FEDERAL COURT OF AUSTRALIA

Naerecoko v Minister for Immigration & Multicultural Affairs [2001] FCA 730

WAISEA NAERECOKO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 855 of 2001

SACKVILLE J

SYDNEY

14 JUNE 2001

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application to review a decision made by the Migration Review Tribunal (“MRT”) on 11 May 2001.  The MRT affirmed a decision of a delegate of the respondent (“the Minister”) not to grant the applicant a Bridging Visa E (Class WE) Subclass 050 (to which I shall refer as “a Bridging visa”).

2                     The applicant is a citizen of Fiji, born on 2 January 1956.  He appears to have been in Australia since 1 September 1990, but is presently in immigration detention.  He was unrepresented at the hearing of his application for judicial review.

3                     The applicant appears not to appreciate that the reason the MRT rejected his application for a Bridging visa was because it found that he failed to meet the requirements of sub-cl 050.212(2) of Schedule 2 to the Migration Regulations.  Sub-clause 050.212(2) provides as follows:

“An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.”

4                     That the applicant has not appreciated the basis on which the MRT proceeded is shown by the grounds on which he relies in his application:

“1.       As I have a son and a daughter who were born here and it would be disaster to dislodge them as they know that this is the only country they belong (sic).

2.                As I have been working as a tradesman in Australia (B/Welder) I wish if the Federal Court could give me the opportunity to use my trade here in Australia as I have all Australian trade [certifications].”

These grounds indicate that the applicant’s desire is not so much to make acceptable arrangements to depart Australia, but to remain in this country.

5                     The applicant applied for a protection visa in 1991.  This application was ultimately refused.  From 21 May 1997 to 17 September 1998, the applicant was granted numerous Bridging visas pending the determination of various requests for Ministerial intervention.  All these requests were refused.

6                     On 17 September 1998, the applicant was granted a Bridging visa on condition that he present to the Minister a ticket for his departure from Australia by 16 October 1998 and that he leave Australia by 22 November 1998.  The applicant failed to comply with these conditions.

7                     On 26 November 1998, the applicant was granted another Bridging visa.  On this occasion, he was required to present a ticket by 3 December 1998 and to leave Australia by 26 January 1999.  The applicant again failed to abide by the conditions of the Bridging visa.

8                     Despite his history of non-compliance with conditions, the applicant was granted, on 4 December 1998, yet a further Bridging visa.  This time he was required to leave Australia before 9 February 1999.  Again, he did not comply with this requirement and remained in Australia as an unlawful non-citizen until placed in immigration detention on 18 April 2001.

9                     On 26 April 2001, the applicant applied for the Bridging visa which is the subject of the MRT’s decision.  This application was rejected by the delegate on 30 April 2001.

10                  On the application for review of the delegate’s decision, the MRT found that the applicant had validly applied for a Bridging visa and that he had met the criteria specified in cl 050.211.  The MRT pointed out, however, that the effect of sub-cl 050.212(1) was that it had to be satisfied that the applicant met at least one of the requirements specified in sub-cll 050.212(2) to (9).  The MRT found that the applicant did not satisfy any of the criteria in sub-cll 050.212(3) to (9).  It identified the relevant question, therefore, as whether the applicant satisfied the requirements stated in sub-cl 050.212(2).

11                  The MRT referred to the approach taken by Carr J in Jiang v Minister for Immigration and Multicultural Affairs [2001] FCA 282, when rejecting a submission that it was an error for the MRT to consider whether the arrangements made by the applicant in the past were sufficient to satisfy the test in sub-cl 050.212(2).  His Honour said this (at [11]):

“In my opinion, when deciding whether a person ‘is making’ acceptable arrangements to do something, in this case to depart Australia, it is clearly not an error of law to consider what that person has done to date.  The making of arrangements can be seen as a continuing process.…  In my view, it would not make any sense to assess whether, at any stage in that continuum, the person was at that particular point of time making acceptable arrangements, without having regard to what, if any, arrangements that person had already made and what further arrangements remained to be made.”

12                  The MRT’s reasons for finding that the applicant failed to meet the requirements specified in sub-cl 050.212(2) were as follows:

“29.     In applying the test in Jiang the Tribunal finds that the visa applicant has not made acceptable arrangements to depart Australia.  The Tribunal had regard to the arrangements to date and the arrangements still outstanding.  As stated above, it is necessary that the visa applicant meet subclause 050.212(2) both at the time of application and the time of decision.

30.       At the time of application, the visa applicant advised that he would love to stay in Australia, that his children’s future is in Australia and that he needed a bridging visa so that he could arrange his family’s departure from Australia.  The Tribunal finds that the visa applicant did not have a valid passport at the time of application and had taken no steps to have it renewed.  The Tribunal finds that the visa applicant had not purchased a ticket at the time of application.  The Tribunal finds that the visa applicant still does not have a valid passport, nor has he purchased a ticket or made arrangements for his departure.

31.       The visa applicant has been in Australia since 1 September 1990.  The visa applicant has been unlawful non-citizen since 8 February 1999 until the Department located him.  Before he became unlawful, the Department had issued three Subclass 050 Bridging visas on the basis that the visa applicant was making or was subject to acceptable arrangements to depart Australia.

32.       Having had regard to all the available evidence, including the visa applicant’s migration history, the Tribunal is not satisfied that he is making, nor is the subject of, acceptable arrangements to depart Australia.  The Tribunal considers that the visa applicant has had a reasonable period to make acceptable arrangements to depart Australia.

33.       As the visa applicant does not meet any of the criteria in subclauses 050.212(2)-(9) at the time of application or at present, he does not meet sub-clause 050.212(1) or clause 050.221.  As he does not meet these criteria the Tribunal has no alternative but to affirm the decision refusing to grant him a bridging visa….”

13                  The applicant has not identified any error of law or other ground for review of the MRT’s decision.  I am not able to discern any such error or ground of review.  The MRT appears to have applied sub-cl 050.212(2) to the circumstances of this case in an unexceptionable fashion.

14                  I should add that the applicant has tendered two letters in support of his case.  Neither, however, advances his application for judicial review.

15                  The applicant, for understandable reasons, wishes to remain in Australia.  Unfortunately this is not a basis for reviewing the MRT’s decision.

16                  The application must be dismissed, with costs.

Associate:

Dated:              14 June 2001

The Applicant was unrepresented.