Masila v Minister for Immigration and Multicultural Affairs [2001] FCA 649

FEDERAL COURT OF AUSTRALIA

Masila v Minister for Immigration and Multicultural Affairs [2001] FCA 649 IMMIGRATION – consideration of Bridging Visa E subclass 050 – whether primary criteria satisfied in subclause 050.2 – consideration of application or request under s 48B and/or s 417 of the Migration Act 1958 (Cth) Migration Act 1958 (Cth), ss 48B, 417, 476 Migration Regulations 050.212 VILIAMI OTULAU MASILA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Q 58 OF 2001 COOPER J BRISBANE 1 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 58 OF 2001

BETWEEN: VILIAMI OTULAU MASILA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: COOPER J

DATE OF ORDER: 1 JUNE 2001

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs of and incidental to the application including reserved costs, if any, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 58 OF 2001

BETWEEN: VILIAMI OTULAU MASILA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: COOPER J

DATE: 1 JUNE 2001

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The applicant was born in Tonga on 2 November 1947. On 4 April 1987, the applicant arrived in Australia on a visa which was valid until 3 July 1987. Since that date he has remained unlawfully in Australia save for such periods as he held a Bridging C visa which ceased on 5 June 1997. The applicant has had an application for a protective visa on refugee grounds refused in 1997 and further humanitarian requests were rejected in 1998. In or about February 2001, the applicant was detained and held in immigration detention. 2 On 26 February 2001, the applicant applied for a Bridging visa E subclass 050 while being held in detention. The application was refused by an authorised officer under the Migration Act 1958 (Cth) ("the Act") and the refusal communicated by letter and reasons dated 1 March 2001. The officer determined that the applicant did not satisfy any of the criteria for a Bridging visa E subclass 050. The applicant applied to the Migration Review Tribunal ("the MRT") by application dated 2 March 2001 for review of the decision to refuse him a Bridging visa E subclass 050. The grounds stated in the application as to why the decision in respect of which review was sought was incorrect were that: "The decision was incorrect. A statement of argument will be filed before the hearing. The decision by the delegate to refuse to grant a BVE to the applicant was incorrect and involved errors of law." 3 As appears from the MRT reasons for judgment, no further submissions were received prior to the hearing of the matter by the MRT on 13 March 2001. 4 The applicant gave evidence to the MRT via telephone link. The applicant had available to him the services of an interpreter in the Tongan language. The MRT set out in its reasons the evidence of the applicant: "20 The visa applicant gave evidence that he had received the delegate's decision but not the response in relation to the section 48B application. He stated that as far as he was aware he had no other applications or matters outstanding that fell within clause 050.212, which was set out in full in the delegate's decision. He gave evidence that all his family (wife and 6 children and 2 brothers and a sister) live in Tonga and that he had overstayed in Australia in order to earn money to ensure that his children had a proper education, unlike his own situation. He has an "adopted daughter" in Australia to whom he is close. He stated she is not adopted in law, "just verbally". He acknowledged that he had breached visa conditions and had stayed in Australia unlawfully. He had taken no steps to organise his departure from Australia. He gave undertakings that he would depart Australia if released and abide by any conditions imposed on the grant of any visa." 5 On 27 February 2001, the applicant lodged with the Minister an application and submissions under s 48B of the Act. The submission was prepared by Mr Liufau Fonua of Mayfield, New South Wales. Section 48A of the Act prohibits a non-citizen in Australia making a further application in Australia for a protection visa where a previous application for such a visa has been made by the person during the period of his or her presence in Australia and has been rejected. Section 48B of the Act gives the Minister a discretion in certain circumstances to determine that a non-citizen may make a further application notwithstanding the provisions of s 48A of the Act. In the instant case the applicant had had an application for a protection visa rejected in 1997. 6 On or about 7 March 2001, the applicant's request under s 48B of the Act was assessed and found not to satisfy the Ministerial Guidelines for purported further applications for a protection visa subject to s 48B and requests for Ministerial intervention under s 48B. The application was also assessed under s 417 of the Act which gives the Minister the power in certain circumstances to substitute a more favourable decision for that of a review authority. The applicant's request failed to satisfy either set of guidelines and he was advised in writing of the decision not to refer the request to the Minister because of non compliance with the guidelines. 7 The MRT made the following findings: "At the time the visa application was lodged, Class WE contained the following subclasses: Subclass 050 (Bridging (General) and Subclass 051 (Bridging (Protection Visa Applicant). The only subclass in respect of which any claims have been advanced is Subclass 050. There is no evidence to suggest that the visa applicant meets key criteria for the other subclass. The visa applicant was referred at the hearing to the delegate's decision, which set out and applied the criteria for a 050 visa. The Tribunal noted that the main issues for consideration upon review appeared to be whether he was making acceptable arrangements to depart Australia (subclause 050.212(2)), whether he had any other applications in place and whether he would abide by a conditions (sic) imposed on the visa if issued (subclause 050.223). Based on the delegate's decision and the visa applicant's own evidence at the hearing, the Tribunal is satisfied that the visa applicant has not made an application for a substantive visa of a kind that can be granted while the visa applicant is in Australia. Nor does he have an outstanding application for merits or judicial review in relation to a substantive visa. He is not in criminal detention. There is no application for a Spouse, Interdependency or Partner visa. With respect to the section 48B request referred to above, it is not clear if it was being relied upon to bring the visa applicant within the terms of 050.212. However, that request, which in any event has been responded to and therefore is not outstanding at the time of the decision, does not fall within the categories of requests to the Minister set out in clause 050.212(6). They are requests to the Minister under sections 345, 351, 391, 417 or 454 of the Act to exercise his discretion to substitute his decision for a decision that has been taken by this Tribunal, the Refugee Review Tribunal or the Administrative Appeals Tribunal. The section 48B request, if successful, would have simply allowed the visa applicant to lodge a further application for a protection visa. The only remaining basis on which the visa applicant could satisfy clause 050.212 is if he can satisfy clause 050.212(2). In respect of this the visa applicant stated during the hearing that he will return to Tonga but is seeking release from detention to complete arrangements to leave Australia. Contrary to earlier occasions when he has not complied with visa conditions and has remained in Australia unlawfully, he said he would comply on this occasion. Paragraph (2) of clause 050.212 requires the applicant to have made acceptable arrangements to depart Australia. The visa applicant stated at the detention interview that he does not have sufficient funds to arrange a ticket to depart Australia and did not want to apply for a Bridging visa E, although he was subsequently persuaded to do so. He had not presented a valid travel document and his relatives or friends have not provided any airline tickets to depart (T1, f.6). At the hearing he had still not purchased or arranged to have purchased any airline tickets. He does not have many belongings to organise. He had had no discussions with anyone in Tonga about returning to Tonga, including about accommodation arrangements there. He had called his "adopted daughter" while in detention but nothing has been done. They were waiting to see whether he would be granted a visa as a result of this appeal. He said that his "adopted daughter" would be able to buy him a ticket. As regards the ability to depart on valid travel documents, he has no current passport. He stated that he had completed some forms to obtain a current passport, although this was on the advice and assistance of immigration officials. The Tribunal considers that the visa applicant has had ample time to make, or to arrange for his "adopted daughter" to as (sic) least make some arrangements to depart Australia. He stated at hearing that he had not made any arrangements. Having regard to all of the available evidence before it, the Tribunal is not satisfied that at the date of the application and the date of the decision the visa applicant is making or is the subject of acceptable arrangements to depart Australia. Accordingly, the Tribunal finds that the visa applicant does not satisfy the requirements of clause 050.212(2). Having regard to its other findings in respect of clause 050.212 the result is that none of the criteria for that clause are satisfied and this application for review must therefore fail." 8 The MRT was also not satisfied that the applicant would comply with any conditions attached to the grant of a Bridging E visa having regard to his consistent failure in the past to comply with any other of the conditions attached to a visa held by him and the failure to take any steps to leave Australia after the expiration of his visa in 1997 before detention, or to make arrangements to leave Australia since his detention. 9 In the result the MRT, on 14 March 2001, affirmed the decision of the delegate to refuse a Bridging E (class WE) visa subclass 050 (general) and the applicant was provided with written reasons for the decision on 23 March 2001. 10 On 26 March 2001, the applicant filed an application in this Court for an order for review under s 476 of the Act. The grounds relied upon were: "1. The applicant meets the requirements for the grant of as (sic) BVE as prescribed: by clause 050.212 (3) pending a decision by the responded (sic) under Section 417 or Section 48B lodge (sic) with the (Dept.) dated 27 February 2001. 2. The (MRT) failed to take into consideration a security bond offered by the applicant for his release pending a decision on Section 471 or 48B request, involved errors of law. 3. The tribunal failed to follow each own rules (sic) as per Section 4, 5,6,&7 of the Multicultural Review Tribunal guidelines. 4. A decision by the Minister to exercise his mercy power under Section 417 or 48B was received dated 9 march 2001." 11 On 8 May 2001, the following further and better particulars of the grounds relied upon on the application were provided. They stated: "1) The applicant has an outstanding request in respect of Section 417 of the ACT (sic) when the Bridging Visa E was lodged with the Respondent dated 27/02/01. 2) A delegate of the Minister wrote to the applicant dated 9/03/01 that his request failed to meet the Ministers guidelines for referral to him in respect of 417 a copy will be available from the Bundle of Relevant Documents 3) As to paragraph 2 of the application Bridging Visa E Visas, as from 1st NOVEMBER 2000, the applicant may need to lodge Security Deposit before a Visa is granted to ensure they comply with any conditions. The Migration Review Tribunal will be able to request a Security Bond in the context of a Review of a Decision to refuse the grant of a Bridging Visa E and this failure by the Migration Review Tribunal involved errors of law. 4) As to paragraph (4) the decision I refer to in paragraph (2) above is available from Bundle of relevant Documents to be filed by the Respondent. 5) All other Documents as requested by the Solicitors for the Respondent will be available from bundle of Relevant Documents I dated 8 May 2001." 12 The application for a Bridging visa E subclass 050 is dated 26 February 2001 and was lodged on 27 February 2001. It is in Form 1008. Question 15 asked, "Do you intend to apply for a visa now?". The circle marked "No" was ticked. Question 16 asked, "Have you made an application for review?". It was answered "Yes" "Section 48B. Still no decision". The request under s 48B was in fact dated 27 February 2001 and sent by Express Post on that day. There was no evidence before the MRT, or this Court, that the delegate of the Minister in determining the application dated 26 February 2001 was aware of the existence or contents of the request dated 27 February 2001 or that the applicant regarded that request as a valid request under s 417 of the Act. 13 The request from the applicant was expressed to have been made under s 48B of the Act. It was prepared by Mr Fonua on behalf of the applicant, it was signed by Mr Fonua and sent by him. However, the covering letter contained the statement "Section 48B of the Migration Act affords the Minister with a decision (sic) to substitute for a decision of the DIMA on shore protection visa section [a decision] more favourable to the applicant if it is in public interest". The body of the submission also stated: "I reiterate my submission on his behalf that it is strongly in the Public interest to change the decision of the delegate and grant Permanent residence visa to the applicant, noting the unfortunate Circumstances of that case, unforeseenably placed The applicant outside the scope of the Act and regulations." 14 Notwithstanding that the request purported to be made under s 48B of the Act the Department treated the request as having been made under both sections 48B and 417 of the Act and it was assessed and dealt with on that basis. Thus, the requests contained in the letter dated 27 February 2001, having regard to the decision made on 7 March 2001 not to refer the request to the Minister because of non compliance with the applicable guidelines, were not at the time of the proceedings before the MRT pending for assessment by a departmental officer or before the Minister for consideration. The fact was, that at that time, the applicant did not satisfy criteria 050.212(6) of the Migration Regulations and the MRT so found. There are further reasons why the applicant did not satisfy the criteria in 050.212(6). It is clear on the material before the MRT that the applicant had made a previous request under s 417 of the Act which had been refused. That meant the applicant could not satisfy criteria 050.212(6)(iii). In any event criteria 050.212(6) had no relevance to, and was not concerned with, a request under s 48B of the Act. 15 To satisfy criteria 050.212(3) the applicant must have made in Australia a valid application for a substantive visa of the kind that can be granted if the applicant is in Australia and that application had not been finally determined. A "substantive visa" means a visa other than a bridging visa, a criminal justice visa or an enforcement visa: s 5 of the Act. A request under s 417 or 48B of the Act is not an application for a substantive visa as defined. The MRT found, as was the fact, that the applicant had not made an application for a substantive visa of a kind that can be granted while the visa applicant is in Australia. Accordingly it found that he did not satisfy the criteria 050.212(3) of the Migration Regulations. 16 There was ample material before the MRT to make the above findings of fact. The findings justified the conclusion that the applicant did not satisfy the criteria under 050.212(3) or (6). The applicant has failed to make out the grounds alleged in paras 1 of the application and further and better particulars. 17 There is no substance in the applicant's second ground for review and para 3 of the particulars. The power of an authorised officer to require security for compliance with any conditions imposed on the grant of a visa is contained in s 269 of the Act. The section is permissive. Where the power is intended to be used and the authorised officer has indicated to the applicant that security is required for compliance with any conditions to be imposed on the visa if granted, the security must be lodged to satisfy the criteria at the time of the decision: criteria 050.224. Criteria 050.223 and 050.224 came into effect from 1 November 2000. 18 The criteria contained in the Regulations in respect of security have no relevant operation in respect of the applicant. No security was ever required by an authorised officer to secure performance of a condition to be imposed on a visa if granted. 19 The fact that security was offered but not accepted is not a sufficient ground, in itself, to justify the grant of a Bridging visa E subclass 050 with or without conditions and does not involve any error of law. Unless the applicant satisfied the criteria for the grant of a Bridging visa E subclass 050 he was not entitled to the grant of such a visa, nor was the Minister empowered to make a grant of such a visa: ss 40, 45, 46 and 47 of the Act. 20 The applicant made no submissions in support of grounds 3 and 4 of the application for order for review as particularised in paragraphs 2, 4 and 5 of the further and better particulars. On their face neither of these grounds identifies an error of the character required by s 476 of the Act. 21 The applicant advanced no submission that he satisfied criteria 050.212(2) on the basis that he is making, or is the subject of, acceptable arrangements to depart Australia. In fact he eschewed any suggestion that he wished, or intended, to depart Australia. 22 Finally, Mr Fonua who appeared on the application to assist the applicant made allegations that: (a) the applicant was denied the assistance of an interpreter in immigration detention when he completed a record of interview with an officer of the Department of Immigration and Multicultural Affairs; (b) the applicant did not understand the questions in the record of interview and gave incorrect answers as to his wishes regarding leaving the country and not applying for a substantive visa; (c) the applicant was not advised of his alleged rights under ss 195 and 196 of the Act as required by s 194 of the Act. (d) the applicant did not understand the contents of Form 1008 and was not given the assistance of an interpreter with the consequence that the answers given in certain relevant particulars are incorrect. 23 These allegations were not made to the MRT. They were not the subject of any evidence before the MRT or this Court and are not raised in any ground sought to sustain an order for review of the MRT decision to affirm the refusal to grant a Bridging visa E subclass 050. 24 The bare allegations made from the Bar table for the first time on the hearing of this application form no basis under s 476(1) of the Act for judicial review of the decision of the MRT. Further, a careful perusal of the documentation and the degree of information supplied indicates a not insubstantial level of understanding by the applicant of the nature of the questions. Accordingly, I am not persuaded that the applicant could, if permitted to do so, prove up the allegations now made by Mr Fonua. 25 The applicant has failed to make out any ground of reviewable error. The application is dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.