FEDERAL COURT OF AUSTRALIA SZGVV v Minister for Immigration and Multicultural Affairs [2007] FCA 127 MIGRATION – appeal – application for bridging visa – whether appellant satisfied criteria in subcl 010.211(3) of Sch 2 to the Migration Regulations 1994 (Cth) – proper construction of subcl 010.211(3) of Sch 2 to the Migration Regulations Migration Act 1958 (Cth) ss 66(1), 66(2), 359A, 368 Migration Regulations 1994 (Cth) Sch 2 subcl 010.211(3) SZGVV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and MIGRATION REVIEW TRIBUNAL NSD 1524 OF 2006 SIOPIS J 15 February 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1524 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGVV Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: SIOPIS J DATE OF ORDER: 15 february 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1 The Migration Review Tribunal is joined as the second respondent. 2 The appeal is dismissed. 3 The appellant is to pay the first respondent's costs, fixed in the sum of $3 900. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1524 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGVV Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: SIOPIS J DATE: 15 february 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 9 December 2004 the appellant applied for a Bridging A (Class WA) visa ('the bridging visa'). On 10 December 2004 a delegate of the first respondent refused to grant the bridging visa. By a decision dated 20 July 2005 the Migration Review Tribunal ('the Tribunal') affirmed the decision of the delegate to refuse the bridging visa. On 25 July 2006 a Federal Magistrate dismissed an application for judicial review of the decision of the Tribunal. This is an appeal from that decision. I join the Tribunal as the second respondent. Background 2 It is necessary to place this appeal in its context. The appellant arrived in Australia on 12 March 2000, entering on a Temporary Business Entry (Class UC) Subclass 456 visa. The appellant applied for a protection visa on 7 April 2000 and he was on that date granted a Bridging A (Class WA) visa. 3 The delegate of the first respondent refused the appellant's application for a protection visa and on 29 May 2002 the Refugee Review Tribunal ('the RRT') affirmed the delegate's decision. 4 Thereafter, the appellant embarked upon a succession of applications for judicial review of the RRT's decision. 5 His first judicial review application was brought in the Federal Court in June 2002. This application was transferred to the Federal Magistrates Court and was ultimately dismissed by consent on 16 September 2002. 6 However, notwithstanding the dismissal by consent of the application for review, the appellant was still in Australia in August 2003, when he commenced a second application for judicial review ‑ this time in the High Court. The High Court remitted the application to the Federal Court and on 9 February 2004, Emmett J refused the appellant's application for an order nisi. 7 Not deterred, the appellant then commenced on 19 April 2004, a further application for judicial review of the RRT's decision ‑ this time in the Federal Magistrates Court. The appellant's application for judicial review was dismissed by the Federal Magistrate as being vexatious and an abuse of process on 17 September 2004. The appellant then brought an application in the Federal Court, to extend time within which to appeal against the decision of the Federal Magistrate. This application was dismissed by Jacobson J on 16 November 2004 when the appellant did not attend the hearing. 8 On 7 December 2004, the appellant filed in the High Court an application for special leave to appeal against the decision of Jacobson J. On 9 December 2004, the appellant made an application to the first respondent for the bridging visa, in order to give him 'lawful status while awaiting the outcome of judicial review'. At the date of making that application, the appellant did not have a Class A bridging visa ‑ the appellant's Class A bridging visa granted in 2000 having expired on 22 July 2002. As previously mentioned, the delegate refused the application for the bridging visa on 10 December 2004. The appellant then sought a review of the delegate's decision by the Tribunal. 9 The Tribunal found that at the time the bridging visa application was made, subcl 010.211(3) of Sch 2 of the Migration Regulations 1994 (Cth) ('the Regulations') applied to the appellant's application. 10 Subclause 010.211(3) provides: '(3) An applicant meets the requirements of this subclause if: (a) the applicant: (i) 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 (ii) held a substantive visa when he or she made the application; and (aa) that application was refused; and (b) either: (i) the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant's substantive visa application; or (ii) the applicant: (A) is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in subparagraph (i); and (B) made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i); and (c) at the time of that application, he or she held a Bridging A (Class WA) or Bridging B (Class WB) visa; and (d) the judicial review proceedings (including proceedings on appeal, if any) are not completed.' 11 The Tribunal held as follows: 'The Tribunal finds that the visa applicant last held a Bridging A (Class WA) visa on 22 July 2002 and Departmental records confirm that he has not been granted a Bridging A (Class WA) or Bridging B (Class WB) visa since that date. The Tribunal finds that the visa applicant was not the holder of a Bridging A (Class WA) or Bridging B (Class WB) visa at the time that he made the application for judicial review to the High Court on 7 December 2004. The visa applicant is therefore unable to satisfy subclause 010.211(3)(c) and therefore the application for review must fail.' 12 On appeal the Federal Magistrate said: 'It is plain from a reading of the decision of the MRT that the applicant was unable to satisfy the criteria set out in Migration Regulation 010.2113 for the grant of a Bridging A (Class WA) visa. In particular, at the time the applicant applied for the visa, he did not hold a bridging A or bridging B visa. Because of that fact, he was ineligible for the further bridging visa he sought. The MRT simply applied the migration regulation. The MRT had no option but to do so.' The appeal 13 The appellant's notice of appeal is couched in generalities. It does not attempt expressly to identify any alleged error made by the Federal Magistrate. To the extent that the notice of appeal condescends to particularity, five potential grounds of appeal are discernible. Grounds D and E do not disclose any possible grounds of appeal and I dismiss those grounds of appeal. 14 Further, ground B of the appellant's notice of appeal contends that the delegate and the first respondent did not have the jurisdiction to make and give effect to the delegate's decision to refuse the bridging visa. It is said that s 66(1) and s 66(2) of the Migration Act 1958 (Cth) ('the Act') were not observed. These subsections prescribe how a decision made in respect of a visa application is to be notified to the visa applicant. These issues were not raised before the Federal Magistrate and no submissions were advanced in support of this ground. The notification of the decision in this case complied with s 66(2) by referring to the regulation in question. The appellant's contention has no prospect of success. I refuse leave to raise these issues in this appeal. 15 Grounds A and C of the appellant's notice of appeal have potential application to the issues dealt with by the Federal Magistrate. It is possible to construe the grounds as: firstly, that the Federal Magistrate should have found that there was a breach of natural justice by the Tribunal, and secondly, that the Federal Magistrate ought to have found that the Tribunal made an error of law in that it misconstrued subcl 010.211(3) of Sch 2 of the Regulations. 16 As to the first of the two grounds, to which I have referred above, I take the reference to a breach of natural justice, to be a reference to the grounds raised before the Federal Magistrate that the Tribunal had failed to comply with s 359A of the Act by not advising the appellant of its potential findings in relation to subcl 010.211(3) of Sch 2 of the Regulations, and, of its statement about the appellant's litigation history referred to in par 33 of its reasons. In my view, the Federal Magistrate did not err in holding that the Tribunal did comply with s 359A of the Act by notifying the appellant, by its letter of 6 May 2005, of its potential findings in respect of the application of the Regulations to his situation. As to the appellant's litigation history, I am of the view that the Federal Magistrate was correct in determining that the reference to the appellant's litigation history in par 33 of the Tribunal's reasons did not form 'part of the reasons' in the sense referred to in s 359A of the Act, and that there was no breach of the section. 17 The appellant also contended before the Federal Magistrate that the Tribunal had failed to comply with s 368 of the Act by not giving notice to the appellant of its potential findings in relation to the application of the Regulations. The Federal Magistrate said that the Tribunal's letter of 6 May 2005 did advise the appellant of the potential findings. Further, the Federal Magistrate held that s 368 of the Act really set out the necessary elements of a written statement of reasons given by the Tribunal. The Federal Magistrate found that the Tribunal's written statement of reasons contained the elements referred to in s 368 and that the Tribunal had not committed any jurisdictional error in relation to s 368 of the Act. It is possible that the appellant sought to impugn these findings of the Federal Magistrate under the general ground of 'a breach of the rules of natural justice' referred to in Ground A of the notice of appeal. For the reasons he gave, the Federal Magistrate did not, in my view, err in making the findings he made in relation to s 368 of the Act. I, therefore, dismiss the first ground of appeal – being Ground A. 18 I now deal with the second ground of appeal, namely, misapplication of the Regulations – being Ground C. 19 Each of the Tribunal and the Federal Magistrate found that the appellant had failed to satisfy the requirements in subcl 010.211(3)(c) of Sch 2 of the Regulations. However, each of the Tribunal and the Federal Magistrate took a different view as to 'time' by reference to which the assessment called for in subcl 010.211(3)(c), had to be made. The Tribunal thought that the appropriate 'time' was 7 December 2004, being the date of the application to the High Court for special leave, which the Tribunal characterised, in my view, incorrectly, as the making of an application for judicial review. On the other hand, the Federal Magistrate found that the appropriate 'time', was the time that the appellant made his application for the bridging visa in question, namely, 9 December 2004. 20 In my view, however, on a proper construction of the regulation, the appropriate 'time', by reference to which the assessment is to be made of whether a bridging visa applicant, held a qualifying bridging visa, under subcl 010.211(3)(c), was at the time of the making of the founding application for judicial review of the decision refusing the substantive visa. The reference in subcl 010.211(3)(c) to 'that application' is a reference to the application which is referred to in subcl 010.211(3)(b), namely, the application for judicial review referred to in subpar (3)(b)(i). Accordingly, in my view, the question whether the appellant held the qualifying bridging visa, had to be assessed by reference to the position on 19 April 2004 – being the date that the appellant made his application for judicial review to the Federal Magistrates Court. It was the decision by the Federal Magistrate to dismiss that judicial review application which was 'on appeal' within the meaning of subcl 010.211(3)(d), when the application for leave to extend time to appeal was made to Jacobson J, and, in respect of which the special leave application dated 7 December 2004 was made. 21 In my view, the Tribunal erred in characterising the High Court special leave application as an application for judicial review, in general, and, in particular, as 'that application' referred to in subpar (3)(c). Further, the Federal Magistrate erred in construing subpar 3(c) as specifying the application for the bridging visa, rather than the application for judicial review, as the relevant application. 22 It, therefore, follows that, in misconstruing subcl 010.211(3)(c), and in misconstruing the date, by reference to which the crucial assessment of whether the appellant held the qualifying bridging visa, had to be made, the Tribunal fell into jurisdictional error. The Federal Magistrate also erred in failing to find that the Tribunal had misconstrued the subclause and the appropriate date. 23 However, in my view, it would be futile to allow the appeal and to send the matter back for the Tribunal to decide the appellant's application according to law. This is because it is clear that on the application of the proper test, namely, the date on which the appellant made his application for judicial review, namely, 19 April 2004, the appellant did not hold the qualifying bridging visa referred to in subcl 010.211(3)(c) ‑ it being the fact that the appellant had last held such a qualifying bridging visa on 22 July 2002. 24 The appeal is dismissed with costs. I certify that the preceding twenty‑four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 15 February 2007 The appellant appeared in person. Counsel for the Respondent: Ms V McWilliam and Mr R White Solicitor for the Respondent: Sparke Helmore Date of Hearing: 17 November 2006 Date of Judgment: 15 February 2007