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MIGRATION - Application for review of decision of MRT to refuse Bridging E Visa - based on previous history of adopting a false identity and declining to complete papers for travel document MRT not satisfied that applicant was making acceptable arrangements to depart Australia - open to MRT to decide on that basis - no jurisdictional error found - procedural error of failure to provide applicant with written version of file note concerning his refusal to complete the form for a new passport - applicant's refusal was put to him and applicant was offered opportunity to explain it - decision not beyond power - application dismissed.

SAAA v Minister for Immigration [2001] FMCA 116 (30 November 2001)

SAAA v Minister for Immigration [2001] FMCA 116 (30 November 2001)
Last Updated: 30 January 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

APPLICANT(S) SAAA v MINISTER [2001] FMCA 116

FOR IMMIGRATION

MIGRATION - Application for review of decision of MRT to refuse Bridging E Visa - based on previous history of adopting a false identity and declining to complete papers for travel document MRT not satisfied that applicant was making acceptable arrangements to depart Australia - open to MRT to decide on that basis - no jurisdictional error found - procedural error of failure to provide applicant with written version of file note concerning his refusal to complete the form for a new passport - applicant's refusal was put to him and applicant was offered opportunity to explain it - decision not beyond power - application dismissed.

Migration Act 1958 (Cth) ss 359A(2), 474, regs 050.212(2), 5.02.

R v Hickman; ex-parte Fox and Clinton (1945) 70 CLR 598 referred to.

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

MIMA v Al Shamry [2001] FCA 919 discussed.

The King v Murray; ex-parte Proctor (1949) 77 CLR 387 referred to.

Applicant:
APPLICANT(S) SAAA



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS



File No:


SZ 706 of 2001



Delivered on:


30 November 2001



Delivered at:


Sydney



Hearing Date:


20 November 2001



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Mr Michael Tan, Migration Agent



Counsel for the Respondent:


Mr J Basten QC

Mr S Lloyd



Solicitors for the Respondent:


Mr Lenny Leerdam of Sparke Helmore



ORDERS

(1) Application dismissed.

(2) Applicant to pay the Respondent's costs pursuant to Part 21 Rule 21.10 of the Federal Magistrates Court Rules.

(1) FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SZ 706 of 2001

APPLICANT(S) SAAA

Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS

Respondent


REASONS FOR JUDGMENT
History

1. This is an application for a review of a decision of the Migration Review Tribunal made on 8 October 2001 to refuse the applicant a Bridging E Visa.

2. The applicant arrived in Australia on 4 August 1996 on a three months visitor's visa. On 6 September 1996 he lodged an application for a protection visa and he received a Bridging A Visa from that date. The protection visa was declined on 23 July 1997. On 27 August 1997 the applicant applied to the Refugee Review Tribunal to review the Delegate's decision and that decision was affirmed by the Tribunal on 25 January 1999 after the applicant did not appear at a hearing scheduled on 22 January 1999.

3. The applicant has been an unlawful non-citizen since 1 March 1999.

4. The applicant remained in Australia until he was apprehended working on a construction site in Sydney on 11 September 2001. Initially he claimed to be an Australian citizen, Wu Shi Wen, but after extensive checks were made and the real Mr Wen identified, the applicant admitted to his true identity at an interview on 13 September 2001. At that interview he offered to purchase his own ticket and to depart voluntarily. He was detained at Villawood Detention Centre.

5. In order to depart voluntarily the applicant was required to have a valid ticket to the People's Republic of China and a document entitling him to travel to that country. His own passport had expired. On 26 September 2001 a Mr Jonathan Papandrea gave the applicant a Chinese passport application form and supplementary questionnaire. The applicant examined the form but declined to complete it.

6. On 25 September 2001 the applicant made an application for Bridging Visa E. A decision to refuse this visa was made by a delegated departmental officer on 26 September 2001 in the knowledge that the applicant had declined to complete the application for a travel document. The delegate also took into consideration the fact that a booking had been made on QF127 for the 1 October 2001 Sydney to Hong Kong for which a deposit of $50.00 had been paid.

7. The applicant applied for a review of this decision and was advised that a video hearing would take place on 5 October 2001. The applicant was assisted by Michael Tan of the Indonesia Chinese Worldwide Associate Incorporated.

8. On 8 October 2001 the MRT affirmed the decision under review finding that the visa applicant was not entitled to the grant of a Bridging E Class (WE) Visa.

9. On 2 November 2001 the applicant applied for judicial review in this court.

The hearing

10. When the matter came before me the applicant had a Mandarin interpreter and I granted leave for Mr Tan to appear. It is submitted by the respondent that the application was defective in two critical respects:

i) It does not seek any orders;

ii) It identifies no jurisdictional error which might support orders of the kind which the court could make.

11. I advised the applicant through Mr Tan that my jurisdiction was severely limited and that in no circumstances could I make any order releasing him from Villawood or granting him a visa. I then asked the applicant to indicate to me why he considered that the Tribunal had acted unlawfully when it came to its conclusion.

12. Mr Tan advanced the following reasons. Firstly, he said, that the Tribunal had not taken into account the circumstances surrounding the ticket. He advised me from the bar table that the travel agent had told him that he could not obtain a ticket on that day and it was for that reason that he only paid a deposit leaving the balance of the moneys outstanding. The applicant now had a fully paid ticket, not just to Hong Kong, but into Ghangzhou in PRC.

13. Secondly, the applicant was not being unhelpful to DIMA when he declined to complete the form for a travel document. He was being cautious, he would have preferred to attend at the Consulate himself. He has now completed forms and it is understood that a travel document is on its way. Finally, Mr Tan informed me that the applicant was prepared to lodge a substantial bond through friends to secure his release on a bridging visa and that he needed some time in the community before he left to make his farewells and to attend to certain business which Mr Tan said was confidential and could not be revealed.

14. Prior to making these submissions Mr Tan had requested an adjournment on the ground that the proceedings had come to court very speedily. I declined to grant that adjournment. I did, however, suggest to Mr Tan that he might consider withdrawing the current proceedings on the grounds that a new application had been made in respect of which the delegate was fully aware of the existence of the new ticket and of the offer of the bond. This application had been declined and was the subject of an application to the Migration Review Tribunal that had not yet been heard. Mr Tan took instructions from the applicant and declined to withdraw the current proceedings.

15. I was prepared to deal with the matter on the basis that if Mr Tan had provided me with any grounds which indicated that the MRT had come to its decision unlawfully the application would be amended to state those grounds as forming the basis of the application.

16. I asked Mr Tan several times whether the representations which he had made to me were the only representations he wished to make and when he indicated that he had no further representations to make I suggested to him that he listened very hard to what Mr Basten QC had to say as this would indicate to him the nature of the legal argument which he would have to put in order that this court be siezed of jurisdiction following the amendments to Part 8 of the Migration Act 1958 and in particular s.474 of the Migration Act which defines "privative clause decisions".

17. The respondents commenced by asserting that nothing which had been said on the part of the applicant indicated any error of law which would have entitled the court to make a finding in favour of the respondent under the law as it stood prior to the most recent amendments. The matters raised went to facts which had been taken into account by the Tribunal. The one matter which had not been taken into account by the Tribunal, namely the holding by the applicant of a valid ticket into the PRC, could not have been taken into account because the ticket had not come into existence until 16 October 2001, some days after the decision was made. The respondent argued that the matters were certainly not such as to even indicate the existence of a jurisdictional error or one which may be given the benefit of a limited review based upon the judgment of Dixon J in R v Hickman; ex-parte Fox and Clinton (1945) 70 CLR 598.

18. In order to obtain a bridging visa of the type requested the applicant was required to meet the criteria found in Regulation 050.212. It was submitted by the respondent, and I accept, that the only relevant clause of that regulation is 050.212(2). This states:

"050.212(2) An applicant meets the requirements of this sub-clause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia."

19. The Minister in the form of the Tribunal made an assessment that it was not satisfied that the applicant was making, or was the subject of, acceptable arrangements to depart Australia based upon his previous history of having adopted a false identity and his declining to complete the necessary papers for a Chinese travel document.

20. In Jiang v Minister for Immigration and Multicultural Affairs [2001] FCA 282 Carr J reviewed a decision of the Tribunal whose facts bore a considerable resemblance to that before me. His Honour came to the view that submissions that a delay in obtaining a travel document was not relevant to assessing the acceptability of departure arrangements constituted an impermissible attempt to review the merits of the Tribunal's decision (para 21). His Honour found at para 22 that:

"It was quite clearly open to the Tribunal to find that it was not satisfied that the arrangements made were acceptable on the basis of the matters which it took into account i.e. absence of a valid travel document and ticket, failure to secure those documents over a long period of time and other indications of disregard for immigration laws."

21. At paras 28 to 31 his Honour discussed whether the Tribunal had erred in law by concerning itself with the applicant's credibility and willingness to depart Australia. He found:

31 "In my opinion, the Tribunal did not fall into error by enquiring into the genuineness of the applicant's intention to depart when assessing whether he was making acceptable arrangements."

22. I have heard nothing from the applicant which would influence me not to follow this persuasive authority.

23. There the matter might have concluded but for the fact that the respondent identified the existence of a procedural error in the conduct of the Tribunal.

The procedural error

24. The procedural error was brought to my attention in written submissions provided by the respondent.

"22. In terms of the application of procedural law, it may be accepted that the Tribunal relied upon certain information pertaining to the Applicant on the file which formed part of the reason for affirming the decision under review (s 359A). At the hearing, the Tribunal put particulars of that information to the Applicant and gave him an opportunity to comment upon it. The evidence is not entirely clear whether the Tribunal complied precisely with the prescribed mode of giving those particulars and the invitation to comment (s 359A(2)[1]9 and reg 5.02). However, it is contended that, while a failure to comply with such a procedural requirement may in some circumstances have constituted a reviewable error under s 476(1)(a) of the Migration Act before it was amended[2]0 such a failure is not a jurisdictional error capable of supporting one of the constitutional writs.

25. The respondent also tendered an affidavit of Leonard Keith Leerdam that exhibited what was claimed to be an unofficial transcript of the interview between the Tribunal and the applicant. The purpose of this tender was to confirm the submission that the information pertaining to the applicant on file which formed part of the reason for affirming the decision under review was put to the applicant. The information to which the respondent refers is that the applicant was allegedly given an opportunity by the Department to complete a form to apply for a passport and refused or did not co-operate to complete that form. The extract from the transcript is as follows:

"MEMBER: Mr L, I noticed on file that you were given the opportunity by the Department to complete a form to apply for a passport and you refused or did not co-operate to complete that form.

INTERPRETER: I had the immigration application for the passport myself. If I handed it in I will be repatriated by the Department. If I buy the air ticket myself I go back by myself that's OK. If I were repatriated by the Department I would be fined by the Chinese authority of the other side.

MEMBER: Well, I don't know,...sorry.

INTERPRETER: At that time when I was receiving the application form for the passport so I didn't know whether or not I should fill out this form. My English is poor. Any my... is poor at that time also so I wanted to ask my friend whether or not I should fill out this form, if I do whether or not I will be repatriated by the Department so I went outside after my friend it had been only three minutes then the officers from the Department was back already.

MEMBER: Okay, well look I respect all that, Mr L, it may be your choice to do these things, but let me just say just one comment about what you said about the impression that you had that if you filled out that form you will be repatriated by the Department. As I understand it, from just precedence, if you provide a passport and an air line ticket, the Department will usually issue you a visa to leave of your own volition they will not repatriate you necessarily unless you do not co-operate.

INTERPRETER: I didn't understand at that time I asked the other detainees within the same Detention Centre at that time and they told me that if I signed the form I will be repatriated I have been here for 4 to 5 years and some people owed me money and I just wanted to get out of the Detention Centre to sort out the things and send the money back. My mother is not in good health. I have a wife and children and even the Doctor even without these things I try to go back to China before Christmas.

MEMBER: Mr L I will just save you a bit of time. It is entirely up to you who you take advice from whether it is from other detainees, whether it is from your friend, from a migration agent, that is entirely up to you, a matter for you to decide. And it is also a matter for you to decide whether you will fill out the form with the Department to obtain a travel document or a passport or to have your friend do it on your behalf.

INTERPRETER: In relation to these issues you can ask my representative or my witness. He handles all my affairs."

26. The respondent's submissions proceed on the basis that I will consider this procedural error in the light of the most recent amendments to the Migration Act. Whilst the opportunity to do that is tempting it is not one which should be lightly undertaken. If the alleged procedural error was not central to the decision making process of the Tribunal then it would not be "a procedure required by the Act to be observed in connection with the making of a decision which was not observed."

27. This was the essence of the decision of Madgwick J as the primary Judge and the Full Bench on appeal in MIMA v Al Shamry [2001] FCA 919. In that case a record of interview taken at an airport which formed an important part of the decision making process of the Tribunal was not provided to the applicant. That was held to be a procedural error which grounded a review under the then s 424A of the Migration Act. In the present case the procedural failing was not to provide the applicant with a written version of the file note concerning his refusal to complete the form for a new passport. See s.359A(2) and Regulation 5.02. It could not be said that the fact of the applicant's refusal to complete the form was not put to him nor that he was not offered an opportunity to explain it. An examination of the reasons for decision by the Tribunal did not reveal that the Tribunal took into account anything in the file concerning that incident which was not put to the applicant. I am satisfied that even if the law had not been changed the procedural failure acknowledged by the respondent would not have amounted to a reviewable error.

28. As I have found that what occurred was not beyond the power of the Tribunal it follows that the failure to comply with the procedure was not a failure of the type discussed by Dixon J in The King v Murray; ex-parte Proctor (1949) 77 CLR 387 at 398 et seq. I would therefore dismiss the application and order the applicant to pay the respondent's costs pursuant to Rule 21.10 of the Federal Magistrates Court Rules. I grant the respondent an advocacy certificate pursuant to Rule 21.15.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 30 November 2001


--------------------------------------------------------------------------------

[1] 9 "(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies - by one of the methods

specified in section 379A; or

(b) if the applicant is in immigration detention - by a method prescribed

for the purposes of giving documents to such a person."

[20] MIMA v Al Shamry [2001] FCA 919
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