Nabi v Minister for Immigration and Multicultural Affairs [2001] FCA 1841

FEDERAL COURT OF AUSTRALIA

Nabi v Minister for Immigration and Multicultural Affairs [2001] FCA 1841 MIGRATION – application for a bridging visa dismissed by delegate of minister and affirmed by Tribunal – Tribunal found applicant had not made acceptable arrangements to leave Australia – no error of law. Migration Act 1958 (Cth) s 474 Judiciary Act 1903 (Cth) s 39B Administrative Decisions (Judicial Review) Act 1977 (Cth) Migration Regulations 1994 (Cth) cls 050.212(2)-(9) APPLICANT(S) NABI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1506 of 2001 CONTI J 19 DECEMBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1506 OF 2001

BETWEEN: NABI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 19 DECEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1506 OF 2001

BETWEEN: NABI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 19 DECEMBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for review of the decision of the Migration Review Tribunal ("the Tribunal") made on 20 August 2001 which affirmed the decision of the delegate of the Minister not to grant the applicant a bridging visa E (Class WE). The applicant was not legally represented before the Tribunal nor before the Court. 2 The applicant is a citizen of the Peoples' Republic of China born on 18 January 1958. She is a widow and has two children, both of whom continue to reside in China. The applicant first arrived in Australia on 11 April 1998 on a sub-class 676 tourist (short-stay) visa using the identity Yung, Ka Luen. 3 On 22 May 1998, the applicant lodged an application for a protection visa. On 30 May 1998, the Department refused the protection visa application, such decision being affirmed by the Refugee Review Tribunal on 31 May 1999. The applicant's bridging A visa ceased to have effect on 5 July 1999. On 26 July 1999, the applicant made an application for ministerial intervention pursuant to s 417 of the Migration Act 1958 (Cth) ("the Migration Act"). The Minister, however, decided not to exercise his power with respect to the applicant's case. 4 On 10 December 1999, the applicant lodged another application for a protection visa in the name Chen, Rui Ya which was a different identity to that used in the first application (see [2] above). With respect to this application, the applicant claimed that she arrived in Australia on 3 November 1999 as a stowaway and presented a Chinese identity card and drivers' license in the name Chen, Rui Ya. The second application was also refused by a delegate of the Minister on 13 April 2000, such decision being affirmed by the Refugee Review Tribunal on 13 December 2000. An application for Ministerial intervention was refused by the Minister. 5 On 28 July 2001, departmental compliance officers located the applicant working at Fung Lee Chicken in Preston. The Tribunal, referred to a report by a DIMA officer which stated that the applicant attempted to abscond through the front gates of the factory. When she was stopped by DIMA officers, she responded by running back into the factory whereupon she attempted to hide from DIMA officers. When she was caught, the applicant stated that her identity was Chen, Yu Xiang (which is the third alternate identity provided by the applicant to the Department or its officers) and that she was a permanent resident of Australia. During a later interview held at the Detention Centre in Villawood, the applicant acknowledged that she had stolen such name from a friend. She also acknowledged that she had worked at the chicken factory for approximately one to two years. The applicant claimed that she had done so in order to send money to her children. When asked why she remained in Australia after the expiration of her visa, the applicant replied that she had no money and that she remained in Australia in order to acquire wealth for the sake of her children. 6 The Department commenced removal proceedings against the applicant on 2 August 2001. On the following day, namely 3 August 2001, a Mr Jack Meng, advised the Department that he would now be acting on behalf of the applicant. He informed the Department that her correct identity was Chen, Rui Yu instead of Yung, Ka Lun and that he held a valid Chinese passport in this name on her behalf as well as an airline ticket dated 14 August 2001. The Tribunal noted, however, that the airline ticket was in fact dated 13 August 2001. In addition to this, the applicant applied for a Bridging E Visa on 3 August 2001 and in such application she identified herself as Yung, Ka Luen with Chen, Rui Yu in brackets. As I have mentioned above, her adviser, Mr Meng, clarified the position with respect to her true identity. 7 On 6 August 2001 the Department's document examinations unit reported that there were some irregularities in the applicant's Chinese passport which suggested that such was not a genuine Chinese passport. On 7 August 2001, the delegate of the Minister refused to grant the applicant a Bridging E visa. Of particular importance was the finding that the applicant did not have a ground for grant of such visa for the reason that she had not presented a valid document to enable her to depart. In addition to this, the delegate found that the applicant did not meet Clause 050.223 and added that the applicant had continued to mislead the Department as to her correct identity. The delegate also referred to the applicant's past non-compliance and period of unlawfulness in Australia and found that no amount of security would act as an incentive for the visa applicant to comply with any conditions that she could be subjected to. 8 On 9 August 2001, the applicant applied to the Tribunal for a review of the delegate's decision. When the matter was before the Tribunal, the applicant confirmed that she had lodged two protection visa applications in different names. She stated before the Tribunal that her correct identity was Chen, Rui Yu. The correctness of this claim, was supported by a letter on the part of another adviser known as Mr Peter Coroneous, which stated that he held a photostat copy of a Chinese ID card, the original of which was in China. The applicant claimed that she had decided to return to China to care for her two children and she wished to obtain moneys owed to her prior to returning to China in order that she may support them. She said that previously she thought that her application as a refugee would be successful and as a consequence she would be able to bring her two children to Australia. She claimed that she now realised that this was a hopeless possibility and since the children cannot come to Australia it was pointless for her to remain here. 9 The Tribunal noted that a Ms Ruang Li, was prepared to lodge a $20,000.00 bond for compliance with the conditions of any visa granted to the applicant. Such money would be borrowed from four friends who did not give evidence before the Tribunal nor provided any statutory declaration to such effect.. Furthermore, the applicant would be residing at Ms Li's home which is situated in the suburb of Guildford in Sydney.