Applicant VAAN of 2001 v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 An entertainer who wishes to enter Australia to perform one or more engagements may obtain an entertainment visa which is a sub-class of a Cultural/Social (Temporary) (Class TE) Visa: Migration Regulations, Sch 1, Item 1205 and Sch 2, Item 420. In October 2001 a group of Sri Lankans pretending to be either singers, dancers or drummers applied for entertainment visas for the alleged purpose of undertaking performances in Australia. Three people representing the group attended at the Australian High Commission in Colombo on 31 October 2001 to provide information in support of the visa applications. One of them purported to be the dance master at the Nishadhi Dance Centre where it was alleged the visa applicants were members. Another purported to be the group's manager. The dance master explained to an officer in the Minister's department that he had toured countries including France, England, Singapore and Malaysia. He said that he intended to take some of the performers to tour Japan after their trip to Australia. The officer asked to meet the group members. They attended at the Commission on the following day and were briefly interviewed. At one point they were asked to give a performance, but refused. The dance master explained that there would need to be prayers before a performance and, in any event, it was inappropriate for his troop to perform in jeans. 2 The officer, a delegate of the Minister for the purpose of granting visas, was satisfied that the thirteen visa applicants were indeed either singers, dancers or drummers and, after noting that the group had an Australian sponsor (one of the criteria for an entertainment visa), approved their applications and entertainment visas were granted to them. The dance master and the manager were also granted visas to enter Australia. 3 The group arrived in Australia on 5 November 2001. A few hours later the Minister's department was informed by the group's sponsor that most members of the group were not the performers they had claimed to be. They could not dance or play the drums, and the group had no intention of conducting any performances. Therefore, the sponsorship had been withdrawn. 4 Section 116 of the Migration Act 1958 (Cth) empowers the Minister to cancel a visa in a variety of situations including where the Minister is satisfied that any circumstance which permitted the grant of the visa no longer exists (s 116(1)(a)), or that the visa should not have been granted because the application for it was in contravention of the Migration Act (s 116(1)(f)). It is common ground that the Minister was entitled to cancel the visas on either of these grounds. First, the sponsor had withdrawn her sponsorship. Second, the visa applicants had contravened s 234 of the Migration Act which makes it unlawful for a person to make false statements in connection with an application for a visa. Accordingly the Minister cancelled the visas and placed the group in immigration detention pending deportation to Sri Lanka. 5 While in immigration detention seven group members applied for protection visas, claiming to be Convention refugees who had a well founded fear of persecution if required to return to Sri Lanka. An application for a protection visa is made concurrently with an application for a bridging visa. There are various categories of bridging visa (see Migration Regulations, Sch 1, Pt 3) and the one that is applicable in this case is Bridging (General) Subclass 050: Migration Regulations, Sch 2, cl 050. On the grant of a bridging visa the holder, if in immigration detention, will be released pending the resolution of his or her application for a substantive visa. 6 In order to obtain a bridging visa an applicant must satisfy certain criteria at the time of application and other criteria at the time of the decision. The criteria to be satisfied at the time of decision are found in Sch 2, cl 050.22. Those that are presently relevant are: "050.223 The 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. 050.224 If an authorised officer has required a security for compliance with any conditions that the officer has indicated to the applicant will be imposed on the visa if it is granted, the security has been lodged." The delegate who considered the bridging visa applications was of the opinion that the conditions to the following effect should be imposed: 8101 You must not engage in work in Australia; 8207 While in Australia you must not study or train; 8401 You must report at a time or times and at a place (to be specified by your case officer); 8505 You must continue to live at the address specified by you before the grant of the visa; 8506 You must notify Immigration at least 2 working days before you change your address; 8507 You must pay or make an arrangement that is satisfactory to the Minister to pay the costs of your detention (your case officer will specify that payment must occur within a specified period). The delegate happened to be an authorised officer for the purposes of s 269 of the Migration Act. Under that section an authorised officer may require and take security for compliance with the conditions imposed on a visa. The delegate decided that each bridging visa applicant should give security of $10,000 for compliance with the conditions. 7 On about the same day as the delegate wrote to each applicant informing him of the conditions to be imposed, he also gave reasons in which he considered whether each bridging visa applicant would comply with the conditions that were to be imposed thereby satisfying the criterion in cl 050.223. He decided that none of the bridging visa applicants would comply with these conditions and went on to say that each had "therefore not satisfied this requirement". In any event, none of the bridging visa applicants could provide the security that had been imposed and so could not meet the requirements of cl 050.224. Accordingly, the delegate refused to grant the bridging visas. 8 The bridging visa applicants then applied to the Migration Review Tribunal for review of the decisions of the delegate. According to reg 4.02(4)(f) the decisions requiring security as well as the decisions refusing the grant of the bridging visas were reviewable by the tribunal. The tribunal constituted by one member dealt with four of the applications, and the tribunal constituted by a different member considered the other three. In each case the decisions under review were affirmed. Each bridging visa applicant has now applied to the Federal Court to set aside his respective tribunal decisions. By consent all applications were heard at the same time because, save in some minor aspects, the issues that are raised are identical. It is also convenient that I deliver a single judgment to dispose of all cases. 9 Having just said that the issues raised by each application are substantially the same, let me immediately identify one important area of difference. I mentioned that differently constituted tribunals considered the applications for review. While each member adopted a common approach to the applications that were before that member, and affirmed the delegate's decisions (the decision to impose security and the decision to refuse the bridging visa) for substantially the same reasons, the two members gave different reasons for affirming the decisions to refuse the bridging visas. The difference lies in the conditions the tribunal said would not be complied with by the visa applicants. I will explain the difference in a little more detail in a moment. 10 The important questions for the tribunal to consider were (1) whether the conditions imposed by the delegate should be imposed by the tribunal (that is, apart from condition 8101 which is a mandatory condition) and (2) whether it was satisfied that the bridging visa applicants would abide by those conditions. It was only if the tribunal was satisfied that a particular bridging visa applicant would abide by the conditions with a financial incentive to do so, that it was necessary for it to consider the security decision. 11 In each case the tribunal found that it was appropriate to impose the conditions. There is no challenge to this finding. The tribunal then considered whether the conditions would be complied with. It decided that the bridging visa applicants would not abide by the conditions, notwithstanding that each applicant had informed the tribunal that he would do so. Now I come to the difference in approach. I will explain it by reference to one decision of each member, which can be taken to be representative of all other decisions made by that member. I have selected V 1304 of 2001 to be the representative case for one member and V 1305 of 2001 for the other. In V 1304 of 2001 the tribunal was not satisfied that the visa applicant would abide by any of the conditions. The following passage explains why: "The Tribunal explained the conditions to the visa applicant and he indicated that he understood, and would abide by them. The Tribunal does not accept the assurances given by the visa applicant as he has already misled DIMA with respect to his application for the subclass 420 visa and in doing so has committed an offence under the Migration Act. He has shown a blatant disregard for the provisions of Australian migration law and the Tribunal finds no evidence that this attitude has changed. There is a high risk that the visa applicant will disappear rather than run the risk of a negative reply to his application for a protection visa and subsequent forced return to Sri Lanka. The Tribunal finds that the visa applicant will not abide by the conditions. The Tribunal must now consider whether the provision of security pursuant to clause 050.224 will assist to ensure compliance. As the visa applicant has no personal assets in Australia or elsewhere to place at risk, the Tribunal finds that the provision of a security would not ensure compliance with conditions. The Tribunal finds that visa applicant [sic] does not satisfy clause 050.223." In the other case the member found that the visa applicant would breach conditions 8101, 8401 and 8506. The relevant passage from the reasons reads: "The Tribunal explained the visa conditions to the visa applicant and he assured the Tribunal that he would abide by them. In determining whether to accept the visa applicant's assurances, the Tribunal takes account of the visa applicant's past history of deliberate disregard of Australian migration law. He knowingly came to Australia on an entertainment visa despite not being an entertainer. His father paid an enormous amount for the arrangements to be made for the applicant to come to Australia. In his interview on 5 November 2001, the visa applicant told of the difficulties he faced in Sri Lanka and that he had been promised a job in Australia. He spoke of the economic hardships his parents would face and how they had been promised that the visa applicant would have a job here and be able to live well and send money back. The Tribunal is not in a position to judge the visa applicant's claims for a protection visa but is satisfied that part of his and his father's motivation in the visa applicant coming to Australia was for him to be able to find work which he had been unable to do in Sri Lanka. The visa applicant has little money with him. The Tribunal is of the view that there is a high risk that if the visa applicant is released from detention, he will not keep in contact with DIMA and that he will work. The Tribunal is not satisfied that the visa applicant will abide by the conditions of the visa and finds that the applicant does not satisfy Clause 050.223 of the Regulations." 12 An examination of both reasons shows that each tribunal based its conclusion on a number of common factors, although there may have been differences in the detail. The factors were: (1) The information provided to obtain the entertainment visa was deliberately false; (2) By providing false information the visa applicant had breached the Migration Act (for example, s 234 and possibly other sections); (3) The visa applicant had paid a large sum (around $8,500) to an agent in Sri Lanka to become a member of the group; (4) The visa applicant paid a further large sum to travel to Australia; (5) The visa applicant had little money and had come to Australia to find work; (6) There was financial pressure on the visa applicant or his family to recover the money that had been spent in coming to Australia. 13 The tribunal's decisions that the bridging visa applicants would not abide by the conditions is challenged on three grounds, each of which is said to demonstrate that the tribunal misunderstood its task, resulting in a failure by the tribunal to exercise its jurisdiction. The case is put this way because the decisions to refuse the visas are what the Migration Act now refers to as "privative clause decisions" which are subject to challenge on limited grounds: see generally s 474. 14 The first and most significant ground is the contention that the tribunal founded its decision on the fact that the bridging visa applicants had contravened Australia's migration laws which, although the allegation is not denied, is said could not justify the result. In substance it is put that the breach of Australia's migration laws is an irrelevant consideration because in nearly all cases a person applying for a bridging visa (and concurrently a protection visa) will have breached those laws. Put differently, the argument is that a breach of Australia's migration laws is, as if it were, a prerequisite for standing to apply for a bridging visa, and so to refuse the grant of such a visa on that ground is circular, and without justification. 15 I am prepared to accept that if the tribunal is guilty as charged, the applicants would be on strong ground for contending that the tribunal had committed an error of law that would lead to its decisions being set aside, albeit they are privative clause decisions. But the case against the tribunal has not been made out, in my opinion. In the first place, although it may be so in many cases, it is not true to say, as the applicants do, that every bridging visa applicant is a person who has breached Australia's migration laws. In any event it is incorrect to characterise the tribunal's decisions as based solely on the ground that the applicants had breached Australia's migration laws. The tribunal's approach was different from, and much more precise than, that. The tribunal took into account matters such as the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach, and whether the applicants had shown any contrition for their unlawful conduct. These matters are clearly relevant to the question whether the applicants would abide by conditions. They are relevant because they bear upon each applicant's character, including his honesty and whether he can be relied upon. In the circumstances of these cases it was both necessary and appropriate for the tribunal to form a view on these issues for the purpose of deciding whether the applicants satisfied the criterion of 050.223. 16 Next it is said that the tribunal should have undertaken a comparison of breaches of the migration laws committed by these applicants with breaches committed by other bridging visa applicants, to ascertain whether the other applicants, if granted a visa, had observed any conditions that were imposed. There are two answers to this argument. The first is that if undertaken, such a comparison would not provide any useful information. The tribunal is required to form an opinion about the likely conduct of a particular visa applicant. In this task the tribunal will not be assisted by an examination as to how another person behaved. One obvious reason why the information would be of no assistance is because the circumstances of each case will inevitably be different, thus denying the possibility of drawing any meaningful conclusion that could be applied to the case under consideration. The second reason is that to attempt the task would impose an intolerable burden upon the tribunal. 17 Finally it is submitted that the tribunal wrongly applied a presumption or onus for the visa applicant to displace, namely that a migration law breaker will generally not meet conditions imposed on a visa. I do not accept that this is an accurate characterisation of what the tribunal did. To the contrary, the tribunal considered the cases by taking into account many factors, all of which led it to conclude that the conditions would not be met. By this approach, no onus was placed on the visa applicants. 18 As the applicants are unable to show error of law in the manner in which the tribunal decided that they would not abide by the conditions of their visas, the respective applications for review must be dismissed. Strictly speaking, therefore, it is unnecessary to deal with the challenge to the security decisions. However, some of the issues that have been raised by the applicants are of general importance, and it is appropriate to make comments about them. 19 According to Tennakoon v Minister for Immigration and Multicultural Affairs [2001] FCA 615, the taking of security under s 269 involves two steps. First, the authorised officer (who may or may not be the delegate) must consider whether it is necessary to impose security to ensure compliance with the Migration Act, the regulations or with any conditions that have been imposed under the Migration Act or regulations, as the case may be. If the authorised officer decides that incentive by way of security is necessary, the second step is to determine the amount of that security. In reality there is a third step. Once the quantum of the security has been resolved, then the form of that security (whether it is to be by way of cash, treasury bond or negotiable instrument) must be determined. 20 In each of the present proceedings the tribunal recognised that it was unnecessary for it to consider the security decisions. Nevertheless it decided to deal with those decisions for the sake of completeness. It will be remembered that the tribunal first found that the visa applicants would not abide by the conditions if no security was provided. It then turned to consider whether the applicants would do so if security had been supplied. In the case of V 1304 of 2001 (and the other cases decided by the same member), the tribunal found that "[a]s the visa applicant has no personal assets in Australia or elsewhere to place at risk" the provision of security would not ensure compliance with the conditions. What this means is not clear. I take the tribunal to be saying that if security were to be provided, it would be provided by a third party (a possibility recognised by the guidelines published by the Minister to assist an authorised officer, or on review the tribunal, in relation to the taking of security), and that would not induce compliance with the conditions because the visa applicant would not have put his own funds at risk. There is a logical error in this reasoning. True it might be that a visa applicant may not have the ability to put up the security. But it does not follow that the visa applicant's conduct will not be influenced by the fact that security has been provided by a third party. Let it be assumed that security is provided by a family member or friend. A visa applicant might be very reluctant to place that person's assets at risk, and for that reason will abide by the conditions. This possibility seems to have escaped the attention of the tribunal, as has the other possibility that the person providing security will endeavour to see the conditions complied with, much like a person who acts as a surety. In the remaining cases, that is those decided by the other tribunal member, the reason the tribunal found that the visa applicants would not observe the conditions was in substance that the financial pressures on the visa applicants meant that they would work in Australia. Little criticism can be directed to these findings. 21 There is another problem with the tribunal's approach, a problem that is more acute in the case of a delegate who also acts as an authorised officer for the purposes of s 269. As I have mentioned, after finding that the provision of security will not ensure compliance with the conditions, the tribunal went on to review the security decision. In each case it decided that $10,000 was an appropriate sum. It seems to me, however, that once the tribunal (or the delegate) has decided that, notwithstanding the provision of security, a visa applicant will not comply with conditions, the occasion for the imposition of security simply does not arise. It does not arise because the object of the imposition of security is to secure compliance with conditions and once the tribunal has determined that it is not satisfied that any will be met, nothing is achieved by requiring any security. 22 In reaching a decision about security, there are several steps that a decision-maker must undertake. Approaching the steps in the correct order is as important as getting the steps themselves right. As I see it (and in expansion of what was said in Tennakoon), the steps are: (1) The decision-maker must decide what conditions (if any) ought to be imposed on the grant of a visa; (2) Next, if conditions are to be imposed, the decision-maker must ask himself (or herself) whether they will be complied with standing alone (that is, without any security being taken); (3) If the answer is yes, no security should be imposed. If, on the other hand, the answer is no, the decision-maker must proceed to the next question which is: (4) Will the conditions be complied with if security is taken?; (5) If the answer is no, the visa ought not to be granted because the criterion set out in subcl 050.223 will not be met. If the answer is yes, security should be required and the decision-maker must assess the appropriate amount and type of security to be imposed; (6) If security has been required, the decision-maker must see whether or not it has been lodged. If it has not been lodged, the visa application should be rejected because subcl 050.224 will not be satisfied. If it has been lodged (provided all other relevant criteria have been met), the visa must be granted. 23 Another issue that is raised by the applicants concerns the quantum of the security. What is the situation if, as here, the quantum is so high that it cannot be provided? In dealing with this issue it is necessary to note the Minister's guidelines which provide that in general "it would not be appropriate to request a security for an amount of less than $5,000 as it is unlikely to act as a strong incentive for compliance, based on the Department's experience in dealing with securities". The guidelines go on to suggest that "[i]n most cases an amount of at least $10,000 should be considered a meaningful incentive for compliance. Substantially higher securities, in the order of $45,000 to $50,000 should be considered in [appropriate] circumstances." 24 An administrative authority is permitted to follow guidelines so that there is consistency in approach. But consistency at the expense of consideration of the merits of an individual case is, of course, improper, because in that event the repository of the relevant power would have failed to exercise his discretion. In Sagnata Investments Limited v Norwich Corporation [1971] 2 QB 614, 626, a case concerning self imposed guidelines, Lord Denning said: "I take it to be perfectly clear now that an administrative body, including a licensing body, which may have to consider numerous applications of a similar kind, is entitled to lay down a general policy which it proposes to follow in coming to its individual decisions, provided always that it is a reasonable policy which it is fair and just to apply. Once laid down, the administrative body is entitled to apply the policy in the individual cases which come before it. The only qualification is that the administrative body must not apply the policy so rigidly as to reject an applicant without hearing what he has to say. It must not 'shut its ears to an application'. The applicant is entitled to put forward reasons urging that the policy should be changed, or saying that in any case it should not be applied to him. But, so long as the administrative body is ready to hear him and consider what he has to say, it is entitled to apply its general policy to him as to others." [citation omitted] 25 In the cases at hand, the tribunal followed the guidelines. It is recognised that the amount could not be provided by any applicant. In fixing so high an amount, did the tribunal fall into error? 26 I think that excessive security ought not to be required. That is true of bail in a criminal case (Bill of Rights 1688 1 Will & Mar, c II, , s 1) and so it should be under s 269. If excessive security is requested, it would only be to punish, and not to secure compliance with the Migration Act, the regulations or any conditions. 27 The difficulty is to state a rule that is capable of being applied to prevent the imposition of excessive security. Perhaps there is no such rule. One can say, however, that the amount should be set at a sum that is designed to secure compliance with the relevant statutory provision, regulation or condition and no more. Also, the amount should be fixed as a reasonable assurance that there will be compliance. To arrive at that amount the authorised officer must have regard to the nature of the provision, regulation or condition that must be complied with, the particular circumstances of the person bound by the requirements, notably his financial position, and then determine the appropriate amount. This is not to say that the amount must be in a sum that the affected person is capable of providing. On the other hand, if the amount is well beyond the means of the affected person, that could indicate that the authorised officer has done no more than pay lip service to his obligation to have regard to the financial position of that person, and that the decision may be set aside. 28 In the result, the applications for review of the decisions by the tribunal must be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.