Migration Regulations 1994 (Cth) Sch 2 cll.050.211, 0.50.212(2), 050.221, 050.223, 050.224

Tennakoon v Minister for Immigration and Multicultural Affairs [2001] FCA 615

Applicant VAAN of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 197

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Applicant appeared in person with the assistance of a Mandarin interpreter.

(2) The applicant pay the respondent's costs set in the amount of $5,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

1. In this matter the applicant seeks review of a decision of the Migration Review Tribunal (MRT) made on 21 April 2004 which affirmed the decision of a delegate finding that the applicant was not entitled to the grant of a Bridging E (Class WE) visa.

2. The proceedings commenced with the applicant filing an application in the Federal Court of Australia on 18 May 2004. The application was transferred from that Court by Orders of Hely J on 16 June 2004 to continue in this Court.

3. In the course of these reasons I shall refer without further acknowledgment to the helpful written submissions provided to me by Mr Potts, Counsel on behalf of the respondent. The applicant had applied for a Bridging E (Class WE) visa on 2 April 2004. That application was refused by a delegate of the respondent on 7 April 2004.

4. The applicant is a 42 year old Chinese citizen who, together with his wife, arrived in Australia on 16 January 2001, travelling on a subclass UL-679 (sponsored Family Visitor Short Stay) visa, valid for three months. A security bond of $20,000 was provided by the applicant's brother-in-law (their sponsor) in respect of the applicant and his wife's Sub-class UL-679 visas. Those visas expired on 16 April 2001. The applicant and his wife then became unlawful non-citizens, thereby forfeiting the security provided by their sponsor (the applicant's brother-in-law).

5. According to information on the Department of Immigration & Multicultural & Indigenous Affairs ("the Department") file, Departmental officers contacted the applicant's sponsor in April 2001 and spoke to the sponsor wife (the applicant's sister-in-law) who advised that she had lost contact with the applicant and his wife. She acknowledged that the security would be forfeited to the Department.

6. There is a further note on the Department file that Departmental officers visited the house of the sponsor in August 2002 and this time the sponsor advised that he did not know the whereabouts of the applicant or his wife and that the last contact he had was several months previously. He stated that he did not have a contact telephone number but might be able to find someone who could contact them.

7. According to the note the Department deemed the couple to be granted Bridging E visas until 23 August 2002 to enable them to report to the Department within two days. The applicant did not make contact with the Department until he was located by Department compliance officers on 31 March 2004, while working as a gyprocker on a construction site.

8. The applicant was subsequently detained under s.189 of the Migration Act 1958 (Cth) ("the Act") and transferred to Villawood Immigration Detention Centre.

9. When interviewed in detention on 1 April 2004, the applicant made statements which included the following information:

a) He resides at an address in Cabramatta NSW but is unsure of the street name.

b) He does not have any immediate family in Australia.

c) He entered Australia using his own genuine Chinese passport which is valid until 2006.

d) His passport is with a friend but he is unsure of his address and has forgotten his phone number.

e) His identity card is in China and he has no other form of identification.

g) He was working as a labourer while in Australia.

h) He worked on construction sites as a casual in various locations.

i) He worked in his current employment from 1 February 2004 until his arrest by Department compliance officers.

m) When asked if anyone owed him money, he stated that "someone owes me a few thousand, but I am not sure".

n) He remained in Australia because he liked Australia and it is a beautiful country.

o) There was no reason why he cannot depart Australia.

10. When taken into immigration detention on 1 April 2004, the applicant had been an unlawful non-citizen for some two years and eleven months. On 2 April 2004 a Bridging E visa application was lodged with the Department on the basis of acceptable arrangements to depart Australia. Lodged in support of his application was a statement prepared by his representative, who stated that the applicant had purchased an airline ticket for departure on 18 April 2004 and that the applicant had a valid passport to travel. It was stated that he would be provided with free accommodation and food for the remainder of his stay if released from detention. The submission stated that the applicant will abide by all conditions imposed on a bridging visa and that he genuinely intends to depart Australia. He would not work and that he would co-operate with Departmental officers.

11. On 6 April 2004 the delegate refused the applicant's Bridging E visa application. The delegate stated that the applicant met clause 050.212(2) of the Regulations as he had provided evidence of a valid passport and airline ticket for departure from Australia, however she was not satisfied that the applicant would abide by conditions on the visa, even with lodgment of a security. The applicant thus failed to meet clause 050.223.

12. An application for review of the delegate's decision was lodged on

13. On 19 April 2004 the MRT wrote to the applicant pursuant to s.359A of the Act notifying the applicant of particulars of certain information that the MRT considered would be the reasons or part of the reasons for affirming the decision under review. The applicant's adviser responded by letter dated 19 April 2004.

14. A hearing was held on 20 April 2004, at which the applicant gave evidence, as did his brother-in-law (who was also his sponsor) and a friend.

15. On 21 April 2004 the MRT affirmed the decision under review. The decision was sent to the applicant's authorised representative under cover of a facsimile of even date and copied directly to the applicant (in immigration detention).

16. In the findings and reasons of the MRT decision at Court Book page 68, the MRT accepted that the applicant was making arrangements to depart, both at the time of the application and at the time of that decision. Although no passport had yet been produced to the Department, the MRT was satisfied that a valid passport could be obtained by the applicant from his friend. The MRT found that acceptable arrangements had been made for departure by the applicant and that he met the criteria in clause 050.212(2). It was also necessary that the applicant continued to meet clauses 050.211 and 050.212 at the time of the MRT decision (clause 050.221). The MRT was satisfied that the applicant continued to meet these clauses. The MRT found that the applicant therefore satisfied clause 050.221.

17. There remained two issues for the MRT to determine. Firstly, whether, if the applicant was released from detention, he would abide by any conditions imposed and secondly, whether the decision not to request a security to ensure the applicant would abide by the conditions of the visa was appropriate and, if not, what amount should be sought.

18. The MRT had taken into account the factors set out in MSI 388 in its consideration of whether the applicant would abide by conditions and had had regard to the applicant's migration history and past dealings with the Department. The MRT found:

a) There was no evidence before the MRT that the applicant was a previous removee/deportee. There was no adverse information about the applicant's behaviour towards the Department since he was detained.

b) However the MRT found that the applicant had breached the Act and Regulations. He overstayed a previous visa and did not depart before the visa ceased. As a result, the security of $10,000, lodged with the Department on his behalf and the security of $10,000 on his wife's behalf, were forfeited. He remained in Australia unlawfully for almost three years before being detained. He worked without permission.

c) The MRT did not accept the applicant's explanation that he remained in Australia for almost three years because he had hoped for reconciliation with his wife. The MRT did not accept that neither the applicant nor his sponsor (the applicant's brother-in-law and the applicant's wife's brother) did not know the whereabouts of the applicant's wife, or that they had not seen her since March 2001.

d) The MRT held the view that the applicant would have continued to remain in Australia, living here and working unlawfully if not for his apprehension and detention. The MRT did not accept the applicant's explanation that he was now willing to depart Australia because he no longer hoped for reconciliation with his wife.

e) The MRT considered that even if the applicant had accommodation and support upon his release, his past history of substantial breaches of the Act and Regulations and lack of credibility as a witness outweighed any evidence in his favour. Considering the lengthy period that the applicant had overstayed his visitor visa, that he worked unlawfully, and that he was prepared to allow his sponsor to forfeit a substantial security, the MRT was not satisfied that the applicant would abide by conditions on the visa if granted. The applicant had stated that he wished to be released from detention so that he would be able to purchase some gifts and settle some financial matters such as payment of bills but the MRT considered that these matters could be undertaken by a relative or friend on his behalf.

f) The MRT stated that when considering whether the applicant would meet the criterion in clause 050.223, the MRT must also consider whether the payment of a security would provide sufficient assurance that the applicant would abide by conditions on the visa. The applicant had also made an application for review of the decision relating to the security. In deciding whether to request a security and, if so, the amount of security to request, the MRT considered MSI 388, which was issued on

9 October 2003. These guidelines suggest that a substantially higher security by required if an applicant had previously forfeited a security, which was the case here.

g) Taking these issues into account, the MRT affirmed the decision under review finding that the applicant was not entitled to the grant of a Bridging E (Class WE) visa. In response to this decision, the applicant filed an application for review of the MRT decision in the Federal Court on 18 May 2004. The application was remitted to this Court.

19. In the application for review lodged in the Federal Court, the applicant makes five claims of which two are arguable grounds for review. These are paragraphs 3 and 4 of the application, which state:

"The delegate did not follow the policy set out in MSI 336, in its consideration of whether the visa applicant would abide by these conditions and one has to have regard to the visa applicant's immigration history and past dealings with the Department."

"There is no evidence that the visa applicant had ever applied for any Bridging E visa and that he was a previous removee/deportee. The visa applicant had never previously absconded from immigration detention or other custody. There is no indication that the visa application was not co-operative when located working. There is no adverse information in relation to the visa applicant's conduct in detention. The delegates [sic] should be satisfied that the visa applicant will abide by the conditions imposed on the visa."

20. It was for the MRT to determine, weighing the evidence, whether the applicant would comply with those conditions, even if security was required. Having regard to the fact that the applicant had previously remained in Australia unlawfully, that he had worked previously in Australia in breach of his Sub-class UL-679 visa, that he had not sought to regularise his immigration status and had been prepared to allow his brother-in-law (as sponsor) to forfeit a substantial security, it was not surprising that the MRT concluded that the applicant would not comply with visa conditions and that no amount of security would lead to compliance.

21. It was open for the MRT to conclude that the imposition of discretionary conditions that it would have imposed on any Bridging E (Class WE) visa was appropriate and that conclusion was clearly open on the evidence and involved no error of law.

22. The MRT in its statement for the decision and reasons in the section under Legislation and Policy (Court Book [63]) identified that Tennakoon and Applicant VAAN were decisions in which the Federal Court set out the correct approach to be taken in appealing an application for a Bridging E (Class WE) sub-section 050 visa and that the MRT adopted that approach in making its determination. The reasoning process was described by Finkelstein J in Applicant VAAN of 2001 v MIMA where His Honour said [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. It is has been lodged (provided all other relevant criteria have been met), the visa must be granted."

23. The evidence given by the applicant, his sponsor (and brother-in-law) and his friend, was rejected by the MRT because of its lack of credit. The inconsistencies and the implausibility of some of the answers given to the MRT during its hearing on 20 April 2004, together with prior evidence given to the Department when the applicant was originally detained, are clearly set out in the MRT decision. Findings on credit are a function of the primary decision-maker "par excellence": Re: MIMA, Ex parte Durairajasingham at [67] per McHugh J. Provided that the MRT's credibility findings are open to it, there should be no error demonstrated in such conclusions: Kopalapillai v MIMIA at [558-559].

24. In respect of the matters raised in the application that have been identified as grounds for review, as set out in paragraph 19, the applicant raises the issue that the delegate did not follow the policy set out in the Migration Series Instruction (MSI) 336. The applicant had referred to the wrong MSI in his application, in that MSI 336 had been subsequently replaced by MSI 388 issued on 9 October 2003.

25. The MRT in its decision under the heading of Legislation and Policy, states that it relied on MSI 388 "Bridging E visa (sub-class 050) Legislative Framework and Further Guidelines". The MRT stated that it is bound by the Act, various Regulations and written directions issued by the Minister under s.499 of the Act, to have regard to the policy and apply it unless there was a cogent reason for the departure from it. If the incorrect policy had been used, then the applicant may have grounds to argue that there may have been a jurisdictional error. However, on the material presented in the decision, this does not appear to have arisen. Further, the amendments that have been made in MSI 388 from its predecessor MSI 336, do not touch on the areas that the MRT addressed in its assessment of the applicant's application. The MRT correctly identifies Tennakoon and Applicant VAAN as being the correct approach to be taken in determining an application for a Bridging E (Class WE) sub-class 050 visa and that it adopted that approach in making its determination. I find nothing to support this ground in the application that the correct procedures were not followed.

26. Although there is no specific reference or particularisation of a ground that the applicant was not afforded natural justice, the claim is not supported on examination of material presented by the Department. In the Court Book [19-20], is a copy of a letter forwarded to the applicant at Villawood Immigration Detention Centre advising him that the Department did not intend to grant him a bridging visa and set out the information that the Department had in its possession regarding the applicant and extended an invitation to the applicant to provide written response to the Department in regard to any further matters that the applicant wanted to be taken into consideration before the formal decision of the application was finalised.

27. A notice in that form is required by s.57 of the Act and that provision was satisfied. Section 359A of the Act was also satisfied in that letters were sent to the applicant's immigration adviser at the request of the applicant with an invitation to supply comments on the particulars of any of the information that the MRT considered to be reason or part of the reason for affirming the decision that is under review [CB 45, 46].

28. The matters raised in paragraph 4 of the applicant's application, although not specific or particularised, are directed at the merits of the MRT. The matters do not raise any issue or assertion that there has been a jurisdictional error and consequently are not within the power of this Court to review. The applicant has listed a number of factors that should be taken into account by the decision-maker during the assessment process before granting a visa. The reasoning applied is that because the applicant has satisfied a number of those criteria the delegate should be satisfied that the applicant would abide by the provisions imposed on the visa. However, the decision-maker must be satisfied that the applicant would comply with the conditions of the visa irrespective of whether the applicant was requested to lodge a security. Where the applicant's history and experience with the Department has been of such a nature that despite the assessment of a security, the decision-maker is not satisfied that the applicant would comply with the condition.

29. The Department's compliance policy that decision-makers give serious thought to refusing applicants with a migration history that includes an applicant that had previously forfeited a security. This is an issue of the applicant's credidibility in so far as the applicant seeks merit review by taking issue with the MRT findings in relation to credibility, merit review of that finding is not available in this Court as discussed above.

30. In this instance the MRT reached its decision as to applicant's credibility based on the surrender of the initial security lodged on his behalf by his sponsor after the expiry of the three month original visa when he entered Australia. The MRT clearly had regard to the applicant's past dealings with the Department both good and bad. The Department's original assessment found that although the applicant had satisfied sub-clause 050.212(2), the applicant failed to satisfy the criterion in clauses 050.223 and 050.224 and on this basis refused.

31. No jurisdictional error has been raised by the applicant nor is a jurisdictional error apparent in the MRT decision. The applicant in these proceedings was representing himself so I should not limit my considerations to the arguments put forward by the applicant. Where the applicant is self-represented, the Court must independently consider if an arguable case based on the material could be made out. I have not found that there was any arguable case.

33. The applicant should pay the respondent's costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM