Ma, Hip Kwok v Minister for Immigration & Ethnic Affairs [1995] FCA 846

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 536 of 1995 ) GENERAL DIVISION ) BETWEEN: HIP KWOK MA Applicant AND: MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS Respondent Coram: Davies, J Place: Sydney Date: 13 October 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 536 of 1995 ) GENERAL DIVISION ) BETWEEN: HIP KWOK MA Applicant AND: MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS Respondent Coram: Davies, J Place: Sydney Date: 13 October 1995 REASONS FOR JUDGMENT EX TEMPORE This is an application which seeks an order for judicial review. The amended application reads:- "1 Application to review the decision of the Minister for Immigration and Ethnic Affairs dated 5 July, 1995 that the Applicant's Application for a Review of a decision by the Minister's Delegate dated 31 May, 1995, by the Immigration Review Tribunal be refused." The relevant facts are that on 26 May 1995 the applicant lodged an application for Bridging Visa E subclass 050. The application stated that the applicant had a valid ticket to depart from Australia and the date of expiry of the booking was 30 May 1995. The applicant stated in his application that he was departing voluntarily. That application was considered under the provisions of subclass 050 which are set out in Schedule 2 of the Migration Regulations 1994. One of the conditions which must be met is that the Minister must be satisfied that "the applicant is making, or is the subject of, acceptable arrangements to depart Australia." It appears to be on that basis that a decision was made on 26 May granting a Bridging Visa E-Subclass 050 expiring on 30 May 1995. The visa specifically required the applicant to depart from Australia before 31 May 1995, that is by 30 May 1995. On 29 May 1995, however, a further application was lodged. This was an application appropriate for changing Bridging Visa conditions or for replacing a Bridging Visa which had ceased. The application that was made was supported by a letter from Mr David de Pinna which set out certain circumstances, including that the applicant and his brother had purchased a business, the Wi Ling Restaurant, for $10,000 three years ago. It referred to the prejudice which would be suffered by the brother, an Australian permanent resident, if the applicant should have to leave Australia on 30 May 1995. That matter was dealt with on 31 May. The officer dealt with the matter as if there were an application for a new Bridging Visa. A letter addressed to Mr de Pinna from a Ms C.B. O'Connor, Manager, Compliance, Bankstown office for the Department, said:- "As Mr Ma already holds a bridging visa E I have considered his application as an application for a briding (sic) visa E with a variation of conditions." The letter went on to say: "Mr Ma's application for a bridging visa E has been approved however there is no variation in conditions." Despite the apparent approval, it does not appear that any time was given or that any further visa issued. Mr Ma then lodged an application for review with the Immigration Review Tribunal. That was responded to on 2 June 1995 by a Deputy Registrar who said that: "A decision on bridging visa Class E, where the person is not in immigration detention can only be reviewed by the Tribunal after the decision has been internally reviewed by a review officer within the Migration Internal Review Office (MIRO) of the Department of Immigration, and Ethnic Affairs. Further, a review of bridging visa Class E can only be considered by the Tribunal if that bridging visa has not been approved. I am arranging for the $300 application fee to be refunded and you should receive a cheque within the next few weeks. I can be contacted on 289 0237 if you have any enquiries." A further letter of the Deputy Registrar read:- "I am replying to your letter of 14 June 1995 about Mr Hip Kwok Ma's bridging visas. Our view, as expressed in our letter of 2 June 1995, remains unchanged. If Mr Ma was not in immigration detention on 1 June 1995, the date on which the application was lodged to the Tribunal, the decision on his bridging visa (if it was a reviewable decision) must first be subject to an internal review before the jurisdiction of the Tribunal arises. I note that your letter fails to deal with this issue.