Pannasara v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 78 (13 May 2005)

Last Updated: 16 May 2005

FEDERAL COURT OF AUSTRALIA

Pannasara v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 78

MIGRATION – no error disclosed – appeal dismissed

Migration Act 1958 (Cth) ss 5(9), 48A, 68,  82(3) and 501E

Migration Regulations 1994 (Cth) cl 1301(3)(f) of Sch 1 and cl 010.511 of Sch 2











REVEREND KAHATAPITITE PANNASARA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

WAD 3 of 2005












MARSHALL, MANSFIELD AND SIOPIS JJ
13 MAY 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 3 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN:	REVEREND KAHATAPITITE PANNASARA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MARSHALL, MANSFIELD AND SIOPIS JJ
DATE OF ORDER:	13 MAY 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.	The appeal is dismissed.
2.	The appellant pay the respondent’s costs of the appeal.

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	WAD 3 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN:	REVEREND KAHATAPITITE PANNASARA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	MARSHALL, MANSFIELD AND SIOPIS JJ
DATE:	13 MAY 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT

1 This is an appeal from a judgment of French J, published on 15 December 2004. As ultimately amended, the application before the primary judge was framed as:

"... to review the decision of the Respondent to grant the [appellant] a Bridging Visa "E" when the [appellant] already had in force a Valid Bridging Visa A".

2 The appellant sought that his alleged Bridging A visa be reinstated and that the Bridging E visa dated 13 November 2002 be set aside. He claimed at 13 November 2002 to hold a Bridging A visa granted under the Migration Act 1958 (Cth) (the Act) and under the Migration Regulations 1994 (the Regulations). As appears in the background facts to be recited, the appellant has lengthy history of visa applications, their review on the merits, and their challenges to the merit reviews by proceedings in court.

Background Facts

3 The appellant is a Buddhist monk from Sri Lanka. He entered Australia on 23 February 1993 as the holder of a tourist (short stay) visa. On 8 December 1994 the appellant became the holder of a Religious Worker (428) visa, valid until 8 July 1995. On 29 June 1995 the appellant applied for a three year extension of his Religious Worker visa. On the same day he was granted a Bridging A visa pending the consideration by the respondent of his application for an extension of the Religious Worker visa.

4 On 5 March 1997, while holding a Bridging A visa and while consideration was still being given to the application to extend the Religious Worker visa, the appellant received a four year custodial sentence after being convicted of various sexual offences. On 3 March 1999, while serving his sentence of imprisonment, the appellant applied for a protection visa. On the same day the respondent’s department granted the appellant a Bridging A visa. As noted below, this occurred notwithstanding that the appellant was in criminal detention and consequently may not have been eligible to be granted a Bridging A visa. If the appellant was then given a Bridging A visa, s 82(3) of the Act would have operated to bring to an end the earlier Bridging A visa granted on 5 March 1997. Section 82(3) provides:

"(3) 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."

In any event, the Bridging A visa granted on 29 June 1995 came to an end on 8 July 1999. That date is the expiration of 28 days from the final determination of his claim for an extension of the Religious Worker visa.

5 On 31 March 1999 the respondent refused the appellant’s request for an extension of his Religious Worker visa on character grounds under s 501 of the Act. The appellant applied to the Administrative Appeals Tribunal ("the AAT") for a review of that decision. On 8 June 1999 the AAT affirmed the decision of the respondent of 31 March 1999 to refuse an extension of the Religious Worker visa. The reason why the Bridging A visa granted on 29 June 1997 came to an end 28 days thereafter is discussed below.

6 On 13 May 1999 a delegate of the respondent refused the appellant’s application for a protection visa. The appellant then sought review of that decision by the Refugee Review Tribunal ("the RRT").

7 Whilst that review was pending, on 28 May 1999 the appellant’s Bridging A visa, granted on 3 March 1999, was cancelled on character grounds under s 501 of the Act. On the same day the appellant was deemed to be granted a Bridging E visa. On 23 June 1999 the appellant sought review in the AAT of the 28 May 1999 decision to cancel the Bridging A visa granted on 3 March 1999. That application for review was successful. On 3 February 2000, the AAT set aside the decision made by the respondent on 28 May 1999 to cancel the appellant’s Bridging A visa.

8 The following day, on 4 February 2000, the RRT affirmed the decision of the respondent delegate to refuse the appellant a protection visa.

9 On 3 March 2000, the appellant lodged an application in the Court for judicial review of the decision of the RRT.

10 Two days earlier, on 1 March 2000 a Full Court dismissed an application for judicial review of the AAT’s decision of 8 June 1999 to refuse an extension of the Religious Worker visa.

11 On 13 October 2000, a single judge of the Court dismissed the appellant’s application for judicial review of the RRT’s decision. An appeal to the Full Court failed on 18 May 2001. An application for special leave to appeal to the High Court was filed on 8 June 2001 in respect of the judgment of the Full Court. The High Court refused that application on 24 October 2003.

12 On 13 November 2002, the appellant applied for a Bridging E visa in the presence of officers of the respondent’s department. He complained to the primary judge that he was coerced into doing so. His Honour accepted the account of the respondent’s officer, Ms Teer, that she did not coerce the appellant into making the application. The appellant complained that by forcing him to apply for the Bridging E visa, his allegedly subsisting Bridging A visa was cancelled. He also complained that, because he had only a Bridging E visa after 13 November 2002, he could not apply for any other substantive visa to remain in Australia whereas (he asserted) if he had retained a Bridging A visa he could after 13 November 2002 have applied for a substantive visa to remain in Australia.

13 The respondent contended that, following the decision of the RRT on 4 February 2000 affirming the decision not to grant the appellant a protection visa, the Bridging A visa granted on 3 March 1999 came to an end on 3 March 2000. Thereafter the appellant (the respondent contended) was an unlawful non-citizen who held no visa at all between 3 March 2000 and 13 November 2002 when he was granted a Bridging E visa.

The primary judge’s reasoning

14 His Honour held that the Bridging A visa, granted on 3 March 1999, was granted in error, in that item 1301(3)(f) of Sch 1 to the Regulations disqualified a person in criminal detention from making a valid application for a Bridging A visa. His Honour also referred to other requirements or pre-conditions for the grant of such a visa which had not been met, including that, at that stage, the appellant had not applied for judicial review.

15 The primary judge accepted the respondent’s submission that when the appellant was granted a Bridging E visa on 13 November 2002, his Bridging A visa had ceased to be in effect in any event: see s 82(3) of the Act. The respondent had submitted that the effect of cl 010.511 of Sch 2 to the Regulations was that the Bridging A visa granted on 3 March 1999 permitted the appellant to stay in Australia until 28 days after the notification of the adverse decision of the RRT. Consequently on 3 March 2000, 28 days after the RRT refused the appellant’s application for merits review of the delegate’s decision with respect to his application for a protection visa, the Bridging A visa granted on 3 March 1999, expired: see cl 010.511(b)(iii)(B) of Sch 2 of the Regulations ("cl 010.511").

16 His Honour accepted that the Bridging E visa granted to the appellant on 13 November 2002 was regularly granted and that it expired on 21 November 2003 (that is, 28 days after the High Court refused to grant the appellant special leave to appeal from the decision of the Full Court of 18 May 2001).

17 The primary judge did not accept that the appellant was unfairly coerced into applying for a Bridging E visa on 13 November 2002. His Honour also pointed out that even if the Bridging E visa was irregularly granted that did not mean that the Bridging A visa, which expired on 3 March 2000, was revived.

Consideration

18 In his written outline of submissions, filed in advance of the hearing of the appeal, the appellant raised matters, which did not bear on whether the primary judge had erred in any way. Nothing further was advanced orally before us, which identified any error in the reasoning of French J. We have, for ourselves, carefully considered his Honour’s reasons in the context of the detailed background of events referred to.

19 We agree, with respect, with the primary judge for the reasons outlined by him that the appellant’s application was devoid of merit. In particular we consider that his Honour was correct in considering that the effect of cl 010.511 was that the Bridging A visa granted on 3 March 1999 expired 28 days after the RRT determined the appellant’s protection visa application adversely to him. The appellant was unable to point to any legal basis upon which it could be said that the visa which was granted on 3 March 1999 continued in existence beyond 3 March 2000. Section 68 of the Act provides that a visa is in effect from when it is granted and during the ‘visa period’ for the visa. Section 5 defines ‘visa period’ in the case of a bridging visa as being when the visa ceases to be in effect otherwise than under s 82(3), that is otherwise than when another visa comes into effect. Clause 010.511 provides that a Bridging A visa is in effect, if the substantive visa application is refused and merits review of that decision is pursued, at the end of 28 days after notification of the final decision of the merits review authority (in this instance, the decision of the RRT of 4 February 2000).

20 The appellant in argument said that he thought the Bridging A visa would remain in effect until the process of seeking to set aside the RRT decision for jurisdictional error was itself exhausted (in his case, ultimately by the refusal of the High Court on 24 October 2003 to grant him special leave to appeal from the decision of the Full Court of 18 May 2001). He was mistaken in that belief. Clause 010.511 is clear. It operates at the end of the merits review process. The appellant also complained that he was not expressly told by officers of the respondent that cl 010.511 operated in that way. Even if that be the case, it does not alter the operation of that clause. As counsel for the respondent pointed out, the appellant, once he had applied to the Court to quash the decision of the RRT, might have applied for a further Bridging A visa. Eligibility criteria under item 1301 of Schedule 1 of the Regulations includes that judicial review proceedings have been instigated and not completed, after the application for the substantive visa has been ‘finally determined’ as defined in s 5(9) of the Act. The applicant did not do so. We agree with the learned judge at first instance that from 3 March 2000 to 13 November 2002 the applicant was an unlawful non-citizen in Australia.

21 The appellant’s perception that a Bridging A visa held after 13 November 2002 would have entitled him to apply for a further substantive visa, whereas the Bridging E visa would not, is in the circumstances erroneous. That is because his application for an extension to the Religious Worker visa was refused on character grounds on 31 March 1999, and affirmed by the AAT on 23 June 1999. Section 501E(1) then precludes the appellant from seeking a further substantive visa other than a protection visa whilst he remains in Australia, and s 48A precludes him from seeking a further protection visa. There are no classes of visa prescribed for the purposes of s 501E(2)(b).

22 Although it was not raised as a ground of appeal before us, the appellant complained that in the Court below he was refused an adjournment to obtain the services of an interpreter. He said he wanted to give oral evidence to contradict the evidence of an officer of the respondent about the circumstances in which the Bridging E visa was obtained. Even if it be assumed that such an application was made, that matter could not affect the outcome of this appeal. The appellant was represented by counsel at the hearing at first instance. The appellant gave evidence by affidavit of the circumstances in which the Bridging E visa was granted. That was his opportunity to present his version of the events. The hearing was in fact adjourned for over a month, but no further affidavit evidence from the appellant was sought to be adduced at the resumed hearing. The appellant was not cross-examined on his affidavits. Ms Teer was cross-examined by counsel for the appellant. In any event, as we have found, his evidence could not have altered his status as an unlawful non-citizen from 3 March 2000. The appellant did not contend that it could have done so, although he maintained that he held a Bridging A visa up to 13 November 2002.

23 The appellant on this appeal appears to have adopted an unrealistically favourable view to any material provided to him by the respondent in the face of the provisions of the Act and the Regulations. He also appears to have adopted an unrealistically favourable view of other communications, even to the extent in argument on this appeal of attributing to those members of the High Court who refused him special leave to appeal on 24 October 2003 the indication that the High Court would give him time to convert his Bridging E visa to a Bridging A visa before refusing special leave to appeal. For the reasons given, his understanding of his visa status is misconceived.

24 In the circumstances, 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 Justices Marshal1, Mansfield and Siopis.

Associate:


Dated: 13 May 2005

The appellant appeared for himself (with the assistance of an interpreter).

Counsel for the Respondent:	Mr P Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 May 2005
Date of Judgment:	13 May 2005