FEDERAL COURT OF AUSTRALIA

NABY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1475

MIGRATION – privative clause decision - application for a bridging visa – no request for security – whether Migration Review Tribunal made an error of law in considering whether to request security – whether error of law protected by privative clause

Migration Act 1958 (Cth) ss 368, 417, 430, 474

Migration Regulations 1994 (Cth) Sch 2 cl 050.223

Applicant VAAN of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 197 applied

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 referred to

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 applied

NABM of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 294 referred to

SBBS v Minister for Immigration & Multicultural &Indigenous Affairs [2002] FCAFC 361 cited

NABY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1062 of 2002

BRANSON J

28 NOVEMBER 2002

SYDNEY

THE COURT ORDERS THAT the application be dismissed.

REASONS FOR JUDGMENT

introduction

1                     The applicant seeks review of a decision of the Migration Review Tribunal (‘the Tribunal’) made on 20 September 2002 affirming a decision of a delegate of the respondent not to grant the applicant a bridging visa and not to request a security.

BACKGROUND FACTS

2                     The applicant has travelled to Australia on three occasions.  In 1991 he was subject to a supervised departure from Australia as a result of having remained in Australia unlawfully after the expiration of his visa.  On the applicant’s second visit to Australia he departed from Australia on 14 March 2000, before the expiry of his visa.

3                     The applicant most recently arrived in Australia on 22 October 2000 on a tourist visa.  He lodged an application for a protection visa on 22 November 2000, the day his tourist visa expired.  He was issued with a bridging visa.  His application for a protection visa was refused on 8 December 2000 and the Refugee Review Tribunal affirmed this decision on 12 June 2001.  The applicant’s bridging visa ceased on 10 July 2001 and since then the applicant has not held a visa and has remained in Australia unlawfully.  The applicant was detained by the police on 11 July 2002 and transferred to Villawood Immigration Detention Centre.

4                     On 15 July 2002 the applicant applied for a bridging visa and on 26 July 2002 this application was refused.  Meanwhile, the applicant lodged an application under s 417 of the Migration Act 1958 (Cth) (‘the Act’) seeking to have the respondent (‘the Minister’) intervene on his behalf.  On the basis of the s 417 application, the applicant submitted a further application for a bridging visa on 27 August 2002.  A delegate of the respondent refused this further application for a bridging visa on 28 August 2002.  The applicant sought review of this decision in the Tribunal.

5                     On 10 September 2002 the applicant told the Tribunal that his father, a church minister who resides in Australia, could lodge a security for the applicant.  The Tribunal granted the applicant until 19 September 2002 to raise a security.  On 17 September 2002 the applicant informed a Tribunal officer that the applicant could provide a security of $1000 and that the applicant’s father could provide a security of $2000.  The Tribunal officer was unable to make any contact with the applicant’s father to confirm this offer.

6                     On 20 September 2002 the Tribunal affirmed the decision not to grant a bridging visa and not to request a security.

REASONS OF THE TRIBUNAL

7                     On the basis of the evidence before it, the Tribunal was satisfied that the applicant had made a valid application for a bridging visa and that he met the relevant criteria other than those touching on compliance with conditions and the provision of security.

8                     The Tribunal noted in the written statement of its decision and reasons (the ‘written statement’) that in Applicant VAAN of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 197 (‘VAAN’) Finkelstein J had identified the steps required to be taken by a decision‑maker before making a decision about security in the context of an application for a bridging visa.  His Honour in VAAN at [22] said:

‘In reaching a decision about security, there are several steps that a decision-maker must undertake.  Approaching the steps in the correct order is as important as getting the steps themselves right.  As I see it (and in expansion of what was said in Tennakoon), the steps are:  (1) The decision-maker must decide what conditions (if any) ought to be imposed on the grant of a visa; (2) Next, if conditions are to be imposed, the decision-maker must ask himself (or herself) whether they will be complied with standing alone (that is, without any security being taken); (3) If the answer is yes, no security should be imposed.  If, on the other hand, the answer is no, the decision-maker must proceed to the next question which is: (4) Will the conditions be complied with if security is taken?; (5) If the answer is no, the visa ought not to be granted because the criterion set out in subcl 050.223 will not be met.  If the answer is yes, security should be required and the decision-maker must assess the appropriate amount and type of security to be imposed; (6) If security has been required, the decision-maker must see whether or not it has been lodged.  If it has not been lodged, the visa application should be rejected because subcl 050.224 will not be satisfied.  If it has been lodged (provided all other relevant criteria have been met), the visa must be granted.’

9                     The Tribunal decided that the appropriate conditions to be imposed on any visa granted to the applicant were:

(a)                that he must not engage in work in Australia;

(b)               that he must comply with reporting requirements specified by the Minister;

(c)                that he must continue to live at the address specified by him before the grant of the visa; and

(d)               that he must notify ‘Immigration’ at least two working days in advance of any change in his address.

10                  The criterion contained in clause 050.223 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘criterion 050.223’) requires the Minister to be satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions, if any, imposed on it.  In giving consideration to whether the applicant would abide by the conditions which it considered should be imposed on any visa granted to the applicant, the Tribunal had regard to the applicant’s past immigration history and his past dealings with the Department of Immigration and Multicultural and Indigenous Affairs.

11                  The Tribunal drew no negative inference from the applicant’s supervised departure in 1991 noting that he was subject to his father’s supervision at the time.  The Tribunal’s written statement contains the following further consideration of criterion 050.223:

‘43.      The visa applicant remained in Australia from 10 July 2001, the time of the cessation of his Bridging A visa, until he was detained.  The visa applicant admitted that he knew he was without a valid visa during this period.  The Tribunal finds that in the period 10 July 2001 to August 2002 the visa applicant did not regularise his immigration status in Australia.

44.       The visa applicant admits working in Australia from December 2000 to 11 July 2002.  Any permission the visa applicant had to work ceased on 10 July 2001, when his bridging A visa ceased.  The Tribunal is satisfied that the visa applicant knew that the permission to work ceased at that time.  Further that he continued to work after 10 July 2000.

45.       As the visa applicant did not regularise his immigration status in Australia and worked when he did not have permission to do so, the Tribunal places little weight on his evidence that he will abide by the conditions attached to the visa.

46.       It is also of concern to the Tribunal that the visa applicant’s father was not present to give evidence on behalf of his son.

47.       It would seem that the visa applicant does not meet criterion 050.223.’

12                  The Tribunal then noted that the applicant had made an application for review of the decision of the delegate of the Minister who had taken the view that no amount of security would be sufficient to ensure that the applicant would abide by the conditions imposed on a bridging visa if granted.  The Tribunal referred again to the judgment of Finkelstein J in VAAN and set out in its written statement an extract from [26] – [27] of his Honour’s judgment which included the following passage from [27]:

‘… the amount should be set at a sum that is designed to secure compliance with the relevant statutory provision, regulation or condition and no more.  Also, the amount should be fixed as a reasonable assurance that there will be compliance.  To arrive at that amount the authorised officer must have regard to the nature of the provision, regulation or condition that must be complied with, the particular circumstances of the person bound by the requirements, notably his financial position, and then determine the appropriate amount.  This is not to say that the amount must be in a sum that the affected person is capable of providing.  On the other hand, if the amount is well beyond the means of the affected person, that could indicate that the authorised officer has done no more than pay lip service to his obligation to have regard to the financial position of that person, and that the decision may be set aside.’

13                  The Tribunal concluded its consideration of the amount of an appropriate security, if any, in the following paragraphs of its written statement:

’50.      The visa applicant’s sworn testimony is that his father can lodge a security.  A file note made by a Tribunal officer on 20 September 2002 indicated that the visa applicant stated on 17 September 2002 that he can lodge a security of $1,000 and that his father can lodge $2,000.  Notwithstanding several calls the Tribunal officer has been unable to contact the visa applicant’s father.

51.       The amounts offered are small and are not assured amounts.  The Tribunal therefore finds that the security offered will not ensure that the visa applicant will abide by the conditions attached to the visa.

52.       The visa applicant does not satisfy criterion 050.223.’

consideration

14                  Ms Allars, counsel for the Minister, argued that properly understood the Tribunal’s written statement reveals that the Tribunal considered the question which Finkelstein J in VAAN indicated should be asked by a decision‑maker as step (4) and answered the question in the negative.  Ms Allars submitted that the Tribunal did not proceed beyond the first part of step (5) but determined that the decision not to request a security should be affirmed because ‘the visa applicant does not meet criterion 050.223’.  She conceded, however, that the Tribunal’s written statement might convey the impression that it did proceed further because of the consideration which it gave to the amount of money which the applicant and his father could provide as security.

15                  The Minister’s written submissions included the following paragraph:

‘In the present case the Tribunal concluded, affirming the decision of the authorised officer, that no request should be made to the applicant to provide security.  For this reason the Tribunal did not set an amount of security.  To treat the Tribunal’s reference to the applicant’s offer of security as an indication that it proceeded to the second part of step (5) would be to engaged in over‑zealous scrutiny of the reasons of the Tribunal, in the manner proscribed by the High Court in Minister for Immigration v Wu Shan Liang [(1996) CLR 259].  The Tribunal’s reasons make it clear that it answered the question “Will the conditions be complied with if security is taken?” in the negative and determined that no request should be made for security.’ 

16                  I have difficulty in accepting the above submission.  The Tribunal’s written statement disclose that it rightly identified the various steps which it was required to take in determining the application before it.  However, the written statement does not disclose a process of reasoning that accords with those steps.

17                  Section 368 of the Act relevantly provides that the Tribunal must prepare a written statement that:

‘(a)       sets out the decision of the Tribunal on the review;

(b)               sets out the reasons for the decision;

(c)               sets out the findings on any material questions of fact; and

(d)               refers to the evidence or other material on which the findings of fact were based.’

18                  In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 the High Court gave consideration to s 430 of the Act which imposes on the Refugee Review Tribunal the same obligations as s 368 imposes on the Tribunal.  McHugh, Gummow and Hayne JJ, with whom the Chief Justice agreed, at [69] observed that s 430:

‘… ensures that a person who is dissatisfied with the result at which the tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material.’ (footnote omitted)

The above observations are equally apt with respect to s 368.

19                  VAAN makes clear that a material question of fact before the Tribunal was whether the Tribunal was satisfied that the applicant would comply with the conditions which the Tribunal had concluded ought to be imposed on any visa granted to him without security being taken.  The Tribunal’s written statement does not in terms set out a finding on that material question of fact.  However, I am willing to accept that the tentative conclusion that is set out in the Tribunal’s written statement that ‘[i]t would seem that the visa applicant does not meet criterion 050.233’ should be understood as a finding on that question of fact.  If the Tribunal’s tentative conclusion is so understood, the evidence or other material on which the finding is based would appear to be the applicant’s immigration history, which caused the Tribunal to place little weight on his assurances concerning compliance, and the failure of the applicant’s father to give evidence on the applicant’s behalf.

20                  However, I do not accept that the Tribunal’s tentative conclusion that ‘[i]t would seem that the visa applicant does not meet criterion 050.233’ is to be understood as including the additional finding that the applicant would not comply with the conditions if security were imposed.  To so understand the Tribunal’s tentative conclusion would render the consideration contained in the following paragraph of the Tribunal’s written statement pointless.  Moreover, it would make necessary a conclusion that [51] of the Tribunal’s written statement is not to be understood literally.  That is, it would be necessary to conclude that the firm conclusion recorded in [52] of the Tribunal’s written statement (as opposed to the tentative conclusion recorded in [47]) was, despite the terms of [51]:

(a)                not based on the finding that the ‘amounts offered are small and not assured amounts’;

(b)               not based on the finding that ‘the security offered will not ensure that the visa applicant will abide by the conditions attached to the visa’; but

(c)                based on a finding, not set out in the written statement, that the conditions to be imposed on the visa would not be complied with if an appropriate amount and type of security, not necessarily being the security offered, were imposed.

I am unwilling to so conclude.

21                  I am satisfied that the Tribunal fell into an error of law which caused it to identify a wrong issue, namely whether the security offered would ensure that the applicant would abide by the conditions which the Tribunal considered should be imposed on the visa.  The Tribunal failed to ask itself the broader question of whether the conditions would be complied with if security were taken.  Only if the Tribunal had answered ‘yes’ to that question would it have been required to assess the appropriate amount and type of security to be imposed.

22                  However, the decision of the Tribunal is a ‘privative clause decision’ within the meaning of s 474 of the Act.  Section 474(1) provides:

‘A privative clause decision:

(a)               is final and conclusive; and

(b)               must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)               is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.’

23                  In NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 five judges of the Court gave consideration to s 474(1) of the Act.  In NABM of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 294 at [24] another Full Court summarised the approach of the majority in NAAV as follows:

‘In NAAV v Minister, von Doussa J (with whom, on this point, Black CJ and Beaumont J agreed) stated (at [635]) that the Migration Act contained a hierarchy of provisions of which, in relation to privative clause decisions, s 474(1) was intended by Parliament to be the leading provision.  His Honour held that “apparently inconsistent provisions of the Act” are to be construed as subject to the restrictions in s 474(1).  Consequently, the effect of s 474(1) is to expand the jurisdiction of the relevant decision makers, including the Tribunal, so that a decision that is affected by irregularities that would, in the absence of s 474(1), amount to jurisdictional error will be within power, subject to satisfying the so-called “Hickman conditions.  The Hickman conditions require that the decision 

·        be a bona fide attempt to exercise the power which the Migration Act reposes in the decision maker;

·        relate to the subject matter of the Migration Act;

·        be reasonably capable of reference to the power.

In addition, it follows from the reasons of the majority in NAAV v Minister that a decision will not be protected from judicial review if it contravenes what is variously described as an “inviolable” condition, “jurisdictional factor” or “structural elements” found in the legislation: at [12], per Black CJ; at [619], per von Doussa J.’

24                  I accept the submission of the Minister that there is no evidence either in the Tribunal’s written statement or in any material before the Court extraneous to the written statement that the Tribunal failed to make a bona fide attempt to exercise the power which the Act reposed in it (see SBBS v Minister for Immigration & Multicultural &Indigenous Affairs [2002] FCAFC 361 at [42]-[48]).  Plainly the Tribunal’s decision relates to the subject matter of the Act and is reasonably capable of reference to the power given by the Act to the Tribunal.

25                  I am satisfied that the decision cannot be said in the relevant sense to contravene an ‘inviolable’ condition, ‘jurisdictional factor’ or ‘structural element’ found in the Act.

26                  I conclude that s 474(1) of the Act operates to protect the decision of the Tribunal from judicial review in this Court.

conclusion

27                  As is mentioned above, I am satisfied that the decision of the Tribunal involved an error of law which caused the Tribunal to identify a wrong issue.  However, I am satisfied that s 474(1) of the Act operates to expand the jurisdiction of the Tribunal and protect its decisions from judicial review.

28                  The application will be dismissed.

Associate:

Dated:              28 November 2002