FEDERAL COURT OF AUSTRALIA

Arkan v Minister for Immigration & Multicultural Affairs [2000] FCA 1134

SADIR ARKAN & HURIYE ARKAN v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 843 OF 2000

TAMBERLIN J

SYDNEY

11 AUGUST 2000

THE COURT ORDERS THAT:

1.         The application for a stay is dismissed.

2.         The applicants pay the cost of the respondent.

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

REASONS FOR JUDGMENT

1                     Sadir and Huriye Arkan (“the applicants”) seek an urgent order to restrain their deportation by the Minister.  Because the matter is urgent I grant leave to Mr Kork to appear and for the application to be determined forthwith.  In view of the need for a quick decision I will not set out the declaration provisions in detail.

2                     Essentially the facts are these.  The applicants came to Australia on 24 April 1996 on a Visitor visa.  Their stay on the basis of Visitor status was extended to 24 May 1997.  The applicants then made an application for a Protection visa on the basis that they were refugees and this application was refused on 25 June 1997.  Administrative review of this decision was sought before the Refugee Review Tribunal (“RRT”).  This was refused on 20 October 1997.  No application was made for judicial review of the RRT decision.  On 18 December 1997 the applicants sought the intervention of the Minister and this was declined on 30 June 1998.  The applicants were subsequently granted Bridging Visas which extended their lawful residence until 10 August 1998.  The applicants were detained as “unlawful non-citizens” on 26 May 2000.  The records indicate that Sadir Arkan was then working as a fruit picker in Griffith.  On 2 June 2000 the applicants lodged requests to the Minister under s 417 and s 48B of the Migration Act 1958 (“the Act”).  The evidence indicates that the decision to refuse was made by the Minister under s 417 of the Act on or prior to 31 July 2000.  The decisions of the Migration Review Tribunal (“MRT”) sought to be challenged were made on 1 August 2000. At that time the MRT appears to have been unaware of the refusal of the Minister under s 417 of the Act.

3                     On 18 July 2000 a decision by a delegate was made not to grant the applicants a Bridging Subclass 050 visa on the basis that the primary decision-maker considered that the relevant criteria were not met, including that the visa applicant would not abide by visa conditions.  This was based on the primary decision-maker’s view of the applicant’s previous history.  On 1 August 2000 the MRT affirmed the decision not to grant this visa.  The relevant findings of the MRT contained the following paragraphs:

“21.  For this application to be successful, the Tribunal must be satisfied that, both at the date of the primary application and at the date of the decision (subclause 050.221), the criterion in subclause 050.212(1) has been met.  For this criterion to be satisfied it must be established that at least one of the grounds in subclauses 050.212(2) to (9) has been met.

[These references are to subclass 050-Bridging-(General) Provision set out in Schedule 2 to the Migration Regulations 1994].

22  Although air tickets have been booked for the visa applicant and his wife for a flight to leave Australia on 30 August 2000, the price of the tickets had not been paid at the date of the hearing and, on the evidence of the visa applicant, may not be paid unless and until the Minister rejects their latest application.

23.  The Tribunal, therefore, finds that at the time of the application and of decision, the visa applicant has not made, or been the subject of, acceptable arrangements to leave Australia.

…

28.  The visa applicant has Australian relatives being his daughter and the daughter’s family. The daughter as not made any representations to suggest that she would assist the visa applicant upon release, although the Tribunal accepts that it is likely that she would do so to the extent of her ability.  Her ability to provide assistance would be limited because she and her husband rely on welfare payments  themselves.

29.  The visa applicant and his wife are almost destitute and have no convincing source of future funds.  In view of this lack of funds and the previous breach of conditions by working, the Tribunal has been unable to come to the conclusion that the visa applicant would comply with the conditions it would have been likely to impose.

30.  Further, the Tribunal finds that, at the time of the application, a compliance officer had asked the visa applicant and his wife each to lodge a security of $4,000. The Tribunal further finds that the visa applicant did not lodge the security and the finding is established by the delegate’s decision record.   There is no evidence to suggest that the officer who requested the security was not authorised under section 269 of the Act to do so.

31.  After the hearing, the visa applicant’s adviser submitted that the bond had not been requested at the time of application. It was requested some hours after the adviser first spoke to the detention review officer.

32.  The Tribunal finds that the request, having been made on the same day as the application and well before the time of decision, was made at the time of application for practical purposes.”

4                     On 5 August 2000 the applicants lodged an application for an Order of Review of the MRT decision. The grounds of the application alleged errors in that:

(1)        The Tribunal made findings of fact on which its decision was based that were not rationally supported by probative evidence and failed to rationally consider the probative evidence that was before it;

(2)        The procedures required by the Act or the Regulations to be observed in connection with the making of the decision were not observed; and,

(3)        The decision involved an error of law being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision.

5                     These grounds are not particularly informative.  However they were developed in argument by Mr Kork, the agent appearing by leave for the applicants.

6                     Mr Markus, for the Minister, contends that the application cannot succeed in that there is no arguable ground to support the claim of error.  He also submits the balance of convenience favours the refusal of the stay sought.

7                     There are three bases on which the applicants seek to rely to indicate error.

8                     The first basis on which error is alleged is that the MRT erred because it decided that it was not satisfied that the applicants were making acceptable arrangements to leave Australia: see Subclause 50.212(2) of schedule 2 to the Migration Regulations 1994 (“the Regulations”).  The findings on this matter are set out above.

9                     The findings of the MRT on this question is purely one of fact and no material has been placed before me to indicate that there is any reasonable argument that it was not open to the MRT to make the factual finding that it was not satisfied that the arrangements made were acceptable.  No evidence was produced by the applicants that they had the funds or any resources on which they could draw to pay for their booked departure.  Indeed, the whole purpose of their strenuous and persistent efforts over the past three years has been to stay in Australia and to avoid the necessity for departure.  However the fact is that there is simply no evidence to support the allegation of error in this case, particularly in circumstances where the criterion required arrangements “to the satisfaction” of the Minister which includes to some extent an assessment as to what amounts to “acceptable” arrangements for departure.

10                  The second basis relates to the provisions of subclause 050.21(6)(a)(iii) of Schedule 2 to the Regulations which refers to the question whether the applicant previously sought the exercise of the Minister’s power under s 417 to substitute a more favourable decision.  If there had been such a previous application then the criteria subclause (6) is not.  This criterion must be satisfied at the date of the decision: see subclause 050.221.  In the present case, the material indicates that prior to the decision of 1 August the applicants had previously requested the exercise of the Minister’s power under s 417 and that this had been refused.  Accordingly, one of the necessary pre-conditions for the application of subclause (6) has not been satisfied.  Nothing has been presented to me to indicate any reasonable argument to the effect that this subclause is satisfied.

11                  The next submission relied on for the applicants concerns subclause 050.214 which requires that a security be lodged by the applicant if asked for by an officer authorised under s 269 of the Act.  That section deals with security for compliance with the Act.  The argument is that the decision is erroneous because as a matter of fact the security was not asked for prior to the application having been made.  This matter is dealt with in paragraphs 30-33 of the reasons for decision of the MRT set out earlier.  This is a pure question of fact namely: what was the point of time at which the request was made?  The specific finding on this question in paragraph 32 is that the request was made on the same day as the application and well before the time of decision and that it was made at the time of application for all practical purposes.  There is no evidence proffered on behalf of the applicants to the effect that they have met this condition.  The findings of the Tribunal strongly point to the contrary.

12                  Finally, Mr Kork says that he needs time, and access to the transcript, to support his contentions as to certain statements made by the MRT member during the course of the hearing especially in relation to the bond.  The reasons of the MRT are fully set out and there is no material pointed to on behalf of the applicants which would give any basis for mounting an argument that the factual finding of the MRT on this question should be set aside apart from the unsupported assertions made from the bar table.

13                  As to the balance of convenience I have taken into account the long history of this matter and the fact that the applicants have (not unnaturally) already taken almost every available avenue of challenge to the decisions of the Minister and the Department and that they have been unlawfully in Australia for a considerable period of time.  I have weighed against this the hardship which they claim they will suffer if returned to Turkey.  In my view the balance of convenience favours their departure.  Clearly there is little real benefit in further delaying their departure until such a time as they can satisfy the Minister that they have made suitable arrangements for their departure.  A grant of a visa for this purpose would from a practical viewpoint achieve very little for the applicants.

14                  My conclusion is that it has not been shown that the applicants have any arguable basis for review of the MRT decision of 1 August 2000 and that it would be futile for such a hearing to take place and that therefore this application should be refused.  There is no reason why costs should not follow the event and I order the applicants to pay the costs of the Minister.

Associate:

Dated:              11 August 2000