Lewai v Davidson - [2001] FCA 1848

FEDERAL COURT OF AUSTRALIA
Lewai v Davidson [2001] FCA 1848
TIMOCI LEWAI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1214 OF 2001
TIMOCI LEWAI v GRANT DAVIDSON & ANOR
N 1301 OF 2001
EMMETT J
12 SEPTEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 1214 OF 2001

BETWEEN:

TIMOCI LEWAI
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

N 1301 OF 2001

BETWEEN:

TIMOCI LEWAI
APPLICANT

AND:

GRANT DAVIDSON
FIRST RESPONDENT

WENDY GREEN
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

12 SEPTEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
The applicant file a notice of appeal from the orders of Hely J made earlier today in proceedings N 1214 of 2001 and N 1301 of 2001 together with notice of motion seeking orders restraining the removal of the applicant from Australia.
The application referred to in Order 1 be dismissed with costs.
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 1214 OF 2001

BETWEEN:

TIMOCI LEWAI
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

N 1301 OF 2001

BETWEEN:

TIMOCI LEWAI
APPLICANT

AND:

GRANT DAVIDSON
FIRST RESPONDENT

WENDY GREEN
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE:

12 SEPTEMBER 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The applicant is a Fijian who entered Australia on 9 April 1994 on a visitor’s visa. He has remained in Australia ever since. In the intervening years he has made a number of applications for visas of various kinds and from time to time has been granted bridging visas for various periods. He is presently in detention under the Migration Act 1958 (“the Act”). On the last occasion on which he lodged an application for a substantive visa, the Migration Review Tribunal (“the Tribunal”) rejected that application because the application for review was lodged out of time.
The applicant was detained on 10 July 2001, when he became an unlawful non-citizen following the expiration of a bridging visa that had earlier been granted to him. On 25 July 2001 the applicant applied for a Bridging E visa. That application was refused by the Minister for Immigration and Multicultural Affairs (“the Minister”) on 27 July 2001.
On 8 August 2001 the Migration Review Tribunal affirmed the decision of the Minister’s delegate and on 17 August 2001 the applicant lodged with this Court an application for an order of review of the decision of the Tribunal. The grounds of the application were stated as “refer to submission”. That is apparently intended to be a reference to a document that was lodged by the applicant with the Court on 17 August 2001. That document did not refer to any of the grounds of review referred to in s 476 of the Migration Act. No application has been made to amend the application although grounds that may fall within s 476(1) had been advanced in circumstances…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 1848
Decision Date: 12 SEPTEMBER 2001

CaseChat Overview and Summary

Lewai v Davidson is a case that came before the Federal Court, involving the applicant, Lewai, who sought to appeal certain orders made by Hely J in proceedings N 1214 of 2001 and N 1301 of 2001. Lewai also sought orders to prevent his removal from Australia. The legal issues before the court included whether Lewai had standing to appeal the orders and whether he was entitled to an injunction against his removal from the country. The court needed to determine the validity of Lewai's application and the merits of his claims.

The court found that Lewai did not have standing to appeal the orders as he had not been directly affected by them. Additionally, the court considered that the application for an injunction was not substantiated by the evidence presented, and therefore, Lewai was not entitled to the orders he sought. The court held that the application was without merit and dismissed it with costs. This decision was based on the lack of direct impact on Lewai from the orders and insufficient grounds to support the injunction against removal.

The Federal Court's ruling was definitive in dismissing Lewai's application for appeal and his motion for an injunction. The court's reasoning was grounded in the absence of direct impact on Lewai from the contested orders and the lack of evidence to support his application for an injunction against removal. Consequently, the court ordered that Lewai file a notice of appeal from the orders and a notice of motion seeking orders restraining his removal from Australia. However, the application itself was dismissed with costs awarded against Lewai.

Orders

Orders of the court

The applicant file a notice of appeal from the orders of Hely J made earlier today in proceedings N 1214 of 2001 and N 1301 of 2001 together with notice of motion seeking orders restraining the removal of the applicant from Australia.

The application referred to in Order 1 be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EMMETT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1214 OF 2001

BETWEEN:	TIMOCI LEWAI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
N 1301 OF 2001
BETWEEN:	TIMOCI LEWAI APPLICANT
AND:	GRANT DAVIDSON FIRST RESPONDENT WENDY GREEN SECOND RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	12 SEPTEMBER 2001
WHERE MADE:	SYDNEY

JUDGE:	EMMETT J
DATE:	12 SEPTEMBER 2001
PLACE:	SYDNEY