FEDERAL COURT OF AUSTRALIA

SWPB (No 2) v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 851

SWPB (No 2) v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SAD 249 of 2004

MANSFIELD J

24 JUNE 2005

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

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

REASONS FOR JUDGMENT

1                     This proceeding seeks to quash a decision of the Migration Review Tribunal (the Tribunal) made on 9 March 2004 concerning an application for Bridging E (Class WE) visa under the Migration Act 1958 (Cth) (the Act).  The Tribunal affirmed a decision of a delegate of the respondent of 19 February 2004 not to grant that visa to the applicant. 

background

2                     The applicant was born in Saigon, Vietnam on 26 April 1972.  He speaks Vietnamese and English.  The Court had available to him an interpreter to assist in the presentation of his submissions, but he chose not to avail himself of that option.  He was clearly fluent in English.

3                     The applicant and his family fled Vietnam at different times between 1979 and 1982.  In his case, he left Vietnam with his father and three of his siblings on 19 May 1980, when he was just eight years of age.  They arrived in the United States of America on 15 August 1980.  His mother and six other siblings also left Vietnam.  His parents and six of his siblings now reside in the United States and have acquired American citizenship.  Two of his brothers, with their families, reside in Australia and have acquired Australian citizenship.  One brother resides in Vietnam.

4                     The applicant came to Australia from the United States on a Transitional (Temporary) (Class UA) Subclass 673 (Close Family) visa on 16 October 1992.  He had been a resident of the United States since 1980, but had not taken United States citizenship.  He had a permit to remain and re-enter the United States which expired on 15 April 1994 whilst he was still in Australia.  On 15 January 1993, the applicant was granted a Temporary Entry Permit valid until 28 February 1993.  On 11 February 1993 he married an Australian citizen, and shortly afterwards lodged an application for permanent residence in Australia on spouse grounds supported by his wife’s nomination.  He was then granted a Transitional (Temporary) (Class UA) Subclass 829 visa and after that a Temporary Spouse (Subclass 820) visa in the light of his marriage and pending determination of his application for a Permanent Spouse visa.  That temporary visa expired on 18 April 1995.  However, the relationship between the applicant and his wife broke down and the parties separated.  They were divorced on 10 November 1994.  In December 1994 his former wife withdrew her nomination of the applicant for a Permanent Spouse visa.  Subsequently, on 18 January 1996 the application for a Permanent Spouse visa (Subclass 801) (which was made at the same time as his Temporary Spouse visa (Subclass 820 was granted) was refused.

5                     On 18 February 1996 the applicant sought internal review of the refusal by a delegate of the respondent of his application for a Permanent Spouse visa.  The decision was affirmed on 11 March 1996.  Consequently, as the applicant then held no other visa, he became an unlawful non-citizen.

6                     Despite that status the applicant remained in Australia.  On 5 July 1997, he married again, a national of South Korea who had been in Australia as the holder of a student visa.  He and his wife have a son born on 31 December 1997. 

7                     As an unlawful non-citizen, the applicant was vulnerable to being taken into immigration detention under s 189 of the Act unless he had a visa.  He was interviewed by an officer of the respondent’s department on 27 March 1998.  Thereafter he received a series of Bridging E visas granted to him from time to time.  The last of those Bridging E visas expired on 6 December 1999.

8                     The applicant then again became an unlawful non-citizen.  He was taken into immigration detention on 10 December 1999.  He has been in immigration detention since that time.  His wife and son left Australia on 12 February 2000.  They re-entered Australia on 13 March 2003 on a Visitor visa, and his wife again left Australia in June 2003.  The applicant’s son remained in Australia in the custody of his uncle.  The applicant sought a further Bridging E visa on 3 October 2001, and again on 11 March 2002, but each application was unsuccessful.  The latter of those two decisions was reviewed by the Tribunal, and affirmed on 26 March 2002.

9                     The present proceedings concern a further Bridging E visa for which the applicant applied on 17 February 2004.  As noted above, it was refused two days later and affirmed by the Tribunal on 9 March 2004.  It is the decision the subject of the present proceedings.

10                  In the meantime, the applicant on 9 September 2003 applied for a protection visa under the Act.  That application was refused by a delegate of the respondent on 25 February 2004, and affirmed by the Refugee Review Tribunal on 18 June 2004.  The applicant has also sought to quash that decision.  That application is the subject of a separate judgment delivered at the same time as this judgment:  SWPB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 850.

11                  The Tribunal was aware of the decision of a delegate of the respondent refusing to grant to the applicant a protection visa.  When inviting the applicant to attend a hearing for his review application, by letter of 1 March 2004, pursuant to s 359A of the Act the Tribunal invited the applicant to comment on his case and immigration history (as set out in the delegate’s decision of 25 February 2004 on his protection visa application) as that information might lead the Tribunal to find that the applicant would not abide by visa conditions if a Bridging E visa were granted.

the tribunal’s decision

12                  The particular visa sought by the applicant was a Bridging visa E-Subclass 050 (Bridging (General)).

13                  Relevantly, cl 050.22 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) provides that the visa applicant for such a Bridging E visa must meet the criteria specified in cl 050.22 at the time of the decision.  Those criteria include subcl 050.223.  It provides that the Minister must be satisfied:

‘…  that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.’

14                  The Tribunal’s approach to that criterion was dictated, it accepted, by the decision of Finkelstein J in Applicant VAAN of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 197 at [22] (VAAN).  It therefore first addressed what conditions (if any) ought to be imposed on the grant of the Bridging E visa sought by the applicant.  It found that Schedule 8 conditions 8101, 8401, 8505, 8506 and 8507 ‘to be appropriate’ for attachment to the visa sought by the applicant.  It then took the second step referred to in VAAN, namely to consider whether those conditions will be complied with if they stand alone without any security being taken.  The Tribunal referred to the applicant’s visa history, and said of the Bridging E visas covering the period 27 March 1998 to 6 December 1999:

‘Those bridging visas were granted on the ground that the visa applicant was making arrangements to depart Australia.’

It found that the applicant would not abide by the conditions recommended by it, so that the applicant did not satisfy subcl 050.223.  Its reasons are as follows:

‘The visa applicant was unlawful in Australia for 25 months.  At the end of this period he advised the Department that he had married a Korean national and that his wife had given birth to a son.  He was then granted a number of successive Bridging E visas for the next 20 months ostensibly to seek travel documents to either the USA or Vietnam.  His application to return to USA was refused by the US authorities and he then stated that he did not want to travel to Vietnam.  Throughout his dealings with the Department regarding arrangements to depart, both before and during detention, the visa applicant has not been cooperative.  When, after a great deal of effort and diplomatic involvement, he was finally granted travel documents to go to Vietnam, he, almost 12 years after arriving in Australia, decided to lodge an application for a Protection visa.

The visa applicant has been an unlawful noncitizen for over two years and married an Australian citizen in an attempt to remain in this country.  He has been uncooperative with the Department with respect to applications for travel visas to other countries.  He has been in detention since December 1999 and has now almost exhausted all his avenues of appeal.  The risk of him now going underground if released on a bridging visa must be extremely high.’

15                  The decision in VAAN then obliged the Tribunal to consider whether the conditions it would impose would be complied with if security were taken.  It noted the applicant apparently had no capacity to raise a security, but in any event it was not satisfied that the applicant would comply with those conditions even if a substantial security were fixed and were available.

16                  Consequently, it was not satisfied that subcl 050.223 was met, and so it affirmed the decision under review.

the grounds of review

17                  The applicant appeared in person.  The initial application asserted that the information provided by the respondent’s department to the Tribunal was ‘shamble and have no substances’.  At a time when he was legally represented, he filed a proposed substituted application, asserting jurisdictional error on the part of the Tribunal by:

·                    failing to give consideration or primary consideration to the best interests of his son;

·                    failing to give the applicant notice or an adequate opportunity to present a case, that its decision would not accord with Art 3 of the UN Convention on the Rights of the Child;

·                    failing to have regard to the ties of the applicant to the Australian community;

·                    finding that the applicant would not abide by the conditions recommended by the Tribunal because:

(a)                its finding was one which no reasonable person would have made, and

(b)                it took into account that the applicant has been in immigration detention since December 1999 and has almost exhausted all his avenues of appeal, when that consideration was irrelevant;

·                    failing to be positively satisfied that the applicant would not abide by any conditions which the Tribunal would impose, but affirming the decision under review, when it was uncertain as to whether compliance would occur.

18                  Orally, the applicant refined his contentions of jurisdictional error further.  He claimed the Tribunal had reached a conclusion which no reasonable decision-maker could have arrived at.  He stressed that, because he has a son in Australia living with the applicant’s brother, as well as a supportive ‘adoptive family’ and the Vietnamese community, it is absurd that he would abscond.  He also relied upon his efforts to facilitate his removal from Australia.  He specifically identified an application dated 5 March 2002 for a passport/travel document enabling him to return to Vietnam, and which he said was promptly rejected by the Vietnamese authorities as ‘my paperwork did not meet the requirements for a passport application’.  He was (he says) informed on 17 December 2002 that there was no evidence that he holds Vietnamese citizenship, and that a subsequent request to the Vietnamese authorities for assistance sent on 25 February 2003 has gone unanswered.  That contention is an expansion of the unreasonableness ground in the proposed substituted application.  I note that the applicant also attributed to the Tribunal (and to the respondent) an ulterior motive in refusing him a Bridging E visa, namely to prevent him from exposing certain improper conduct which he alleges has been carried out in an Immigration Detention Centre.  I shall regard that as an allegation of bias.  The proposed new ground of the application was that the Tribunal was biased because it had made up its mind to affirm the delegate’s decision to repress the applicant from exposing improper conduct in the respondent’s department.

19                    It is sufficient to indicate that there is no material of any cogency before the Court which could indicate bias on the part of the Tribunal in its consideration of his application for a Bridging E visa.  The very general allegations he makes in his affidavit as to improper conduct by officers at Immigration Detention Centres are not shown to have been before the Tribunal at all.  There is no reason to think it was aware of them, far less that its awareness of them led it to close its mind to the merits of his claim.

20                  The applicant in his oral submissions made extensive allegations about scandals in the administration of Immigration Detention Centres and of the respondent’s department.  He claimed the primary decision-maker was motivated by the desire to ‘stamp’ on him, that is to suppress him from exposing those alleged scandals, by refusing to grant him a Bridging E visa.  In the course of the hearing, I explained to the applicant the need to provide evidentiary material in support of such allegations.   He then tendered four documents, but although they may in the applicant’s mind have supported his allegations, I do not think they did so.  Two were administrative communications apparently to another applicant for a visa under the Act, and two were items of correspondence which do not prove the truth of their contents but in any event do not really address the allegations.

21                  Earlier in the hearing, the applicant had declined the opportunity to seek an adjournment to adduce further evidence.  Towards the end of the hearing, he expressed a desire to have time to adduce evidence of the improper behaviour which he alleged.  In my view, having considered his oral allegations, it is not appropriate to grant him that opportunity.  To succeed in showing bias on the part of the Tribunal, he would need to show not simply improper conduct by the respondent’s department (or a fear by the department of such allegations being aired), the evidence would also have to show or indicate that the Tribunal was aware of the allegations of improper conduct and itself wished to suppress their airing by declining the applicant a Bridging E visa.  Neither of those two steps were matters upon which the applicant proposed to adduce further evidence.  There was therefore no point in granting him the opportunity sought.

consideration

22                  As the applicant appeared in person, it is appropriate to consider each of the above matters.  The initial application is too general to indicate any specific grounds of jurisdictional error and I shall treat it as subsumed into the subsequent document.

23                  The applicant did not contend that the Tribunal committed jurisdictional error in deciding what conditions it would impose on the grant of the Bridging E visa if granted.  Subclause 050.223 then obliged the Tribunal to be satisfied that the applicant would abide by those conditions.  It had no discretion not to address that question.  It transpired to be the reason why the Tribunal affirmed the delegate’s decision.  Hence, the applicant can only succeed on this application if the Tribunal committed jurisdictional error in addressing that question:  Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2.  A decision made without jurisdictional error is a ‘privative clause decision’ which s 474 immunises from judicial intervention.

24                  A number of the matters raised by the applicant fall into the category of matters which, if made out, would not amount to jurisdictional error.  In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ at 351 explained:

‘ “Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from [Craig v South Australia (1995) 184 CLR 163 at 179], is not exhaustive.  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material.  What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.  Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.’

25                  The first three complaints in the proposed substituted application fall into the category of matters which, even if made out, would not demonstrate jurisdictional error on the part of the Tribunal.  They concern the fact that the Tribunal did not expressly advert to the circumstances of his son, or did not address in detail the applicant’s ties to the Australian community, when addressing whether subclause 050.223 was satisfied.  In my view, at best those matters involve a complaint about the merits of the particular conclusion of the Tribunal.  They are matters of fact which may, but need not be, considered in addressing whether the Tribunal was satisfied that, if a Bridging E visa were granted, the applicant would abide by the conditions imposed on it.  It is a matter for the particular circumstances and for the decision-maker as to whether the circumstances or interests of the applicant’s son, and the applicant’s ties to the Australian community, would inform the Tribunal’s answer to that question.  Neither the Act nor the Regulations expressly or by implication requires the Tribunal to have addressed those factual matters as a condition of reaching its decision on the critical question.  The failure to do so cannot therefore amount to jurisdictional error:  see e.g. per Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 55.  There is no other provision which would have the effect of requiring the Tribunal to address those factual matters and, if satisfied about them, to grant a Bridging E visa notwithstanding that the Tribunal was not satisfied in terms of subclause 050.223.

26                  In addition, I do not accept that the Tribunal did not have regard to the fact that the applicant had family in Australia, including his son, when reaching its conclusion on whether he would abide by conditions imposed on the visa.  It recorded in its reasons that, from about March 2003, the applicant’s son was living in Australia in the custody of his uncle.  It also noted the applicant’s evidence that his brother and a family he described as his Australian parents would support him in Australia.  The fact that it did not expressly refer to that material at the point in its reasons when it was explaining why it was not satisfied the applicant would comply with the proposed conditions does not mean it had overlooked or ignored those matters.  Its reasons at that point explain why, despite those family circumstances, it reached the view that the applicant would not comply with the proposed conditions.

27                  The next attack upon the Tribunal’s conclusion that the applicant would not comply with the proposed conditions concerned its rationality.  If a decision is not rational or logical, or not based on findings or inferences which are available, the decision may involve jurisdictional error because those matters may point to the Tribunal having failed to address the issues as required, or to it having failed to do so according to law:  see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59.

28                  However, in my judgment, the Tribunal’s finding on the central issue was one reasonably available to it so it is not tainted by jurisdictional error.

29                  It is not the role of the Court to substitute its own view of whether the applicant would abide by conditions imposed on the visa.  Nor does it demonstrate jurisdictional error to show that another decision-maker may have reached a different view on the same material.

30                  The Tribunal referred to the applicant’s visa history.  That was a matter of which the applicant was given particular notice under s 359A.  The applicant responded through his migration agent on 3 March 2004.  In only one respect was the visa history as described by the delegate corrected, by pointing out that the applicant does not now have the right to enter and reside in the United States.  The Tribunal’s recital of the visa history records that the applicant does not now have that right, although he may apply for a new re-entry permit to the United States though the process may take about four years to be addressed.

31                  With one possible exception, I consider that the Tribunal’s reasons in the passage set out in [14] above record matters of past facts, or inferences from past facts which were available to the Tribunal.  The possible exception is its comment that the applicant ‘married an Australian citizen in an attempt to remain in this country’.  To the extent that that passage ascribes to the applicant a motive for his first marriage, there is no evidence to support that.  However, I read that passage as saying that, by reason of his first marriage, the applicant was able to and did apply to remain permanently in Australia.  That application ultimately was unsuccessful.  It was then followed by the applicant’s status as an unlawful non-citizen, and then by the Bridging E visas until December 1999 whilst (as the Tribunal noted) the applicant was expected to be taking steps to leave Australia.

32                  The Tribunal had material before it to show the applicant was an unlawful non-citizen from early 1996 until 27 March 1998.  In the period 27 March 1998 to 6 December 1999, whilst he held Bridging E visas, he was expected to make arrangements to depart Australia, but his efforts to do so were desultory and particular action required of him by the respondent’s department was not undertaken.  Whilst in immigration detention, the applicant also appeared to the respondent’s department to be reluctant to provide full information which might have facilitated his removal from Australia, and declined to complete certain (but not all) applications presented to him for that purpose.  That material puts a different complexion on the applicant’s co-operation with the authorities at material times from that to which the applicant referred.  His written response to the opportunity to comment upon it, given under s 359A of the Act, did not dispute that information except in one respect as noted in [31] above.  It is not shown that the Tribunal did not have regard to the particular information about the applicant’s steps to facilitate his removal from Australia.  Rather, in my view, the Tribunal has looked at the overall picture to reach its conclusion on the critical issue.  As I have said, in my view the material before the Tribunal enabled it rationally to reach that conclusion.

33                  The foundation for the Tribunal’s conclusion on the critical issue was the applicant’s lack of co-operation with the authorities over an extended period including while he has been in immigration detention, together with him having almost exhausted all his avenues of appeal.  I regard that last-mentioned factor as one which a reasonable mind could have regard to. It can support the view that the applicant, in his present circumstances, might (as the Tribunal put it) go ‘underground’.  It can do so because, given the applicant’s past reluctance to co-operate in leaving Australia, the absence of any ongoing avenues of appeal might mean his options, if he were still determined to remain in Australia, would include simply evading the authorities.  Whether that inference was drawn is a matter for the Tribunal, but I do not consider that it was irrational for it to do so.

34                  The final ground of the proposed substituted application has no merit.  The Tribunal did positively find that the applicant would not abide by any conditions which the Tribunal would impose upon the visa.

35                  It is easy to be sympathetic to the applicant’s circumstances.  He appears to have fled Vietnam with his family as a refugee in 1980, and although he then spent his formative years in the United States, he cannot now return there – at least without a prolonged delay.  He has been in immigration detention since 10 December 1999.

36                  Moreover, the applicant’s affidavit asserts that, when first detained, he was placed in the maximum security section of the Arthur Gorrie Correctional Centre in Brisbane for some time with convicted criminals, and whilst there was seriously assaulted and suffered head injuries from which he has not yet recovered.  He also says he experienced severe deprivation whilst there, and had very limited access to his wife and son.  He further says that he was so distressed there that he attempted to end his life.  It was, he claims, only in July 2001 that he was transferred to an Immigration Detention Centre.  The matters referred to in this paragraph have not been addressed by the respondent by evidence in this matter, as they do not directly relate to the grounds upon which the decision of the Tribunal might be set aside.  In those circumstances, I have not needed to determine their accuracy.

37                  However, it may also be said that the applicant is to an extent the author of his own misfortune.  He did not return to the United States within the time his travel permit authorised.  The steps taken up to early August 2003 to secure the applicant with travel authorisation to Vietnam came to nothing because they were not pursued as the applicant on 15 August 2003 applied for a protection visa under the Act.  Presumably, they can now be revived, as his application for a protection visa has been finally determined:  see s 5(9) of the Act.  There is presently no reason on the material before the Court to think that the avenue then available to him will no longer be available.

38                  The application will be dismissed.

Associate:

Dated:              24 June 2005