FEDERAL COURT OF AUSTRALIA Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 285 MIGRATION – judicial review – whether the Migration Review Tribunal was satisfied that the applicant "is making", or is the subject of, acceptable arrangements to depart Australia – whether Tribunal erred in considering the stage at which any such arrangements had reached – whether Tribunal had erred by requiring the applicant to have a passport or identity document and an airline ticket – whether the Tribunal erred in taking into account the genuineness of the applicant's expressed intention to depart Australia – whether the Tribunal relied on Regulations that had been repealed and a policy which had been replaced – Tribunal did not rely on repealed Regulations – substituted policy was in identical terms – application dismissed. Migration Act 1958 (Cth) s 476(1)(c) and (e), (3)(d) Migration Regulations 1994 Schedule 2, 050.212(2) Tutugri v Minister for Immigration and Multicultural Affairs [1999] FCA 1785 referred to Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 430 referred to Arkan v Minister for Immigration and Multicultural Affairs [2000] FCA 1134 referred to Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 referred to CHEN XUE XU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 218 of 2000 CARR J 20 MARCH 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 218 OF 2000 BETWEEN: CHEN XUE XU Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: CARR J DATE OF ORDER: 20 MARCH 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 218 OF 2000 BETWEEN: CHEN XUE XU Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: CARR J DATE: 20 MARCH 2001 PLACE: PERTH REASONS FOR JUDGMENT introduction 1 This is an application for an order of review of a decision of the Migration Review Tribunal made on 27 November 2000 by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a Bridging E Class WE (Subclass 050) visa (which I shall refer to in these reasons as a bridging visa) to the applicant. 2 This application was heard at the same time as three other applications (Nos W215, W216, and W217 of 2000) in which the factual circumstances were very similar to those in this case. In each case the applicant relied on identical grounds of review and made identical submissions. The respondent made one set of submissions for all four applications, with some minor variations to reflect slight differences in the Tribunal's reasons. The reasoning in these reasons for judgment is substantially similar to the reasons for judgment in the three other matters. factual background 3 The applicant entered Australia on 4 May 1997 on a false passport and holding a Subclass 676 Short Stay Visitor visa valid until 4 August 1997. On 14 May 1997 he lodged an application for a Protection Visa. On 12 March 1998 the applicant's application for a Protection Visa was refused. The applicant applied to the Refugee Review Tribunal for review of that decision. On 14 October 1998 the Refugee Review Tribunal affirmed the decision. The applicant applied, under s 417 of the Migration Act 1958 (Cth) ("the Act"), to the respondent to exercise his power personally to substitute a more favourable decision for that of the Refugee Review Tribunal. The respondent decided not to do so. In November 1998 the applicant became an unlawful non-citizen. 4 On 31 January 2000 the applicant was located by officers of the respondent's department and taken into detention by them pursuant to s 189 of the Act. The applicant's position is that he is prepared to return to China, but seeks a bridging visa so that he can be released from immigration detention to settle his affairs. 5 Since being in immigration detention the applicant has made three previous applications for a bridging visa. Each of those applications was refused. In two of those cases the applicant sought review before the Tribunal and in both of those cases the Tribunal affirmed the primary decision. The fourth application, which is the subject of this matter, was lodged on behalf of the applicant on 17 November 2000. On 20 November 2000 the respondent's delegate refused the application. One of the grounds for such refusal was that the applicant was not making, and nor was he the subject of, acceptable arrangements to depart Australia. On 21 November 2000 the applicant applied to the Tribunal for review of that decision. The statutory and regulatory regime 6 It is not necessary, in these reasons, to describe in full the statutory and regulatory regime pursuant to which an applicant may obtain a bridging visa of the class sought by the applicant. A useful description of that regime can be found in the judgment of Lee J in Tutugri v Minister for Immigration and Multicultural Affairs [1999] FCA 1785. It is sufficient to refer to one of the criteria which an applicant for such a visa must satisfy both at the time of application and at the time of decision [see Clause 050.21 and 050.22 of Schedule 2 to the Migration Regulations (1994)]. That criterion is contained in Subclause 050.212(2) ("the Subclause") and reads as follows: "An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia." 7 It was the applicant's failure to satisfy this criterion which caused the Tribunal to affirm the primary decision not to grant a bridging visa to him. I set out below the relevant paragraphs from the Tribunal's reasoning for its conclusion that the applicant did not satisfy the above criterion: "24. The visa applicant has no valid passport, travel document orairline ticket. The Tribunal notes that the visa applicant does not dispute that he entered Australia on a false passport. The Tribunal notes that once the visa applicant's visa expired he did not maintain contact with DIMA. He does not deny working without permission in Australia. Since February 2000 the visa applicant has made several applications for a bridging visa. He is aware of the fact that to depart Australia he needs to have a valid travel document. The visa applicant claims to have contacted the PCR (sic) Consulate through a friend requesting that a travel document be issued to him. He further claims his friend purchased several airline tickets for him, none of which are valid. However there is no evidence in the files that is evidence of this claim. 25. At the time of this hearing the visa applicant has produced no such documents. The Tribunal considers that he has had ample time, both before and after being taking (sic) into immigration detention, to obtain the necessary documentation and make suitable arrangements to depart Australia, if he is genuine in his intent. Having had regard to all the available evidence before it, the Tribunal is not satisfied that the visa applicant's intent to depart is genuine. The Tribunal is not satisfied that he is making satisfactory arrangements to depart because he has not been able to produce a valid travel document and has not provided any evidence to the Tribunal that he has purchased or has made arrangements to purchase a ticket for travel. 26. The Tribunal finds that much of the evidence presented at the hearing was evasive and vague. The visa applicant was an unlawful non-citizen for almost 14 months before being taken into immigration detention. The visa applicant's entry to Australia was based on deceit, lies and false documentation and lacking in any intention to genuinely visit Australia. The visa applicant has not, at any time during his stay in Australia, indicated respect of, or a willingness to abide by, Australia's immigration laws. 27. The visa applicant's agent submitted that there was no legislative requirement that an applicant holds a valid ticket or passport at the time of application or decision - merely that an applicant is making or is the subject of acceptable arrangements to depart. The agent raised the meaning of 'or could obtain one within a reasonable period'. Given the period of time since the visa applicant has become unlawful the Tribunal considers the visa applicant has been provided with more than 'a reasonable period'. At the hearing the Tribunal hypothetically raised with the visa applicant the matter of 'abiding by conditions should the Tribunal be satisfied that the visa applicant meets the criteria for the grant of the visa'. However given the findings of the Tribunal there is no need to consider whether the visa applicant would abide by any. 28. From all the available evidence and on the balance of probabilities the Tribunal is not satisfied that the visa applicant has made, or is the subject, of acceptable arrangements to depart Australia at time of application and at time of decision. As the Tribunal does not accept the visa applicant's evidence as to his intent to depart Australia, it finds that he does not satisfy the requirements of subclause 050.212(2). As the visa applicant does not satisfy the criteria of clause 050.212 this application for review must therefore fail." the grounds of review Ground 1(a): 8 In summary, Ground 1(a) of the application is that the Tribunal's decision involved an error of law in that it incorrectly applied the law [subclause 050.212(2)] to the facts as found by it – see s 476(1)(e) of the Act. 9 The applicant was unrepresented, but his application and very detailed written submissions were faxed to the Court by his migration agent. Both documents give the distinct appearance of having been prepared by a lawyer. 10 The applicant submitted that the Tribunal misconstrued the meaning of the words "is making" in the Subclause by considering what arrangements had been finalised at the time of its decision. The applicant's point is that the phrase is expressed in the present tense. The test, so it was put, did not envisage the consideration of arrangements made by the applicant prior to the making of the application. The applicant submitted that it was erroneous for the Tribunal to consider whether the arrangements made by the applicant in the past, prior to or during detention, were sufficient or acceptable to satisfy the Subclause. The test in the Subclause was said to be more generous than that applied by the Tribunal because the words "is making" imply a continuous action so that an applicant may be able to satisfy the requirement of the Subclause when he has merely commenced, and has not finalised, making departure arrangements. The applicant contended that the Tribunal's findings that the arrangements made by him were unsatisfactory was "at the heart of" its decision. This was evidenced, so the applicant submitted, by the statement by the Tribunal that it considered that the applicant had had ample time both before and after being taken into immigration detention to obtain the necessary documentation and make suitable arrangements to depart from Australia. my reasoning 11 In my opinion, when deciding whether a person "is making" acceptable arrangements to do something, in this case to depart Australia, it is clearly not an error of law to consider what that person has done to date. The making of arrangements can be seen as a continuing process. The applicant acknowledged as much in para 5 of his written submissions. In my view, it would not make any sense to assess whether, at any stage in that continuum, the person was at that particular point of time making acceptable arrangements, without having regard to what, if any, arrangements that person had already made and what further arrangements remained to be made. 12 It is quite clear, in my opinion, that the Tribunal considered whether the applicant was in the process of making acceptable arrangements to depart Australia. I refer to paragraphs 24 and 25 of the Tribunal's reasons above. In paragraph 24 the Tribunal referred to the applicant's claims that he had contacted the Chinese Consulate through a friend asking that a travel document be issued to him, and that his friend had purchased several airline tickets for him, none of which was valid. In paragraph 25 the Tribunal gave consideration to the stage at which the applicant's arrangements had reached. He had applied for, but not obtained a travel document. The Tribunal also noted that the applicant had not produced any evidence that he had purchased or had made arrangements to purchase a ticket for travel. 13 As part of his submissions in relation to this ground, the applicant drew attention to the fact that the Tribunal had (as can be seen in paragraph 25 above) used the word "suitable" in the expression "suitable arrangements to depart Australia". He might have added that, in the same paragraph, the Tribunal, two sentences later, had used the description "satisfactory arrangements". 14 In my opinion, in the context of a clause which refers to a condition that the Minister be satisfied that a person is making or is the subject of acceptable arrangements, it was not an error of law to substitute the adjective "satisfactory" or "suitable" in this part of the Tribunal's reasons. In the present context, I think that those two adjectives can be treated as being synonymous with "acceptable". 15 In any event, in the first sentence of paragraph 28 the Tribunal expressed the view that it was not satisfied that the applicant had made or was the subject of acceptable arrangements to depart Australia. 16 I reject the applicant's submission that the Tribunal had "… impermissibly foreshortened its inquiry" by failing to consider whether the applicant was making acceptable arrangements at the time of its decision. The Tribunal referred to such arrangements to depart as the applicant claimed to have made. There was no evidence of any other arrangements which he was in the course of making. 17 I also reject the applicant's submission that the Tribunal had applied a test which required the applicant to have finalised the making of acceptable arrangements to depart. A fair reading of its reasons strongly suggests that if there had been some progress in the arrangements leading towards the issue of a travel document and an airline ticket, a different view would have been taken. 18 In my opinion, Ground 1(a) has not been made out. Ground 1(b): 19 In this ground the applicant asserts that the Tribunal misinterpreted the meaning of the phrase "acceptable arrangements to depart" by holding that the applicant had to have a travel document and a ticket at the time of application or decision. In particulars of this ground the applicant asserted that the Tribunal's conclusion was based on the fact that he did not hold a travel document at the time of his application and at the time of the Tribunal's decision. That assertion is simply not true. The Tribunal also took into account the fact that the applicant was not in possession of a passport or identity document. 20 In his written submissions the applicant pointed to the fact that Clause 050.614 authorised the decision-maker to impose Condition 8510 on the grant of a bridging visa. That condition relevantly provides that, within the time specified by the Minister for the purpose, the holder must make an arrangement satisfactory to the Minister to obtain a passport. The applicant's point was that such a condition may apply to a visa once granted and it was thus "clearly possible" for an applicant to satisfy the "acceptable arrangements to depart" requirement by satisfying the Minister that he or she is making arrangements to obtain a passport. The Subclause, so it was submitted, was "not concerned" with prescribing a time within which an applicant must depart. Thus, inability to obtain a travel document within a particular period of time was, so it was put "not fatal to the application". The applicant went further by submitting that a delay in obtaining a travel document is not relevant to assessing the acceptability of departure arrangements. 21 In my view, these submissions constitute an impermissible attempt to review the merits of the Tribunal's decision. As Beaumont J observed in Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 430 at para 7, the issue of whether a decision-maker is satisfied that an applicant is making acceptable arrangements is clearly one of fact, with an element of discretion or judgment lying at the heart of it. See also Tamberlin J in Arkan v Minister for Immigration and Multicultural Affairs [2000] FCA 1134 at para 9. 22 It was quite clearly open to the Tribunal to find that it was not satisfied that the arrangements made were acceptable on the basis of the matters which it took into account i.e. absence of a valid travel document and ticket, failure to secure those documents over a long time and other indications of disregard for immigration laws. 23 As part of this ground the applicant asserted that the Tribunal had relied inflexibly on the departmental policy contained in Migration Series Instructions 282 ("MSI 282") the relevant paragraph of which states: "3.2.5.1 In determining whether or not an applicant meets this criterion, an officer may take into account any or all of the following factors: · whether the applicant is in possession of a valid travel document, or could obtain one within a reasonable period: · whether the applicant has a ticket for travel to an acceptable destination and a booking/reservation to depart Australia, or could obtain one within a reasonable period. . . ." 24 The basis upon which the applicant made this submission was that under the heading "Legislation and Policy" in its reasons it had listed MSI 282. The applicant submitted that the above paragraph in MSI 282, by making reference to an applicant's ability to obtain a passport or a ticket within a reasonable time, imposed a more onerous requirement than that prescribed by the Regulations. Accordingly, so it was argued, reliance on such policy by the Tribunal was erroneous. 25 In my view, there is insufficient evidence to establish that the Tribunal relied inflexibly on MSI 282. The page in the Tribunal's reasons on which MSI 282 was listed was omitted from the evidence, but the case was conducted on the basis that in para 3 of its reasons the Tribunal noted (as it had in its reasons which were under challenge in the other three applications referred to in para 2 above, which were all decided on the same day by the same person who constituted the Tribunal) that it was required to have regard to policy and apply it unless there were cogent reasons for departing from it. At para 27 of its reasons (reproduced above) the Tribunal can be seen to have given consideration to the applicant's agent's submission which would appear to have referred to paragraph 3.2.5.1 of MSI 282. The agent does not appear to have placed any cogent reasons before the Tribunal for not applying the policy. 26 I think that the rest of the applicant's submissions on this point i.e. those which challenge the policy and the Tribunal's reliance upon it, are misconceived. The above paragraph in MSI 282 simply refers to factors which an officer may take into account. It is quite clear that those factors are relevant to the issue whether a person is making acceptable arrangements to depart Australia. 27 This ground has not been made out. Ground 1(c): 28 In this ground the applicant asserts that the Tribunal erred in law by concerning itself with the applicant's credibility and willingness to depart Australia. The Subclause, so it was contended, was not concerned with the applicant's credibility or likelihood of departure. As part of the particulars of this ground the applicant maintained that whether a person is making acceptable arrangements to depart Australia is a question of fact which does not involve consideration of whether that person's intentions are genuine. 29 In substance this ground amounts to a complaint that the Tribunal took into account an irrelevant consideration in the exercise of its power. That is not an available ground of review – see s 476(3)(d). 30 Even if this were a permissible ground of review, it has not been made out. In my opinion, the Tribunal, when deciding whether it was satisfied that the applicant was making acceptable arrangements to depart Australia, was entitled to consider whether the applicant's intentions were genuine. On the facts of this case there were no real arrangements at all, but let it be assumed that some paperwork or other formal arrangements had been made, but that it was apparent that the applicant had no genuine intention of carrying through with those arrangements. That circumstance could clearly so affect the nature of the arrangements, in my view, to the extent that the respondent might not be satisfied that they were acceptable. 31 In my opinion, the Tribunal did not fall into error by inquiring into the genuineness of the applicant's intention to depart when assessing whether he was making acceptable arrangements. Ground 2: 32 In this ground the applicant complains that the Tribunal's decision was not authorised by the Act or the Regulations – see s 476(1)(c). 33 There are two aspects to this ground. The first is that the Tribunal referred in its statement of reasons to Clauses 050.213 and 050.214 of the Regulations and that those clauses had been repealed by Statutory Rules 2000 No. 259 on 1 November 2000, a few weeks before the Tribunal made its decision. 34 It is true that at para 10 of its reasons the Tribunal set out the criteria applicable to the grant of a Bridging E visa. The last two criteria referred to satisfaction that if a Bridging E visa were granted the applicant would abide by the conditions imposed on it (Clause 050.213) and that a security (if requested) had been lodged (Clause 050.214). But it did not become necessary for the Tribunal to consider those recently-repealed criteria. It made its decision solely on the basis that the applicant did not meet the requirements of the Subclause i.e. Subclause 050.212(2). The reference to the repealed clauses had absolutely nothing to do with its decision. 35 The second aspect of this ground is that it is said that the Tribunal relied on the policy contained in MSI 282 whereas MSI 294, also with effect from 1 November 2000, displaced the policy reflected in the above paragraph of MSI 282. 36 The short answer to this point is that MSI 294 reproduces the above paragraph in identical terms. Thus, to the extent that the Tribunal may have taken into account the factors referred to in the above paragraph, it was taking into account the identical factors referred to in the same paragraph reproduced in MSI 294. There was no difference, not even a material difference, between the two paragraphs, as to which see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. Conclusion 37 For the above reasons the application will be dismissed. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr. Associate: Dated: 20 March 2001 The Applicant appeared for himself: Counsel for the Respondent: Mr A A Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 15 March 2001 Date of Judgment: 20 March 2001