Rerukana v Minister for Immigration and Multicultural Affairs [2001] FCA 893

FEDERAL COURT OF AUSTRALIA

Rerukana v Minister for Immigration and Multicultural Affairs [2001] FCA 893

Pattidora Chandima Rasika Rerukana v Minister for Immigration and Multicultural Affairs No V307 of 2001

ALLSOP J MELBOURNE 11 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V307 of 2001

BETWEEN: PATTIDORA CHANDIMA RASIKA RERUKANA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 11 JULY 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application as agreed or, in default of agreement, as taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V307 of 2001

BETWEEN: PATTIDORA CHANDIMA RASIKA RERUKANA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 11 JULY 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Before the Court is an application dated 1 May 2001 under Part 8 of the Migration Act 1958 (the Act) for an order of review by this Court of a decision of the Migration Review Tribunal (the Tribunal) given on 9 April 2001, in which the Tribunal affirmed a decision of a delegate of the respondent Minister made on 29 March 2001 to cancel a bridging E (class WE) visa (subclass 050) on the basis that the applicant had breached a condition attaching to that visa. The bridging visa had been granted to the applicant on 3 June 1999 upon his lodging an application under the Act for a protection visa. 2 The background to the application is a little complex. 3 The applicant is a 31 year-old male national of Sri Lanka. He first arrived in Australia on 9 April 1995 as the holder of a Student (Temporary) (Class TU) visa (subclass 560) granted on 27 March 1995. On 17 May 1996 the applicant was granted a second subclass 560 student visa valid until 12 June 1998, when he was granted a further subclass 560 student visa valid until 1 July 2000. 4 On 16 June 1998, shortly after the grant of it some days earlier, this visa was cancelled by the Department pursuant to para 116(1)(b) of the Act on the basis that the applicant had been found by the Department to have been working on a full-time basis in breach of a condition that had been imposed upon the visa when granted. The relevant condition provided that the applicant could work a maximum of 20 hours only per week during the academic year. On cancellation of that visa on 16 June 1998, the applicant was placed in detention. On 19 June 1998 the applicant applied for a bridging E (class WE) visa (subclass 050) to allow for his release from detention. That application was refused on 23 June 1998. 5 On 23 June 1998 the applicant lodged an application with the Immigration Review Tribunal for review of the decision of 16 June 1998 to cancel the subclass 560 student visa. On 25 June 1998 the applicant again made an application for a bridging E (class WE) visa (subclass 050). On 29 June 1998 a delegate of the respondent refused the application for a bridging E visa. On 1 July 1998 the applicant applied to the Immigration Review Tribunal for a review of this decision. On 10 July 1998 the Immigration Review Tribunal set aside the delegate's decision to refuse the bridging visa and substituted for that decision a decision granting the applicant a general bridging (subclass 050) visa endorsed with certain conditions. 6 The Immigration Review Tribunal's written reasons for coming to this decision, which are included in the court book, reflect a determination by it that it was satisfied that the applicant would abide by the conditions of the grant of the visa. These conditions included a limit on the hours able to be worked per week by the applicant. The effect of the substituted decision and the grant of visa was to allow the applicant's release from detention. 7 On 24 May 1999 the Immigration Review Tribunal affirmed the Departmental decision of 16 June 1998 to cancel the applicant's student visa (subclass 560). After this decision, on 3 June 1999, the applicant lodged an application for a protection visa under the Act and was thereupon granted a bridging E visa (subclass 050) associated with this protection visa application. A condition of that visa, condition 8101, was that the applicant was not permitted to work in Australia. 8 The protection visa application was refused by a delegate of the respondent Minister on 30 June 2000. On 18 July 2000 the applicant lodged an application with the Refugee Review Tribunal for review of this decision. The Refugee Review Tribunal has yet to hand down a decision on that review application. The conditional bridging E visa associated with the unresolved protection visa application, the cancellation of which, in circumstances to which I will come, has given rise to the present application, was granted so as to continue for a period up until 28 days after the decision of the Refugee Review Tribunal on the review application. 9 The circumstances in which the present application arises are that on or before 29 March 2001 Departmental officers visited certain residential premises in Clayton, Victoria. They were at the time attempting to locate another person. They interviewed the applicant and thereby learnt that the applicant had been engaging in work in apparent breach of condition 8101 of the bridging visa granted in June 1999. The papers record that the applicant had admitted to the officers that he had been working. The visa was cancelled on 29 March 2001. 10 Subdivision E of Part 2 of the Act sets out the procedure for cancelling visas under, relevantly, s 116, including the requirements of notification to a visa-holder that the Minister is considering cancelling the visa and inviting the holder to, amongst other things, show a reason why the visa should not be cancelled. There was no suggestion before the Tribunal nor before me that the requirements by way of procedure were otherwise than complied with leading up to the cancellation of the visa. 11 The record of the decision to cancel the visa noted that the delegate considered there to be grounds for cancellation under para 116(1)(b) in that the applicant had admitted to working in breach of the visa condition and that documents proved this employment. The visa was cancelled. The applicant was placed in detention, where he has since remained. 12 On 2 April 2001 the applicant lodged an application with the Tribunal for review of the decision to cancel the visa. On 6 April 2001 a migration agent representing the applicant forwarded to the Tribunal a letter of 5 April written by the applicant in which he sought to explain the circumstances of the breach of the visa condition and asked to be released from detention. A hearing was held on 9 April 2001, at which the applicant attended and at which the applicant gave oral expression to his claims. 13 In its reasons for decision the Tribunal summarised what it took to be the applicant's claims as to why he should not have his bridging visa cancelled. These claims in substance were that he wished to be released from detention so that he could pursue his protection visa application before the Refugee Review Tribunal. He would give an assurance that he would not work again. His father would be able to assist him financially. He had no relatives in Australia but had friends whom he hoped would assist him, and there was material before the Tribunal from the applicant's girlfriend that she was willing to support him in Australia. I will return to this question of the material from the applicant's girlfriend in due course. 14 In setting out its findings, the Tribunal noted that para 116(1)(b) of the Act provided that the Minister may cancel a visa if he or she is satisfied that the visa-holder has not complied with a condition of the visa. The Tribunal noted that in this case condition 8101 was derived from clause 8101 of Schedule 8 to the Migration Regulations, which provides that the holder of a visa endorsed with that condition must not engage in work in Australia. Regulation 1.03, the Tribunal noted, defines "work" as an activity that in Australia normally attracts remuneration. 15 The Tribunal noted admissions by the applicant to the Department and to the Tribunal that whilst the holder of a bridging visa endorsed with such a condition he had been involved in full-time paid employment. The Tribunal then expressed a finding that the activities performed by the applicant would normally attract remuneration in Australia. The Tribunal consequently found that at the time of the delegate's cancellation of the visa the applicant had been engaged in work contrary to a condition of the visa and that grounds therefore existed for the cancellation of the visa. 16 The Tribunal then set out various matters it considered relevant to the exercise of the discretion that it understood was given to it under the Act in determining whether to exercise this discretion not to cancel the visa notwithstanding the existence of grounds for its cancellation. It made reference to a Migration Series Instruction by a number, 293, which was in fact an out-of-date Migration Series Instruction. Mr Gray, who appeared before me for the Minister, pointed out in his written submissions and oral submissions this morning that, while the Migration Series Instruction was in fact out of date, the particular aspect of it to which reference was made and consideration given by the Tribunal was in identical terms to the relevant and up-to-date Migration Series Instruction. 17 The Migration Series Instruction is a Departmental document giving policy guidelines for consideration. It was taken into account by the Tribunal. In taking that policy guideline into account, the Tribunal noted that considerations relevant to its decision were, amongst others, the purpose of the visa-holder's travel to and stay in Australia, the extent of non-compliance with any condition subject to which the visa was granted, the degree of hardship that may be caused to the visa-holder and any family members, the circumstances in which the ground for cancellation arose, and the person's behaviour in relation to the Department at the time of the decision and on previous occasions. All these matters appear to me to be considerations plainly open to the Tribunal under the Act. 18 The Tribunal made findings which were plainly open to it on the material before it as follows: (a) The applicant was in Australia for the purpose of study, but he had indicated that this was a means to leave Sri Lanka, and he had not completed his course. (b) The applicant had worked since 1995 and for a considerable period was a full-time employee; and he would have continued to work but for his apprehension, that is, but for his arrest and detention. (c) The applicant would suffer some hardship if he remained in detention, but there were no others that would suffer significant hardship. (d) The applicant knew of the "no work" condition of his visa and said that he worked because of financial hardship; however, he had access to funds from his father in Sri Lanka. (e) The applicant had previously misled the Department when applying to come to Australia as a student, breached the conditions of a previous visa by working full-time, did not inform the Department voluntarily of his current breach and was not a credible witness in relation to his evidence to the Tribunal. 19 The Tribunal was not convinced by assurances given by the applicant that he would not work in the future, but it is plain that the Tribunal gave consideration to those assurances. 20 These matters were findings by the Tribunal. Subject to the matters to which I will come, raised by the applicant before me this morning, they may well be matters about which the applicant disagrees, indeed perhaps deeply disagrees, in particular the findings as to his truthfulness. However, it is necessary in the application before me to identify and deal with legal errors of the kind identified in Part 8 of the Act. It is not my function - indeed, I have no jurisdiction - to engage in an assessment as to whether the Tribunal erred in its assessment of the applicant's truthfulness or any other aspect of his evidence. This is not a "merits" review. 21 The Tribunal properly recognised that it had a discretion under para 116(1)(b) not to cancel the visa, even if the precondition for cancellation was satisfied. However, the Tribunal concluded on the basis of matters before it that the reasons for exercising the discretion not to cancel the visa did not outweigh those matters to the contrary and affirmed the delegate's decision. 22 The applicant did not have legal representation before the Court today, nor, would it appear, did he have legal representation in respect of filing the application for the order for review dated 1 May 2001. In that application the following is set out as constituting the grounds for review: Because I entered to this country legally and been living here for six years legally (1995 to date). I think as a immigration cleared person I have rights to go out of here and will cohabit with my girlfriend and the support of her/my parents and friends. 23 As claimed before the Tribunal, the application reveals that the applicant purports to seek by way of relief the granting of a bridging visa so as to allow, in effect, for his release from detention whilst the decision on his protection visa application is reviewed. In the remainder of the application document the applicant expresses an assurance of financial support which will be available to him. Finally, the application contains a statement to the effect that the cost of the applicant's continued detention is likely to become increasingly burdensome to him. 24 The jurisdiction of this Court arises from the Act. Under s 475(1)(a) of the Act the decision of the Tribunal is a judicially-reviewable decision, leading to the consequence that the grounds for review are those provided for in s 476. The application itself does not identify any particular reviewable error in the Tribunal's decision. 25 I took the course this morning of asking Mr Gray to commence so that he may outline to the applicant the difficulties in the applicant's path in an application such as this by way of judicial review. If I may say so, with respect, Mr Gray undertook and discharged that task with fairness, clarity and precision. 26 After Mr Gray had finished, I explained to the applicant in a simple summary form the gist of the grounds within s 476. With these matters before him, the applicant identified (and once again, if I may say so respectfully, through his interpreter, clearly and succinctly) the matters he wished to complain of. They were six in number. I will deal with them, and with Mr Gray's response to them to the extent that they called for such a response, seriatim. 27 The first matter is that the applicant disputes that he told the Tribunal, as the Tribunal recounts he did in paragraph 18 of its decision (on page 53 of the court book), that he said that his girlfriend of 18 months had been working for only two months and had been unable to help him financially. The transcript of the Tribunal decision is not in the court book. Mr Gray and his instructing solicitor have not examined the transcript prior to today's hearing. I make no criticism of either for not having done so, this issue not having been raised in the application itself. I allowed the matter to be dealt with, as I allowed each of the following matters to be dealt with, notwithstanding the form of the application. Quite properly, no objection was made to this course by Mr Gray. 28 In answer to this first complaint, Mr Gray makes the following points: that it is not a finding at all; it is at best, if the applicant be correct that he did not say that, a misdescription or misconstruction of one part of the evidence; and that it does not find its way into the findings, which commence on page 54 of the court book at paragraph 19. Secondly, he says that, even if there be some basis for taking the view that this was a fact upon which the decision was based, there is abundant and ample evidence for the decision to have been made in any event for the purposes of para 476(1)(g). 29 In substance and in broad terms I accept the submissions of Mr Gray. The error, if it be such, and for this part of my reasons I will assume that the applicant did not in fact say that to the Tribunal, is found in a summary of the evidence and is not a finding of fact either at all, or of any centrality or importance. When one looks at how the Tribunal dealt with this subject matter, at paragraph 27 (on page 55 of the court book) it appears to me that the Tribunal, having received the letter from the applicant's girlfriend Ms Chaanine, which I marked as exhibit A, then went on to deal with the financial circumstances and the support for the applicant on the basis of that letter. The Tribunal pointed out certain deficiencies in the letter. Thus I do not see any error in the description of the evidence given by the applicant as forming any real basis of the decision. 30 Even if I am wrong about that, I accept Mr Gray's submissions that there is otherwise an abundance of evidence which can found the decision that was made, for the purposes of para 476(1)(g). If I may I add, parenthetically, in saying that I am not concluding that I would have made the same decision. I may or may not. That is not my role. 31 The second matter raised by the applicant has been in part dealt with by me already, and that is that there was not included in the court book the letter from Ms Chaanine which was before the Tribunal. This letter has been added to the court book as page 58A and is exhibit A before me. As I have already indicated, the Tribunal dealt in substance with the matters before it, taking that letter into account. The letter is expressly referred to in the body of the reasons for decision. 32 The third matter raised concerns another document, being a facsimile which I marked as exhibit B and which I indicated should form part of the court book as page 47A. This was page 13 of a facsimile, which was in the court book and which commenced, relevantly, at page 43. At page 43 of the court book there is page 8 of the facsimile of 6 April 2001, which is the handwritten letter of the applicant. Page 47 is the last page of that five-paged letter and page 47 was page 12 of the facsimile. Exhibit B was page 13 of the facsimile transmission of 6 April 2001 and should have been in the court book. This letter concerns calculations made on behalf of the applicant to show his necessity for the earning of money to live. The letter itself is not specifically referred to by the Tribunal in its decision. However, the Tribunal clearly referred to and dealt with the subject matter of the letter, that is the question of financial circumstances, for example, court book page 53 paragraphs [17] and [18], court book page 55 paragraph [26] and court book page 53 paragraph [15]. The last reference, court book page 53 paragraph [15], specifically refers to the taking into account of the communication of 6 April 2001, part of which commences at page 47, to which I have already made reference. 33 Mr Gray's submissions concerning this are ones which I accept. Rather than identify and outline his submissions, I will indicate my views. The Tribunal plainly dealt with the relevant subject matter, and I do not think it can be argued that there is any ground for saying that it failed to examine this piece of evidence. There would, of course, be a significant question as to the legal consequences of failing to examine this piece of evidence. There would be a powerful argument able to be put on behalf of the Minister that the recent decision Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 did not enable the failure to take into account such a piece of evidence to be elevated to a jurisdictional error. Of course, to the extent that it is a failure to take into account a piece of evidence in the exercise of a power, such matter is removed from the jurisdiction of this Court by subs 476(3). 34 I do not think that this issue needs to be investigated because, I think, on a fair reading of the Tribunal's decision and an examination of the material before it, it cannot be gainsaid that the Tribunal examined the facsimile and dealt with the relevant subject matter. 35 The fourth matter which was raised by the applicant concerned his explanation for coming to this country as a student. I have indicated earlier in these reasons that the Tribunal made findings of fact critical of the truthfulness of the applicant about this subject matter. I hasten to say, in elaboration of what I have earlier said about my role in this case, that I view that as a finding of the Tribunal about which I accept the applicant has a view, strongly held, that it is wrong. However, it is not my function to determine contested findings about the truthfulness of the applicant before the Tribunal. 36 The applicant made two submissions about this subject matter. First he denied lying to the Tribunal. As I have said a moment ago, I understand his views. It is not my view one way or the other to say that he is right or the Tribunal is right. The Tribunal's function was to form a view about his evidence. It formed a view. Unless there is some legal error involved, it is not my place now to say that the Tribunal was wrong in that finding. The second aspect raised by the applicant about this subject matter is that it was not open, in effect, for the Tribunal to make this finding because the subject matter about his coming to Australia was before the Refugee Review Tribunal. 37 I did not ask for Mr Gray's assistance on either of these two points. I have given my views as to the first. As to the second of these points, by reason of the two applications, that is, the first to the Refugee Review Tribunal and the second to the Tribunal, the evidence of the applicant about his circumstances of arriving in Australia was relevant and was relevant in both applications. Therefore, although it may be a matter about which the Refugee Review Tribunal has to make a finding, it was also a matter in respect of which the Tribunal was able, if it thought it relevant, to make a finding. 38 The fifth matter was that the applicant said that he had to work because the application to the Refugee Review Tribunal was taking so long that he had to live. I did not ask for Mr Gray's assistance on this point. It is a matter of a factual kind which explained his conduct leading up to the cancellation of his visa. It does not independently provide any basis or any ground for review. Indeed, it may be a matter of the kind which the Tribunal took into account in coming to a view that, should the visa not be cancelled, the applicant would be forced by circumstance to work again, even if he bona fide gave assurance at the time that he did not intend to. 39 The sixth matter is that there is apparently now being requested some bond in connection with his detention. I do not know whether this is a suggested bond for any further visa to be provided as condition for his release from detention. I did not ask for Mr Gray's assistance on this point. I am of the view that it is not relevant to any matter that was before the Tribunal in its consideration of the decision under review. 40 The Tribunal's reasons themselves do not reveal to me any reviewable error. I have dealt with the matters specifically raised by the applicant before me today. None of those matters, individually or collectively, raises or raise any reviewable error by the Tribunal. 41 The finding that the applicant had engaged in work as defined in regulation 1.03 contrary to condition 8101 of the visa was manifestly open to the Tribunal. In substance, the application and the material and submissions put in support of it in effect seek review of the decision on matters which are not reflected within s 476. That is not to say that I have a view in this matter that the material put forward would otherwise, under general administrative law principles, amount to material capable of vitiating the decision which was made. All the matters which were taken into account by the Tribunal appear to me to be matters which were within both its duty and entitlement to examine. 42 I cannot identify any aspect in which the Tribunal has misunderstood its function. I cannot identify any aspect in respect of which the Tribunal has misdirected itself in what it has done. I cannot identify any matter mandated by the Act and Regulations which has not been taken into account which should have been, or which has been taken into account which should not have been. The Tribunal appears to me to have approached the matter in a logical, rational way and made findings of fact in respect of which there was evidence capable of providing support. I am not able to identify any matter of the kind referred to by the High Court in Craig v South Australia (1995) 184 CLR 163 or by the High Court in Yusuf, supra, which might found an argument that the Tribunal entered upon its decision or its task lacking jurisdiction or authority. Likewise, I can see no misunderstanding of the relevant law to apply. 43 In the end, what is left can be but a complaint, which may well be honestly and bona fide held by the applicant, that the Tribunal was wrong, and a call that this Court should correct that error by substituting the "correct" decision. That can be nothing more, in the circumstances of this case, than a call for this Court to redo the job of the Tribunal. There is no jurisdiction in this Court to take that course. 44 In the circumstances, I am not able to find or perceive any error capable of grounding any valid review by this Court of the Tribunal's decision. It follows, in my view, that the application must be dismissed. The respondent Minister seeks costs. Costs are not easy in these matters. The usual rule is that costs follow the event, which is another way of saying the loser pays. The applicant has lost in this Court. While the order for costs will no doubt create another burden upon the applicant, I am not able to identify any principled basis upon which I can exercise the discretion as to costs judicially in a way which would relieve the applicant of the burden which ordinarily would fall upon him by reason of the failure of his application. It is not accepted by the Minister that the applicant is without resources and, subject to one matter, weighing the matter in the balance, in particular the terms of the decision of the Tribunal in the balance, I would be minded to make an order that the application be dismissed and that the applicant pay the respondent's costs as agreed or to be taxed. 45 Mr Gray has brought me up to date on certain matters by reference to instructions given to him by his instructing solicitor. Those matters, about which he has informed me, concern the bond to which I earlier referred. Apparently there have been discussions between the Department and the applicant about the possibility of a further bridging visa, but one which has attached to it as a condition the payment or the deposit of a security bond. The circumstances surrounding this are not relevant to today's application. Those matters do not affect my conclusions as to the dismissal of the application or the order for costs which I propose. 46 Thus the orders of the Court are as follows. The Court orders that: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application as agreed or, in default of agreement, as taxed. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .