Fusi v Minister for Immigration
[2004] FMCA 458
•8 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FUSI v MINISTER FOR IMMIGRATION | [2004] FMCA 458 |
| MIGRATION – Review of MRT decision – where applicant’s wife and children Australian citizens – where applicant applied for a bridging visa – where Minister declined to exercise her discretion under s.417 Migration Act – where no outstanding application exists upon which the Tribunal could conduct a review – whether proceedings should be adjourned to allow the applicant to apply for another bridging visa to then allow him to apply for a spousal visa – where once removed from Australia the applicant would be barred from making a visa application until debt to the Commonwealth arising out of the costs associated with his detention is paid. |
Migration Act 1958 (Cth), ss.147, 417
Cachia v Hanes (1994) 179 CLR 403
| Applicant: | AISAKE FATAKA O LAKEPA FUSI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 2024 of 2004 |
| Delivered on: | 8 July 2004 |
| Delivered at: | Sydney |
| Hearing date: | 8 July 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr D Brezniak |
| Counsel for the Respondent: | Mr J A C Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondents costs assessed in the sum of $3,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 2024 of 2004
| AISAKE FATAKA O LAKEPA FUSI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
I have before me today an application filed originally in the Federal Court of Australia on 4 May 2004 for review of a decision of the Migration Review Tribunal which granted the applicant a bridging visa E on condition that he pay as security for his obligations the sum of $4,000. This decision of the Tribunal was made on review of a decision of the delegate who had made it a condition that the applicant paid a security of $5,000.
A bridging visa E is a temporary visa granted to a person who is making an application for a substantive visa or who is making applications related to the substantive visa, such as an application to this court for review, or an application under s.417 to the Minister. The requirements of the grant of a bridging visa are set out in Schedule 2 to the migration regulations and, in particular, that part of the migration regulations known as sub-class 050. The relevant regulations are identified in the decision of the Tribunal and found at page 57 of the court book.
The applicant in this case is represented by Mr Brezniak of counsel, who had an opportunity to look at the regulations. I do not see any necessity to set them out in detail in this judgment, but suffice to say there are two important criteria that should be mentioned. The first is a criteria to be satisfied at the time of the application under Regulation 050.212(6)(b)(1)(A) that the applicant is the subject of a decision for which the Minister has the power to substitute a more favourable decision under s.417 of the Act or under (2):
“That the Minister is personally considering whether to exercise or to consider the exercise of the Minister's power.”
The second criteria to be satisfied is a criteria to be satisfied at the time of the decision, and that includes the criteria which I have just set out. In other words, both at the time of application and at the time of decision, the applicant should (relevantly for this particular application) be awaiting a decision of the Minister on a s.147 application, or be capable of making one.
In this particular case, there is found at the final page of the court book at [CB 79] a letter from the Minister to the applicant dated 13 April 2004, advising him that his request for the exercise of her powers under s.417 had been referred to her, but after considering his case, she had decided not to exercise her power. The power under s.417 Migration Act 1958 is a power that is non-compellable pursuant to s.417(7) and non-reviewable.
The situation that now pertains is this. The applicant is seeking to obtain a review of a decision of the Migration Review Tribunal which, if it was successful, would have the effect of sending back his application to the Tribunal for consideration. But the Tribunal would not be able to consider it. The Tribunal can only consider an application for a bridging visa if the applicant complies with the criteria. The applicant would not comply with the criteria because at the time the Tribunal was being asked to make a decision there was no outstanding application to the Minister under s. 417, that application having been determined on 13 April 2004.
It, therefore, seems to me to be of no utility hearing and determining an application for review. I would be bound to exercise my discretion not to grant the review because the Tribunal, to whom the matter would be returned, was unable to act.
Mr Brezniak has made an eloquent plea for me to adjourn these proceedings for two weeks. He points out that the applicant is in detention and that the Minister appears to be anxious to have him removed from the country. If he is removed from the country, he will be unable to have any valid visa application considered until he had repaid to the Commonwealth his debt for their accommodating him in Villawood over the last few months.
The applicant is applying for a spouse visa. His wife is an Australian citizen. His children are Australian citizens. But he is not. He came to Australia on a particular visa, and he outstayed the term of that visa. As sympathetic as the Court may be to the applicant's situation, and as high as the Court may put its wish to be compassionate, the fact is that applications for judicial review are matters of strict law and unless they are conducted dispassionately the system is likely to fall into disrepute.
There really is no ground upon which I can adjourn this application. Mr Brezniak is not indicating that within two weeks he will find some good ground for review. He has said to me that he would hope that within the two weeks some further application may be made upon which another application for another bridging visa could be attached. That may well be, but the court is not dealing with such an application, it is dealing with the matter before it today.
I cannot grant the adjournment requested and I must dismiss the application that is presently before me. Mr Brezniak has submitted that notwithstanding the order that I have made his client should be paid his costs of these proceedings, and certain other proceedings before Conti J. This is resisted by Mr Potts. Mr Brezniak's point is that the grounds upon which I have dismissed the application and refused the application for an adjournment were not grounds that were raised by the respondent in her submissions, or were raised by the respondent before Conti J. I accept that this is the case, but it seems to me that a proper decision on costs should be made by looking at the whole of the application. The application was made in May of 2004, and the letter from the Minister was dated 13 April 2004. It is still the law of this country that a person is presumed to know the law, and whilst I quite understand that this particular applicant may not have appreciated the effect of the Minister's letter on the current application he could, if he had been able to, or if he had wished to, obtained legal advice which should, if it had been competent, have been clear that on application he made would have no utility and would be likely to be dismissed.
But the application was made, the Minister was required to respond, the parties have been here, the parties were before Conti J, about which I may say something more. In my view, the appropriate order is for the costs of this application to be paid by the applicant. I will assess those costs in the sum of $3,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
In regards to the application before Conti J, his Honour appears to have reserved the costs. The application before Conti J was an application by the applicant to prevent himself being removed from the country prior to this hearing. His Honour gave the applicant the necessary orders. That application was only made necessary because the Minister appears to have taken the rather unusual step of attempting to remove someone who had a current application pending before this court. In my view, the application was appropriately made and the applicant succeeded. The applicant was not represented. He is, therefore, not entitled to his costs: see Cachia v Hanes (1994) 179 CLR 403. The Minister is equally not entitled to hers.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 22 July 2004
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