FEDERAL COURT OF AUSTRALIA

VAZ v Minister for Immigration and Multicultural Affairs [2001] FCA 1805

MIGRATION – application to review decision of Migration Review Tribunal requiring applicant to pay $5,000 as security to ensure compliance with conditions attached to Bridging visa – “privative clause decision” – whether Tribunal erred in fixing sum required.

Migration Act 1958 (Cth) ss 74, 189, 474(2)

Judiciary Act 1903 (Cth) s 39B

Karras v Minister for Immigration and Multicultural Affairs; Cabal v Minister for Immigration and Multicultural Affairs [1998] FCA 1705 referred to

Kanwar v Minister for Immigration and Multicultural Affairs [1999] FCA 943 referred to

Tennakoon v Minister for Immigration and Multicultural Affairs [2001] FCA 615 at [20] followed

R v Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598 at 615-616 referred to

R v Murray; Ex Parte Proctor (1949) 77 CLR 387 at 399-400 referred to

Mitrevski v Minister for Immigration and Multicultural Affairs [2001] FCA 221 at [9] followed

VAZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V1161 of 2001

WEINBERG J

14 DECEMBER 2001

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs, save for any costs incurred by reason of senior counsel having been retained. 

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

REASONS FOR JUDGMENT

background

1                     This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) of 29 October 2001.  The applicant, a Turkish national, entered Australia on 27 November 2000 as the holder of a Student (Temporary) (Class TU) visa, subclass 560, which was issued pursuant to the Migration Act 1958 (Cth) (“the Act”).  That visa was valid until 2 June 2001.  On 5 December 2000 the applicant applied for, and was granted, a further subclass 560 visa also valid until 2 June 2001, but subject to different conditions. 

2                     On 30 August 2001 the applicant, having not at that stage applied for another visa after the expiry of his subclass 560 visa, was located at an address in Windsor and detained pursuant to s 189 of the Act. 

3                     On 7 September 2001 the applicant lodged an application for a Protection Visa, with an associated application for a Bridging E visa.  On the same day an authorised officer from the Department of Immigration and Multicultural Affairs (“DIMA”) required a payment of $10,000 as security to ensure compliance with any of the conditions attached to a Bridging visa if it were to be granted.  The applicant failed to pay this sum.  His application for a Bridging visa was refused on 11 September, and he sought review of that decision the next day.  No decision regarding the Protection Visa has yet been made.

4                     On 19 September 2001 the Tribunal remitted the decision under review to DIMA with a recommendation that a security of $5,000 be required to ensure compliance with the relevant conditions attached to the visa.  The applicant was given until 16 October to pay that sum, failing which the decision of the delegate to refuse the Bridging visa would be affirmed. 

5                     The applicant failed to pay the security.  On 16 October he lodged an application for another Bridging visa.  On 18 October he was notified that that application was invalid because it had been lodged within 30 days of final determination of the previous application, in contravention of s 74 of the Act. 

6                     On 19 October 2001, after the 30 day period had expired, the applicant applied for another Bridging visa.  A DIMA officer required $5,000 as security to ensure compliance with the conditions of any visa granted.

7                     On 23 October 2001, the Bridging visa was refused.  On the same day, the applicant sought review of that decision by the Tribunal. 

8                     A hearing was held on 29 October 2001, at which the applicant gave evidence.  He claimed that his financial situation had worsened, and that he was unable to obtain any financial assistance from his father, who lived in Turkey, other than a small amount of pocket money.  He said that his former employer was willing to assist with his living expenses but he was unsure whether that assistance would extend to the payment of security.

9                     On the same day, the Tribunal remitted the decision under review to DIMA for reconsideration with certain directions, amongst them that the decision by the delegate to require a security of $5,000 be confirmed.  The Tribunal directed that the applicant had until 27 November 2001 to provide that sum, failing which the decision of the delegate would be affirmed. 

the application for review in this court

10                  The application before this Court was filed on 7 November 2001, notwithstanding the fact that the deadline for the provision of the $5,000 security had not passed. 

11                  The application is in a form which is defective in several respects.  Nothing turns upon that.  The applicant is unrepresented and should be given considerable latitude in relation to his failure to comply with the formal requirements regarding proceedings in this Court. 

12                  It is plain that the decision under challenge is that of the Tribunal to affirm the delegate’s decision to refuse a Bridging visa.  As indicated earlier, that decision, though given on 29 October 2001, took effect on 27 November.

the tribunal’s decision

13                  The Tribunal set out the criteria which the applicant needed to meet in order to be eligible for the grant of the visa which he sought.  It found that he met the threshold criteria set out in Part 050 subdivision 050.21 of the Regulations to the Act, in particular subclauses 050.211(1), 050.211(2) and 050.212(3).

14                  The Tribunal then noted that subclause 050.223 required that if a Bridging visa were granted, the applicant would abide by any conditions imposed upon that visa.  The Tribunal determined that conditions 8101, 8201, 8505 and 8506, all of which were found in Schedule 8 to the Act, be attached to the visa.  With regard to the attachment of conditions to any visa to be granted, the Tribunal had regard to Karras v Minister for Immigration and Multicultural Affairs; Cabal v Minister for Immigration and Multicultural Affairs [1998] FCA 1705 and Kanwar v Minister for Immigration and Multicultural Affairs [1999] FCA 943. 

15                  In determining the appropriate amount of security, the Tribunal was guided by Migration Series Instruction (“MSI”) 313.  MSI 313 states, at par 3.3.5.10:

“There is no limit to the amount of security an officer may require from a Bridging E visa applicant.  Decision-makers should take into account the individual circumstances of the applicant and the financial circumstances of any guarantor.  If the decision-maker decides to ask for a security they must ensure that the level of the security bond is sufficiently high to act as a strong incentive to encourage compliance with any conditions.”

16                  MSI 313 goes on to state at par 3.3.5.11:

“In general it would not be appropriate to request a security for an amount of less than $5,000 as it is unlikely to act as a strong incentive for compliance, based on the Department’s experience in dealing with securities.”

17                  The Tribunal also had regard, in its reasons, to the applicant’s immigration history and past dealings with DIMA.  It stated that there was no evidence that the applicant had been a previous deportee, or that he had absconded from immigration detention.  Nor was there any adverse information regarding the applicant’s conduct whilst in detention.  He had never been refused a substantive visa in this country.  There was, however, evidence that he had breached visa conditions in the past. 

18                  The Tribunal had regard to a decision of this Court in Tennakoon v Minister for Immigration and Multicultural Affairs [2001] FCA 615, where Gray J, in relation to security, said, at [20]:

“The assessment of the amount of a security will obviously be a difficult decision…The mere fact that a security deposit is set at an amount that appears to be high will not necessarily be an indication that the power to fix it has been misused.  The conditions that will be imposed may be so stringent, and the applicant’s previous record of compliance may be so bad that the decision-maker may feel constrained to fix an amount that the applicant is unable to be likely to meet, given his or her financial circumstances.” (emphasis added)

19                  The Tribunal observed, at par 59 of its reasons:

“The delegate required a security of $5,000 for compliance with the bridging visa conditions.  This security was not lodged.  The visa applicant has no monies or savings.  The applicant has told DIMA and the Tribunal that he is unable to pay a large security.  The Tribunal is not satisfied that the applicant will abide by the conditions of the subclass 050 visa if it is granted and considers that in light of previous findings that this is an appropriate matter in which to request a security.  The Tribunal concludes that the security in this case should be sufficient to act as an incentive for compliance with the conditions that would be imposed on the visa.  Taking the individual and financial circumstances of the matter into account, including the visa applicant’s dealings with DIMA, and the breach of conditions the Tribunal indicated that an appropriate amount for a security would be $5,000 and the visa applicant was so informed.  The visa applicant stated that he would need 4 weeks to find the money.  The Tribunal finds that the request is reasonable and grants that time to enable the security to be raised.”

conclusion

20                  The decision under challenge is a “privative clause decision” within the meaning of s 474(2) of the Act, as recently amended from 2 October 2001.  Judicial review of such decisions may be available under s 39B of the Judiciary Act 1903 (Cth).  However, the compass of any such review is limited.  See generally R v Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598 at 615-616 per Dixon J and R v Murray; Ex Parte Proctor (1949) 77 CLR 387 at 399-400 per Dixon J. 

21                  Even were the decision under challenge not a “privative clause decision”, the applicant would still face considerable difficulty in seeking to review the amount of security required by DIMA, and affirmed by the Tribunal. In Mitrevski v Minister for Immigration and Multicultural Affairs [2001] FCA 221, Merkel J said, in par 9:

“…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.” (emphasis added)

22                  It seems to me, in light of the above, that it was properly open to the Tribunal to require the applicant to pay an amount of $5,000 as security.  That amount is undoubtedly substantial, and from what the applicant has said, is clearly beyond his means to pay.  He indicated, in argument, that he could raise a lesser sum of perhaps $2,000, although even that would be difficult. 

23                  I have some sympathy for the applicant’s situation.  Had it been for me to determine, I might have concluded that an amount somewhat less than $5,000 would have been sufficient to ensure compliance with the conditions proposed on the visa.  However, the Tribunal plainly had regard to his individual and financial circumstances, and it was open to it to come to the view that it did. 

24                  The applicant has not demonstrated a judicially reviewable error of any kind, still less an error of sufficient seriousness to attract the intervention of this Court. 

25                  It follows that the application must be dismissed.  The respondent properly acknowledged that it would not be appropriate to visit upon the applicant the additional costs incurred in this proceeding by reason of senior counsel having been retained.  The order as to costs will reflect that concession. 

Associate:

Dated:              14 December 2001