FEDERAL COURT OF AUSTRALIA Pannasara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1653 MIGRATION – bridging visas – judicial review – grant of Bridging A visa – subsequent application for Bridging E visa – alleged cessation of Bridging A visa effected by grant of Bridging E visa – whether application for Bridging E visa coerced – application for reinstatement of Bridging A visa – no basis for application – application dismissed Migration Act 1958 (Cth) s 37, s 73, s 82, s 68(4) Migration Regulations 1994 reg 2.01, Item 1301, clause 010.511, clause 010.513, clause 050.512, clause 050.212 Thero and Minister for Immigration and Multicultural Affairs [2000] AATA 61 cited Pannasara v Minister for Immigration and Multicultural Affairs [2000] FCA 213 cited Pannasara v Minister for Immigration & Multicultural Affairs [2000] FCA 1331 cited Pannasara v Minister for Immigration & Multicultural Affairs [2001] FCA 570 cited REVEREND KAHATAPITIYE PANNASARA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W113 OF 2003 FRENCH J 15 DECEMBER 2004 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 113 OF 2003 BETWEEN: REVEREND KAHATAPITIYE PANNASARA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 15 DECEMBER 2004 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application is 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 W113 OF 2003 BETWEEN: REVEREND KAHATAPITIYE PANNASARA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: FRENCH J DATE: 15 DECEMBER 2004 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 The applicant is a Buddhist Monk from Sri Lanka who entered Australia on a tourist visa in 1993 and was later granted a Religious Worker visa. The latter visa expired in July 1995. He applied for a three year extension of it and was granted a Bridging A visa pending determination of that application. In February 1997, the application for the extension of the Religious Worker visa had not been determined and the applicant was still the holder a Bridging A visa. He was convicted of a number of offences of sexual penetration and indecent assault and sentenced to a term of imprisonment. His application for an extension of a Religious Worker visa was subsequently refused. 2 The applicant then applied for a protection visa which was also refused. 3 The applicant has had a long and convoluted history of applications, merits and judicial review including applications for special leave to appeal to the High Court. 4 In November 2002, officers of the Department of Immigration visited the applicant at his house and told him that he no longer held a Bridging A visa and should apply for a Bridging E visa. This suggestion was evidently made on the basis that the applicant then had pending an application for special leave to appeal to the High Court from a decision of the Full Court of the Federal Court which had dismissed an appeal in relation to an unsuccessful application for judicial review of a decision of the Refugee Review Tribunal. 5 The applicant filled out an application for a Bridging E visa and a Bridging E visa was issued to him. He now says he was in fact the holder of a Bridging A visa and that he was coerced into applying for the Bridging E visa which had the effect of causing his Bridging A visa to cease. 6 The relief sought appears to be by way of reinstatement of the Bridging A visa. For reasons which follow, the claim for that relief is hopeless. The reasons set out in some detail the convoluted history of the applicant's dealings with the Department and his applications for merits and judicial review. It appears that there have been errors made by the Department in granting bridging visas which ought not to have been granted. In the end however, there is no basis upon which the applicant could or should be awarded any relief. I am satisfied that had he had a Bridging A visa at the time of the grant of the Bridging E visa in November 2002, that Bridging A visa would, in any event, have long expired. Factual and Procedural History 7 Reverend Kahatapitiye Pannasara is a Sri Lankan national who was born on 26 March 1943. He studied Buddhist Philosophy and completed a Bachelor of Arts Degree at Viddyodayi University in Sri Lanka and later a Master of Arts Degree in Philosophy at Lucknow University in India. He worked for many years in the Sri Lankan education system as a teacher and principal and later as an advisor to the Sri Lankan Education Ministry. He lived in Sri Lanka for 47 years. He describes himself as a Buddhist Monk and says he has been a practising monk since he was 12 years old. He says that since that time he has preached Buddhism and Buddhist Philosophy. 8 The applicant's Australian migration record shows that he was granted a tourist short stay visa to visit Australia on 23 December 1992. It does not appear that any visit eventuated from that grant. He was granted a further tourist short stay visa on 28 January 1993. He arrived in Australia at Perth International Airport on 23 February 1993. Subsequently he applied for a Limited Extended Eligibility Visa which was granted on 25 May 1993. Another such visa was granted to him on 19 June 1993. 9 On 20 August 1993, the applicant applied for a Religious Worker (Subclass 428) visa. His application was sponsored by the Sri Lankan Buddhist Organisation of Western Australia Inc and the Singhalese Association of Queensland. He was granted a Religious Worker visa on 8 December 1994 effective until 8 July 1995. His migration visa record also shows the grant to him of a Bridging A visa on 8 December 1994. 10 On 29 June 1995, the applicant applied for a three-year extension of the Religious Worker visa. He was granted a Bridging A visa on that date pending consideration of that application. The Bridging A visa was, in effect, for a period which would end upon the date of the grant of a further Religious Worker visa or, if that application were to be refused, 28 days after refusal. If the applicant were refused and sought merits review, then the Bridging A visa would continue to operate until 28 days after notification of the review decision – Migration Regulations 1994, reg 2.07 and 2.07A and Item 1301 of Pt 3 of Schedule 1 and Schedule 2 clause 010.511. 11 On 26 February 1997, while still the holder of a Bridging A visa, the applicant was charged on indictment with five counts of sexual penetration and six of indecent assault. On 5 March 1997, after a trial at which he had pleaded not guilty, he was convicted on all counts in the District Court. He was sentenced to a total of four years imprisonment calculated from 26 February 1997. An appeal against his convictions to the Court of Criminal Appeal of Western Australia was dismissed. 12 The application for an extension of the Religious Worker visa was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs on 15 May 1997 under ss 501 and 502 of the Migration Act 1958 (Cth) (the Act) on the ground that, because of his past criminal conduct and convictions the applicant was not of good character. The applicant applied to the Migration Internal Review Office (MIRO) which provided an internal administrative review mechanism. On 12 January 1998, a review officer wrote to the applicant advising that because the decision to refuse his application was based on character grounds and, in particular, s 501 of the Act the MIRO did not have authority to review it. Four days later, on 16 January 1998, the applicant was advised by letter from the department that the decision was reviewable by the Administrative Appeals Tribunal (AAT). 13 On 10 February 1998, the applicant applied to the AAT for review of the refusal to grant him a further Religious Worker visa. While that application was pending the applicant made an application on 3 March 1999 for a protection visa. At the time he made that application he was still serving his term of imprisonment as a result of his conviction on 5 March 1997 for the various offences which have been mentioned. The Department took the view that his application for a protection visa was also deemed to be an application for a bridging visa and he was then granted a further Bridging A visa on the same date. Counsel for the Minister now says, in these proceedings, that the Bridging A visa granted on 3 March 1999 was granted in error as the applicant did not meet the criteria for the grant of a visa. One of the disqualifying facts associated with his application is that he was in criminal detention at the time he made it. Moreover it was said he did not meet the requirements of clause 010.211 of the Migration Regulations 1994. The basis upon which this contention is made will be set out in more detail below. 14 The AAT, by consent, set aside the delegate's decision refusing the extension of a Religious Worker visa Class 428 and directed that the decision be remade. It was remade on 31 March 1999 when a delegate of the Minister determined that the applicant was not of good character and refused the visa application under s 501 of the Act. The applicant again applied to the AAT for review of that decision. 15 On 13 May 1999, the applicant's application for a protection visa was refused by a delegate of the Minister. The applicant sought review of that decision in the Refugee Review Tribunal (RRT) by application lodged on 2 June 1999. 16 On 28 May 1999, the Bridging A visa held by the applicant was cancelled on the ground that he was not of good character under s 501(2)(a)(i) of the Act. This appears from a letter dated 28 May 1999 from the State Director of the Department to the applicant. The State Director referred to an earlier advice of 6 April 1999 that the Minister for Immigration and Multicultural Affairs intended to consider whether there were grounds to cancel the visa under s 501 and to declare the applicant as an excluded person under s 502 of the Act. It advised that a delegate of the Minister had taken into consideration all the individual circumstances of the applicant's case and had decided to cancel his visa on the ground that he was not of good character under s 501(2)(a)(i). The letter advised that the applicant was eligible to apply to the Federal Court of Australia for review of the decision within 28 days. It also advised that as the Bridging A visa had been cancelled the applicant was deemed to have been granted a Bridging E visa Subclass 050. 17 On 8 June 1999, O'Connor J in the AAT affirmed the delegate's decision of 31 March 1999 to refuse the extension of the Religious Worker visa Class 428. 18 On 23 June 1999, the applicant sought review in the AAT of the decision made on 28 May 1999 to cancel his Bridging A visa. 19 On 8 July 1999, the Bridging A visa which had been associated with the application for a Religious Worker visa Class 428, expired by effluxion of time from the affirmation by the AAT of the refusal of that visa. 20 On 21 October 1999, the applicant filed an application in the Federal Court in which he sought to challenge, out of time: '1. The delegate's decision of 31 March 1999 refusing him a Religious Worker visa Class 428 on the basis of his want of good character which had been the subject of the decision by O'Connor J in the AAT on 8 June 1999. 2. The decision of O'Connor J in the AAT on 8 June 1999.' 21 The application to the AAT for review of the decision of 28 May 1999 to cancel the applicant's Bridging A visa was determined by the Tribunal on 3 February 2000. The Tribunal decided to set aside the cancellation of the Bridging A visa and substituted a decision that the applicant's visa '... not be cancelled on the grounds that he is not of good character' – Thero and Minister for Immigration and Multicultural Affairs [2000] AATA 61. The AAT held that although the applicant was not of good character, for the purposes of the Act, by reason of his convictions it was '... impressed by the widespread community support he enjoys from very respectable citizens of different race and gender who have been in close contact with him over a long period'. It noted that he had served his sentence and had 'an excellent prison record'. The Tribunal exercised its discretion not to cancel the visa. 22 On 4 February 2000, the RRT affirmed the delegate's decision of 13 May 1999 refusing the grant of a protection visa to the applicant. 23 The application for judicial review of the AAT decision of O'Connor J was heard by a Full Court of the Federal Court and was dismissed on 1 March 2000 – Pannasara v Minister for Immigration and Multicultural Affairs [2000] FCA 213. 24 On 3 March 2000, the applicant lodged an application in the Federal Court for judicial review of the RRT's decision. On the same day, according to the respondent, the Bridging A visa granted to the applicant on 3 March 1999 ceased to be of effect. This was by effluxion of time from the date of the RRT affirmation of the refusal decision – Migration Regulations 1994 Schedule 2 clause 010.511. 25 On 13 October 2000, Nicholson J dismissed the application for judicial review of the RRT decision – Pannasara v Minister for Immigration & Multicultural Affairs [2000] FCA 1331. The applicant then appealed to the Full Court of the Federal Court which dismissed his appeal on 18 May 2001 – Pannasara v Minister for Immigration & Multicultural Affairs [2001] FCA 570. On 8 June 2001, the applicant lodged an application for special leave to appeal to the High Court from the judgment of the Full Court of the Federal Court. 26 On 13 November 2002, Margaret Teer, a Compliance Officer with the Department of Immigration was travelling in a motor vehicle with another officer, Daniel Hutchinson, when she received a telephone instruction from her supervisor, Mr Kevin O'Connor, to visit the applicant and to issue him with a Bridging E visa as he was then not the holder of any visa and was therefore an unlawful non-citizen. 27 Ms Teer and Mr Hutchinson went to the applicant's house in Maylands. He let them in and was told by Ms Teer that he needed to complete an application for a Bridging E visa. Ms Teer explained to the applicant that as he held no visa and had pending court proceedings by way of challenge to the RRT decision (a reference to the special leave application in the High Court), he needed a visa to enable him to remain in Australia to pursue the matter. 28 It is common ground that the applicant asserted that he still had a Bridging A visa pending the High Court application. The applicant gave Ms Teer the AAT decision of 3 February 2000 by which the cancellation of his Bridging A visa had been reversed. Ms Teer then telephoned her supervisor, Mr O'Connor, who told her that the Bridging A visa had expired and that the applicant needed to complete the Bridging E visa application in order to be 'lawful'. She passed this information on to the applicant. She then explained the nature of a Bridging E visa, the conditions attached to it and the form which had to be completed. 29 The applicant claimed in his affidavit that he attempted to phone a lawyer or a friend because of his limited comprehension of the English language. He claimed in his affidavit that Ms Teer prevented him from placing a call. She denied that in her affidavit. The applicant was not cross-examined on his affidavit. Ms Teer was cross-examined on hers, but not about the alleged incident. While it strikes me as inherently improbable that it occurred, I make no finding as it is, in the end, irrelevant to the outcome of this case. 30 The applicant claimed that Ms Teer, by '.. words and conduct conveyed to me that if I failed to comply with her demand to complete and sign the application form for a BVE, she would file a sexual complaint against me to the police'. Ms Teer was not cross-examined on this suggestion, which she denied in her affidavit and which I reject as inherently improbable. No factual basis for it is laid apart from the imagination of the applicant. 31 The applicant said that Ms Teer dictated what he was to write on the form and completed some portions of it. Ms Teer's account of what occurred was as follows: '9.1 The applicant appeared to commence reading the form with the intent of completing it, but stopped and said that he needed his glasses; 9.2 The applicant then asked me to help him by reading the questions and filling in his dictated responses; 9.3 I proceeded to ask him the question on Part A of the bridging visa E form which he answered verbally, and I wrote down his replies in the spaces provided on the form. This occurred in the case of all completed responses, including the question at item 15 referred to at paragraph 47 of the applicant's affidavit; 9.4 I repeated the questions and the written answers and asked the applicant if the answers were correct and he said that they were; 9.5 I said that he needed to sign the form, which he did; 9.6 I then completed Parts C and D of the bridging visa E form and decided to grant a bridging visa E to the applicant. The applicant then signed Part D of the form.' Ms Teer was cross examined on this aspect of her affidavit and in substance adhered to her evidence. She did say that she asked the applicant if he needed an interpreter or a friend to come but he told her that he did not. He asked her to read the questions and she did so and wrote down his answers. 32 I am satisfied that the account given by Ms Teer in her affidavit and in cross-examination is essentially correct. It seems inherently more probable than the suggestion that she would have gratuitously bullied the applicant. 33 Counsel for the Minister did not seek to cross-examine the applicant. I raised with counsel for the applicant whether his client might have first to be cross-examined given the conflict between his affidavit and that of Ms Teer. Counsel referred to a direction given by Lee J that any party wishing to cross-examine should give 14 days notice. He indicated that if his client was to be cross-examined an adjournment would be required because there wasn't an appropriate translator available. His client was present in Court at the time. I note that none of the affidavits filed by his client was sworn through an interpreter. In any event, it was the Minister's position that the applicant's Bridging A visa had lapsed at the time of Ms Teer's visit. To the extent that the applicant complained of some coercion it was to underpin the proposition that he was forced to apply for a Bridging E visa and therefore in effect forced to abandon his Bridging A visa which, had it subsisted at the time, would have been, in effect cancelled by the issue of the Bridging E visa. The applicant's complaint in his affidavit was that, in effect, his Bridging A visa was cancelled by the Department's action in forcing him to apply a Bridging E visa. 34 Pursuant to the application completed by the applicant on 13 November 2002, he was granted a Bridging E visa. 35 On 20 November 2002, the applicant lodged an application with the AAT seeking review of what was described in the application as: 'Decision of Margaret Teer DIMIA Perth to issue a Bridging Visa E, when I Olready (sic) have a Bridging Visa A. Ms Teer filled an application for a Bridging Visa E and forced me to sign that under duress. She did not allow me to teliphone (sic) a friend or a lawyer/migration agent. I was very frightended (sic).' 36 The application to the AAT was dismissed on the basis that the AAT lacked jurisdiction. The decision dismissing the application was made by Deputy President Hotop on 2 May 2003. It was made ex tempore. He observed that the decision under review before him was a decision to grant a Bridging E visa to the applicant. That decision was not a decision which the AAT had jurisdiction to review. He informed the applicant that if he had a complaint about his treatment by officers of the Department, he should direct it to another body such as the Commonwealth Ombudsmen. 37 The Deputy President observed that the other matter raised was in relation to the Bridging A visa. He noted that on 3 March 2000 the Tribunal had decided that the Bridging A visa not be cancelled on character grounds. This appears to be a mistaken reference to the decision which was in fact made by the AAT on 3 February 2000. He contrasted the application before him with that which was before the AAT on the earlier occasion and in respect of which the AAT derived jurisdiction because the decision under review in the earlier case was a decision to cancel the Bridging A visa on character grounds pursuant to s 501 of the Act. The Deputy President went on: 'As regards the Bridging Visa A that Deputy President Barnett dealt with, Reverend Pannasara, if you are claiming that that Bridging Visa is still in force, you will need a ruling from the Federal Court to that effect. As I said before, this Tribunal has no further power in relation to that matter. So, the Federal Court is the appropriate body to deal with a claim of that kind, not this Tribunal.' 38 On 26 May 2003, the applicant filed in this Court a document entitled 'Notice of Appeal'. This purported to be an appeal from the decision of the AAT given on 2 May 2003. The notice of appeal alleged that the AAT had erred in law in finding that it had no jurisdiction to hear the applicant's application. The notice of appeal also contained a complaint about provision of an 'incompetent interpreter' in the proceedings before the Tribunal. The applicant also complained that he had made an application on 24 April 2003 to the Tribunal requesting an adjournment of the hearing of his application as he was unable to find legal representation but that his request had been refused. 39 Various interlocutory directions were made by Lee J, one of which, made on 9 December 2003, required the filing of an amended application, settled by counsel, absent which the application would be dismissed. An amended application was filed accordingly on 16 December 2003. On 10 February 2004, Lee J gave leave to the applicant to file and serve a further amended application on or before 18 February 2004. Such an application was filed on that date. 40 The matter came on for hearing on 17 August 2004 and again on 24 September 2004. 41 By way of completion of the chronology it appears from an affidavit filed by Mr Corbould, a solicitor for the Australian Government Solicitor, that the applicant made a further application for a Bridging E visa on 24 November 2003. In that application the applicant asserted that he was party to proceedings in the Federal Court concerning his immigration status. Against the 'Time of application criteria' set out in the form, the applicant ticked criterion number 8: '... has applied for judicial review of the validity of a law that affects eligibility to apply for a substantive visa, or an entitlement to be granted or to continue to hold a substantive visa (050.212(4)(d)).' 42 A Bridging E visa was granted on the same day by an officer of the Department. The visa was stated to remain in effect until '28 days after Federal Court decision'. The Application 43 The application filed on 16 December 2003 pursuant to the springing order made by Lee J somehow transmuted itself from a Notice of Appeal against the AAT decision to an application for an order of review of the decision of the Minister '... to grant the Applicant a Bridging Visa "E" when the Applicant already had in force a valid Bridging Visa "A".' The decision was said to have been taken on 13 November 2003. This is plainly an erroneous reference to the issue of the Bridging E visa on 13 November 2002. 44 Contrary to its description as 'An Amended Application for an Order for Review' the application was in fact a new proceeding. It was an application which contained no statement of the basis upon which the Court's jurisdiction was invoked. It is convenient to set out the substantive text of the application which was in the following terms: '1. On 3 March 1998, the Applicant applied for and was granted a Bridging Visa "A" ("Bridging Visa A"). 2. On 31 March 1999, the Respondent cancelled the Applicant's Bridging Visa A on "character" ground. 3. The Applicant successfully appealed to the Administrative Appeal Tribunal ("AAT") against the Respondent's decision whereby on 3 February 2000 the AAT decided that the Respondent's decision dated 31 March 1999 be set aside and in substitute, the Applicant's Bridging Visa Category A not be cancelled on the grounds that he is not of good character. Accordingly, the Applicant's Bridging Visa Category A was still valid. 4. The Applicant was not given any Notice of Intention to Cancel the Bridging Visa A by the Respondent or invited to respond or any Notice of Cancellation of the Bridging Visa A by the Respondent. 5. On 13 November 2002 the Applicant was compelled by the Respondent to apply for a Bridging Visa E, whilst the Bridging Visa A was still valid. The Applicant was orally told by the Respondent's servant or agent that the Applicant was on Bridging Visa E, as opposed to Bridging Visa A, because he is not of good character. 6. On 19 November 2002, upon the Applicant's enquiry, the Respondent informed the Applicant that, contrary to the AAT's decision, the Applicant was on Bridging Visa Category E not Bridging Visa A. 7. On 2 May 2003, following the Applicant's further appeal to the AAT, it decided it had no further jurisdiction over this matter. The grounds of the application are: 1. The decision of the Respondent and/or its servants or agents dated 24 November 2002 ("Decision") was an improper exercise of the power conferred by the Migration Act 1958 and Migration Regulations 1994 in that it involved the exercise of a discretionary power without regard to the merits of the particular case. Particulars a. On 13 November 2002, the Respondents and/or its servant or agent attended at the Applicant's home ("the meeting") b. The Applicant required the assistance of an interpreter at the meeting. c. An interpreter was not provided, nor was the applicant permitted to telephone a lawyer or a friend. d. At the meeting, the Respondent and/or its servant or agents compelled the applicant to complete a Bridging Visa E form knowing the Applicant possessed a valid Bridging Visa A. 2. There was no evidence or other material to justify the making of the Decision as the Decision was based on the existence of a particular fact and that fact did not exist. Particulars a. At the meeting (referred to in 1 above) the Respondent and/or its servants or agents compelled the applicant to complete an application form for a Bridging Visa E. b. At all material times, the applicant possessed a valid Bridging Visa A. The Applicant claims: 1. A declaration that the Applicant's Bridging Visa A be re-instated and the Bridging Visa E dated 13 November 2002 be set aside. 2. Further or in the alternative an order that the matter be remitted back to the Respondent to be determined according to law. 3. Damages. 4. Cost 5. Further or other relief as is appropriate.' 45 The nature of the relief claimed and the utility of any relief was a central issue at the hearing of the application. Statutory Framework 46 A visa is a permission granted by the Minister to a non-citizen to travel to and enter into Australia or to remain in Australia or both (s 29(1)). There are two kinds of visas, permanent and temporary (s 30). There are classes of visas prescribed by regulation (s 31(1)) and classes provided for in the Act itself (s 31(2)). 47 The term 'substantive visa' which appears in the Act is defined in s 5 as a visa other than a bridging visa, a criminal justice visa or an enforcement visa. The term 'bridging visa' has the meaning given to it in s 37 of the Act. Section 37 of the Act provides: 'There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF.' 48 Subject to the Act and Regulations a non-citizen who wants a visa must apply for a visa of a particular class (s 45(1)). The requirements for a 'valid' visa application are set out in s 46. The application must be for a visa of a class specified in the application and must satisfy the criteria and requirements set out in s 46. The Regulations may specify criteria to be satisfied for an application for a visa of a specified class to be a valid application (s 46(3)). The Minister must consider a valid application for a visa (s 47(1)). 49 Sections 72 to 76 are contained in Subdivision AF of Div 3 of Pt 2 of the Act. Section 72 defines the category known as 'eligible non-citizen' which includes a non-citizen who is in a 'prescribed class of persons'. Section 73 provides: 'If the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia: (a) during a specified period; or (b) until a specified event happens.' The fact that a non-citizen holds a bridging visa does not prevent or affect an application by the non-citizen for a visa of another class (s 75). 50 Section 82 sets out the circumstances under which visas cease to be of effect. Section 82(3) provides: 'A bridging visa held by a non-citizen ceases to be in effect if another visa (other than a special purpose visa) for the non-citizen comes into effect.' That should be read with s 68(4) which provides: 'A bridging visa (the "reactivated bridging visa"), held by a non-citizen, that has ceased to be in effect under subsection 82(3), will come into effect again during the visa period for the visa if: (a) the non-citizen does not hold a substantive visa that is in effect; and (b) either: (i) the non-citizen does not hold any other bridging visa; or (ii) the reactivated bridging visa is determined, in accordance with the regulations, to be the most beneficial of the bridging visas held by the applicant.' 51 The Migration Regulations 1994 make provision for classes of visas pursuant to s 31. Regulation 2.01 provides: 'For the purposes of section 31 of the Act, the prescribed classes of visas are: (a) such classes (other than those created by the Act) as are set out in the respective items in Schedule 1; and (b) the following classes: (i) transitional (permanent); and (ii) transitional (temporary).' 52 Regulation 2.02 makes reference to Schedule 2 which identifies subclasses of visas. Regulation 2.03 provides that prescribed criteria for the grant of visas of particular classes are the primary criteria set out in the relevant part of Schedule 2 or if a relevant part of Schedule 2 sets out secondary criteria, those secondary criteria. 53 Part 3 of Schedule 1 deals with bridging visas and identifies the classes of bridging visas designated as Bridging A (Class WA), Bridging B (Class WB), Bridging C (Class WC), Bridging E (Class WE) and Bridging F (Class WF). Schedule 1 sets out, pursuant to reg 2.07, matters relating to the application for the classes of visa there described. Item 1301 dealing with Bridging A visas requires, inter alia, that: '(3) (c) Either: (i) the applicant has made a valid application for a substantive visa that has not been finally determined; or (ii) application has been made, within statutory time limits, for judicial review of a decision in relation to the applicant's substantive visa application, and the judicial review proceedings (including proceedings on appeal, if any) have not been completed. (d) Applicant must: (i) hold a substantive visa and have held a substantive visa when he or she made the substantive visa application; or (ii) hold a Bridging A (Class WA) or Bridging B (Class WB) visa and have held a substantive visa when he or she made the substantive visa application; or (iii) have held a substantive visa when he or she made the substantive visa application referred to in paragraph (c); or (iv) have previously held a Bridging A (Class WA) visa granted under regulation 2.21A in respect of the substantive visa referred to in paragraph (c). ... (f) Applicant is not in immigration detention or criminal detention.' 54 The criteria for the grant of a Bridging E visa require, inter alia, that the applicant be an eligible non-citizen within the meaning of s 72 of the Act (Item 1305(3)(ba)). Item 1305 makes no reference to immigration detention or criminal detention as disqualifying factors for the grant of a Bridging E visa. 55 Schedule 2 sets out provisions with respect to the grant of subclasses of visas. Bridging A visas are designated Subclass 010. Of importance for present purposes is clause 010.511 in Schedule 2,which deals with the conditions under which a Bridging A visa remains in effect. That item provides, inter alia: 'In the case of a visa granted to a non-citizen who has applied for a substantive visa – bridging visa: (a) coming into effect: (i) on grant; or (ii) when the substantive visa (if any) held by the holder ceases; and (b) permitting the holder to remain in Australia until: (i) if the Minister's decision in respect of the substantive visa application is to grant a visa – the grant of the visa; or (ii) if the Minister's decision in respect of that application is to refuse to grant a visa – 28 days after the holder is notified of that refusal; or (iii) if the substantive visa application is refused and the holder applies for merits review of that refusal – 28 days after notification of the decision of: (A) the review authority; or (B) if the holder has the right to apply to another review authority for merits review of the decision of that review authority and so applies – 28 days after notification of the decision of that other review authority; or (iv) the grant of another bridging visa to the holder in respect of the same substantive visa application; or (v) if the holder withdraws his or her application for a substantive visa or an application to a review authority – 28 days after that withdrawal; or (vi) if the substantive visa (if any) held by the holder is cancelled – that cancellation; or (vii) if the holder is notified by Immigration that the substantive visa application is invalid – 28 days after the notification; or (viii) if a review authority remits the application for the substantive visa to the Minister for reconsideration – permitting the holder of the bridging visa to remain in Australia in accordance with the relevant provision of this paragraph.' 56 In relation to judicial review, clause 010.513 provides: 'In the case of a visa granted to a non-citizen on the basis of judicial review of a decision – bridging visa: (a) coming into effect: (i) on grant; or (ii) when the substantive visa (if any) held by the holder ceases; and (b) permitting the holder to remain in Australia until: (i) subject to paragraph (c), 28 days after the judicial review proceedings (including proceedings on appeal, if any) are completed; or (ii) the grant of another bridging visa to the holder in respect of the same application for judicial review; or (iii) if the holder withdraws his or her application for judicial review – 28 days after that withdrawal; or (iv) if the substantive visa (if any) held by the holder is cancelled – that cancellation; and (c) if a court remits a matter to which the judicial review proceedings relate to a review authority, or to the Minister, for reconsideration – permitting the holder to remain in Australia in accordance with the relevant provision of paragraph 010.511(b).' 57 Other provisions of Schedule 2 relevant to the grant of a Bridging E visa are to be found under the heading 'Subclass 050 – Bridging (General)'. Clause 050.512 under that heading provides: 'In the case of a visa granted to a non-citizen (other than a non-citizen to whom subclause 050.222(3) applies) to whom paragraph 050.212(3A)(b), paragraph 050.212(4)(a) or (d) or subclause 050.212(9) applies – bridging visa: (a) coming into effect on grant; and (b) permitting the holder to remain in Australia; until: (i) if another bridging visa is granted to the holder in respect of his or her judicial review application – the grant of that bridging visa; or (ii) subject to paragraph (c), 28 days after the judicial review proceedings (including proceedings on appeal, if any) are completed; or (iii) if the holder withdraws his or her application for judicial review – 28 days after that withdrawal; or (iv) if the holder opts out of, or is struck out of, the representative proceeding for judicial review – 28 days after so opting out or being struck out; and (c) if a court remits a matter to which the judicial review proceedings relate to a review authority, or to the Minister, for reconsideration – permitting the holder to remain in Australia in accordance with the relevant provision of paragraph 050.511(b), clause 050.513 or clause 050.513B.' 58 Clause 050.212 of Schedule 2 of the Migration Regulations sets out criteria to be satisfied at the time of application for a Bridging E visa. Relevantly, it provides that: '(1) The applicant meets the requirements of subclause (2), (3), (3A), (4), (4AA), (5), (5A), (6), (6AA), (6A), (7), (8) or (9). ... (3) An applicant meets the requirements of this subclause if: (a) the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined; or (b) the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia. (3A) An applicant meets the requirements of this subclause if: (a) the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and (b) either: (i) the applicant has applied for judicial review of a decision to refuse to grant the visa and the judicial proceedings (including any proceedings on appeal) have not been completed; or (ii) the Minister has applied for judicial review of a decision in relation to a refusal to grant the applicant's substantive visa, and the judicial review proceedings (including any proceedings on appeal) have not been completed.' The Status of the Applicant's Bridging Visas 59 Counsel for the Minister accepts that there have been some administrative errors in the grant of bridging visas to the applicant. These errors do not weigh in favour of the applicant for the purposes of the present proceedings. 60 The Bridging A visa which was granted to the applicant on 3 March 1999 was granted in error. The applicant did not meet the necessary conditions and criteria for the making of a valid application for a Bridging A visa at the time as he was in criminal detention – refer sub item 1301(3)(f) of Schedule 1 of the Migration Regulations. Moreover to qualify for the grant of a Bridging A visa, an applicant is required by subclause 010.211(1) of Schedule 1 of the Migration Regulations to meet the requirements of either subclause (2), (3), (4), (5) or (6). The applicant did not meet the requirements of any of those subclauses. He had not applied for judicial review. He had not applied for a Class XA protection visa and he was not an applicant for any of the kinds of visas specified in subclauses (5) and (6). Subclause (2) did not apply to him as at the time of making his protection visa application he did not hold a substantive visa and therefore did not meet the requirements of par (c) of subclause (2). This, it is said, is also a further reason why subclause (3) did not apply to him. 61 The Minister says that the applicant would not have been entitled to a Bridging C visa as a result of his protection visa application on 3 March 1999. This is because it is a condition of an application for a Bridging C visa that an applicant not be in criminal detention – see sub item 1303(3)(e) of Schedule 1 of the Migration Regulations. The applicant would have been entitled to have been granted a Bridging E visa as a result of his protection visa application made on 3 March 1999. However he was already the holder of a Bridging A visa as a result of his unresolved application before the AAT for review of the decision refusing him a Religious Worker visa. That was a more beneficial class of bridging visa – see sub reg 2.21(2). 62 The Minister contends that the effect of clause 010.511 of Schedule 2 of the Migration Regulations was that the Bridging A visa granted to the applicant on 3 March 1999 permitted him to remain in Australia until 28 days after notification of the RRT's decision. The effect of the Tribunal's decision made on 4 February 2000 was said to be that the applicant's Bridging A visa ceased to be in effect at the end of 28 days after notification of that decision. Counsel for the Minister submitted that after 3 March 2000 the applicant was not the holder of any visa until he was granted a Bridging E visa by Ms Teer on 13 November 2002. 63 In relation to the grant of the Bridging E visa on 13 November 2002, it was submitted that the applicant met the requirements of subclause (3A) of clause 050.212 of Schedule 2 of the Migration Regulations. He had made an application for a protection visa. He had applied for judicial review of the decision refusing to grant him a protection visa and the judicial review proceedings had not been completed. 64 Counsel for the Minister pointed out that the judicial review proceedings in respect of the decision to refuse to grant the applicant a protection visa were completed on 24 October 2003 by reason of the High Court's dismissal of his application for special leave to appeal on that date. On that basis, and pursuant to clause 050.512 of Schedule 2 of the Migration Regulations, the Bridging E visa permitted the applicant to remain in Australia until 21 November 2003. It therefore ceased to be in effect on that date pursuant to s 82(7) of the Act. 65 The applicant was granted a further Bridging E visa on 24 November 2003. The Minister contends that this further Bridging E visa was granted in error. The present proceedings in this Court are not in respect of the judicial review of a decision to refuse to grant a substantive visa within the meaning of subclause 050.212(3A) of Schedule 2 of the Migration Regulations. Rather, these proceedings are taken in respect of the decision of Ms Teer to grant a Bridging E visa to the applicant on 13 November 2002. None of the other subclauses of clause 050.212 were applicable to the applicant at 24 November 2003. 66 On this basis it is contended for the Minister that the applicant's Bridging A visa which was granted to him in error on 3 March 1999 ceased to be in effect on 3 March 2000 and the Bridging E visa granted to him on 13 November 2002 ceased to be in effect on 21 November 2003. The Bridging E visa granted on 24 November 2003 was granted in error. On this basis it is submitted that the applicant is not entitled to any of the relief sought and that the application should be dismissed. The Nature and Utility of the Relief Claimed by the Applicant 67 The nature and utility of the relief claimed for the applicant remained elusive until the end. After considerable exploration, counsel for the applicant said, at the reconvened hearing on 24 September: '... the applicant's case is that he had a bridging visa A when the respondent came to his house on 13 November 2002 and cancelled that bridging visa A and granted him a bridging visa E. That bridging visa E was granted in error. The applicant has sought judicial review of that decision. Now, if that cancellation was wrong, then his bridging visa A attaches to him seeking judicial review of that cancellation. What the respondent in effect is saying is, "We cancelled your bridging visa A and gave you bridging visa E." If the bridging visa A was cancelled in error, then, with respect, that bridging visa A is still valid.' The basis upon which it was said that the Bridging A visa continues is the continuance of the present proceedings. 68 I accept the submissions on behalf of the Minister that at the time he was granted a Bridging E visa in November 2002 the applicant's Bridging A visa had ceased to be in effect. Even if that were not correct and he had a current Bridging A visa at the time of the grant of the Bridging E visa, I do not accept that the grant of the Bridging E visa is vitiated by any conduct on the part of the officers of the Department in procuring the grant of the Bridging E visa. 69 I do not accept that the applicant was unfairly coerced into applying for a Bridging E visa. I accept Ms Teer's account of what occurred at the time that that application was made. But even if that application was somehow vitiated ab initio there is no basis upon which the Bridging A visa which ceased to be in effect upon the grant of the Bridging E visa, would otherwise have continued to the present day. In particular there is no basis upon which the Bridging A visa could be said to have been somehow continued in existence by reference to the institution of the present proceedings. In my opinion these entire proceedings have been misconceived and the application will be dismissed with costs. Conclusion 70 For the preceding reasons the application is dismissed. The applicant is to pay the respondent's costs of the application. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 15 December 2004 Counsel for the Applicant: Mr SB Watters Solicitor for the Applicant: Tang Lawyers Counsel for the Respondent: Mr PR Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 August and 24 September 2004 Date of Judgment: 15 December 2004