FEDERAL COURT OF AUSTRALIA

Kanwar v Minister for Immigration & Multicultural Affairs [1999] FCA 943

Re Qing Mei Fu (IRT decision 4388, 20 September 1994) Discussed

KARMAJIT SINGH KANWAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q 138 of 1999

RAM SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q 139 OF 1999

KIEFEL J

BRISBANE

9 JULY 1999

ON REVIEW FROM THE IMMIGRATION REVIEW TRIBUNAL

THE COURT ORDERS THAT:

1.         The application is refused.

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

ON REVIEW FROM THE IMMIGRATION REVIEW TRIBUNAL

THE COURT ORDERS THAT:

1.         The application is refused.

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

ON REVIEW FROM THE IMMIGRATION REVIEW TRIBUNAL

AND

REASONS FOR JUDGMENT

1                     In each of these applications, the Immigration Review Tribunal affirmed the decision refusing the applicants a Bridging Visa E (Class WE) Subclass 050 (General).  The applicants’ circumstances are essentially the same.  The applications were therefore heard together and it was agreed by the parties that the outcome in Mr Singh’s application follow that in Mr Kanwar’s application. 

Karmajit Singh Kanwar

2                     The applicant was born in India in 1975 and has no immediate family in Australia.  The Tribunal’s reasons note that his father sent him here, and that he arrived with only a small amount of money and has no other assets in Australia.  His student visa was cancelled on 7 May 1999 as a result of his non-attendance at the business college in Melbourne which he was supposed to attend.  He attended for one day.  He has only a distant relative in Australia, Mr Nijjar, whom he refers to as “Uncle”.  Both he and Mr Singh travelled from Melbourne and resided with Mr Nijjar who was willing to provide food and accommodation for them.  The Tribunal’s reasons note, as was submitted before me, that it was regarded as culturally appropriate for Mr Nijjar to assist them. 

3                     Subsequently, this applicant applied for a protection visa.  The application had not been made at the time of the first decision, but had by the time of the Tribunal’s consideration although it had not been fully determined.

4                     Clause 050.2 of Schedule 2 to the Migration Regulations, which concerns bridging visas of this subclass, provides that all applicants must satisfy the primary criteria.  The Tribunal found that the applicant satisfied that criteria save in one respect, that provided for in clause 050.213 which provides that the Minister be satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it. 

5                     Of the conditions which might be applied to such a visa, pursuant to schedule 8, the Tribunal said that the following would have been imposed by it had it determined to issue a visa:

6                     The Tribunal was not satisfied that the applicant would abide by any of them.

7                     Findings were made by the Tribunal with respect to each of those conditions, save for those with respect to working in Australia and producing a passport.  Given, however, that the applicant’s impecunious circumstances are elsewhere referred to, it is not difficult to discern the Tribunal’s reasoning.  With respect to the production of the passport, this condition is one said to be usually applied.  It takes effect at a time later specified.  It was submitted for the applicant however that its imposition was contrary to the Migration Services Instructions, No 210 clause 3.2.13.13, which provides that it should not be imposed if a non-citizen has lodged, or is intending to lodge, a Protection Visa application, but that it might if the application had been rejected at primary level.  This contention was not identified in the application for review.  Counsel for the Minister informed me that it was believed the application for protection visa had not passed the primary level, but this could not immediately be established.  It does not however seem to me necessary to consider this question further.

8                     The submissions made on behalf of the applicant assume an obligation on the part of the Tribunal to consider, and make findings, with respect to each of the conditions which it is thought would have been breached.  Neither the Act nor regulations contains such a requirement.  The two identified by the applicant as not considered were not central to the Tribunal’s reasons.  More importantly, the submissions overlook that since compliance with any conditions which might be imposed is a criteria which must be satisfied, the Tribunal’s opinion that any one of them would not be met would suffice for rejection.

9                     It is clear from the reasons of the Tribunal that its principal concern was whether the applicant would make himself available to the authorities in the event of an unsuccessful outcome to his application for a protection visa.  This is confirmed by its reference to the Tribunal decision in Re Qing Mei Fu (IRT decision 4388, 20 September 1994, pages 9-10) which highlights the importance of conditions necessary to ensure effective regulation of non-citizens in Australia and that the most important conditions to be applied were usually those which make it possible to locate and contact that non-citizen.

10                  The Tribunal found, in general terms, that:

“After having heard and observed the Applicant and others and after having considered the material on both the Tribunal file and the Department file, the Tribunal is not satisfied, on balance, that the Applicant would abide by any conditions which may be imposed if the Tribunal were to grant this visa.  The conditions which the Tribunal would have imposed are conditions 8101, 8401, 8505, 8506, 8510, 8511 and 8512. 

The applicant is a 22 year old person who is not married.  He has no family in Australia except for an “uncle” in Brisbane with whom he has resided with on two short occasions.”

11                  It then had regard to policy considerations under the Migration Services Instructions and in this respect noted a breach of the Act or regulations, by reason that the applicant had breached the conditions of his student visa;  that he had resided at different places whilst in Australia and had no family ties except for the “uncle” in Brisbane.  It went on:

“The Tribunal does not believe, on the evidence and material before it, that the Applicant’s “uncle” or friends or acquaintances would influence him to abide by any conditions, and in particular any reporting conditions and a condition to leave Australia by a certain date, which may be imposed on any release (eg after the determination of the application for refugee status if unsuccessful).  Indeed, antipathy to return to his country of origin indicates the opposite as he has indicated that he wishes to stay in Australia and not return to India.”

12                  And further:

“In the present case, given his past actions and behaviour, the Tribunal is not satisfied on balance that the Applicant would comply with any conditions, particularly reporting conditions living at a designated address, notifying of any change of address and if applicable, taking steps to facilitate his departure from Australia.

The Tribunal notes that the Applicant has moved around in Australia.  He was located by the Department.  He has no real ties with the Australian community other than with his “uncle” and friends or acquaintances here.  The Applicant stated he had very little in the way of assets. 

The Tribunal notes that the applicant and others did not approach the Department regarding his situation.  He had breached his Student Subclass 560 visa that was subsequently cancelled.  It appears that had he not come to the attention of the Department that the Applicant would have continued to remain in Australia contrary to the terms of his student visa that was obtained on his behalf in India.  Indeed it appears to the Tribunal that the Applicant was not a genuine student and his visa was only obtained to facilitate his departure from India.  The Tribunal notes the Applicant’s comments that he is unwilling to return to his home country because of his fears.  The Tribunal in all the circumstances, does not on balance, accept his assertions that he would abide by any conditions that might be imposed on a visa given his actions and movements in the past.”

and refused the Visa. 

13                  The applicant submitted that the Tribunal was in error in the exercise of its power, when it put the onus on the applicant’s relatives to ensure his compliance with the reporting condition.  This misunderstands the Tribunal’s reasons, which were to the effect that even with the support of others, their influence could not be assumed to have the required effect, given other factors bearing upon the applicant.

14                  It was also submitted that there was no evidence to support the lack of satisfaction expressed by the Tribunal as to compliance with a number of conditions, those as to reporting;  living at a designated address;  notifying any change of address and taking steps to facilitate departure from Australia.  Given the reasons set out above and the applicant’s circumstances elsewhere stated, this ground fails as does that which contends that the Tribunal’s view of the matter was “too general”. 

15                  Implicit in the applicant’s submission was that there had been a failure on the part of the Tribunal to take account of the security offered by Mr Nijjar.  Logically, however, it was not necessary for the Tribunal to consider it further given its express finding that the applicant’s connexion with Mr Nijjar and other acquaintances was not likely to influence him to abide by the conditions.

16                  The application must be refused.

Ram Singh

17                  Mr Singh was born in India in 1977 and came to Australia on a Subclass 560 Student Visa on 10 July 1998.  Mr Singh’s enrolment at the business college he was required to attend was cancelled on 17 March 1999 and his student visa cancelled on 7 May 1999.  He has no immediate family in Australia.

18                  The Tribunal’s decision was otherwise to the same effect as that dealt with in Mr Kanwar’s application.

19                  This application will be refused for the reasons set out above.

Associate:

Dated:              9 July 1999