Carrim v Minister for Immigration & Multicultural Affairs [1999] FCA 55 (1 February 1999)

Last Updated: 21 April 1999

FEDERAL COURT OF AUSTRALIA

Carrim v Minister for Immigration & Multicultural Affairs [1999] FCA 55

ANVER ALLY CARRIM v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1346 OF 1998

TAMBERLIN J

1 FEBRUARY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1346 OF 1998

BETWEEN:	ANVER ALLY CARRIM Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	TAMBERLIN J
DATE:	1 FEBRUARY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Ex-tempore Judgment

1 This is an application filed on 11 December 1998 by Mr Carrim to review the decision of the Immigration Review Tribunal ("the IRT") certified on 8 December 1998 and dated 7 December 1998.

2 The decision of the IRT affirmed a decision under review by it. This latter decision was made by a delegate of the Minister for Immigration and Multicultural Affairs. The effect of that decision was that the applicant was refused the grant of a Bridging visa. The visa applicant was born on 21 January 1956 and is a citizen of South Africa. He last arrived in Australia on 17 February 1993 holding a tourist visa and while that visa was current he applied for a protection visa. The Protection visa was refused and this decision was affirmed by the Refugee Review Tribunal. The Minister was requested to exercise his powers under s 417 of the Migration Act 1958 in favour of the applicant but this request was unsuccessful.

3 The applicant was then detained in December 1997 after his last Bridging visa expired on 29 November 1997. His application for a new Bridging visa was initially refused, but the IRT granted a Bridging visa on 23 December 1997 valid until 9 January 1998. The Bridging visa was granted on the basis that the applicant provide evidence of an airline ticket with a departure date on or before 9 January 1998, and security of $3000 for compliance with that and other conditions was lodged by a Mr Tariq, a friend of the applicant.

4 On 12 January 1998 the applicant joined a representative action known as Kagi v Minister for Immigration and Multicultural Affairs, which had been instituted in the Federal Court. This decision was on appeal to the Full Federal Court at the time of the hearing before Mr Glass in the Tribunal which is the subject of today's application.

5 The findings of the Tribunal in this matter are that the applicant failed to abide by certain conditions of a Bridging visa which was issued on 23 December 1997. He failed to report, failed to make arrangements to pay detention costs, failed to depart on the date specified and failed to live at an address put forward by him and agreed upon as his residence. He was subsequently detained and since then has applied for Bridging visas on a number of occasions. These applications were refused by the Department and when review was sought they were refused by the Tribunal.

6 At the hearing before Mr Glass, the failure of the applicant to comply with the conditions imposed on the previous Bridging visa were discussed. The applicant, Mr Carrim, said he complied with the condition that he must not engage in work in Australia. He said that he did not report three times a week to the Department after the first week, because he assumed he did not have to once he joined the class action in the Kagi matter. He said that while he did not continue to live at Mimosa Road, Greenacre, he thought his friend had notified the Department about this. In relation to payment of detention costs, he said that he did not think he had to do this after he had brought the Court proceedings. In relation to not leaving Australia on 9 January 1998, he agreed that he had never had the intention of doing this. He acknowledged he was not telling the truth at the original Tribunal hearing about this particular matter. He always had it in mind, he said, to apply for a Resolution of Status visa which was the subject of the Court proceeding.

7 The applicant said that he went to India at the age of 3 years. He has a mother, wife and five children between the ages of 16 and 19 living in Bombay. He said that his family is supported in India by his brother who is a successful businessman. He has no family in Australia but many friends. He said that a bond of about $2000 could be paid by his friends in Australia. A Mr Hafeez who accompanied him at the hearing said he would pay a surety in this amount.

8 Mr Carrim said he realised that he would not be entitled to work if he were granted a Bridging visa. He said that Mr Tariq would allow him a room in his house and he would support him financially. It was agreed he may well be in Australia in these circumstances for over a year. He indicated that he would pursue the Court proceedings up to the High Court and if he lost in that court he would return to India.

9 The decision-maker below went on to say that the visa applicant had conceded that he had worked in a number of casual jobs in Australia such as office cleaning, loading and unloading containers but he asserted he would not work unless he had permission to work. He assured the Tribunal that his friends in the Muslim community would support him in Australia.

10 The legislation and the delegated legislation which relates to this matter is fully set out in the judgment of the Tribunal and I will not repeat the provisions in this decision. The principal provision in question, however, is cl 050.213 of Schedule 2 to the Migration Regulations. This is to the effect that if the visa is granted the visa applicant will abide by the conditions imposed by the visa. The wording of the regulations is that:

"The Minister is satisfied that, if a bridging visa is granted to the applicant, that the applicant will abide by the conditions (if any) imposed on it."

11 In relation to this matter, after considering various questions set out in the Departmental Migration Series Instruction, and after discussing the relevant facts, the decision-maker came to this conclusion at page 11 of his decision:

"As with the many other decision-makers who have been involved in this matter I am not in a position to make the finding that the Applicant would abide by the conditions under discussion. There is not sufficient material before me to say that he would abide by the no work condition for the indefinite period for which he hopes to stay in Australia while his review is processed. Putting to one side his motives with regard to this, there is not the material before me to show that his needs would be met by others for this indefinite period. Most crucially is the fact that the Visa Applicant failed to comply with the condition imposed upon his last Bridging visa, namely, that he leave Australia by 9 January 1998. It is to the Applicant's credit that he was frank enough to concede at the hearing that he never intended to comply with this condition. But this does not add to the confidence of any subsequent decision-maker that the Visa Applicant would comply with the conditions imposed on future Bridging visas."

12 The requirement for satisfaction is a mandatory one and failure to meet it means that the visa should not be granted.

13 Following the above quoted passage, the decision-maker announced his decision affirming the decision of the Ministerial delegate. In reaching his conclusion with respect to the question whether the applicant would abide by the conditions which would be imposed on the grant of a Bridging visa, the decision-maker had regard to the remarks of Hely J in the case of Choy Hiong Chan v Minister for Immigration and Multicultural Affairs [1998] FCA 1357. In that case his Honour pointed out that some of the questions set out in the relevant Departmental Migration Series Instruction were not germane to the particular case before him, but nevertheless he went on to hold that there had been no error of law in the circumstances of that case.

14 The specific question for determination, namely whether the decision-maker is satisfied that the applicant would abide by the conditions, is essentially one of fact and degree. It involves a determination as to the sufficiency and persuasiveness of material and evidence placed before the decision-maker. This necessarily requires a balancing and weighing of material considerations and indeed involves a consideration of the demeanour of the applicant.

15 It is evident that the decision-maker attached particular importance to the fact that the visa applicant had failed to comply with conditions imposed on his earlier Bridging visa. It is in accordance with common sense and experience that at least one important indication as to the attitude or future conduct of a person with regard to the observance of conditions and requirements, is past performance. That does not mean the decision-maker is bound to reach a conclusion that the past breach is determinative, but only that it can be taken into account and given such weight as is considered appropriate. Past breaches may in some circumstances leave it open to a court to find that an applicant would, perhaps as a result of some change in attitude or appreciation of circumstances, comply with conditions. In the present case, as the decision-maker correctly points out, the applicant was quite frank about non-compliance. However, frankness does not necessarily equate with an intention or ability to comply with conditions in the future.

16 In cases such as the present which call for an assessment of the likely future conduct of an applicant, the decision-maker having had an opportunity to observe the applicant, has a considerable advantage over a court or review. In these circumstances the Court must take into account that it is appropriate to exercise a degree of caution when a challenge is made to a decision of this nature by the Tribunal.

17 In all the circumstances I am not satisfied that any reviewable error of law or principle or any material error of fact has been shown and accordingly I dismiss the application. In the circumstances, I do not think it is appropriate that I should make any order with respect to costs, and I refrain from doing so.

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

Associate:

Dated: 1 February 1999

Applicant:	Litigant in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 February 1999
Date of Judgment:	1 February 1999