FEDERAL COURT OF AUSTRALIA

Ahmed v Minister for Immigration & Multicultural Affairs [1999] FCA 430

Migration – judicial review – whether the Tribunal was satisfied that the applicant was making or was subject to acceptable arrangements to depart Australia.

Migration Act 1958 – ss 116(1)(b), 116(1)(f), 189, 476(1)(e)

Migration Regulations 1994 – Schedule 1, 050.212

SALMAN AHMED aka ALI HASSAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 205 OF 1999

JUDGE:          BEAUMONT J.

DATE:            1 APRIL 1999

PLACE:          SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BEAUMONT J:

1                     This is an application by an applicant in person in a migration matter.  The history of the issues that are now before the Court are recounted in the affidavit of Mr Peek.  They are relevantly as follows:

·                    The applicant arrived in Australia on 26 December 1997 on a South African passport issued in the name Ali Hassan, to whom a visitor’s visa had been issued.  He was detained under s 189 of the Migration Act 1958 (“the Act”) on 13 February 1998 after he was found to be working in contravention of the conditions of the visitor’s visa, which was cancelled under ss 116(1)(b) and (f) of the Act on 17 February 1998.

·                    The applicant applied for a protection visa on 26 February 1998, which was refused on 31 March 1998.  This decision was affirmed by the Refugee Review Tribunal (“the Tribunal”) on 20 May 1998.  An application to this Court for review of that decision was dismissed on 30 October 1998.

·                    The applicant has made numerous applications to the respondent for a bridging visa.  All applications were refused.  Most of these decisions were challenged in the Tribunal, which affirmed them.

2                     In an application for an order of review filed by the applicant on 11 March 1999, the applicant sought judicial review of, relevantly, a decision of the Tribunal given on that day.

3                     By that decision, the Tribunal affirmed its decision by a delegate of the Minister on 18 February 1999 to refuse a Bridging E visa to the applicant.  A Bridging E visa is described in the Migration Regulations by reference, relevantly, to sub-class 050 (bridging visa). 

4                     Under sub-class 050, the Migration Regulations specify that all applicants must satisfy the primary criteria there specified.  Relevantly, those criteria include the following:

“(2)     An applicant meets the requirements of this sub-clause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.” [050.212]

5                     In its decision, the Tribunal, after describing a history of a series of previous applications to the Tribunal, said:

"The Tribunal indicated at the hearing that the question of whether Mr Ahmed gets a Bridging visa is a very difficult one.  He has had a long history in Australia of attempting to stay within the confines of this country and he has shown a rigorous adherence to the notion that he does not wish to be returned to Pakistan.

On the one hand the Tribunal is concerned about the length of time that he has been in custody, however, this has largely been of his own decision making.  The Tribunal is concerned that if he is released from detention without any application for a substantive visa being in train, then there is little likelihood that he would be concerned that he would have anything to lose if he did not adhere to the conditions of release.

Because he has had many applications refused, he may be thought to have a pessimistic view about the outcome of any applications, at this stage, within the migration system.

The Tribunal indicated these matters to the Applicant and his advisors.  The Tribunal considered that, in the public interest, given the long history of the relationship between Mr Ahmed and the Department and given the serious concerns that he has previously expressed, in terms of reservations about returning to Pakistan and the fact that he has no clear path to obtaining a substantive visa in Australia, that it would be very difficult to be satisfied that he would comply with reasonable conditions of release.

The Tribunal also considered that it would not be appropriate in these circumstances to provide him with a short term Bridging visa for the purpose of facilitating his personal arrangements or his personal concern about the manner in which he is returned to Pakistan.  Again the Tribunal considers, against the background of the whole history of the matter, and the present circumstances, that the risk factor is too high in terms of the likelihood that he would comply with conditions.”

6                     This Court's jurisdiction to intervene by way of the grant of judicial review is relevantly limited by the provisions of s 476(1)(e) of the Act to an error of law.  The question for the Tribunal was, in the terms of 050.212(2), whether it was “… satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia”.

7                     That issue was clearly one of fact, with an element of discretion or judgment lying at the heart of that factual question.  I can detect no error of law in the approach taken by the Tribunal.  In my opinion, it addressed the correct legal question;  it was a matter for its judgment in the particular circumstances whether it was satisfied that the applicant was then making, or was then the subject of, "acceptable" arrangements to depart Australia.   I see no basis for this Court's intervention in the matter, given the limitations imposed by statute upon its jurisdiction.

8                     As I have indicated to the applicant in the course of argument, this is not a merits review.  This Court has no executive power, nor should it have, for constitutional and other reasons.  

9                     It must follow that the application for judicial review cannot succeed.  I order that it be dismissed with costs.

Associate:

Dated:              1 April 1999