Filipo v Minister for Immigration and Border Protection

[2014] FCA 874

FEDERAL COURT OF AUSTRALIA

Filipo v Minister for Immigration and Border Protection [2014] FCA 874

Citation:	Filipo v Minister for Immigration and Border Protection [2014] FCA 874
Parties:	FILLI FILIPO v MINISTER FOR IMMIGRATION AND BORDER PROTECTION
File number:	VID 386 of 2014
Judge:	NORTH J
Date of judgment:	1 August 2014
Legislation:	Federal Court Rules 2011 (Cth) Migration Act 1958 (Cth), s 501
Date of hearing:	1 August 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	12
Counsel for the Applicant:	The Applicant appeared in person.
Solicitor for the Respondent:	Mr D Brown of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 386 of 2014

BETWEEN:	FILLI FILIPO Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE:	NORTH J
DATE OF ORDER:	1 AUGUST 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The applicant be provided with legal advice, including whether there are grounds on which he should be represented by a lawyer at the hearing, under r 4.12 of the Federal Court Rules 2011.

2.The respondent prepare and serve an application book by 22 August 2014.

3.The Registrar advise the respondent of the name of the Counsel appointed pursuant to the certificate granted under order 1 and the respondent provide a copy of the said application book to said Counsel.

4.The directions hearing be adjourned to 10.15 am on 5 September 2014.

5.Costs reserved.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 386 of 2014

BETWEEN:	FILLI FILIPO Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE:	NORTH J
DATE:	1 AUGUST 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant in this matter seeks a certificate under the Federal Court Rules 2011 (Cth) (the Rules) for access to pro-bono legal advice.

2. On 10 July 2014, the applicant filed an application for review of a migration decision in which he sought writs of certiorari and mandamus and an injunction in relation to a decision of the respondent, the Minister for Immigration and Border Protection (the Minister), to refuse the applicant a Bridging E (Class WE) visa on character grounds. That visa would allow him to remain in Australia and, it appears, would allow him to pursue an application for a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa, based on his relationship with an Australian citizen. 

3. Under s 501(1) of the Migration Act 1958 (Cth) (the Migration Act), the Minister has a discretion to determine whether to grant or refuse a visa if the person does not pass the character test set out in s 501(6). It was common ground the applicant failed the character test because of his past criminal conduct.

4. The relevant offending related to a charge of armed robbery in company which occurred in Australia on 5 October 2000, for which the applicant was convicted on 27 April 2001 and sentenced to three years’ imprisonment with a non-parole period of 18 months. 

5. The Minister considered that the criminal conduct of the applicant outweighed the benefit to his four minor children who live in Australia, and consequently refused the grant of the visa.

6. The grounds on which the application for prerogative relief is sought are that the Minister failed to have regard to various considerations or failed to give sufficient weight to considerations in Ministerial Direction No. 55 made under s 499 of the Migration Act, and that the Minister failed to give sufficient weight to the consideration of the best interests of the applicant’s children.

7. As pointed out by Mr Brown, who appeared on behalf of the Minister, the three grounds which relate to the Ministerial Direction may suffer from the fact that the Minister personally exercised the discretion, and was therefore not bound to apply the Direction. The fourth ground appears to be a challenge to the merits of the decision and consequently, would not be available in a proceeding of this nature. 

8. It is possible to read the first three grounds as referring to the substance of the Ministerial Direction in a way that simply uses the Direction as a means of identifying the subject matter of the decision.  That is a strange way of achieving the purpose. It is more likely that the reference in the application is to a failure to have regard to the Direction. Then the problem for the applicant is that the Direction did not bind the Minister. 

9. As Mr Brown contended, the way in which the grounds of the application are constructed demonstrate that legal advice is required for the applicant. Mr Brown also fairly submitted that the area is of some legal complexity. 

10. The applicant was deported from Australia in 2003, when his visa was cancelled. It appears that he returned to Australia in 2009 and 2011, but was taken into immigration detention in about March this year.  He claims, and there was no reason advanced as why the Court should not accept his statement, that he has no financial resources available to engage a lawyer.  He has engaged a lawyer in the past in relation to his application for a Partner visa, but the applicant has no further resources given that he has been in detention and is therefore unable to work.  His partner works part-time.  She is living with her parents and has no resources to support him.  He has a sister and brother in Australia who have already assisted him, but they have no further available funds.  The applicant has a debt relating to the purchase of a car which his sister is paying off. 

11. From these facts, it is clear that the applicant is not in a position to afford legal assistance. He ought to receive legal advice, and therefore the Court will grant a certificate under r 4.12(1) of the Rules to allow him access to the pro-bono legal advice scheme.

12. The certificate should be limited to the provision of legal advice to the applicant on the merits of the application. If there are arguments identified by that advice which should be put to the Court on behalf of the applicant by a lawyer, then the applicant can make a further application for additional pro-bono assistance for legal representation at the hearing. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        18 August 2014