FEDERAL COURT OF AUSTRALIA

Mitrevski v Minister for Immigration & Multicultural Affairs [2001] FCA 221

MIGRATION – detention – whether reviewable error in determining the amount of security

Migration Act 1958 (Cth) s 476(1)

Migration Regulations 1994 (Cth) Schedule 2, subdivisions 050.21 and 050.22

O’Reilly v The Commissioner of the State Bank of Victoria (1983) 153 CLR 1 - cited

MITREVSKI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 41 OF 2001

JUDGE:          MERKEL J

DATE:            9 MARCH 2001

PLACE:          MELBOURNE

THE COURT ORDERS THAT 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

1                     The applicant has applied to the Court for review of two decisions by the Migration Review Tribunal (“the MRT”).  The first decision affirmed a decision made on 3 January 2001 by the delegate of the Minister not to grant the Applicant a Bridging E (Class WE) visa, subclass 050.  The second decision affirmed a decision by an authorised officer that related to the requiring of a security of $10, 000 for compliance with conditions if the visa was to be granted and to the refusal to grant such visa.

2                     The applicant has represented himself and has been unable to state the grounds of reviewable error under section 476(1) of the Migration Act 1958 (Cth) (“the Act”) upon which he relies.  In order to determine his application fairly I directed that the respondent (“the Minister”) prepare a Court Book and an outline of facts and contentions.

3                     The background to the present application is set out in the MRT’s reasons for decision.  The applicant arrived in Australia in November 1996 from Macedonia on a Short Stay (Visitor) visa and since that time appears to have endeavoured to remain in Australia. 

4                     The last bridging visa held by the applicant expired on 28 January 2000 at which time he became an unlawful non-citizen.  On 15 December 2000 the applicant was apprehended at his place of work and placed in immigration detention, where he has since resided.  The applicant indicated in an interview with the Compliance Officer that he would be prepared to depart Australia after he arranged the purchase of an airline ticket.  On 29 December 2000 the Department began to organise the applicant’s removal from Australia.  On 29 December 2000 an authorised officer determined that a security deposit of $10, 000 would be required if a bridging visa were to be granted.

5                     On 29 December 2000 the applicant applied for a bridging visa which was refused by a delegate of the Minister on 3 January 2001 on the basis that the applicant was unable to meet any of the criteria of clause 050.212 of the Migration Regulations 1994 (“the Regulations”), which are set out in the decision of the MRT.  The delegate was also not satisfied that the applicant would abide by the conditions of a bridging visa, including the provision of the $10,000 security deposit, which the applicant had failed to lodge.  The MRT affirmed the decision of the delegate essentially of the same grounds.

6                     The Minister has provided a comprehensive outline of the relevant facts and of his contentions.  In substance, the applicant is seeking to have the Court review his case on the merits, which is impermissible under Pt 8 of the Act.

7                     In order to succeed in an application for a visa it is necessary for an applicant to satisfy all the criteria for the grant of the visa as set out in Part 050 of the Regulations.  The criteria are divided into criteria that must be satisfied at the time of the application for the visa (set out under item 050.21) and at the time of the decision on the application (set out under item 050.22).  Relevantly, the criteria that must be satisfied at the time of the decision include the following:

“050.223 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.

050.224  If an authorised officer has required a security for compliance with any conditions that the officer has indicated to the applicant will be imposed on the visa if it is granted, the security has been lodged”

8                     The power to fix a security amount is a decision that affects the liberty of an individual.  The fixing of an amount that is oppressive will necessarily result in the continued involuntary detention of an individual who has not been convicted of any offence.  In such circumstances, caution should be exercised to ensure the amount fixed as security is reasonable in all the circumstances.  In that regard it is to be noted that in O’Reilly v The Commissioner of the State Bank of Victoria (1983) 153 CLR 1 at 48 Mason, Murphy Brennan and Deane JJ observed that any statutory power:

“must be used bona fide for the purposes for which it was conferred and that involves that its exercise be not excessive in the circumstances of the case.”

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. 

10                  In view of the above conclusions it is appropriate to dismiss the applicant’s application for review with costs.

Associate:

Dated:              9 March 2001