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[2003] FCAFC 205
Federal Court of Australia (Full Court)
2003-08-26
Bennett JJ
Original judgment source is linked above.
REASONS FOR JUDGMENT Introduction 1 These appeals arise from applications for relief made under s39B of the Judiciary Act 1903 to review decisions of the Migration Review Tribunal ("the MRT") made on 21 March 2003. The MRT affirmed decisions of a delegate of the respondent made on 7 March 2003 to refuse to grant the appellants Bridging Visa E (Class WE) visas. 2 Appellant NANP is the daughter of Appellant NANO and appears by her "next friend" and mother. 3 The grounds of the appeal are the same for both proceedings. Background 4 Appellant NANO arrived in Australia on 5 January 1989 on a visitor's visa which expired on 5 April 1989. Appellant NANP was born on 4 November 1993. Appellant NANO remained in Australia unlawfully until he was granted a Bridging C visa on 1 September 1995 in connection with his application for a protection visa. That visa was subject to the condition that he not work (visa condition 8101). Appellant NANP was included as a dependent family member in that application. 5 A delegate refused Appellant NANO a protection visa on 17 December 1996 and that refusal was affirmed by the Refugee Review Tribunal ("RRT") on 29 April 1997. The associated Bridging C visa ceased on 3 June 1997. 6 On 390 June 1997, Appellant NANO made a request to the Minister pursuant to section 417 of the Migration Act 1958 (Cth). He held several Bridging E visas whilst his request was being determined. On 19 January 1998, the Minister declined to exercise his discretion. The last Bridging E visa of this type expired on 17 February 1998. Appellant NANO continued to remain in Australia unlawfully. 7 Relevantly, the Appellants lodged applications for Bridging E visas with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") on 7 September 1998. The basis of the applications was that each Appellant was a member of the Macabenta/Kagi class action. However, according to the information before the MRT, that action was dismissed on 8 July 1999. 8 The applications were received by the Department on 30 October 1998, (at which time the Appellants were not in immigration detention) but through an oversight were not decided until 7 March 2003. 9 On 12 November 2001, the wife of Appellant NANO was located by Departmental Compliance officers in a Queensland hospital. She was issued with a Bridging E visa on the same day, valid until 19 November 2001. The visa was extended to include her new born son. She was requested to subsequently attend the Department with Appellant NANO to regularise her status, but failed to do so. The MRT noted that as Appellant NANO and his wife failed to attend the Department, the Appellants' Bridging E visa applications remained undecided. 10 On 5 March 2003, the Appellants were detained by Departmental Compliance Officers in Brisbane and were transferred to Villawood Immigration Detention Centre in Sydney on the same day. 11 On 5 March 2003, an interview was conducted between Appellant NANO, his wife and Departmental Compliance officers. Appellant NANO made various statements to the effect that he would like to remain here and have his children grow up in Australia, he considered Australia his home and he had no cash or assets in Australia or overseas. 12 In each case, the delegate refused the applications on the basis that the Appellants did not meet the primary criteria for the grant of a Bridging Visa E. 13 On 12 March 2003, the Appellants sought review of the delegate's decisions to the MRT. 14 On 18 March 2003, the MRT wrote to the Appellants to give them particulars of information which the Tribunal considered would be the reason for affirming the decision under review. This letter included the proposition that there was no information before the Tribunal to suggest that the Appellants met any of the threshold criteria for the grant of a Bridging E visa. In particular, the Tribunal noted that Appellant NANO had not complied with the requirement in regulation 050.212(2) of the Migration Regulations, which required evidence that the Appellants were making, or were the subject of, acceptable arrangements to depart Australia. The Tribunal observed that Appellant NANO had indicated that he wanted to remain in Australia to provide a better life for his family, did not possess valid travel documents or a passport and had not produced a valid airline ticket to the Department. 15 The Appellants were invited to respond to the information at a joint hearing before the MRT conducted on 20 March 2003. The Appellants forwarded hand-written submissions through their representative Mr Fonua dated 20 March 2003. The substance of the submissions was identical in each matter, but failed to raise any matters relevant to the issues to be determined by the MRT. The Decision of the MRT 16 On 21 March 2003, the MRT affirmed the decisions under review. It concluded that the Appellants had failed to meet the criterion in subregulations 050.212(1) or 050.221 because the Appellants failed to satisfy any of the requirements in subregulations 050.212(2) to 050.212(9). 17 Those requirements, as summarised by the MRT, included the following:- · that the applicant is making, or is the subject of, acceptable arrangements to depart Australia, or
· that the applicant has made an application, or will apply, within a period allowed by the Minister (the Tribunal), for a substantive visa of a kind that can be granted if the applicant is in Australia, or · that the applicant has an outstanding application for merits or judicial review in relation to a substantive visa, or · that the applicant has an outstanding request to the Minister that is one of a number of prescribed requests, or · that the applicant is in criminal detention. 18 Despite the absence of evidence from the appellants, the MRT's reasons indicate that it gave careful attention to determining whether the requirements had been satisfied. It found that the Appellants had made valid applications for bridging visas but that the other criteria were not met. 19 One of the criteria was whether the visa applicant was able to satisfy the MRT that he or she was making, or was the subject of acceptable arrangements to depart from Australia. 20 In considering this question, the MRT took into account the decisions of Carr J in Jiang v Minister for Immigration and Multicultural Affairs [2001] FCA 282, Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 285 and Lin v Minister for Immigration and Multicultural Affairs [2001] FCA 283. The effect of those authorities is that the MRT was entitled to take into consideration what arrangements the visa applicant had made and whether his or her intentions were genuine. 21 The MRT stated at [36] in NANO and [37] in NANP that the visa applicant did not have a valid passport and that no specific arrangements had been made for the visa applicant to depart Australia. Moreover, the MRT went on to point out in the paragraphs to which we have referred that the visa applicant in NANO:- "has told the Department that he does not wish to leave Australia because he wants to live here and he wants his children to live here." 22 Accordingly, applying the decisions in Jiang, Chen and Lin, the MRT was not satisfied that at the time of the application or the decision, the visa applicant in either case had made or was the subject of acceptable departure arrangements. 23 The MRT was not satisfied on the evidence that any of the other criteria which we have summarised above were met. The MRT noted that although the Appellants were members of a class action, that case was dismissed on 8 July 1999. Thus the Appellants had no outstanding applications for merits review or judicial review. The Decision of the Primary Judge 24 The primary judge gave an ex tempore judgment on 22 May 2003. 25 In dismissing the applications for judicial review, his Honour said at [1]: "The applications are entirely opaque in terms of any error of law, though each confusingly states that the decision involves s 78B of the Judiciary Act 1903 (Cth). I do not accept that the applications raise any constitutional issue which requires a notice under that section to be given and counsel for the respondent does not seek that such a notice be given."… 26 His Honour also said at [2] that the applications failed on the facts found by the MRT and that the findings of fact were matters for the MRT. The Decision on the Appeal 27 The Notices of Appeal state two grounds. The first is that the primary judge erred in finding that the applications did not raise constitutional questions within the meaning of s78B of the Judiciary Act 1903 (Cth). The second ground was that his Honour erred in finding that:- "The delegate was not acting in good faith in the making of the decision." 28 Nothing was put to the primary judge or on the appeal which gave rise to a constitutional question. The mere fact that a constitutional issue was asserted does not satisfy the test; see Narain v Parnell (1986) 9 FCR 479 at 489 (per Burchett J); see also application NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 396 at [31]. 29 The male appellant handed in written submissions which again asserted the existence of constitutional questions. However, he told us that the effect of the submission he wanted to make was that he had a constitutional right to have his and his family's case reconsidered on the merits by the Court. 30 It is plain that no such constitutional right exists and that, consistently with the remarks of Burchett J in Narain, no constitutional question has been demonstrated. Accordingly, the first ground of appeal fails. 31 The second ground seeks to challenge the delegate's decision. It is not open to the Appellants to do so before us. A challenge to the decision of the delegate misconceives the nature of the proceedings which sought judicial review of the decision of the MRT. Moreover, no such challenge was made before the primary judge. 32 In any event, an allegation of lack of good faith is a very serious matter. Nothing has been put to us which could possibly sustain such a grave charge. 33 The only submission which was put to us to support the allegation of bad faith was that the delegate or the MRT did not consider the position of the family. The MRT did note the appellant's submission, made on his own behalf and on behalf of his daughter, that he wants to live in Australia and wants his children to live here but observed that the appellant had not applied for a substantive visa and the MRT was not satisfied that he would so apply within any specified period. The MRT noted that he was not seeking merits review or judicial review. The MRT considered the statutory criteria for the Bridging Visa. There is nothing in the material before us to support or substantiate the allegation of bad faith. 34 Finally, the primary judge said that nothing was put to him to suggest any jurisdictional error on the part of the MRT. The same applies here. 35 Accordingly, the order we will make is that the appeals be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
NANO
Minister for Immigration and Multicultural and Indigenous Affairs &