JUDGMENT No. Fall ) LE FEDERAL COURT OF AUSTRALIA IMMIGRATION - application for bridging visas refused - whether applicant denied natural justice. Migration Act 1958 (Cth): ss 420, 476 GEORGIOS PAPACHRISTOPOULOS v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 117 of 1997 LOCKHART J 19 AUGUST 1997 SYDNEY GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 117 of 1997 BETWEEN: GEORGIOS PAPACHRISTOPOULOS APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LOCKHART J DATE OF ORDER: 19 AUGUST 1997 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 117 of 1997 BETWEEN: GEORGIOS PAPACHRISTOPOULOS APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LOCKHART J DATE: 19 AUGUST 1997 PLACE: SYDNEY REASONS FOR JUDGMENT Before the Court are two matters, NG 117 and NG 176 of 1997. The parties are the same in each matter. The applicant asked me to hear the two matters separately, which I have done; so I will proceed to give judgment in matter NG 117 of 1997 first. I should note at the outset that much of the evidence filed by the applicant in this matter was also filed in matter NG 176 of 1996, so that in essence the applicant's evidence in each matter has been the same. The evidence filed by the respondent differs however, and I have considered the evidence in matter number NG 117 of 1997 without recourse to the evidence filed by the respondent in number NG 176 of 1997. Matter NG 117 of 1997 is an application for review of two decisions of the Immigration Review Tribunal ("the Tribunal") which in each case affirmed the decisions under review by the Tribunal. The first decision, made on 3 December 1996, was a decision affirming the decision of the delegate who refused the grant of a bridging visa WE class 050. The second decision, made on 5 February 1997, was to like effect, affirming the decision of the delegate who refused the grant of a bridging visa (general). -2- A third decision was made by the Tribunal dealing with another application for the grant of a bridging visa (general) that was made subsequent to those two decisions. The third decision affirmed the refusal of a delegate of the Minister to grant a bridging visa (general). That decision was made on 21 March 1997 but it is not the subject of the application for review. Although it has been included in the papers, it is technically not before the Court. The respondent has filed an objection to competency in this matter. Mr Markus, who appears for the respondent, indicated that the basis of the objection to competency was that the application to review the first decision was out of time as required by the relevant legislation and this Court's Rules; and the application to review the second decision was futile because the third decision, subsequently made, has not been challenged. The evidence goes to the merits of the two decisions that are before the Court and I shall examine those merits. When I say merits, of course, it is merits within a circumscribed area because the only grounds of review of those decisions are those afforded by s 476(1) of the Migration Act 1958. I shall briefly refer to certain of the statements made by the Tribunal in the reasons for its first decision. The Tribunal referred to the fact that the matter before it was: "somewhat complex in terms of the interweaving nature of the evidence, particularly as it was put forward by the applicant as relating to his failure to be in contact with the Department [of Immigration and Multicultural Affairs] for a period of over a year from 1995 to 1996" The Tribunal noted that in the delegate's decision this lack of communication weighed heavily. The Tribunal said it examined the matters relating to the concerns expressed by the applicant in seeking to explain why he had not been in touch with the Department over that time; but the Tribunal said it would be prepared to concede that it would not be unreasonable to infer that the applicant had some genuine concerns in relation to the matters referred to by the Tribunal and therefore, while not excusing his actions in failing to contact the Department or failing to comply with his then existing bail conditions, the actions would not seem unreasonable. The Tribunal said it had a number of remaining concerns in relation to the applicant. The tribunal referred to certain charges that had been brought against the applicant; but noted that they were dismissed through his subsequent acquittal, the charges relating to what was said to be his voluntary participation in a scheme for obtaining false passports for three Romanian citizens. The Tribunal said it was satisfied that the applicant was a willing participant in that scheme. The Tribunal also said it was concerned that the applicant moved in a milieu that enabled him to obtain a false licence (a reference is to a driver's licence, as I understand it) and certain other false documents for the period in which he says he wished to go underground. The Tribunal also said that there was throughout the material a varied history of relationships between the applicant and certain women; and from time to time applications had been mounted by the applicant seeking permanent residence on the basis of the relationships. The Tribunal noted that its main concern was to assess whether it was likely or not that the applicant would comply with reasonable conditions. The Tribunal said it was concerned that the applicant was involved in a voluntary way in a system of obtaining false passports for the Romanians in 1992 when the applicant's troubles with the police force first arose. The Tribunal said that the applicant's difficulties over the last three years all stem from that particular activity, and it was concerned that anyone who was prepared to involve himself in that form of mischief in relation to the immigration system had to be viewed very carefully in the context of circumstances where he is applying for a bridging visa on the basis that he would comply with the conditions. The Tribunal concluded on the basis of the balance of probabilities that it was unlikely that the applicant would comply with reasonable conditions if he were released from the detention in which he then was. The Tribunal said it was concerned that the applicant had shown himself to be someone who was prepared to operate outside the immigration system in the context of not reporting or approaching the Department in relevant circumstances; but more importantly in engaging freely in the project relating to the obtaining of false immigration papers for other people. The Tribunal said it considered the applicant's only interest in Australia was whether or not -4- his protection visa application would be granted. The Tribunal concluded that for the reasons which it gave, the Departmental delegate's decision not to grant the bridging WE class 050 visa was affirmed. The basic attack of the applicant upon the decision is an alleged denial of natural justice which is set out in some length in the application for an order of review and supported by a volume of evidence that has been adduced by the applicant. The evidence is in the form of affidavits and documents. The applicant has not been cross-examined. I have carefully studied the grounds advanced by the applicant asserting a denial of natural justice and measured them in the context of the available grounds for review under s 476(1)(a) to (g). I note that, pursuant to s 476(2)(a), a breach of the rules of natural justice, if it occurred in connection with the making of the decision, is not a ground upon which an application may be made for review. However, I note also the authorities in this Court relating to ss 476(1)(a) and 420 which require the Tribunal, in reviewing a decision to act according to substantial justice and the merits of the case; and I note that the failure to observe the principles of natural justice may constitute in certain circumstances the failure to observe procedures required by the Act within the meaning of s 476(1)(a). I cannot see myself that any rules of natural justice have been denied to the applicant by the Tribunal in relation to the making of that first decision. I then turn to the second decision made on 5 February 1997. The Tribunal in the making of that decision referred to many of the facts to which the Tribunal made reference in the making of the first decision. The findings of the Tribunal were primarily that a granting of a bridging visa was not in the best interests of the community since the Tribunal was not satisfied that the applicant would abide by any conditions of a bridging visa designed to regulate his stay in Australia whilst his application for a protection visa, which is the main application, was finalized. The Tribunal based its findings on the fact of the previous failure to maintain contact with the Department and what the Tribunal described as the applicant's unconvincing explanation of -5- that, and it went on to say that in general it was not impressed with the applicant's credibility and that was dealt with in some detail. For those reasons the Tribunal affirmed the decision of the delegate. Again the same basic grounds of review are asserted by the applicant to challenge that decision; and, for the reasons which I have given with respect to the first decision, in my view the grounds have not been made out in the case of the second decision. As to the objection to competency in relation to the first decision, in my view, technically the objection has been made good; but I do not want to dispose of the matter on the basis that the first decision was out of time lest it be an application that had merit and ought to be really considered, especially as it involves a matter of the applicant being in custody during the hearing of his principal application. However, for the reasons I have given the applicant has not made out the grounds of review under s 476(1). Accordingly, the application for an order of review in NG 117 of 1997 is dismissed with costs. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lockhart Associate: $ , (3 Lal Dated: 19 August 1997 Applicant appeared in person. Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 19 August 1997 Date of Judgment: 19 August 1997