Lee v Minister for Immigration & Anor [2009] FMCA 80 (16 February 2009)

Last Updated: 18 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 80

MIGRATION – Bridging visas – visa cancellation – refusal of visa – review of Migration Review Tribunal decisions – Court not empowered to review decisions of ministerial delegates – Tribunal had no jurisdiction as application for review filed out of time – in judicial review proceedings, applicant cannot review Tribunal’s findings of fact – proceedings futile.

Migration Act 1958, ss.127, 140, 189, 338, 347, 359A, 360, 476, 477 Migration Regulations 1994, regs.2.45, 2.55, 4.10, cl.050.212 of sch.2, cl.050.411 of sch.2

Lee v Minister for Immigration & Citizenship [2008] FMCA 1734 Lee v Minister for Immigration & Citizenship [2008] FMCA 1675 Lee v Minister for Immigration & Citizenship [2008] FCA 1919

Applicant:

HYUK KYU LEE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2360 of 2008

Judgment of:

Cameron FM

Hearing date:

4 February 2009

Date of Last Submission:

4 February 2009

Delivered at:

Sydney

Delivered on:

16 February 2009

REPRESENTATION

The Applicant appeared in person (by telephone)

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The time for the commencement of these proceedings be extended to 11 September 2008.
(2) The application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2360 of 2008

HYUK KYU LEE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant arrived in Australia in 1996 on a subclass 560 student visa. Thereafter, and until the time of his deportation to South Korea on 16 December 2008, he resided here on a series of student visas and bridging visas and, for several periods, as an illegal non-citizen.
2. Following the cancellation of the applicant’s most recent bridging visa on 24 June 2008, he was taken into detention at the Villawood Immigration Detention Centre (“Villawood”). After having been taken into detention, on 2 July 2008 the applicant made a further application for a bridging visa. This application was refused by a delegate of the first respondent (“Minister”). The applicant’s applications to the Migration Review Tribunal (“Tribunal”) for review of those departmental decisions cancelling his bridging visa and refusing to grant another one were unsuccessful and it appears from his application filed on 11 September 2008 and from his affidavit filed the same day that he has applied to this Court for judicial review of those two Tribunal decisions.
3. For the reasons which follow, the application will be dismissed.

Background facts

Application for bridging visa made on 23 June 2008

4. On 23 June 2008 the applicant was granted a Bridging E (Class WE) Subclass 050 visa valid until 24 June 2008 and subject to the following conditions, amongst others:
   1. 8510 (present valid passport); and
   2. 8511 (present valid ticket).
5. On 24 June 2008 the applicant presented at the compliance counter of the Minister’s department without a valid passport and without a valid ticket whereupon his visa was cancelled by a delegate of the Minister. He was subsequently detained under s.189 of the Migration Act 1958 (“Act”) and removed to Villawood where he remained until his deportation from Australia.
6. On 27 June 2008 the applicant applied to the Tribunal for a review of the delegate’s decision. However, in its decision signed on 8 July 2008 the Tribunal found that the application for review had not been properly made under s.347 of the Act as it had been received outside the mandatory time limit of two working days from the date of notification of cancellation. There being no provision for an extension of time, the Tribunal concluded that it did not have jurisdiction to review the delegate’s decision of 24 June 2008.

Application for bridging visa made on 2 July 2008

7. On 2 July 2008, while in detention, the applicant applied to the Minister’s department for a Bridging E (Class WE) Subclass 050 visa. This application was refused by the Minister’s delegate on 11 July 2008.
8. The applicant then applied to the Tribunal for a review of that decision. By its decision signed on 22 July 2008 the Tribunal affirmed the delegate’s decision not to grant the applicant a bridging visa, having found that, at the time of application, he did not meet the requirements of cl.050.212(1) of sch.2 to the Migration Regulations 1994 (“Regulations”), specifically:
   1. with respect to cl.050.212(2), the Tribunal was not satisfied that the applicant genuinely intended to depart Australia, noting that:
      1. his five previous consecutive Bridging E visas were all subject to conditions 8510 (present valid passport) and 8511 (present valid ticket) and he failed to present a valid passport or a valid ticket on the expiry of each of those visas;
      2. at the hearing the applicant stated that he did intend to depart Australia but only when the process for his application for Ministerial intervention became clear and when his appeal to the District Court in relation to a criminal matter was finalised; and
      3. the applicant had been given every opportunity to make acceptable arrangements to depart Australia but failed to avail himself of that opportunity;
   2. with respect to cl.050.212(3), there was no evidence before the Tribunal to suggest that the applicant had made a valid application for a substantive visa which had not yet been finally determined or that the Minister had granted him time to make such an application;
   100. with respect to cl.050.212(4)(b), the Tribunal found that the applicant had not made a valid application for merits review of a decision to cancel a visa, noting that his application for review of the delegate’s decision of 24 June 2008 was found by the Tribunal, differently constituted, not to be valid as it was out of time;
   4. with respect to cls.050.212(3A), (4), (4AAA), (4AA) and (4AB), there was nothing in the evidence to indicate that the applicant or any member of his family unit or the Minister had applied for judicial review of a relevant decision;
   5. with respect to cls.050.212(5) and (5A), there was no suggestion that the applicant held a visa which was cancelled under s.140(1), (2) or (3) of the Act (ie cancellation because of the cancellation of a visa held by another person);
   6. with respect to cls.050.212(6), (6AA) and (6A), there was nothing in the evidence to indicate that the applicant was at that time the subject of an application for Ministerial intervention;
   7. with respect to cl.050.212(7), the applicant had never been in criminal detention;
   8. with respect to cl.050.212(8), the applicant was not the holder of a Bridging E visa at the date of application; and
   9. with respect to cl.050.212(9), the applicant was not at that time the subject of judicial review proceedings with respect to other specified classes of visa.

Proceedings in this Court

Previous applications

9. On 2 December 2008 the applicant filed an application in a case seeking his release from immigration detention. I refused that application on 9 December 2008: Lee v Minister for Immigration & Citizenship [2008] FMCA 1734.
10. On 10 December 2008 the applicant filed an application in a case seeking an order that the Minister be restrained from removing him from Australia pending final determination of the matter on 4 February 2009. Raphael FM refused this application on 11 December 2008: Lee v Minister for Immigration & Citizenship [2008] FMCA 1675. An application for leave to appeal from his Honour’s decision was subsequently dismissed by the Federal Court: Lee v Minister for Immigration & Citizenship [2008] FCA 1919.
11. The applicant was deported to South Korea on 16 December 2008 where he remains.

Current application

12. The grounds of the application commencing these proceedings were pleaded as follows:
    • (1) There is no reason to cancel bridging visa E due to no travel document.
    • (2) I was taken Bankstown community mental hospital to have admission to the hospital for treatment.
13. The first pleaded ground alleges, in essence, that the visa cancellation was the product of an erroneous application of the test for the granting of the bridging visa which the applicant sought. The second pleaded ground appears to allege that the Tribunal as first constituted failed to take into account a relevant consideration when deciding whether the application it was considering had been filed late.
14. No substantive arguments were advanced by the applicant in respect of the second Tribunal decision.
15. Although he has not identified when he received the Tribunal decisions, the applicant has also sought an extension of time within which to bring these proceedings.

Proceedings out of time?

16. The first issue to address is the fact that the application to this Court was filed on 11 September 2008. Given the dates on which the Tribunal decisions were signed, 11 September 2008 might be outside the 28 day period which s.477 of the Act prescribes as the time within which proceedings for judicial review of Tribunal decisions must be commenced. However, there is no evidence before the Court as to when the applicant actually received the decisions. In those circumstances, I cannot conclude that time began to run on a particular date or that this application was filed late.
17. But regardless of that, in respect of both decisions these proceedings have been brought in time for the Court to be empowered under s.477 to extend time for the bringing of the proceedings. Given that the applicant was in detention at all relevant times, which undoubtedly presented difficulties for him, to the extent that an extension of time is necessary, I am of the view that the time for the commencement of these proceedings should be extended to 11 September 2008.

First decision – 8 July 2008

18. Turning to the grounds pleaded in the application, the first of these seeks to challenge the delegate’s decision to cancel the applicant’s visa. This ground cannot be considered to be addressed to the Tribunal’s decision because the Tribunal found that it had no jurisdiction to entertain the application for review as it had been filed out of time. Consequently, the first ground must be taken to be addressed to the delegate’s decision. However, the Court is not empowered to review such decisions of ministerial delegates: s.476(2)(a) of the Act. Consequently, the first pleaded ground does not disclose a basis on which this Court can provide any relief to the applicant.
19. As to the second pleaded ground, this refers to the applicant’s hospitalisation which seems to have been on 24 and/or 25 June 2008. The Tribunal’s decision turned on the lateness of the review application made to it, not on the circumstances which may have led to the application being late. The Tribunal had no discretion in the decision it had to make once it concluded that the application was late and thus it had no cause to have regard to the circumstances which may have brought that situation about. For that reason, the ground implicitly raised by the second matter pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.
20. More generally as to the first Tribunal decision and whether it was correct that the Tribunal did not have jurisdiction, the delegate’s decision of 24 June 2008 is reproduced at Relevant Documents (“RD”) pages 10-11 and the notification of that decision at RD 12-13. The place for the applicant’s signature acknowledging receipt of the notification of decision displays the words “refused to sign”. Based on this evidence, I am satisfied that although he refused to acknowledge receipt of the document the applicant was given the notification of decision at 17:41 on 24 June 2008 as the document states at RD 13. This, together with the other contents of the document, satisfy me that the delegate met the requirements of s.127 and regs.2.45 and 2.55 concerning the manner in which the applicant was to be advised of his visa cancellation and the information which was to be provided to him at that time.
21. By virtue of s.338(4)(b) of the Act, a decision to cancel a bridging visa which was held by a non-citizen who is in immigration detention because of the cancellation, is an MRT-reviewable decision. Section 347 provides that an application to the Tribunal for review of such a decision is to be made within the prescribed period. In the circumstances of this matter, that period is prescribed by reg.4.10(2)(a) as starting when the detainee receives the notice of detention and ends at the end of two working days after the day on which the notice is received.
22. As I am satisfied that the Minister’s delegate met the necessary notification requirements concerning the cancellation of the visa, I conclude that the applicant had until the end of 26 June 2008 to lodge his application for review with the Tribunal.
23. The documents reproduced at RD 1-7, together with the Tribunal’s letter to the applicant’s representative dated 27 June 2008, satisfy me that the application for review was received by the Tribunal on 27 June 2008. The former documents bear the Tribunal’s receipt stamp identifying them as having been received on 27 June 2008 and the latter document acknowledges receipt of those letters on 27 June 2008.
24. Thus the applicant’s first application to the Tribunal was lodged late and the Tribunal had no jurisdiction to consider it. As a consequence, jurisdictional error has not been demonstrated in connection with the first Tribunal decision and to this extent the application fails.

Second decision – 22 July 2008

25. The second Tribunal decision, which was signed on 22 July 2008, concerned the applicant’s application for a new bridging visa. He made this application after he had been detained.
26. The applicant was invited to attend a hearing before the Tribunal which he did on 21 July 2008. I am satisfied that the Tribunal met the procedural fairness requirements imposed upon it by div.5 of Pt.5 of the Act. In particular, by its letter of 18 July 2008 the Tribunal satisfied the requirements of s.359A and also s.360. Section 360 was further satisfied by the way, during the course of its hearing, the Tribunal put to the applicant issues arising in relation to the decision under review.
27. As to the Tribunal’s findings concerning whether the applicant satisfied the various criteria for the grant of a bridging visa, these are factual matters reserved to the Tribunal for determination. Even were the Court to have a view on those facts different from that of the Tribunal, that would be of no assistance to the applicant in these proceedings. The factual conclusions reached by the Tribunal in these proceedings were open to it and cannot be reconsidered by this Court.
28. As a result, I am not satisfied that jurisdictional error has been demonstrated by the applicant in connection with the second Tribunal decision. Therefore the application must be dismissed.

Generally

29. Finally, the Minister rightly submitted that the application is a practical futility because even if the applicant were to have been successful in demonstrating jurisdictional error, he would be unable to obtain the bridging visa he seeks. As to the first Tribunal decision, the visa in question would have expired, in any event, at the end of the very day on which it was cancelled. Consequently, even if the Tribunal had been found to have been in error in concluding that it had no jurisdiction and on remittal reversed the delegate’s decision, that would only have the effect of setting aside the cancellation of an otherwise expired visa. The reversal of the delegate’s decision would not lead to the applicant being the holder of a current visa.
30. As to the second Tribunal decision, cl.050.411 of sch.2 to the Regulations provides that in order to be granted a bridging visa:
    • The applicant must be in Australia ...

As the applicant is not in Australia, if the matter were remitted for reconsideration, the Tribunal could not grant the applicant a bridging visa because he would not satisfy the circumstances required to exist as a precondition of that grant.

31. As a result, even if my conclusions concerning the absence of jurisdictional error are wrong, the application is futile and liable to be dismissed on a discretionary basis.

Conclusion

32. The application will be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 16 February 2009