when he said he was taken about 20 miles from the area he was in and left by police to find his way home.
The applicant also said at interview that he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) at an early age and that the treatment for that helped lead him into further drug abuse.
Although the applicant advised that he had no criminal record or charges brought against him in Australia, as a juvenile he had been convicted of a sex offence in the United States but declined to give further details. No penalty was imposed because of his age. However he attended counselling sessions. Because of this he was required to register with police. When he moved he failed to do so and so has a pending charge from Minnesota.
The applicant also said he had an outstanding three-month sentence for leaving the scene of an accident. When he went to gaol to serve the sentence a Mexican mafia cartel came out of the bushes to attack him. They shot at him just as he approached the guard at the gaol entrance so he ran away and has not served the sentence. The applicant stated to the delegate his concern that if returned to the United States he would be extradited to Colorado to serve the outstanding sentence and the Mexican mafia cartel would soon find out he was there and would kill him.
The delegate essayed extensive reasons for the decision. He said, inter alia:
‘While I appreciate that the Applicant may have very strong moral differences with the accepted norms and standards held within American society, it is clear that a great number of people in the United States disagree in a similar manner, and do not suffer persecution. Rather, their rights to hold such opinions and to be free to make them known is vigorously protected through the State, through the judicial system and federal and state-based law enforcement authorities. The fact that the applicant may find such standards unacceptable does not constitute persecution.’
He also found the applicant could reasonably be expected to serve a penalty given to him after due process had been observed and this would not amount to persecution.
As to his alleged fears of harm from a Mexican mafia cartel, the delegate found that the applicant could relocate after he had served his outstanding sentence. In the event the delegate found that the applicant did not have a real chance of Convention-based persecution if returned to the United States of America and that his fear of persecution on return was not well-founded.
Following the delegate’s refusal of his application for a protection visa on 13 May 2004, the applicant applied on 19 May 2004, to the Refugee Review Tribunal (RRT) for a review of that decision. The following day he made a fresh application for a Bridging E visa. On 27 May 2004, a delegate of the Minister refused to grant him a Bridging E visa. He sent a letter to the applicant advising him of that outcome and enclosing a copy of the record of decision for information. The letter advised him that he had a right of review of the decision by the MRT and concluded:
‘As you do not hold a current visa you are an Unlawful Non-Citizen and must be detained. You will be held in Immigration detention pending your removal from Australia.’
The decisional record does not appear in the papers before the Court. The applicant applied on the same day to the MRT for a review of the delegate’s decision refusing to grant him a Bridging E visa.
On 7 June 2004, the MRT affirmed the delegate’s decision that the applicant was not entitled to the grant of a Bridging E visa. The MRT decision referred to some of the events surrounding the application. In particular, the MRT noted that on 20 May 2004 the delegate had faxed a Form 1212 ‘Notice of Conditions and Security’ to the applicant advising of the conditions that would be attached to a bridging visa which included making arrangements to pay the cost of detention of $41,800 by 26 May 2004 and that his visa would remain in effect, if granted, until 17 June 2004. A security was set of $10,000. The application was refused by the delegate on the basis that the applicant had not responded to the delegate’s request to make arrangements to pay detention costs or the security of $10,000.
The MRT received submissions from the applicant and conducted a telephone hearing on 4 June 2004. At the hearing the MRT advised the applicant that the issue was whether or not he had made a valid application. It explained to him the effect of s 74 of the Act and reg 2.23 of the Migration Regulations. He was informed that he was at liberty to file a further application for a Bridging E visa at any time from the expiry of 30 days from 3 May 2004, being the date that his last application for a Bridging E visa was finally determined and that those 30 days expired the day before the hearing. The applicant said at the hearing that he wanted to rely on his application made on 20 May 2004 and had been advised that he could make it. He did not say who had advised him. He said that the Minister had previously been satisfied that he met the criteria relating to his application. He raised a number of issues concerning the costs of detention, including the fact that for a long period of time he was being charged $532 per day. This amount had evidently been reduced to $130 per day and he had been unable to find out from the Department what was the reason for the discrepancy in costs and why the figure was so high to begin with. In answer to questions from the MRT he said that the security of $10,000 remained unpaid and that he had not paid his detention costs.
In its reasons for decision the MRT referred to the requirements of s 74 of the Act for a valid application. Section 74 provides:
‘(1) Subject to subsection (2), if:
(a)an eligible non-citizen who is in immigration detention makes an application for a bridging visa; and
(b)the Minister refuses to grant the visa;
the eligible non-citizen may make a further application for a bridging visa.
(2) Unless the further application for a bridging visa is made in prescribed circumstances, the further application may be made not earlier than 30 days after:
(a)if the eligible non-citizen did not make an application for review of the decision to refuse to grant the visa – the refusal; or
(b)if the eligible non-citizen made an application for such review – the application is finally determined.’
Regulation 2.23 of the Migration Regulations was also referred to by the MRT and provides:
‘For the purposes of subsection 74(2) of the Act (which deals with a further application for a bridging visa), the prescribed circumstances are that the Minister is satisfied that, although the non-citizen has not made a further application for a Bridging E (Class WE) visa after being refused a visa of that class, the non-citizen now satisfies the criteria for the grant of a visa of that class.’
The MRT observed that the applicant had made an application for a Bridging E visa on 15 April 2004 which had been refused on 16 April 2004. It noted that a differently constituted Migration Review Tribunal had affirmed the decision of 16 April 2004 in its determination on 3 May 2004. The MRT was of the view that the applicant had not waited 30 days since the previous final determination which was made by the MRT on 3 May 2004. It then considered whether the relevant prescribed circumstances existed, that is to say whether at the time of the fresh application the applicant satisfied the criteria for the grant of the visa. The Tribunal concluded that because the applicant had not complied with the requirement to pay or arrange to pay his detention costs of $41,800 or the security of $10,000 the prescribed circumstances did not exist as it could not be satisfied that he would abide by the conditions imposed on the grant of a Bridging E visa. The Tribunal also expressed the view that the application made on 20 May 2004 was invalid pursuant to s 74(2)(a) and should have been dealt with as such by the delegate.
On 30 June 2004, the applicant made a further fresh application for a Bridging E visa and that was refused on 2 July 2004 by a delegate of the Minister. The applicant once again applied to the MRT for a review of that decision on 6 July 2004. On 19 July 2004, the Tribunal affirmed the decision refusing to grant the applicant a Bridging E visa. On the same day the RRT affirmed the delegate’s decision refusing to grant the applicant a protection visa.
The Reasons for Decision of the Refugee Review Tribunal
The RRT, in its reasons for decision, referred to the claims and evidence before it. These included oral evidence given by the applicant by video link on 8 July 2004.
The RRT observed that the applicant had made various iterations of his claims in a statement faxed to the Department on 5 March 2004. It set out in summary form the content of the submission made previously by the applicant to the Department on or about 19 March 2004. These claims were repeated in his protection visa application form on 29 March 2004. On 15 April 2004, the applicant had sent the Department a seven page submission titled ‘Where is the love?’. This was described by the RRT as ‘a stream of consciousness account of his life in America’. It highlighted his relationship with the woman he married and from whom he is currently separated. It discussed her addiction and precarious mental health and his efforts to prevent her being supplied with drugs and how he developed the habit himself. He had reiterated that police and ‘Mexican Mafia’ were trying to kill him. He described periods of employment and how he informed police about drug suppliers. He described how he was attacked by ‘Mexicans’ in front of a police officer when he presented himself to serve his three months sentence for leaving the scene of an accident. He also stated in the submission that not long after that the ‘Mexicans’ had jumped out of bushes and attacked him when he was walking to a bus. He claimed he was able to escape as they started shooting at him. On another occasion he managed to escape from pursuing police by jumping over a fence. He then decided to leave for Australia and described how in Australia he married and how his wife began having problems again and they separated. He claimed that false allegations had been made against him to Australian authorities by a person having an affair with his wife.
In the application for review of the decision he had resubmitted the material entitled ‘Where is the love?’ as well as a restatement of his claims of 19 March. He had attached testimonial letters from a number of friends from Western Australia. He argued on the review form that he feared persecution by reason of his political views and that he would not get protection by the authorities. The Tribunal said that at the hearing he reiterated these claims.
On 9 July 2004, the RRT had received 77 faxed pages of information relating to the composition and effects of a number of drugs including anti-depressants, anti-hypertensive and sympathomimetic drugs as well as three newspaper articles on drugs, child abuse laws and ADHD.
In its findings and reasons the RRT divided the applicant’s claims as follows:
1.Those related to the alleged therapeutic treatment he received from authorities in his childhood.
2.Those relating to infractions of the law he had committed over a period of years in the US; and
3.Those relating to his role as an ‘informant’ in relation to his wife’s drug problems, vis a vis, American authorities and a Mexican mafia cartel.
The RRT appears to have accepted that the applicant had lived through a number of difficulties in his childhood and adolescence, including being victimised, abused, raped and assaulted and observed that clearly the effects of these were still being felt by him in adulthood. As serious as the harm resulting from those experiences might be, the Tribunal found that they were not related to any Convention ground. They properly belonged to a consideration of the applicant’s situation on humanitarian grounds. It was impermissible for the RRT to engage in a consideration of them. That was a matter for the Minister. The RRT was limited to examining the claims as they related to the Refugee Convention.
Issues relating to the applicant’s outstanding prison term and other legal difficulties, were the result of court orders or those of other institutions. The RRT found that the sanctions arising from such orders did not constitute Convention persecution as they represented lawful measures for the enforcement of non-discriminatory laws taken by a government to protect the general welfare of society. There was no evidence before the Tribunal to indicate that the laws were applied to the applicant in a discriminatory manner nor that he had received excessive punishment for a Convention reason.
As to the claims relating to the applicant’s interaction with the drug world and police and the applicant’s activities as an informant, the RRT said:
‘The evidence on this point is not absolutely clear and the applicant was not consistent in the statements relating to his actual role. At one instance he stated that he simply went to the authorities with information about the drugs, at another point he stated that the police wanted to ‘wire him up’ so he could provide solid evidence; he said at first that he acceded to their wish and later in the hearing he stated that he refused to carry a tape recorder for the police to record the drug transaction; at another point he stated that the Department of Justice asked him to leave the country and he intimated that his uneventful departure out of the US through Los Angeles, even though he had outstanding legal issues may have been facilitated by the Department of Justice.’
The RRT accepted that the applicant had gone to authorities to reveal information about persons supplying drugs to his wife, but did not accept that he was a fully fledged ‘informer’ working for the police. Nor did it accept that he occupied a position sufficiently relevant for the detection and arrest of drug rings. The Department of Justice would, in that event have first briefed him and second, would not simply have allowed him to leave after he went to them. The RRT rejected the applicant’s claim that he had told the Department of Justice about people selling cocaine to his wife and given information about them and their associates.
The RRT found that while the applicant may have been attacked by some people supplying drugs to his wife, he had provided no evidence or description of their number, modus operandi or sphere of influence. There was no evidence that the assault on him was motivated by his alleged report to the police.
The RRT said:
‘Notwithstanding some concerns which the Tribunal has expressed regarding the applicant’s credibility in relation to the claims relating to the Mexican mafia and his status as an informer for the police and the police involvement in harming him, the Tribunal finds that even if it were to accept these claims in their entirety the harm resulting from these issues are not for a Convention reason and the applicant is able to obtain adequate state protection. The Constitution of the United States, the US Commission on Civil Rights, the US Department of Justice (among others) provide a series of mechanisms not only for the protection of citizens but also avenues for complaints by citizens about their treatment at the hands of the system (see their individual websites).’
The RRT found the applicant would not be of interest to the US government except under laws of general application and that he did not face a real chance of persecution for a Convention reason now or in the reasonably foreseeable future should he return to the US. His fear of persecution was not well-founded.
The Application for Review
On 11 August 2004, the applicant filed an application purporting to be an application for judicial review of a number of decisions. The decisions in respect of which he sought review were the following:
1. The decision to take him into immigration detention on 28 February 2004.
2.The decision of the Minister’s delegate to refuse to grant him a protection visa on 13 May 2004.
3.The decision to refuse to grant him a Bridging E visa on 27 May 2004.
4.The decision of the RRT affirming the decision refusing to grant him a protection visa.
The grounds for the application, which purported to be made under s 39B of the Judiciary Act 1903 (Cth) and provisions of the Act, were set out discursively in the application. The applicant also filed a Statement of Grievances. In an affidavit in support of his application, sworn on 10 August 2004 and filed on 11 August 2004, he also referred to each of the decisions and again set out his complaints about them.
It will be convenient to deal with his complaints by reference to each of the decisions separately.
The Detention Decision of 28 February 2004
The applicant complained in his affidavit in support of his application for judicial review that officers of the Department had illegally entered his house and detained him with excessive use of force on 28 February 2004. He said he was not charged with any criminal offence and not informed of any. He was told that he would be held arbitrarily until an unknown date after which he would be deported. He claimed he was detained for his inability to perform a contractual obligation and that his human rights were ignored. There was no relevant elaboration of these complaints in the applicant’s oral submissions.
Section 189(1) of the Act provides:
‘(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.’
It is not in dispute in the present case that at 28 February 2004 the applicant did not hold a visa and was an unlawful non-citizen. It is not and could not be disputed that he was in the migration zone. Nothing in what the applicant has said indicates any basis upon which his detention could be set aside. The conditions for the application of s 189(1) had been satisfied at the time that he was taken into detention.
The challenge to the detention action of 28 February 2004 fails.
The Refusal to Grant a Protection Visa on 13 May 2004
The decision challenged under this head is the decision of the Minister’s delegate to refuse the applicant’s application for a protection visa on 13 May 2004. The complaints made about that decision are various. It is asserted by the applicant in his application that the delegate did not follow the ‘policies, procedures and guidelines on determining refugee status’. He referred to the ground of judicial review, available under the former s 476 of the Act, relating to failure to observe procedures required by the Act to be observed. He alleged that the delegate did not take the necessary time and consideration of his situation and had arrived at a pre-determined judgment based on a biased opinion. He broadly asserted that there was systematic and discriminatory conduct on the part of the delegate.
It is sufficient to say, having regard to what is set out in the various paragraphs of the application relating to this decision that there is no basis disclosed upon which a finding of jurisdictional error sufficient to vitiate the decision could be made. In any event, the applicant had access to full merits review by the RRT and as a matter of discretion the prospect of obtaining relief in relation to the delegate’s decision where there had subsequently been a full review by the RRT, would be vanishingly small. The challenge to the delegate’s decision fails.
The Refusal to Grant a Bridging E Visa on 27 May 2004
The principal point made under this ground related to the failure of the delegate to make a decision within five working days of the lodgment of the application. The application for a Bridging E visa was lodged on 20 May 2004 and was refused on 27 May 2004.
Section 75 of the Act provides:
‘(1) If:
(a)an eligible non-citizen who is in immigration detention makes an application for a bridging visa of a prescribed class; and
(b)the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa;
the non-citizen is taken to have been granted a bridging visa of the prescribed class or prescribed conditions (if any) at the end of that period.
(2) The period in subsection (1) may be extended in relation to a particular application by agreement between the applicant and the Minister.’
Regulation 2.24 of the Migration Regulations 1994 provides:
‘(1) For paragraph 75(1)(a) of the Act (which deals with the class of bridging visas that may be granted to a non-citizen in immigration detention), the prescribed classes of bridging visa are:
(a) Bridging E (Class WE) visa; and
(b) Bridging F (Class WF) visa.(2) For the purposes of paragraph 75(1)(b) of the Act (which deals with the time in which the Minister must make a decision on a bridging visa application), the prescribed period is:
(a) in the case of an application by:
(i) a non-citizen who has been immigration cleared; or
(ii)a non-citizen who is an eligible non-citizen referred to in subregulation 2.20(6);
2 working days; or
(b) in any other case – 28 days.’
Counsel for the Minister referred in reply to s 74(2) of the Act which provides that where an application for a bridging visa is made after an earlier application has been refused then, unless it is made ‘in prescribed circumstances’ the further application may not be made earlier than 30 days after the final determination of the earlier application. The earlier application in this case had been determined finally on 10 May 2004 following the refusal by the applicant to meet the conditions attached to the grant of that visa. The prescribed conditions were not satisfied as the applicant was not prepared to comply with the conditions requiring payment of a bond and detention costs.
It follows, for the reasons which the MRT subsequently found, that the application was invalid. There was no question of the deemed grant of a Bridging E visa pursuant to s 75 and reg 2.24. The challenge to the decision of 27 May 2004 fails.
The Decision of the Refugee Review Tribunal Affirming the Refusal of the Grant of a Protection Visa – 19 July 2004
The challenge to this decision is based upon contentions that the RRT failed to hear out the concerns of the applicant and made its decision without ensuring that all evidence was heard. It is said by the applicant that the RRT did not apply the criteria for the grant of a protection visa ‘in a spirit of justice and understanding’ but made ‘biased reports’ and made the decision ‘primarily influenced by the personal consideration that the applicant was an undeserving case’. The applicant attacks the RRT’s findings of inconsistency in his evidence. He asserts that the Tribunal reviewed very little of his claims and failed to give him proper care and consideration in reviewing his case as a whole and allowing full clarification and a complete oral hearing. He asserts that the RRT suddenly ended the hearing after discussion of very little of his claims. He had several issues left to discuss and wanted a fair, complete and concise hearing, the failure of which deeply disturbed him as those decisions could be the difference between life and death.
In the course of the trial of the application for review of the RRT’s decision, the Court asked the applicant what particular claims he was contending that he would have made and had not been given the opportunity to make. The exchange at the hearing was as follows:
‘Q.What I am asking you to tell me is this: the purpose of the RRT process is to determine whether, amongst other things, you had a well-founded fear of persecution by reason of one of the matters set out in the Refugee Convention, which includes political opinion and so forth. What claim do you say that you would have advanced before the RRT if you had been given a chance but that you weren’t given a chance to advance before the RRT?
A.My claims have been put forth, I guess, yes. But I guess it is the particulars of my claims that weren’t fully expressed and that the delegate did not ensure that there was proper clarification and did not ensure that there was a proper time line and a full time line and a record of events.’
Asked what he thought the member was required to do, the applicant said he should have been given an invitation to comment on the reasons why the visa was denied.
It is clear from the claims made by the applicant to the RRT that his application for a protection visa was hopeless. The claims as framed did not identify him as a person who could conceivably qualify for protection under the Refugee Convention. The apprehended harm which he asserted related to either laws of general application or harm from particular criminal elements within the United States in respect of which, as the Tribunal found, there are State protection mechanisms available. Other generalised claims about his attitude towards the United States generally, his hatred of it and the lifestyle do not give rise to a basis for a fear of persecution related to any of the Convention grounds. The challenge to the decision of the RRT also fails.
Conclusion
For the preceding reasons this application will be dismissed. The applicant will be ordered to pay the respondent’s costs of the application.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate:
Dated: 8 December 2004
The applicant appeared on his own behalf Counsel for the Respondent: Mr JD Allanson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 December 2004 Date of Judgment: 8 December 2004
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