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MIGRATION - Visa - application for bridging visa - Migration Review Tribunal - review of a decision made by the Migration Review Tribunal - applicant referred to by a pseudonym to comply with s.91X of the Migration Act 1958 - applicant's name not to be published where the proceeding relates to applicant's capacity a person who applied for a protection-related visa.

Doe v Minister for Immigration [2004] FMCA 818 (8 November 2004)

Doe v Minister for Immigration [2004] FMCA 818 (8 November 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DOE v MINISTER FOR IMMIGRATION
[2004] FMCA 818




MIGRATION - Visa - application for bridging visa - Migration Review Tribunal - review of a decision made by the Migration Review Tribunal - applicant referred to by a pseudonym to comply with s.91X of the Migration Act 1958 - applicant's name not to be published where the proceeding relates to applicant's capacity a person who applied for a protection-related visa.




Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.91X, 351

Applicant:
JOHN DOE




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG2066 of 2004




Delivered on:


8 November 2004




Delivered at:


Sydney




Hearing date:


8 November 2004




Judgment of:


Scarlett FM




REPRESENTATION

Solicitors for the Applicant:


In Person




Counsel for the Respondent:


Ms Francois




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) The application is dismissed.

(2) The Applicant is to pay the Respondent's costs in the sum of $4000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG2066 of 2004

JOHN DOE



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. The application on its face is an application under section 39B of the Judiciary Act seeking review of a decision by the Migration Review Tribunal made on 11 November 2003. The Tribunal affirmed a decision of a delegate of the Minister being a finding that the applicant was not entitled for the grant of a bridging E (class WE) visa. The application really is an application to the court to review a discretionary decision by the Minister for Immigration and Multicultural and Indigenous Affairs not to exercise their power to intervene in the case under section 351 of the Migration Act 1958. The application therefore is one that the court is unable to grant.

2. The application is one touched with a degree of sadness and indeed the applicant is a sad man. He has been in Australia since 26 April 1990; he is now 36 years of age. He arrived as a young man with a student visa valid for six months. He overstayed that visa and as an unlawful non-citizen he was located on 2 April 1991 and taken into immigration detention. That same month he applied for a protection visa seeking refugee status. Accordingly, on 1 September 1994 he was granted a bridging C visa and was therefore released from detention. His application for a protection visa was refused on 23 October 1995. His bridging C visa expired on 27 November 1995.

3. I should add at this stage that I have described the applicant with a pseudonym rather than by his real name in order to comply with the requirements of s.91X of the Migration Act. As the applicant has been an applicant for a protection visa, the court must not publish (in electronic form or otherwise), in relation to the proceeding, the applicant's name (see s.91X(2)). In my view, the applicant has applied for a protection-related visa within the meaning of the definition in sub-section (3):

In this section:

Application for a protection-related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.

4. It is for this reason that I have referred to the applicant by the pseudonym of "John Doe" for the purpose of these proceedings.

5. After the visa expired the applicant remained in Australia; he was an unlawful non-citizen. It was not until 21 March 2003 that the applicant came under notice. He came to the attention of the police for a matter of a breach of going through a traffic light, a red light. The police then ran a check on his identity and found out that he was an unlawful non-citizen. He was detained under section 189 of the Migration Act and transferred to the Villawood Immigration and Detention Centre. He has been an inmate of that detention centre ever since.

6. He did not complete any application for a travel document nor did he make any application for an airline ticket to leave Australia. He lodged an application for a bridging E visa on 29 October 2003. On the following day, 30 October a delegate of the Minister found that he did not qualify and the visa was refused. On 31 October he made application to the Migration Review Tribunal for review of the Department's decision. That decision was considered at a hearing on 11 November 2003. The Tribunal summarised the applicant's evidence in this way:

(a) He confirmed the outline of his immigration history.

(b) he does not wish to leave Australia, he does not have a valid passport, he does not have a ticket for travel out of Australia.

(c) He has no other visa applications on foot.

(d) He has no other reviews or appeals on foot.

(e) He has not had a visa cancelled.

(f) He has no requests before the Minister.

(g) He is not in criminal detention.

7. The Tribunal was satisfied that the applicant had made a valid application for a bridging visa. The Tribunal was not satisfied that he had any entitlement to that visa. He had no application for any other visa on foot nor was he making any arrangements to leave the country nor were there any judicial review proceedings on foot nor was he a family member of a person who was subject to judicial review proceedings nor was he in criminal detention nor did he already hold a bridging visa and had a compelling need to work.

8. The purpose of the bridging visa is to provide a visa for an applicant until certain eventualities can take place. There is no power under the legislation to issue an open-ended bridging visa. The very definition of a bridging visa is that it is a bridge from the time of its issue to some determinable point in the future. The applicant subsequently whilst in detention made application to the Minister for Immigration, Indigenous and Multicultural Affairs on 26 November 2003. In his letter he requested ministerial intervention pursuant to section 351 of the Migration Act. He asks that the Minister consider exercising her discretion to grant him a visa on humanitarian grounds.

9. He recited the fact that his application for a bridging visa had been refused. What he asked her to do was to consider using her discretion in his case, not in effect to issue him a bridging visa but to issue him a protection visa. He set out in a well drafted letter reasons why his case was exceptional and fell within ministerial guidelines, that he had been present in Australia for a long time and was well integrated into the Australian community but that there are unfair circumstances or an unreasonable consequence of certain legislation and that he could be a person who would have a refugee at the time of his departure from China but due to changes in his country would not now be a refugee and it would be inhumane to return him to his country of origin because of his subjective fear.

10. He set out his humanitarian application and pointed out why the Minister should exercise her discretion. Indeed, he said that in July 1991 he was unable to work and had to live on the streets, he had no money and was in a desperate predicament. He referred to decisions by the Government for special permanent entry visa to be issued for people from China in November 1993 and in June 1997. It is his case that he should have had the chance to be one of the people who received such visa. However, he had been wrongly advised and he had no money and his passport was still held by the Department. He had no access to sound legal advice and he missed the chance, in other words, he missed the window of opportunity that was around in the mid 1990s for him to become a permanent resident of Australia.

11. He is now in a situation where he has again been in immigration detention since March 2003. He has not been back to his native China since 1990 and he fears that it would be difficult for him to adjust, to return to his native land, to obtain employment. He has lost contact with his family and he has no family in Australia. He certainly has a number of very strong humanitarian considerations in his favour. The stark reality is that there is no ground for a review of the decision of the Migration Review Tribunal. He had no entitlement to a bridging visa. He has applied in the past for a protection visa and has not been granted one. He has sought intervention by the Minister on humanitarian grounds and the Minister has exercised her discretion not to intervene.

12. The situation as far as this gentleman is concerned that even though his case is a sad one the court has no power to grant him the relief that he seeks. Accordingly, I have no option but to dismiss the application.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 15 November 2004
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