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MIGRATION - Application to review decision of Migration Review Tribunal - bridging visa - whether applicant would abide by conditions - whether jurisdictional error.

Monsur v Minister for Immigration [2004] FMCA 678 (27 September 2004)

Monsur v Minister for Immigration [2004] FMCA 678 (27 September 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MONSUR v MINISTER FOR IMMIGRATION
[2004] FMCA 678



MIGRATION - Application to review decision of Migration Review Tribunal - bridging visa - whether applicant would abide by conditions - whether jurisdictional error.



Migration Act 1958

Applicant:
ABUL MONSUR



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SYG947 of 2004



Delivered on:


27 September 2004



Delivered at:


Sydney



Hearing date:


27 September 2004



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Mr A. Markus



Solicitors for the Applicant:


Australian Government Solicitor



ORDERS

(1) That the application is dismissed.

(2) That the applicant pay the respondent's costs set in the amount of $2,500

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SYG947 of 2004

ABUL MONSUR


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application for review of a decision by the Migration Review Tribunal (the Tribunal) made on 27 February 2004 affirming a decision of a delegate of the respondent that the applicant was not entitled to the grant of a Bridging E (class WE) visa.

2. The applicant is a citizen of Bangladesh who arrived in Australia on

21 October 1993 as the holder of a tourist visa valid until 21 November 1993. Initially he remained in Australia unlawfully after the expiration of that visa. He has a somewhat complicated history of applications for visas. Most relevantly, the applicant sought protection as a refugee on 17 January 1994. That application was refused. He sought review of that decision and, ultimately, by decision made on 24 June 1996, the Refugee Review Tribunal affirmed the decision to refuse what was regarded as an application for a protection visa. The applicant held a bridging visa from 1 September 1994 to 29 July 1996. He again became an unlawful non-citizen after that time.

3. He held a further Bridging visa for part of 1997 in connection with an unsuccessful application for Ministerial intervention. On 13 August 1999 the applicant joined representative proceedings pending in the High Court. In association with those proceedings he was granted a Bridging E visa on 16 February 2001. Unlike earlier bridging visas held by the applicant this visa was subject to a condition 8101 (no work). This bridging visa was cancelled on 6 November 2002, after the applicant was located by Departmental compliance officers working in a restaurant. According to the Tribunal reasons for decision under review in this instance he had sought Tribunal review of the decision to cancel his visa in November 2002 but that application was held to be ineligible as being out of time.

4. Thereafter, the applicant lodged a further application for a bridging visa which was granted on 27 November 2002, subject to a $10,000 security and conditions, including condition 8101. This Bridging visa ceased on 18 July 2003. A further Bridging E visa had been granted on 20 May 2003 subject to a security of $10,000 and conditions including condition 8101 in connection with an application before the Federal Court for review of the 1996 Tribunal decision.

5. Subsequently the applicant was detained and his bridging visa was cancelled on 22 October 2003 on the basis that he had been working in breach of condition 8101.

6. The material before the Court indicates that the applicant was notified of that decision to cancel that bridging visa on 22 October 2003, and of his review rights. While there is a claim by the applicant to the contrary, there is nothing before the Court to indicate that he made any application for review of this cancellation decision within the prescribed period to the Migration Review Tribunal.

7. The applicant sought a further bridging visa on 3 November 2003. At that stage he was legally represented. Security in the sum of $30,000 was requested. It was not provided, and on 12 November 2003, the bridging visa application was refused. Two subsequent applications for review to the MRT in relation to the bridging visa application decision were held to be ineligible, having been lodged outside the prescribed period. The security of $10,000 provided in relation to the Bridging visa cancelled in October 2003 was forfeited to the Department on 5 February 2004.

8. On 13 February 2004 the applicant sought a further bridging visa. It is this application that has ultimately led to these proceedings. On

17 February 2004 the Department notified the applicant that the application would be refused on the basis that it was not satisfied that if a Bridging visa was granted to the applicant he would abide by any conditions imposed on it and that no amount of security within the applicant's means would satisfy the Department as to its deterrent value. The applicant was found not to satisfy the criteria in clauses 050.223 and 050.224 of Schedule 2 to the Migration Regulations.

9. The applicant sought review of this decision by the Migration Review Tribunal on or about 18 February 2004. The Tribunal wrote to the applicant on 25 February 2004 under section 359A of the Migration Act 1958 inviting him to comment on certain information. It conducted a hearing in respect of the application for a bridging visa on

26 February 2004.

10. On 27 February 2004 the Tribunal affirmed the decision that the applicant was not entitled to the grant of a fresh Bridging E (Class WE) visa. In its decision the Tribunal outlined the visa applicant's migration and visa application history and the cancellation decisions that had been made, and also outlined the evidence given by the applicant in connection with the prior proceedings as well as in connection with the application for a Bridging Visa before the Tribunal.

11. The Tribunal was satisfied that the applicant had made a valid application for a Bridging Visa and met certain of the criteria for that visa, in particular, that he had ongoing judicial proceedings as he had made a valid application for judicial review of the decision to refuse to grant him a protection visa and that application had not been finally determined. Hence it was satisfied that the applicant met the criteria in sub-clause 050 212(1) and in 050 212. It then went on to consider whether the applicant, having met the "preliminary" criteria, would, if released from detention, abide by any conditions imposed as required by clause 050223. It determined what conditions should be imposed and considered the applicant's migration history and evidence and the legislation and policy considerations.

12. The Tribunal found that the applicant had a migration history of remaining unlawfully in Australia for periods of time. He had worked as a kitchen hand and cook for 1� years and also in a factory without permission to work. He had had his visa cancelled for breach of condition 8101 in 2002. A subsequent bridging E visa was granted after a security was paid. That visa was also cancelled because he had breached condition 8101. He had also failed to notify the Department of his current address (although the Tribunal gave little weight to the Department's comments on this matter because the Department was aware of his correct address). The Tribunal also outlined the circumstances which led to the forfeiture of the visa applicant's security of $10,000 which had been provided in relation to the previous bridging visa. The Tribunal outlined the evidence that the applicant gave at the Tribunal hearing including his denial that he had worked in the circumstances which had led to the second cancellation of a bridging visa.

13. The Tribunal found that the visa applicant had stayed in Australia as an unlawful non-citizen for periods, that he worked in Australia without permission for extended periods, had had two Bridging E visas cancelled for breach of conditions, in particular the no-work condition, had not abided by previous visa conditions, had shown scant regard for the migration law and had breached the migration law of Australia.

14. It found that his financial and personal circumstances raised strong doubts that he would abide by visa conditions and in light of his migration history and personal circumstances it was unable to accept his assurances that he would abide by conditions without consideration given to the assurance of a security. In that regard, the Tribunal considered the decision which had been made by the Department not to request a security. It accepted that the visa applicant disputed the basis of the second Bridging E visa cancellation but also observed that that visa cancellation decision had not been reviewed. Moreover it was not the subject of the application then before the Tribunal and it was a matter of fact that the applicant had had two Bridging E visas cancelled in the past.

15. The Tribunal also had regard to the applicant's family situation and other evidence provided in support of the application. It considered that a significant security would be required to be a meaningful incentive for compliance, that no security was being offered, and that no purpose would be served by requiring a security at the time in those circumstances. It was satisfied that clause 050.223 (in relation to abiding by conditions) was not met. It affirmed the decision that the applicant was not entitled to a bridging visa.

16. The applicant sought review of that decision in this Court by application filed on 1 April 2004. He made a number of claims in his application. In these proceedings the applicant had the assistance of a Ms Peterson, who is not a lawyer, but who was given leave to make submissions on his behalf and provided a written submission at the commencement of the hearing.

17. The claims in the application do not disclose any jurisdictional error on the part of the Tribunal in relation to the decision to affirm the decision of the Department not to grant the applicant a bridging visa. It is notable that, in the written submissions and the oral submissions made on behalf of the applicant, issue was taken with the Departmental findings in relation to cancellation, of the applicant's prior bridging visa. That decision is not before the Court, nor was it before the Tribunal. Indeed, as the Tribunal noted, it accepted that the applicant disputed the basis of that cancellation, but it was a matter of fact that there were two cancellations and there was no evidence that the applicant had sought to have that second visa cancellation reviewed. Insofar as the applicant takes issue with the earlier Departmental decision to cancel his previous bridging visa, that decision is not before this Court.

18. The first ground for review is that the Tribunal erred in stating that the Department wrote to the visa applicant and his guarantor asking for comments in relation to the security for $10,000 provided in relation to an earlier bridging visa being forfeited due to his breach of visa conditions and that no response was received by the due date of

17 November 2003. This does not establish any jurisdictional error in the decision of the Tribunal to affirm the decision to refuse to grant the applicant a fresh bridging visa. Moreover the factual assertions contained in this ground are not supported by any evidence and, indeed, are contrary to the evidence before the Court including a copy of the letter written by the Department asking for comments in relation to the security being forfeited. Moreover, even if the applicant's assertions were correct, this does not establish any jurisdictional error in the decision of the Tribunal which is before the Court.

19. The second ground relied upon by the applicant is an assertion that he requires a bridging visa to continue with his application for review of a decision relating to the security of $10,000. There is no explanation of precisely what is meant by this submission, but it does not establish any error in the decision of the Tribunal to affirm the decision to refuse to grant the applicant a protection visa. The decision of the Tribunal under review does not relate to the security of $10,000 which was the subject of an earlier and quite separate decision by the Department.

20. In paragraphs three and four of the application the applicant takes issue with factual matters relevant to the earlier Departmental decision to cancel the bridging visa held by him, in particular, as to whether he was working or was in receipt of money for caretaking duties. Again, the decision to cancel the applicant's visa is not the decision reviewed by the Tribunal. Moreover, it is clear from the Tribunal reasons for decision that it was aware of the applicant's disagreement with the factual findings made by the delegate in the decision to cancel his earlier Bridging E visa, but had regard to the fact that there was no application for review of that cancellation decision and that it was a matter of fact that the visa applicant had had two Bridging E visas cancelled. The factual assertions by the applicant do not establish any jurisdictional error in the decision of the Tribunal under review.

21. Finally, in the application the applicant contended that the Tribunal erred in stating that the visa applicant did not seek to have the visa cancellation reviewed. He contended that he had submitted an application for review of that decision. Again, there is no evidence to support such a contention before the Court but in any event it does not establish a jurisdictional error in the decision of the Tribunal to affirm the decision to refuse to grant the applicant a fresh bridging visa.

22. In written submissions the applicant expanded on his disagreement with the decision of the Department in relation to the basis for cancellation of his earlier bridging visa. This line of argument was pursued on his behalf in oral submissions. Such arguments are misconceived. Insofar, however, as they amount to a contention that there was no evidence before the Tribunal to warrant its decision, it is clear from the Tribunal decision that it was aware of the prior cancellations and aware of the applicant's disagreement with the factual basis for such cancellations and took those matters into account. No error is apparent in the manner in which the Tribunal dealt with the application before it, which was an application to review a decision not to grant a fresh bridging visa, not a review of a cancellation decision. I reiterate for the benefit of the applicant that the cancellation decision was not before the Tribunal for review and is not before this Court.

23. The applicant is not legally represented and while undoubtedly well meaning, the assistance he has been provided with is not such as to establish any jurisdictional error in the Tribunal decision. As the applicant is not legally represented, I have considered the Tribunal reasons for decision and all of the other material before the Court. The findings of the Tribunal were open to it on the evidence before it. Merits review is not available in this Court and I am not satisfied that there is any jurisdictional error apparent. Accordingly, the application must be dismissed.


RECORDED : NOT TRANSCRIBED

24. The applicant has been unsuccessful. The respondent seeks that he pay the costs of these proceedings. The applicant is in detention and is said to be impecunious. However, nothing has been established to satisfy me that there is any justification for departure from the ordinary principle that the unsuccessful applicant should meet the costs of the respondent. The applicant's impecuniosity is not such a justification although it may well be something taken into account by the respondent in determining whether and how to seek to recover any costs. In light of the nature of this and other similar matters, I consider that the Court should fix the costs and that the amount of $2500 is appropriate.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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