Masila v Minister for Immigration and Multicultural Affairs

[2001] FCA 1611

FEDERAL COURT OF AUSTRALIA

Masila v Minister for Immigration and Multicultural Affairs [2001] FCA 1611

Migration Act 1958 (Cth) s 476; Schedule 2, Subclass 050

MASILA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Q126 OF 2001

DRUMMOND, KIEFEL, DOWSETT JJ
13 NOVEMBER 2001
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q126 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VILIAMI OTULAU MASILA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	DRUMMOND, KIEFEL AND DOWSETT JJ
DATE OF ORDER:	13 NOVEMBER 2001
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant pay the respondent’s costs of and incidental to the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q126 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VILIAMI OTULAU MASILA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	DRUMMOND, KIEFEL AND DOWSETT JJ
DATE:	13 NOVEMBER 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a single Judge of the this Court, Cooper J. His Honour dismissed the appellant’s application for review of the decision of the Migration Review Tribunal, which had refused a Bridging Visa E subclass 050. His Honour held that no ground under s 476 Migration Act 1958 (Cth) had been made out.

2. The criteria applying to a subclass 050 visa relevantly included whether the appellant was making acceptable arrangements to depart Australia;  whether he had any other applications in place;  and whether he would abide by conditions imposed on the visa, if it were made.  The appellant had not arranged the purchase of any airline ticket at the time of the hearing and the Tribunal considered that he had had ample time to make such arrangements.  The Tribunal found that he did not have any other substantive applications on foot.  Whilst he had made a request for the exercise of the Minister’s discretion under s 48B (which was also dealt with as an application under s 417) that did not, itself, amount to such an application.  If successful it simply permitted him to lodge a further application.  With respect to the requirement that he abide by any conditions to be attached to a visa, it observed that he had consistently failed to do so on earlier occasions.

3. His Honour the primary Judge held that the Migration Review Tribunal was correct in its view that the appellant’s request was not an application for a substantive visa as defined.  The appellant’s second ground for review before his Honour was that the Migration Review Tribunal had failed to take into account a security bond offered by the appellant for his release.  However, as his Honour held, this was not relevant to the question whether the visa be granted.  The question, whether security should be provided, had not arisen. 

4. Neither of the other grounds was supported by submissions before his Honour.  They referred to a failure, on the part of the Migration Review Tribunal, to abide by its rules or guidelines and the decision by the Minister under ss 48B or  417.  His Honour considered that the grounds, and the further and better particulars provided in support of them, did not contain a reference to a relevant legal error. 

5. Additional allegations were made by the person who was permitted to appear on behalf of the appellant about the conduct of interviews undertaken with the appellant and the procedures prior to the Migration Review Tribunal hearing.  None of them had however been raised before the Migration Review Tribunal and, his Honour held, that there was no evidence  to suggest that he needed an interpreter.

6. The first of the appellant’s three grounds for appeal challenges the correctness of the Migration Review Tribunal’s decision, upheld by his Honour, that the relevant criteria were not met.  We can discern no basis for error on his Honour’s part in this regard.  The second and third grounds are:

   (b)Failing to take into consideration in the making of the decision that from 01 November 200 [sic] two aspects of immigration law relating BVE visas that a security deposit may require before a visa is granted.

   (c)That Justice Cooper erred in law that the delegate at interview held on 22 February 2001 failed to ensure that the applicant was made aware of the provisions of ss 195 and 196 in accordance with the requirements of s 194 of the Act.”

7. Neither appears to us to have relevance to the decision before his Honour and in any event, would not appear to have been raised at that time.  They should not therefore be considered on appeal.  The submissions, oral and written, on behalf of the appellant take the matter no further. 

8. No grounds for appeal have been shown.  The appeal must be dismissed, with costs. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Drummond, Kiefel and Dowsett .

Associate:

Dated:             13 November 2001

Counsel for the Appellant:	L Fonua with the leave of the Court
Counsel for the Respondent:	D A Kelly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	13 November 2001
Date of Judgment:	13 November 2001