Delatabua v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 884

FEDERAL COURT OF AUSTRALIA

Delatabua v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 884

MANUELI QIONNILILIWA DELATABUA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 974 of 2004

WILCOX J
11 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 974 of 2004

BETWEEN:	MANUELI QIONNILILIWA DELATABUA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	11 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for urgent interlocutory relief be refused.

2.        The costs of the application be reserved.

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 974 of 2004

BETWEEN:	MANUELI QIONNILILIWA DELATABUA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	11 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. Application has been made to me, as a matter of urgency, for an order restraining the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) from removing the applicant from Australia. 

2. The applicant has a pending application, in the Federal Magistrates Court of Australia, for review of a decision given by the Migration Review Tribunal (‘the Tribunal’) on 11 May 2004.  The decision of the Tribunal was to affirm a decision of a delegate of the Minister which found that the applicant was not entitled to the grant of a Bridging Visa E (Class WE) Subclass 050 visa. 

3. The Tribunal found that the applicant satisfied all the conditions required for the grant of such a visa except those set out in clause 050.223 of Schedule 2 of the Migration Regulations 1994 (Cth).  That clause reads:

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

4. The Tribunal was not satisfied that, if the applicant was granted a bridging visa, he would refrain from working in Australia and would surrender himself for removal at the end of the period of the visa.

5. The problem, from the applicant's point of view, is that he has a poor record of compliance with migration legislation.  He entered Australia from Fiji lawfully in September 2001.  His visa expired on 27 November 2001 but he did not apply for an extension of his visa or depart from Australia.  Subsequently, he met an Australian citizen with whom he had a child, born in March 2003.  He and the mother of the child were married in July 2003.  They are expecting another baby within the next few days or weeks.  At one stage, the applicant was minded to depart Australia voluntarily after the birth of the child, and make a spouse application from Fiji.  However, in order to do this, he would need a bridging visa to cover the interim period.  The applicant is currently in immigration detention.

6. I have read the Tribunal’s reasons for decision. The Tribunal was not satisfied about the applicant’s likely compliance with the requirements of clause 050.223, mainly because of his previous history. I have considered whether there is any basis upon which it can be argued that, in reaching the conclusion, the Tribunal failed to take into account a relevant consideration. Nothing of that nature occurs to me, or has been put before me. The Tribunal was undoubtedly aware of the relationship that had been formed between the applicant and his Australian wife. The Tribunal was also aware of the situation in regard to the two children, one born last year and the other about to be born. The Tribunal was also aware that the applicant had been working in Australia, despite the fact that this was a breach of a condition of the visa upon which he entered this country.

7. Some people might have taken a different view to the Tribunal about the applicant’s likely satisfaction of clause 050.223, but I am unable to say the Tribunal fell into error of a jurisdictional nature in coming to the conclusion which it did. Indeed, I do not think it is seriously arguable that jurisdictional error occurred.

8. It follows that, notwithstanding my sympathy for the applicant, and perhaps, more particularly, for his wife, the Court would not be justified in intervening.  I have discussed with Mr Peek, solicitor for the Minister who appears today, whether it might be possible for the Minister to deal urgently with a s 351 application which is currently before her, and/or to permit the applicant to lodge a spouse application on shore in Australia, before being removed this afternoon.  It seems to me that, if one has regard to the human situation of this family, then there is a lot to be said in favour of one or both those actions.  However, that is a matter for the Minister.  I cannot be influenced by such considerations in dealing with the present application.  Accordingly, I refuse the application for urgent interlocutory relief. 

9. I thank Ms Hunt, who is not a lawyer but who has interested herself in the applicant's problems, for attending court at short notice and apprising me of his situation.  I am unable to accede to the application she makes, but I much appreciate her assistance.

10. I reserve the matter of costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             11 June 2004

Ms J Hunt appeared for the Applicant.
Solicitor for the Respondent:	Mr G Peek of Australian Government Solicitor
Date of Hearing:	11 June 2004
Date of Judgment:	11 June 2004