VWEX v Minister for Immigration &Multicultural & Indigenous Affairs

the relevant legislative regime 16 Section 65 of the Act provides that, after considering a valid application, the Minister is to grant that visa if satisfied that the criteria for that visa have been met. Otherwise the visa is to be refused. 17 Section 73 provides that if the Minister is satisfied that an eligible non-citizen meets the criteria for a bridging visa as prescribed under s 31(3), the Minister may grant a bridging visa. Section 31(3) provides that the Migration Regulations 1994 ("the Regulations") may prescribe various classes of visas. 18 There are various categories of bridging visa. Bridging E (Class WE) is the category applicable to the applicant - see item 1305 of Schedule 1 to the Regulations. In order to obtain a Bridging E (Class WE) visa, the applicant must satisfy certain criteria at the time of application, and other criteria at the time of the decision. The Tribunal was satisfied that the applicant met the criteria set out in subclauses 050.211(1) and 050.212(2) and (3) of Schedule 2. However, clause 050.223 presented a difficulty. That clause provides, as one of the criteria to be satisfied at the time of decision, that: "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". 19 Clauses 050.611 to 050.614 set out the various conditions that can be imposed upon the grant of a bridging visa. Condition 8101, which stipulates that the holder of a bridging visa must not engage in work in Australia, is mandatory. Other conditions are discretionary. Relevantly for present purposes, condition 8401 imposes upon the holder of a bridging visa an obligation to report at a time and place specified by the Minister. Condition 8505 requires the holder of such a visa to continue to live at a specified address. Condition 8506 requires notification of any change in address. 20 In determining whether an applicant will abide by conditions imposed, the Tribunal is required to have regard to departmental policy. That policy is set out in the Migration Series Instructions (MSI) 388. 21 Section 269(1) of the Act provides: "Securities (1) An authorized officer may require and take security for compliance with the provisions of this Act or the regulations or with any condition imposed in pursuance of, or for the purposes of, this Act or the regulations: (a) by a deposit of cash, Treasury Bonds or negotiable instruments, together with a memorandum of deposit in a form approved by the Minister; or (b) in accordance with a form of security approved by the Minister." 22 Relevantly for present purposes, the power to require a security for compliance with a condition imposed in pursuance of, or for the purposes of, the Act must itself be conferred for the purposes of the Act.

the tribunal's reasons 23 In a detailed and comprehensive statement of its reasons, the Tribunal concluded that the applicant would abide by the conditions that it regarded as appropriate, and necessary, but only if a security were imposed. 24 The Tribunal focussed heavily, as did the delegate, upon the applicant's history of non-compliance with the requirements of his student visa. It noted that his application for a spouse visa had been rejected, in part because his wife had referred to their marriage as involving a "scheme" to enable him to stay in Australia. It also noted his abysmal academic record which suggested that he had never really been serious about undertaking studies in this country. 25 The Tribunal noted, with respect to condition 8101, that the applicant stated at interview that he had worked for about six months. It appeared that his parents and a brother, who was a student in Australia, had supported him in the past. However, that brother was scheduled to leave Australia in about a month. The Tribunal observed that it was "germane" to consider the applicant's motives for wishing to remain in Australia, in addition to his past behaviour and stated intentions, in determining whether or not he would abide by conditions. It considered that the applicant's primary motive for studying in Australia had been to avoid military service in Egypt at least until his thirtieth birthday in April 2004. Had the matter rested there, the Tribunal might have concluded that once he turned thirty, he would be perfectly prepared to return to Egypt. However, that conclusion no longer seemed likely given the applicant's pursuit of a protection visa. That fact, together with his impecuniosity, suggested not only that he intended to remain in this country indefinitely, but also that he would have to find work in order to support himself while his claim was being determined. 26 This led the Tribunal to observe at [50]: "The Tribunal considers it appropriate to impose the conditions set out in paragraph 43 … if the bridging visa is granted. For the reasons previously mentioned, the Tribunal is not satisfied that the visa applicant will abide by conditions, in particular 8101 without the imposition of a security." 27 The Tribunal then went on to consider the amount of security that should be required. It noted that the applicant had indicated at the hearing that he had no money. He did, however, have the support of a friend, Ms Julia Hamer, who was a regular visitor to the Maribyrnong Detention Centre and had frequently provided assistance to other asylum seekers. Ms Hamer told the Tribunal that she had come to know the applicant during the preceding month. She offered to provide him with accommodation and said that, together with various other refugee support groups, she might be able to raise between $3,000 and $5,000 as security. 28 Having considered all of the evidence, the Tribunal concluded that the applicant would do everything in his power to remain in Australia. It said at [56]: "The Tribunal is not persuaded that he will abide by the conditions which are imposed on his visa because the incentive for him to remain in Australia is much greater than any incentive for him to leave." 29 The Tribunal went on to conclude that a "substantial security" was required to secure compliance with the conditions imposed. It said that in reaching its conclusion, it had taken into account the factors set out in MSI 388, as well as the principles laid down in several cases decided by this Court. It concluded at [57]: "…Taking into account the visa applicant's circumstances and the other relevant matters previously referred to, the Tribunal is not satisfied that the security which is within the means of the visa applicant will be sufficient incentive for the visa applicant to abide by conditions. The Tribunal considers that the sum of $15,000 is appropriate in the circumstances of the present case and is necessary to provide an incentive for him to abide by the conditions outlined in paragraph 43 other than condition 8507." 30 It should be noted that condition 8507 requires repayment of amounts owing to the Department as the costs of detention. The applicant was said to owe an amount over $17,000 at the time of the decision, but was not required to repay that sum as a condition of the grant of a bridging visa.

the applicant's submissions 31 The applicant's submissions were developed in an elaborate argument but can be stated briefly. Essentially, it was submitted that the Tribunal's decision should be set aside because it had misunderstood, and misconstrued, s 269(1) of the Act in concluding that security should be required and in fixing the amount at $15,000. 32 Ms Mortimer SC, who appeared with Dr Beard for the applicant, referred to the following observations of Finkelstein J in Applicant VAAN of 2001 v Minister for Immigration and Multicultural Affairs (2002) 70 ALD 289 ("Applicant VAAN of 2001")at 295-6: "[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 cl 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 cl 050.224 will not be satisfied. If it has been lodged (provided all other relevant criteria have been met), the visa must be granted." 33 Ms Mortimer submitted that the Tribunal had erred in its interpretation of s 269(1). Relevantly, a bridging visa is granted to an applicant who has a valid and extant application for a substantive visa. The applicant met that requirement. He had a right to remain in this country until his application for a protection visa had been determined. That being so, the issue that the Tribunal had to determine, namely whether he would comply with any conditions attached to a bridging visa without substantial security being ordered, had to be divorced from any consideration of his "desire" to remain in this country. Ms Mortimer submitted that the Tribunal had erroneously conflated these two matters. That error had resulted in the Tribunal fixing an amount of security that was excessive, and that it knew the applicant could not raise. That sum was fixed, in part at least, to reflect the strong incentive, on the part of the applicant, not to return to Egypt, a consideration that was entirely irrelevant. 34 Ms Mortimer developed a second argument which was based upon two other observations by Finkelstein J in Applicant VAAN of 2001. His Honour said at [26]: "…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." 35 His Honour continued at [27]: "… 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." 36 Ms Mortimer submitted that to require the applicant to provide security in an amount that he could not realistically hope to raise could not serve to "ensure compliance" with any of the conditions imposed. She contended that the Tribunal's reasoning was tantamount to saying that, if the applicant were to raise the sum of $15,000, which on the evidence he could not do, then it was satisfied that he would comply with the conditions imposed. This approach was said to be removed from reality. 37 Ms Mortimer's argument was developed further. She submitted that a security must be a sum that is preventative in nature. However, in order to be preventative, it must be a sum capable of being raised by the applicant, or on his behalf. It is the actual provision of security that s 269 contemplates will operate on the will of an applicant, and cause him or her to abide by the conditions imposed. The amount of the security cannot defeat the purpose for which it can lawfully be imposed. 38 Ms Mortimer attacked the Tribunal's reasons for having failed to disclose how it arrived at the conclusion that a sum of $15,000 was appropriate and necessary in the circumstances. She contended that the Tribunal had done no more than pay lip service to the applicant's financial circumstances. It decision was therefore tainted by jurisdictional error, and should be set aside.

the respondent's submissions 39 Mr Cavanough QC, who appeared on behalf of the respondent, submitted that the Tribunal had been entitled to conclude that a substantial security was required in order to ensure that the applicant complied with the conditions that it regarded as necessary. The Tribunal's finding that the applicant would do everything in his power to remain in Australia could not be impugned in this Court. That finding meant that all of the conditions thought necessary by the Tribunal had to be considered, and not merely condition 8101. Some of the conditions were designed to ensure that the applicant did not simply disappear into the community, but would be available for removal if his application for a protection visa were ultimately rejected. 40 Mr Cavanough submitted that the Tribunal was lawfully entitled to require a security that was known to be, or likely to be, beyond the applicant's means. If the amount necessary to ensure that an applicant complied with any conditions imposed happened to exceed the amount that the applicant could raise, that would not of itself preclude the Tribunal from fixing that amount as security. Otherwise, it would be impossible to fix security for anyone who was impecunious. 41 Mr Cavanough referred to several authorities that he submitted supported his primary contention. For example, in Tennakoon v Minister for Immigration and Multicultural Affairs [2001] FCA 615, Gray J said at [20]: "… The conditions that will be imposed may be so stringent, and the applicant's previous record of compliance may be so bad that the decision-maker may feel constrained to fix an amount that the applicant is unable to be likely to meet, given his or her financial circumstances. The security deposit need not be readily affordable by the applicant in every instance. It must, however, be fixed by reference to the applicant's ability to lodge it." (emphasis added) 42 Likewise, in Mitrevski v Minister for Immigration and Multicultural Affairs [2001] FCA 221 Merkel J said at [9]: "There was material before the MRT upon which it was open to it to find that security in the amount of $10, 000 was appropriate in the circumstances. In that regard the circumstances were such that the MRT was entitled to be concerned about the risk of the applicant absconding, rather than departing from Australia. While the amount of the security is substantial and clearly beyond the applicant's means to pay, no ground has been made out that the decision to require such security was an exercise of power that was "excessive in the circumstances" or, involved any misuse of power or any other reviewable error under Pt 8. It is also clear that the applicant has not paid the security of $10, 000 and therefore could not satisfy the criterion in item 050.224 of the Regulations." (emphasis added) 43 Even Finkelstein J, upon whose judgment in Applicant VAAN of 2001 Ms Mortimer primarily relied, said at [27] (as noted earlier) that the amount set as security need not be a sum that the affected person is capable of providing. It should be noted, however, that his Honour qualified that observation in the next sentence where he spoke of the need to ensure that the decision-maker did not merely "pay lip service" to his or her obligation to have regard to the applicant's financial position. 44 Mr Cavanough submitted that the Tribunal had accepted what the applicant said about his financial circumstances, and had taken those circumstances into account. The Tribunal had also taken MSI 388 into account, as it had been obliged to do. MSI 388 suggested at [3.3.35] that, in general, it would not be appropriate to request a security for an amount of less than $5,000 as such an amount would be unlikely to act as a strong incentive for compliance, based on the Department's experience in dealing with securities. In addition, MSI 388 suggested at [3.3.36] that, in 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 circumstances where the applicant's history suggested that a lesser amount would not be likely to act as a strong incentive for compliance. Mr Cavanough submitted that, viewed against these figures, the Tribunal's conclusion that $15,000 was appropriate and necessary in the present case was entirely reasonable. 45 Finally, and not surprisingly, Mr Cavanough relied upon the principles laid down in the majority judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

conclusion 46 I shall deal first with Ms Mortimer's primary submission, namely that the Tribunal's decision to fix security in the amount of $15,000, an amount that it knew to be beyond the applicant's capacity to raise, involved jurisdictional error. There would be perhaps greater force in that submission had the Tribunal fixed security in that amount solely in order to ensure that the applicant did not engage in employment. It is asking a lot to think that an applicant for a bridging visa may have to remain in detention because he or she might otherwise find work, in breach of condition 8101. It would be odd if that result were to follow from fixing security in an amount that exceeded an applicant's means. 47 The position seems to me to be quite different when the concern is not so much that the applicant will work in Australia but rather that he or she may abscond. A number of the conditions that can, as a matter of discretion, be attached to a bridging visa are designed to ensure that this risk is minimised. 48 These conditions are analogous, in certain respects, with the conditions typically imposed upon a person released on bail. There is no legal principle, of which I am aware, that any amount set for bail cannot lawfully exceed what the person seeking bail has the ability to meet. 49 The analogy with bail cannot be taken too far. Today, all States and Territories have put bail on a statutory footing. In none of the statutes that set out the criteria for granting bail is there a requirement, in terms, that when fixing the amount of any undertaking or surety, regard must be had to the financial circumstances of the accused. The primary consideration is the probability, or otherwise, of the accused answering his or her bail. 50 It is hardly surprising that the financial circumstances of an accused are not generally regarded as relevant when determining in what sum bail should be granted. Otherwise, any person charged with an offence who is totally impecunious would be entitled to bail without surety. That is not what happens in practice. It is by no means uncommon for an accused to be unable to raise the funds necessary to meet his or her bail. That does not of itself render their custody unlawful. 51 It is true that the courts have established what is sometimes described as "a principle of parsimony" with regard to bail conditions. The principle, which is incorporated in some statutes, holds that any conditions imposed should be no more onerous than is considered necessary to achieve the objects of the relevant bail legislation. It is excessive bail, however that is prohibited, and not bail that an accused person simply cannot meet. The two concepts are not synonymous, and should not be confused. 52 My initial impression on reading the Tribunal's reasons for decision was that it had fixed the amount of $15,000 solely in order to ensure that the applicant would comply with condition 8101. However, a more careful examination of the reasons indicates that although condition 8101 was a primary area of concern (see the words "in particular 8101" in [50] of the Tribunal's reasons), it was by no means the only matter that troubled the Tribunal. Indeed, the Tribunal made it clear on no less than four occasions (pars [50], [56], [57] and [58]) that "substantial security" was required in order to ensure that the applicant complied with "all" of the conditions set out in [43], other than condition 8507, which the Tribunal did not consider it appropriate to impose. 53 Conditions 8401, 8505 and 8506, which the Tribunal did attach to the grant of the bridging visa, are all designed to ensure that anyone granted such a visa does not simply disappear into the community. It was open to the Tribunal, in my view, to fix an amount of $15,000 as appropriate and necessary to ensure compliance with those conditions. 54 That is not to say that the Tribunal could simply pick a figure at random in order to ensure compliance with conditions of this type. For example, as will be seen, a very large sum, fixed in relation to an impecunious applicant, might well be regarded as capricious and perhaps, in the words of Finkelstein J in Applicant VAAN of 2001, as indicating that "lip service" only had been paid to the applicant's financial circumstances. 55 Ms Mortimer submitted that the applicant was basically impecunious. Although he could raise an amount of $3,000 - $5,000 as security, he could not hope to raise the sum of $15,000. There was no point whatever, therefore, in the Tribunal fixing an amount of that order. It could not genuinely operate as "security" because it could not "secure" anything. The Tribunal might just as well have fixed an amount of $500,000 as an amount of $15,000. 56 In one sense, Ms Mortimer's submission is correct. A person who is wholly impecunious can no more raise an amount of $15,000 than an amount of $500,000. Nonetheless, the issue of validity may be determined differently in relation to these two amounts. The sum of $15,000 is well within the range of figures contained in MSI 388, and though no doubt regarded as substantial, would not normally be regarded as arbitrary or capricious. Security in the sum of $500,000 would go well beyond the policy contained in the Department's own guidelines, and might well be regarded as unlawful. 57 The Tribunal appears to have accepted that the most that the applicant could raise by way of security was $3,000 to $5, 000. It said at [57] of its reasons for decision that it was not satisfied that any security that was "within the means" of the applicant would be sufficient incentive for him to abide by the conditions that it was minded to impose. Ms Mortimer submitted that this amounted to a positive finding by the Tribunal that the applicant would not be able to raise the sum of $15,000 that it then fixed. I accept that the Tribunal's reasons can be read in that way. However, it may be that when the Tribunal spoke of "the security which is within the means of the visa applicant", it was merely referring to the $3,000 to $5,000 that had been proffered, and not making a finding that this was the most that the applicant could raise. 58 I accept that the amount of $15,000 is substantial. It exceeds by a factor of three the $5,000 figure posited by MSI 388 as the minimum amount of security that should ordinarily be fixed. However, the Tribunal was told that there were various support groups that, together with Ms Hamer, might be able to raise $3,000 to $5,000, and as Mr Cavanough submitted, the Tribunal may well have thought that if that amount were available, $15,000 might also be able to be raised within the time prescribed. I do not consider it necessary, however, to speculate about this matter. The present application can be determined on a narrower basis. 59 Contrary to Ms Mortimer's submission, the Tribunal did have regard to the applicant's financial circumstances. It referred to his financial position repeatedly. It did so in terms at [57] immediately before it expressed the conclusion that the sum of $15,000 was "appropriate in the circumstances of the present case", and "necessary to provide an incentive" for the applicant to abide by the conditions imposed. 60 It is true that the Tribunal seems to have accepted that the amount of $15,000 was not "within the visa applicant's means". However, in my view, nothing turns upon that finding. The Tribunal was entitled, at least in the circumstances of this case, to fix an amount that was not within the applicant's means. It fixed that amount, in part, upon the basis that a substantial security was required in order to ensure that the applicant did not abscond. Presumably, it had in mind that the applicant would not wish to cause Ms Hamer, or his other supporters, to lose their money. 61 It must be remembered, in relation to the need for conditions other than 8101, that the Tribunal was not at all impressed by the applicant's history of non-compliance with the requirements of his student visa. The Tribunal was also suspicious of his constant vacillation regarding his future plans. I consider that these factors, together with the applicant's strong desire to remain in Australia, were relevant in assessing the risk that he would abscond unless a substantial security was imposed. 62 I also reject Ms Mortimer's submission that s 269(1) of the Act precludes an authorised officer from having regard to the strength of an applicant's desire to remain in Australia when determining whether, and if so in what amount, security should be required. Plainly, an applicant's desire to remain in this country is relevant when considering whether conditions such as those imposed in the present case are warranted. Equally clearly, the strength of that desire is relevant when considering whether substantial security would promote compliance with those conditions. 63 Accordingly, the application for review of the Tribunal's decision must be dismissed. The applicant must pay the respondent's costs. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Counsel for the Applicant: Ms D.S. Mortimer SC and Dr J.L. Beard

Counsel for the Respondent: Mr A.L. Cavanough QC

Solicitor for the Respondent: Australian Government Solicitor