Azram v Minister for Immigration & Multicultural Affairs [2001] FCA 1794

FEDERAL COURT OF AUSTRALIA

Azram v Minister for Immigration & Multicultural Affairs [2001] FCA 1794 Migration Act 1958 (Cth) ss 189, 196, 198(6) and 417 Rahim v the Minister (1997) 78 FCR 223 MALIK KASHAF AZRAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 861 OF 2001 AND V 1014 OF 2001 JUDGE: MERKEL J DATE: 14 SEPTEMBER 2001 PLACE: MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 861 OF 2001 AND

1014 OF 2001

BETWEEN: MALIK KASHAF AZRAM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT JUDGE: MERKEL J

DATE OF ORDER: 14 SEPTEMBER 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. In proceeding V861 of 2001 the application for review of the decision of the Migration Review Tribunal is to be dismissed. 2. In proceeding V1014 of 2001 the injunction issued by me on 12 September 2001 restraining the respondent from removing the applicant from Australia is discharged and the application in relation to his removal is to be dismissed. 3. The applicant is to pay the respondents taxed costs of both applications. 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 V 861 OF 2001 AND

V 1014 OF 2001

BETWEEN: MALIK KASHAF AZRAM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MERKEL J

DATE: 14 SEPTEMBER 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Before me are two applications for review. The first is an application for review of a decision of the Migration Review Tribunal ("the Tribunal") which affirmed a decision not to grant the applicant a bridging visa. This application was originally listed for directions before me today. The second application challenges the applicant's removal from Australia. The second application was brought on the day of the applicant's proposed removal from Australia. The applications are best dealt with in the order in which they were lodged. Accordingly, I first set out the background to the bridging visa application. 2 The applicant arrived in Australia on a student visa in 1997 and has remained here ever since. For reasons irrelevant to the present proceeding the student visa expired. The applicant then applied for a protection visa, which application was refused. An application was lodged with the Refugee Review Tribunal ("RRT") for a review of the decision to refuse the applicant a protection visa. The RRT affirmed the department's decision to refuse the applicant a protection visa. The applicant has not sought to review the RRT's decision and in any event is now out of time to apply to review the decision of the RRT. 3 The applicant then lodged an application for consideration by the minister pursuant to s 417 of the Migration Act 1958 (Cth) ("the Act"). Subsequently the applicant applied for a bridging visa. The delegate of the Minister found that the applicant had lodged an application under s 417 of the Act but had not paid the required security of $50,000 and was unlikely to abide by the bridging conditions if the visa was granted. The applicant then lodged an application with the Tribunal to review the decision to refuse him a bridging visa. The Tribunal affirmed the decision of the delegate to refuse the grant of a bridging visa to the applicant though it remitted the decision to require a security of $50,000 for compliance, recommending a security amount of $5000. 4 Since the Tribunal decision to refuse the grant of a bridging visa the Minister has informed the applicant that he would not consider whether to exercise his power under s 417 to substitute a decision more favourable to the applicant. The applicant lodged a second application under s 417 which was met with the same response from the Minister as the first. In the result the applicant does not have extant an application for a substantive visa. The present situation in relation to the review of the bridging visa is as follows: the applicant is unrepresented; I have considered the decision of the Tribunal and am not satisfied it made an error of law or that the decision discloses any other reviewable error; in any event I have decided that even if there was a reviewable error the application must fail because remittal to the Tribunal would, in the circumstances, be futile. 5 At the time the Tribunal handed down its decision on the refusal of the delegate to grant a bridging visa the fate of the application to the Minister under s 417 had not been determined. It now has been, and there is no substantive visa application on foot. The absence of a substantive visa application means the applicant cannot satisfy the criteria for the grant of the bridging visa under the Migration Regulations 1994 (Cth) ("the regulations"). The Tribunal found that the applicant met one of the primary criteria in clause 0.50.212(6) (Criteria to be Satisfied at the Time of the Application), namely subclass 0.50.212(6)(b) (the Minister is considering whether or not to exercise the Minister's power to substitute a more favourable decision under s 417 of the Act). 6 At the time of the Tribunal decision the applicant had had no response from the Minister to his request under s 417 of the Act. Between the Tribunal decision and today's hearing the Minister has decided not to consider exercising his power under s 417. Furthermore, the making of a second or third application as foreshadowed by the applicant will not assist him as 0.50.212(6) is qualified by the requirement that the applicant has not previously sought the exercise of the Minister's power under the section to substitute a more favourable decision. 7 It is submitted by the respondent that the applicant can no longer come within the terms of 050.212(6), nor does he come with any of the primary criteria set out in 050.212. The respondent's submissions appear to me to be correct. I cannot see how the applicant could meet the criteria for grant of a bridging visa should the matter now be remitted to the Tribunal. Even if the Tribunal had erred in law, the applicant's present circumstances preclude the applicant from satisfying criteria upon which the fate of his application depends and, accordingly, the remittal of the matter would be futile (see for example Sackville J in Rahim v the Minister (1997) 78 FCR 223). In these circumstances the proper course for the Court is to decline to grant the relief sought by the applicant. The application in relation to the Tribunal's decision to refuse the applicant a bridging visa therefore must fail and is to be dismissed. 8 I turn to the application in relation to the applicant's removal from Australia. Two days ago the applicant filed an application seeking to prevent his removal from Australia before his Federal Court application in relation to the bridging visa had been heard. As with the bridging visa application the applicant is unrepresented. The substance of his objection as stated in his application and affidavit is that he has not been given time to respond to his removal. In submissions he has said that it is unfair that he is being removed while he still wishes to make further applications for substantive visas. 9 I have considered the circumstances attending his removal and have not identified any error of law or any other relevant ground on which he could challenge his removal. In the absence of any visa, including a bridging visa, the applicant is an unlawful non-citizen as defined in the Act. The applicant has been detained and kept in detention as an unlawful non-citizen pursuant to ss 189 and 196 of the Act respectively. The respondent submits that s 198(6) of the Act applies to the applicant because he is a person who has made an application for a substantive visa, a protection visa, which has been finally determined. 10 The applicant's request for a substantive visa under s 417 of the Act has also been finally determined against him. The applicant appears to fall within the terms of s 198(6) rendering him liable for removal from Australia. In these circumstances I am not persuaded the Court should restrain the removal of the applicant from Australia. It follows that his application for review in respect of his removal must fail and the application is to be dismissed. 11 I make the following orders. 1. In proceeding V861 of 2001 the application for review of the decision of the Migration Review Tribunal is to be dismissed. 2. In proceeding V1014 of 2001 the injunction issued by me on 12 September 2001 restraining the respondent from removing the applicant from Australia is discharged and the application in relation to his removal is to be dismissed. 3. The applicant is to pay the respondents taxed costs of both applications. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.