FEDERAL COURT OF AUSTRALIA

Wang v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 980

MIGRATION – notice of motion seeking interlocutory injunction in relation to deportation – whether serious question to be tried

Migration Act 1958 (Cth) ss 13(1), 14(1), 189, 198(6), 474

Migration Regulations, Schedule 2, Subclass 050.212(2)

Jiang v  Minister for Immigration and Multicultural Affairs [2001] FCA 282 cited

Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 285 cited

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

Lin v Minister for Immigration and Multicultural Affairs [2001] FCA 283 cited

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 referred to

LEI WANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No Q 89 of 2004

SPENDER J

BRISBANE

26 JULY 2004

THE COURT ORDERS THAT:

1.                  The notice of motion filed 23 July 2004 be dismissed.

2.                  The applicant pay the costs of the respondent, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1                     This is a notice of motion filed by Mr Lei Wang (“Mr Wang”) on 23 July 2004, which has been heard in circumstances of some urgency.  Mr Wang seeks orders to:

‘(1)   stop the department of immigration to remove me from Australia on 27 July 2004; and

(2)     an restraining order.’

The affidavit in support of that motion by Mr Wang says:

‘I have the matter in Federal Court of Australia.  The matter’s file number is Q89/2004. 

My matter be listed for hearing on 24/08/2004 at 10:15 in Federal Court of Australia. 

The department of immigration intends to remove me from Australia on 27 July 2004. 

I don’t know what happen with Jin Xing & Co.  They didn’t contact me anymore after 14 July which day is last hearing day in Federal Court.  My unit office can prove it. 

My unit office has record if Jin Xing & Co gave me fax.  They did not give me any information.’

2                     On 7 June 2004, Mr Wang filed an application seeking review of a decision of the Migration Review Tribunal (“the MRT”) made on 21 May 2004.  The grounds of that application were:

‘1.        Errors of Jurisdiction of Law;

2.         Deny of Nature Justice.’.

The application indicated, ‘Detail documentation will be provide by Wednesday.’  No such further information has been provided, at least until the oral submissions by Mr Wang today. 

3                     On 14 July 2004, the Federal Court gave directions concerning the hearing of that application.  A hearing date was set for 10.15 am on Tuesday, 24 August 2004, and I indicated that the applicant was to file an outline of submissions seven working days before the hearing date, with the respondent to file submissions three working days before the hearing date. 

4                     In respect of his application for an injunction to restrain his deportation from Australia, he appears on his own behalf, with the assistance of an interpreter.

5                     Today, I stood down the hearing of Mr Wang’s motion so that the outline of submissions on behalf of the Minister could be explained to him.

6                     The history of the present matter is as follows. 

7                     On 28 July 2003, the applicant applied for a Protection (class XA) visa.  He was granted a Bridging E visa on that day, which visa was associated with his protection visa application and was subject to conditions 8101, 8506, 8510 and 8505, which required that he undertake no work in Australia, that he notify the Department of any change to his address, that he had a present valid passport, and that he reside at a specific address.

8                     The Minister asserts, and it is not denied by Mr Wang, that on 16 February 2004 he was located working at a restaurant in Mackay.  The visa was then cancelled and Mr Wang was placed in immigration detention.  On 18 February 2004, he applied for another Bridging E visa, which was refused.  He applied for a review of that decision, and the MRT on 3 March 2004 affirmed the decision to refuse a bridging visa.  On 7 May 2004, Mr Wang applied for another Bridging E visa, which application is the subject of the substantive proceedings in the Federal Court.

9                     On 10 May 2004, the Minister’s delegate refused to grant the visa.  In that decision, the delegate of the Minister referred to subclause 050.212(2) of the Migration Regulations, Schedule 2.  In respect of this requirement, the delegate said:

‘ Mr Wang has previously been granted two bridging visas (on 28/03/2003, and on 21/07/2003) with conditions to present a valid ticket and to leave Australia by a specified date.  On both occasions, Mr Wang failed to comply with these conditions.  A covering letter for this application from Mr Wang’s migration agent states that Mr Wang has a ticket to depart on 02/06/2004.  In support of this statement, the migration agent has provided a facsimile of a computer printout for a flight booking on 02/06/2004 in Mr Wang’s name.  This printout has no letterhead or confirmation of payment, and there is no evidence of the original being certified although the covering letter refers to the document as a “certified copy of our client’s Airline Ticket”.  I also note that the alleged booking is for a departure date 26 days away.  The covering letter for this application states that Mr Wang requires this time to settle a matter before the Family Court in Sydney, and to sell his assets.  I note that, according to the MRT’s record of decision dated 06/11/2002 relating to Mr Wang’s application for a spouse visa, Mr Wang stated to the presiding member on 18/06/2002 that all he wanted at that time was “some period to to sort out the property and divorce arrangement with (his alleged spouse) before he goes home”.  I am not satisfied that the information provided in the facsimiled covering letter about an alleged flight in 26 days time, including attachments, constitutes acceptable arrangements for departure.’

10                  On 12 May 2004, Mr Wang applied to the MRT for review of that decision.  On 21 May 2004, the MRT affirmed the decision to refuse to grant the visa on the basis that Mr Wang did not comply with the requirements for the grant of a visa, and in particular the requirement in clause 050.212.  The MRT said:

‘Of particular relevance is subclause 050.212(2) of the Regulations, whether the applicant is making, or is the subject of, acceptable arrangements to depart Australia.’

11                  In the course of its reasons, the MRT referred to the decision of Carr J in Jiang v  Minister for Immigration and Multicultural Affairs [2001] FCA 282, Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 285, Naerecoko v Minister for Immigration and Multicultural Affairs [2001] FCA 730, and Lin v Minister for Immigration and Multicultural Affairs [2001] FCA 283.  The Tribunal then expressed its opinion as follows:

‘ The Tribunal is satisfied that the visa applicant has a valid travel document.  The Tribunal is satisfied that the visa applicant could obtain a ticket for departure within a reasonable period of time.  There is some evidence on the file that the visa applicant has made a booking for departure, although a ticket for departure has yet to be produced.  The Tribunal accepts that Mr F may have faxed a copy of the ticket to the Tribunal and it has not yet been received.

There is no adverse evidence before the Tribunal as to the visa applicant’s capacity to travel.

The Tribunal however is not satisfied that the visa applicant intends to depart Australia on 12 June 2004.  The visa applicant has given evidence to the Tribunal that he wishes to finalise his property matters in the Family Court and then depart Australia.  The visa applicant told the Tribunal that the Family Court refused to make an order that he be transported to Sydney for the proceedings.  The evidence of the visa applicant is that the matter is set down for final hearing in Sydney on 27 May 2004.  However, the visa applicant did not know and there was no evidence before the Tribunal to suggest that the Court would make final orders on that day.  The Tribunal asked the visa applicant if he would leave Australia without the Family Court’s final orders.  The visa applicant was not able to answer the Tribunal’s question.  Further, the visa applicant has previously been given two Bridging visas on the basis of making suitable arrangements to depart Australia.  On both those occasions he gave undertakings to the Department that he would depart Australia and he failed to depart.  He gave those undertakings knowing that he had an ongoing property dispute with his spouse.  The visa applicant stated that he did not depart Australia at that time because he had lodged a Protection visa application.  The visa applicant stated that he no longer has a fear of returning to his home country.  The Tribunal is not satisfied that the visa applicant would not try to find another means of staying in Australia if his Family Court matter is not finalised by 12 June 2004.  The Tribunal also notes that the visa applicant gave evidence to this Tribunal in June 2002 that he wished to remain in Australia for a short period of time to finalise his property matters.  He nonetheless did not commence the Family Law proceedings until March 2003.  The Tribunal does not accept the visa applicant’s evidence that he would depart Australia on this occasion.  He has given undertakings in the past that he would depart and has failed to do so.  The Tribunal is not satisfied that there is any significant change in his circumstances on this occasion that would ensure that he would depart.

After consideration of all of the evidence before it, the Tribunal is not satisfied that at the time of application, the visa applicant had made or was the subject of any acceptable arrangements to depart.  The Tribunal is not satisfied that the visa applicant met subclause 050.212(2) at the time of application.’

12                  Mr Wang applied to this Court for review of that decision of the MRT and has, by his notice of motion, sought interlocutory relief to prevent him being removed from Australia on 27 July 2004, tomorrow, in accordance with the Department’s stated intention. 

13                  By way of background to that application, I set out facts in the Minister’s outline of submissions which Mr Wang does not dispute:

‘1.     The applicant is a national of China.  He arrived in Australia on 27 February 1997 as the holder of an Occupational Trainee, subclass 442 visa.  He was subsequently granted two further subclass 442 visas.  The last of those visas expired on 27 October 1999.

2.            Since then, the applicant hs held only bridging visas, pending decisions being made in relation to applications for substantive visas and judicial review.

3.            On 31 August 1999 the applicant applied for a Spouse visa, subclass 820.  This was refused by the Minister’s delegate on 20 March 2000, and the decision to refuse the visa was affirmed by the Migration Review Tribunal (MRT) on 6 November 2002.

4.            The applicant’s associated Bridging Visa B expired on 26 November 2002.

5.            On 25 November 2002 the applicant applied to the Federal Court for review of the MRT’s decision to affirm the refusal of his spouse visa.  The applicant was granted a Bridging Visa A in respect of that application to the Federal Court.

6.            On 14 March 2003 the applicant withdrew his application for review in the Federal Court.  As a consequence, his associated Bridging Visa A ceased on that date.

7.            On 18 March 2003 the applicant was granted a Bridging Visa E, valid until 17 April 2003.

8.            On 28 March 2003 the applicant was granted a further Bridging Visa E, valid until 26 April 2003.  That visa had conditions 8511 and 8512 imposed, which required respectively that the applicant have a present valid ticket to depart Australia and that he depart by a specific date.

9.            The applicant failed to depart Australia.

10.        On 31 March 2003 the applicant lodged a request for Ministerial intervention, pursuant to s351 of the Migration Act 1958 (Act).  The request was for the Minister to substitute the decision of the MRT on 6 November 2002 (affirming the decision of the Minister’s delegate to refuse the grant of the spouse visa) with a more favourable decision.  An associated Bridging Visa E was granted to the applicant, valid until 10 June 2003.

11.        On 26 June 2003, the Minister declined to exercise his discretion to substitute a more favourable decision.

12.        On 27 June 2003 the applicant was granted a further Bridging Visa E, valid until 4 July 2003.

13.        On 21 July 2003 the applicant was granted a further Bridging Visa E, which also had conditions 8511 (present valid ticket) and 8512 (depart by specific date) attached.  That Bridging Visa was valid until 4 August 2003.

14.        The applicant failed to depart Australia.’

14                  The decision of which Mr Wang seeks review is the decision that he did not satisfy the requirements of subclause 050.212(2).  Mr Wang says that the MRT was wrong when it found against him on this question.  He says that by 17 August 2004, he will be able to produce documents in support of his claim that he intended to leave Australia on 12 June this year.  The difficulty, which is a very real one in this case, is that if Mr Wang is right and the MRT made that error, it is an error of fact and is not an error of a jurisdictional kind.  The Federal Court, has no jurisdiction to review decisions made under the Migration Act 1958 (Cth) (“the Act”) except in the case of jurisdictional error: see s 474 of the Act, and Plaintiff S157/2002 v Commonwealth of Australia  (2003) 195 ALR 24.

15                  When a party seeks a restraining order of the kind Mr Wang seeks in the present motion, he has to establish that there is a serious question to be tried and that the balance of convenience favours not removing him from Australia.  As I will shortly show, Mr Wang, in my judgment, has not demonstrated a serious question to be tried because, having regard to the very narrow grounds on which this Court can review a decision of the MRT, he has no prospect of success on his substantive application.

16                  The Act deals with the power to remove a person from Australia.  Section 14(1) provides that a “unlawful non-citizen” is a non-citizen in the migration zone who is not a “lawful non-citizen”.  A “lawful non-citizen” is defined in s 13(1) of the Act to mean ‘a non-citizen in the migration zone who holds a visa that is in effect.’  What that means is that any non-citizen in Australia who does not hold a valid visa is an unlawful non-citizen.

17                  Mr Wang currently does not hold a valid visa and he is not an Australian citizen.  He is thus an unlawful non-citizen.  He claims that he was entitled to a bridging visa because he had made arrangements to leave Australia, a claim that was not accepted by the MRT.

18                  Section 189 of the Act requires unlawful non-citizens in the migration zone to be detained.  Section 198(6) of the Act imposes an obligation on, amongst others, officers of the Department as follows:

‘An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a)     the non-citizen is a detainee; and

(b)     the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c)     one of the following applies:

(i)            the grant of the visa has been refused and the application has been finally determined;

(ii)          the visa cannot be granted; and

(d)         the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.’

19                  In the present case, Mr Wang applied for a spouse visa and a protection visa, in both of which applications he was unsuccessful.  Those determinations have been concluded.  The only outstanding application for a visa is his application for a Bridging E visa, which the MRT determined on 21 May 2004 was not a visa which should be granted to the applicant.  That visa is not a substantive visa.

20                  In the view I take of the matter, while s 198(6) of the Act imposes obligations on officers, that obligation has to be read subject to any existing order of the Federal Court, or any other Court, preventing the removal of a person from Australia.  The question on the motion is whether the Court should make such an order. 

21                  In the present case, for the reasons which I have indicated, no jurisdictional error has been demonstrated or is arguably able to be made out.  It follows that there is no basis for any interlocutory order in this case.  In my judgment, the substantive application by Mr Wang has no prospects of success because, at best, it seeks to challenge a non-jurisdictional error by the Tribunal.  It follows that the application for injunctive relief must fail.

22                  For the above reasons, Mr Wang’s notice of motion filed 23 July 2004 should be dismissed with costs.  The substantive application will be determined on 24 August 2004.

Associate:

Dated:              30 July 2004