FEDERAL COURT OF AUSTRALIA Takli v Minister for Immigration & Multicultural Affairs [2000] FCA 1490 ADMINISTRATIVE LAW – Immigration – Review of decision refusing bridging visa – Whether applicant satisfied the requirement that a security had been lodged by him "if asked for by an officer authorised under section 269 of the Act" – Evidence of request at relevant time but no proof of officer's authority – Whether decision able to be set aside on "no evidence" ground – Whether remittal to Tribunal futile as applicant could not now satisfy all the relevant criteria. Migration Act 1958, ss269 and 476(4) Migration Regulations, 050.21 and 050.22 RICARDO TAKLI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N1023 of 2000 WILCOX J SYDNEY 11 OCTOBER 2000 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1023 of 2000 BETWEEN: RICARDO TAKLI Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: WILCOX J DATE OF ORDER: 11 OCTOBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 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 N1023 of 2000 BETWEEN: RICARDO TAKLI Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: WILCOX J DATE: 11 OCTOBER 2000 PLACE: SYDNEY EXTEMPORE REASONS FOR JUDGMENT 1 WILCOX J: When this matter first came before the Court, on 3 October 2000, the applicant, Ricardo Takli, was not legally represented. He had the assistance of an interpreter. However, it rapidly appeared he had considerable difficulty in understanding the nature of the legislation which bore upon his case. This is not in the least surprising; the legislation is complex and has required considerable elucidation by counsel during the course of discussion today. 2 It was evident on 3 October 2000 that it would be impossible satisfactorily to determine this matter without hearing submissions on behalf of the applicant from a legally qualified person. Accordingly, I made a direction under Order 80 of the Federal Court Rules that the matter be referred to a legal practitioner on the pro bono panel established under that Order. The matter was referred to Mr Grant Elliott of counsel, who kindly took up the matter on behalf of the applicant. I am indebted to him for his willingness to do this and for the assistance he has provided to the Court today in relation to the matter. 3 In order to understand the issues which fall for determination today, it is necessary to set out something of the history of the applicant's dealings with the Department of Immigration and Multicultural Affairs and the various Tribunals established under the Migration Act 1958. 4 The applicant is apparently a Palestinian who was born in Lebanon. He arrived in Australia on 29 January 1999 on a TR (visitor) (short stay) 676 visa which was valid for 3 months until 29 April 1999. On 8 March 1999, the applicant applied for a protection visa, claiming to be a refugee within the meaning of the Convention on Refugees. He was granted an associated bridging A visa. The applicant's application for a protection visa was refused by a delegate of the Minister on 6 April 1999 but he sought review of that decision by the Refugee Review Tribunal. The Tribunal made a decision on 13 January 2000 affirming the decision of the delegate to refuse to grant a protection visa. The applicant did not make an application to this Court for review of the Tribunal's decision within the time permitted under the Act. 5 On 18 February 2000 the applicant's associated bridging A visa expired and he became an unlawful non-citizen. 6 Shortly thereafter, on 29 February 2000, the applicant was located by Parramatta Police and transferred to the Villawood Immigration Detention Centre, where he still resides. 7 On 1 March 2000, the applicant was interviewed by an officer of the Department, Henri Legeret. It appears from evidence given by the applicant at a subsequent hearing by the Migration Review Tribunal that Mr Legeret informed him it would be necessary for him to provide security in the amount of $10,000 in order to obtain a bridging visa. The applicant indicated he did not have access to that type of money. No security has been provided. 8 On 24 May 2000 the applicant made a request to the Minister for Immigration and Multicultural Affairs, the respondent to the present proceeding, to substitute a more favourable decision for the decision of the Refugee Review Tribunal. That application was made under s417 of the Migration Act. The application was refused by the Minister. In a letter dated 14 June 2000 the Minister indicated he had decided not to consider exercising his power under s417 in the applicant's case. 9 In the meantime, and apparently on the strength of his pending application to the Minister under s417, on 29 May 2000, the applicant lodged an application for a bridging E visa. That application was refused on the following day, 30 May, by a Detention Review Officer. 10 On the next following day, the applicant lodged an application for review of the officer's decision. On 7 June 2000, the Migration Review Tribunal affirmed the decision of the officer. As I have indicated, seven days later the Minister refused the s417 application. At that point, there was no outstanding application by the applicant in relation to either s417 of the Act or relief that might be obtained from the Court. 11 However, on 3 July 2000, the applicant filed an application in this Court (N700 of 2000) seeking review of the decision of the Migration Review Tribunal of 7 June 2000 to affirm the decision of the Detention Review Officer not to grant a bridging E visa. The applicant also sought review of the decision of the Minister not to consider exercising his discretion under s417 of the Act and of the decision of the Refugee Review Tribunal of 13 January 2000. The Minister lodged an objection to competency in relation to the last two aspects of the application for review. 12 The application for review came before Katz J. His Honour upheld the Minister's objections to competency. He held that the decision of the Minister was not vulnerable to review in this Court and that, although a decision of the Refugee Review Tribunal could be reviewed in this Court, this was possible only if the application for review was lodged within 28 days of notification of the decision. As the 28 day period had long since expired, the instant application was outside the jurisdiction of the Court. 13 In relation to that part of the application which challenged the decision of the Migration Review Tribunal, the Minister consented to an order being made that would set aside the decision of the Tribunal and remit the matter for further determination. Katz J made that order, the basis being that the finding of the Migration Review Tribunal in relation to satisfaction of the criterion about security - that is, that security of $10,000 was required - related to an interview which occurred on 29 May 2000, after lodgment of the application for the bridging visa. His Honour held that, as a matter of interpretation of the regulations, the relevant criterion addressed the possibility of a demand having been made prior to lodgment of the application for the bridging visa. Accordingly, any demand made on 29 May was irrelevant. 14 Katz J dealt with the matter and made orders on 23 August 2000. The orders were as follows: "(1) The Migration Review Tribunal's decision of 7 June 2000 be set aside and the matter to which that decision related be referred to for further consideration; (2) The application be otherwise dismissed as incompetent." 15 It is important to note that his Honour did not reserve any matter. He dealt with the question of costs in para 28 of his judgement. He noted that neither party sought costs and, accordingly, he would make no order as to the costs of the proceeding. 16 The Minister subsequently changed his position and made an application for costs, which was refused on 3 October. However, as it seems to me, proceeding N700 of 2000 was completed by the Court on 23 August. 17 On 13 September, 2000 the Migration Review Tribunal held a hearing in respect of the remitted application for a bridging visa. Two days later, on 15 September, the Tribunal made a decision affirming the delegate's decision to refuse the applicant a bridging E visa. 18 On 21 September, the applicant commenced the present proceeding, by filing application N1023 of 2000 seeking review of that decision of the Tribunal. 19 Subclass 050 of Schedule 2 to the Migration Regulations deals with that category of visa which is described as Bridging (general). Clause 050.2 sets out primary criteria which must be satisfied by all applicants. Those criteria are divided into criteria to be satisfied at the time of application (050.21) and criteria to be met at the time of decision (050.22). 20 Subject to one important matter, it is common ground between the parties that, at the time of filing the application for a bridging visa, the decision on which is presently under review - that is to say, on 29 May 2000 - the applicant satisfied all the criteria to be satisfied at time of application. He was able to do this because subcl (6) applied. Subclause (6) covers a situation where the applicant has a pending application under s417 of the Act. As I have recounted, the applicant was in that position on 29 May 2000, he having lodged his application under s417 on 24 May and it not being disposed of until 14 June, 2000. 21 The exception to which I have referred arises under para 050.214 which is in the following terms: "A security has been lodged by the applicant, if asked for by an officer authorised under section 269 of the Act (which deals with security for compliance with the Act)." 22 It has been the case of the applicant that this sub-clause does not apply because it is not shown that Mr Legeret, who admittedly asked him on 1 March 2000 to provide security, was at that time an officer authorised under s269 of the Act. 23 The Migration Review Tribunal, in making its decision of 15 September, was aware of the necessity for Mr Takli to demonstrate compliance with clause 050.214. Unfortunately, however, the inquiries that were made on behalf of the Tribunal about authorisation exhibit a degree of confusion about the relevant question. 24 It appears from material in the papers that, on 14 September 2000 - that is, the day after the hearing and the day before the decision - an officer of the Tribunal sent a fax to Mr Legeret referring to a telephone conversation and saying: "I would appreciate for written evidence that the delegate of the case (CLF2000/10193) was an authorised officer to ask for a security under section 269." The number seems to be a correct reference to Mr Takli's application. However, it was not relevant to determine whether the delegate who made the decision to refuse the application for a bridging visa was an authorised officer under s269. The relevant question is whether the person who sought the security, who happened to be Mr Legeret himself, was an authorised officer as at the date of making the request for the security. 25 The evidence establishes that, on the same day, 14 September 2000, Mr Legeret responded to the Tribunal officer's request, giving information about the delegate, one Robyn Simpson. Mr Legeret described himself in his letter as being: "Compliance Parramatta Position No. 608". He said he attached three pages from an instrument made by the Minister on 28 January, 2000: "which clearly indicate that Miss Simpson's position number (2007) is authorised to ask for a security". The enclosure was an instrument signed by the Minister, but dated 1 May, 2000; that is, after the relevant date. 26 The instrument set out in tabular form the authorities given under various sections of the Act to people occupying particular public service positions. The table showed the holder of position number 608 was an authorised officer. It may be inferred from Mr Legeret's letter that he occupied position 608 at 14 September 2000, but it does not follow he occupied that position on 1 March. Neither does it appear from the documents that the authorisations as at 1 March were the same as at 1 May. In short, the documents set out in the file do not establish that Mr Legeret had the requisite authority as at 1 March, 2000. 27 I do not understand Ms Frances Backman, counsel for the Minister, to contest that view of the evidence. However, the Tribunal may have made other inquiries. In para 46 of its reasons for decision, dated 15 September, the Tribunal said: "DIMA has informed the Tribunal that the three officers on the record who dealt with the visa applicant since he was placed in detention were all duly authorised. The position numbers of each of the three officers who are recorded as having spoken to the visa applicant about his detention and possible release have been verified by the Tribunal. The positions numbers accord with the list of authorisations during the time the visa applicant was in detention. The name of the officer who first interviewed the visa applicant and advised him of the need for lodgement of a bond in the sum of $10,000 is shown on the record of interview dated 1 March 2000, the date at which the visa applicant was so informed." Ms Backman suggests this paragraph indicates the Tribunal in fact satisfied itself about Mr Legeret's authority to require a security. She argues he must have been one of the "three officers on the record who dealt with the visa applicant since he was placed in detention". This may be so. However, my confidence in accepting that the Tribunal obtained the appropriate information is considerably diminished by its evident confusion about the correct question on 14 September. 28 Mr Elliott argues it is not shown that Mr Legeret was authorised as at 1 March, 2000; accordingly it cannot be said that clause 050.214 applied in this case. It follows, he says, that it was not open to the Tribunal to hold that Mr Takli was not entitled to a bridging visa because of inability to satisfy that clause. 29 There is a problem about Mr Elliott's submission, which arises out of the limitations imposed by s476 of the Migration Act in relation to review of Tribunal decisions. Section 476(1)(g) provides, as a ground of judicial review of inter alia a decision of the Migration Review Tribunal: "That there was no evidence or other material to justify the making of the decision". If this paragraph stood alone, it might be argued that the decision of the Tribunal was bad because there was no evidence to justify the view that Mr Legeret was an authorised officer for the purposes of s269; and, consequently, that there had been a failure by the applicant to comply with the requirements of clause 050.214. The argument would be that, on the evidence, that clause is not shown to apply. However, subs (4) of s476 says this: "The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 30 Paragraph (b) is the part of this sub-section which more naturally covers the type of case under discussion. However, this would involve the applicant demonstrating that the relevant fact, that is to say Mr Legeret's authority, did not exist. The evidence does not show that Mr Legeret did not have any authority; it simply shows that the documents before the Tribunal did not demonstrate that he did have the necessary authority. 31 In this situation, Mr Elliott has fallen back on para (a). He argues that the relevant decision, for the purpose of that paragraph, must be taken to be the decision that security had been required; pursuant to clause 050.214 of the Regulations the Tribunal was only entitled to come to that conclusion if it was established that the person making the requirement had the requisite authority. 32 The difficulty I have about that submission is that the word "decision" in para (a) seems to be a reference to the decision under review; that is, the ultimate decision of the Tribunal. The situation is analogous to that discussed by the High Court of Australia in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. The present application deals with the Migration Act, but the words contained in subs (4) of s476 are almost identical to those in the Administrative Decisions (Judicial Review) Act 1977, the statutewhich was in issue in Bond. I think that para (a) is directed to a situation where the ultimate statutory decision, under challenge in the review proceeding, could be made only if a particular matter was established. I do not think it has any relevance to a determination by the decision-maker of the totality of facts underlying the ultimate decision. If this is correct, it means the application for review must fail, however unsatisfactory may have been the Migration Review Tribunal's consideration of the critical point. 33 However, there is another reason for taking the view that the present application must be dismissed. I have already mentioned that cl 050.22 sets out criteria that must be met at the time of the decision. Clause 050.221 sets out one of these criteria: "The applicant continues to satisfy the criteria set out in clauses 050.211 to 050.214". It will be recalled that the applicant was able to satisfy those criteria at the time of making his application only because he had a pending application to the Minister under s417. By 15 September that was no longer the case. He was then unable to use that application in order to argue that he continued to satisfy the criteria set out in clauses 050.211 to 050.214. 34 Mr Elliott argues this should not cause the Court to refuse relief, that the matter ought to be referred back to the Tribunal. He says the applicant may be able to amend his application for a bridging visa so as to bring himself within one of the other criteria in those clauses. Mr Elliott mentioned, by way of example, the possibility of the applicant demonstrating that he is making, or is the subject of, acceptable arrangements to depart Australia. 35 Perhaps the applicant might wish to put some such case. But there is no evidence that he proposes to do so; indeed the applicant made it clear to me, when he appeared for himself last week, that leaving Australia was the last thing in his mind. However, whatever the applicant's intention, I do not feel I would be justified in remitting the matter to the Tribunal in order to enable him to put a new case. This is not one of the situations where a person is precluded from making a second application for the same type of visa. Section 74 permits a subsequent application for a bridging visa, subject to some qualifications. 36 One of the qualifications is that, if the person made an application for review of the departmental decision to refuse the grant of the bridging visa, the subsequent application may not be made within 30 days after final determination of the review. In the present case, the review was finally determined by the Tribunal on 15 September. The 30 day period will expire on 15 October, that is to say, four days hence. It will then be possible for Mr Takli, if he is so minded, to lodge a fresh application. He would, of course, have to bring himself within the criteria specified in the regulations. Whether he will choose, and be able, to do that are matters for him to consider, not for the Court. However, the fact that he has that opportunity supports the view that there is no warrant for my returning the matter to the Tribunal. The appropriate course is that the application be dismissed. [There was discussion about costs.] 37 Ms Backman seeks costs. However, I am of the opinion that this is a case in which I should exercise the discretion of the Court by declining to make an order concerning costs. The matter was not well handled in the Tribunal. If the Tribunal had carried out its function in the way it ought to have done, it would have been obvious to Mr Elliott, as soon as he came into the case, that the case was hopeless; he would almost certainly have then given appropriate advice to Mr Takli. The course taken in the Tribunal has provided a basis upon which it can be said Mr Takli acted reasonably in pursuing the matter, even though I have ultimately held against him. In the circumstances, it would be unduly harsh to make an order for costs. The order I make is that the application be dismissed. I again express the Court's appreciation of Mr Elliott's assistance. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 11 October 2000 Counsel for the Applicant: G Elliot Counsel for the Respondent: A F Backman Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 11 October 2000 Date of Judgment: 11 October 2000