SZANA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 60 (30 January 2004)

Last Updated: 13 February 2004

FEDERAL COURT OF AUSTRALIA

SZANA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 60

SZANA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1590 of 2003

ALLSOP J
30 JANUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1590 of 2003

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN:	SZANA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	30 JANUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant 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
NEW SOUTH WALES DISTRICT REGISTRY	N 1590 of 2003

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN:	SZANA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	30 JANUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from orders made by Raphael FM on 9 October 2003 in which the learned Federal Magistrate dismissed an application made by the appellant under s 39B of the Judiciary Act 1903 (Cth) and relevant legislation governing the operation of the Federal Magistrates Court. The learned Federal Magistrate dismissed the application and ordered that the appellant (as applicant) pay the Minister's costs assessed at $2,500. Some, but not all background, is contained within my reasons for judgment in matter [2003] FCA 1407 between the appellant and the Minister in which I dismissed an appeal from Driver FM.

2 These reasons should be read with those reasons for judgment. Further background to the various applications of the appellant are found in the reasons of the Migration Review Tribunal which was the subject of the application before Raphael FM. As can be seen from the reasons I gave on 9 December and for the reasons for decision of the Tribunal dated 15 August 2003, the various applications of the appellant are somewhat complex. The gist, however, of the appellant's position is straightforward. The appellant arrived in Australia in October 1987. He had valid visas for some years, however, for some years, he was apparently within the country and without a visa.

3 Ultimately, he was apprehended by the Immigration Department and was placed in Villawood Detention Centre in 1997. At this point he applied for a protection visa. I interpolate at this point that the appellant is of Kurdish ethnicity and claims and has claimed that he has and had a well founded fear of persecution on return to Turkey, his country of origin. As I indicated in my reasons and as the Tribunal indicates in its, that application for a protection visa was unsuccessful at an administrative and curial level. During these attempts to obtain a protection visa the appellant was granted a bridging visa to enable him to live outside detention at Villawood. After the rejection of his application for protection visa applications were made to the Minister under s 417 of the Migration Act 1958 (Cth) (the Act). This application, however, was not acceded to.

4 The last of the bridging visas granted to the appellant expired on 27 April 2000. The appellant remained in Australia after that time. He was located again by the Department on 6 February 2003. Once again he was detained under s 189 of the Act. He was again taken into custody and was transferred to the Villawood Immigration Detention Centre. That led to the various applications the appellant made in 2003, which I have outlined in my reasons of 9 December 2003.

5 Those applications made in 2003 involved or included the renewal of an application for a protection visa. I will not rehearse the discussion in my earlier reasons about this, but in essence s 48B of the Act disentitles the appellant from making another valid application for a protection visa while he is within the country. The reasons for that conclusion are contained within my earlier reasons. Nevertheless, the appellant did make such an application on 31 July 2003 which, under the regulations, if it were a valid application, was also an application for a bridging visa.

6 A delegate of the Minister and the Migration Review Tribunal approached the application for a bridging visa on the basis that it was a valid application. On that basis each came to the view that it was appropriate in all the circumstances, including the history of the appellant in the country and what he had done while in the country, to set a security bond of $10,000 to ensure compliance with conditions. That security bond was not met, thus no bridging visa was granted. Raphael FM approached the matter on the same basis.

7 Mr Lloyd of counsel has submitted three groups of matters each of which, he says, means that the appeal must fail. I will deal with the third of those groups of propositions first, since those propositions are conformable with the approach of the delegate, the Tribunal and Raphael FM, that is, that the application was valid and was appropriately determined by reference to whether a security bond should be required.

8 Having read the reasons of Raphael FM I am not able to discern any error of law or fact in the learned Federal Magistrate's approach. None was essentially suggested. The appellant put submissions to me as to the errors made by the Tribunal. The submission was that the matters contained within [38] of the Tribunal's reasons had been brought about by interpretation error. In paragraph [48] the Tribunal says the following:

[48] The Tribunal finds that the visa applicant remained in Australia unlawfully for the following periods: 29 February 1988 until 1 July 1997; 27 November 1998 until 13 May 1999; 6 August 1999 until 18 April 2000; and from 28 April 2000 until the Department detained him on 26 February 2003. The Tribunal is satisfied that the visa applicant worked without permission during these periods. The visa applicant told the Tribunal that he only worked until 1997 when the Department told him he did not have permission to work. He stated that from 1997, he only worked for friends in return for accommodation and the payment of his expenses. This work included serving customers in a business. The Tribunal considers that such work would normally attract remuneration and although the visa applicant may have been paid in kind, he was working as defined in the Regulations. The Tribunal finds that the visa applicant has worked in breach of condition 8101 and has worked without permission for extensive periods of time since arriving in Australia.

9 These conclusions as to work undertaken are said by the appellant to have been the result of misunderstanding brought about by interpreting error. No satisfactory evidence is led to that effect. But, also, the objection proposed by the appellant may well arise from a misunderstanding. He said before me today that he was misunderstood and that he was only "helping out". If it be the case that he was not formally employed as an employee but was "helping out" by doing the sorts of things that were apparently identified before the Tribunal, that in all likelihood is properly understood to be an activity in Australia that normally attracts remuneration.

10 I am not satisfied on the material before me that there was any jurisdictional error in the Tribunal in the way that it approached the matter, save and except for the two matters I will come to. Equally, I am not satisfied that there was any error of law or fact in the reasons of Raphael FM in the manner his Honour approached the question.

11 Even if, however, I am wrong about those matters there are two other reasons why the appeal should be dismissed. The first is that by reason of my views expressed on 9 December the applicant did not lodge a valid application for a bridging visa. Item 1305 in Schedule 1 of the Migration Regulations requires, amongst other things, and relevantly, that for the bridging visa application to be valid it must be the case that the applicant has applied at the same time and on the same form for a substantive visa which application for substantive visa is valid.

12 The appellant certainly applied for both the protection visa and the bridging visa on the same form but, because of the matters I set out in my reasons for judgment on 9 December, the application for a substantive visa was not valid. Thus, the application for a bridging visa was not valid. On this basis the delegate and the Tribunal did commit a jurisdictional error by exceeding their jurisdiction in dealing with the matter. That is not a ground for allowing the appeal. It is a ground for dismissing the appeal on the basis that any remitter to the Tribunal or the Federal Magistrate would be futile.

13 The second additional basis, being the third matter referred to by Mr Lloyd, was that the delegate and the Tribunal erred in failing to conclude that the appellant had failed to satisfy a mandatory criterion under the regulations. In Schedule 2, under subclass 050 Bridging (General), clause 050.21 sets out the criteria to be satisfied at the time of the application. Subclass 050.212(3) requires the following:

(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.

14 The gist of this criterion is that the substantive visa application, in support of which the bridging visa application is made, must be valid. Once again, for the reasons I gave on 9 December 2003, the substantive visa application was not a valid one. Thus, on this basis, even if the consideration of the visa application was valid it necessarily should have been rejected, irrespective of any question of security, because of the clear inability of the appellant to satisfy a necessary criterion contained within the regulations: Schedule 2, clause 050.212.

15 Once again, even if it be the case that the application was approached by the Tribunal and the Magistrate wrongly, it would be futile to remit the matter because of the fact that under the regulations it was bound to fail. Therefore, for all these reasons the appeal must be dismissed.

16 Before leaving the matter I should say that the appellant also submitted to me that his human rights have been infringed by his treatment by the Department. He has been in immigration detention for almost a year now, since being re-apprehended in February 2003. Whilst I can understand the strain this has put on the appellant there has been no identification to me of any rational argument to the effect that any positive law of this country has been infringed by his detention.

17 The orders of the court therefore will be as follows:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .

Associate:

Dated: 13 February 2004

The Appellant appeared in person with the assistance of an interpreter.
Council for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	30 January 2004
Date of Judgment:	30 January 2004