NANO v Minister for Immigration and Multicultural and Indigenous Affairs & NANP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 205

FEDERAL COURT OF AUSTRALIA

NANO v Minister for Immigration and Multicultural and Indigenous Affairs & NANP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 205 NANO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 657 of 2003 NANP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 656 of 2003 MADGWICK, JACOBSON AND BENNETT JJ 26 AUGUST 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N657 of 2003 BETWEEN: NANO

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

N 656 of 2003 BETWEEN: NANP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK, JACOBSON AND BENNETT JJ

DATE OF ORDER: 26 AUGUST 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1 The appeals be dismissed. 2 The appellants pay the respondent's costs of the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

1 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY

N 657 of 2003 BETWEEN: NANO

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

N 656 of 2003 BETWEEN: NANP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK, JACOBSON AND BENNETT JJ

DATE: 26 AUGUST 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT Introduction 1 These appeals arise from applications for relief made under s39B of the Judiciary Act 1903 to review decisions of the Migration Review Tribunal ("the MRT") made on 21 March 2003. The MRT affirmed decisions of a delegate of the respondent made on 7 March 2003 to refuse to grant the appellants Bridging Visa E (Class WE) visas. 2 Appellant NANP is the daughter of Appellant NANO and appears by her "next friend" and mother. 3 The grounds of the appeal are the same for both proceedings. Background 4 Appellant NANO arrived in Australia on 5 January 1989 on a visitor's visa which expired on 5 April 1989. Appellant NANP was born on 4 November 1993. Appellant NANO remained in Australia unlawfully until he was granted a Bridging C visa on 1 September 1995 in connection with his application for a protection visa. That visa was subject to the condition that he not work (visa condition 8101). Appellant NANP was included as a dependent family member in that application. 5 A delegate refused Appellant NANO a protection visa on 17 December 1996 and that refusal was affirmed by the Refugee Review Tribunal ("RRT") on 29 April 1997. The associated Bridging C visa ceased on 3 June 1997. 6 On 390 June 1997, Appellant NANO made a request to the Minister pursuant to section 417 of the Migration Act 1958 (Cth). He held several Bridging E visas whilst his request was being determined. On 19 January 1998, the Minister declined to exercise his discretion. The last Bridging E visa of this type expired on 17 February 1998. Appellant NANO continued to remain in Australia unlawfully. 7 Relevantly, the Appellants lodged applications for Bridging E visas with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") on 7 September 1998. The basis of the applications was that each Appellant was a member of the Macabenta/Kagi class action. However, according to the information before the MRT, that action was dismissed on 8 July 1999. 8 The applications were received by the Department on 30 October 1998, (at which time the Appellants were not in immigration detention) but through an oversight were not decided until 7 March 2003. 9 On 12 November 2001, the wife of Appellant NANO was located by Departmental Compliance officers in a Queensland hospital. She was issued with a Bridging E visa on the same day, valid until 19 November 2001. The visa was extended to include her new born son. She was requested to subsequently attend the Department with Appellant NANO to regularise her status, but failed to do so. The MRT noted that as Appellant NANO and his wife failed to attend the Department, the Appellants' Bridging E visa applications remained undecided. 10 On 5 March 2003, the Appellants were detained by Departmental Compliance Officers in Brisbane and were transferred to Villawood Immigration Detention Centre in Sydney on the same day. 11 On 5 March 2003, an interview was conducted between Appellant NANO, his wife and Departmental Compliance officers. Appellant NANO made various statements to the effect that he would like to remain here and have his children grow up in Australia, he considered Australia his home and he had no cash or assets in Australia or overseas. 12 In each case, the delegate refused the applications on the basis that the Appellants did not meet the primary criteria for the grant of a Bridging Visa E. 13 On 12 March 2003, the Appellants sought review of the delegate's decisions to the MRT. 14 On 18 March 2003, the MRT wrote to the Appellants to give them particulars of information which the Tribunal considered would be the reason for affirming the decision under review. This letter included the proposition that there was no information before the Tribunal to suggest that the Appellants met any of the threshold criteria for the grant of a Bridging E visa. In particular, the Tribunal noted that Appellant NANO had not complied with the requirement in regulation 050.212(2) of the Migration Regulations, which required evidence that the Appellants were making, or were the subject of, acceptable arrangements to depart Australia. The Tribunal observed that Appellant NANO had indicated that he wanted to remain in Australia to provide a better life for his family, did not possess valid travel documents or a passport and had not produced a valid airline ticket to the Department. 15 The Appellants were invited to respond to the information at a joint hearing before the MRT conducted on 20 March 2003. The Appellants forwarded hand-written submissions through their representative Mr Fonua dated 20 March 2003. The substance of the submissions was identical in each matter, but failed to raise any matters relevant to the issues to be determined by the MRT. The Decision of the MRT 16 On 21 March 2003, the MRT affirmed the decisions under review. It concluded that the Appellants had failed to meet the criterion in subregulations 050.212(1) or 050.221 because the Appellants failed to satisfy any of the requirements in subregulations 050.212(2) to 050.212(9). 17 Those requirements, as summarised by the MRT, included the following:- · that the applicant is making, or is the subject of, acceptable arrangements to depart Australia, or