Masone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 64
•5 February 2021
FEDERAL COURT OF AUSTRALIA
Masone v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 64
Appeal from: Masone v Minister for Immigration [2020] FCCA 1642 File number: NSD 722 of 2020 Judgment of: PERRAM J Date of judgment: 5 February 2021 Catchwords: MIGRATION – application for leave to appeal from Federal Circuit Court decision dismissing application to set aside no-work condition imposed on bridging visa – where bridging visa expired – whether any justiciable question Cases cited: Northern Territory v Sangare [2019] HCA 25; 265 CLR 164 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 9 Date of hearing: 2 February 2021 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Ms D Watson of the Australian Government Solicitor ORDERS
NSD 722 of 2020 BETWEEN: SEBASTIAN MASONE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
PERRAM J
DATE OF ORDER:
5 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
Mr Masone is an Italian citizen who, by trade, is a painter. He is due to depart Australia on 22 March 2021. He does not presently hold a visa but on 26 November 2020 he applied for a bridging visa to cover the period until his departure. He has previously held two such bridging visas to cover the period before he departed Australia. In his 26 November 2020 bridging visa application, Mr Masone stated that his departure from Australia has been delayed by the circumstances of the present pandemic. At an earlier time, Mr Masone had unsuccessfully sought the issue of a substantive visa being a Temporary Skill Shortage Subclass 482 visa on the basis that he was painter. But he does not appear to be pursuing that visa (although, it may fairly be said he is not content with the way in which the Department of Home Affairs (‘the Department’) handled that application either). In any event, no issue presently arises about the substantive visa.
Mr Masone’s apparent problem is that whilst he is cooling his heels in Sydney waiting to depart he wishes to be able to work but has been unable to do so. This is because both of the earlier bridging visas were subject to a condition which prevented him from working. The present proceeding concerns the legality of the imposition of this condition on his bridging visa.
In his original proceeding before the Federal Circuit Court he sought to challenge the imposition of the no-work condition on the first bridging visa. That first visa remained in force at the time he commenced the proceeding but by the time the proceeding was heard it had expired and had been replaced with the second bridging visa which was, nevertheless, still subject to the same condition. At the hearing below he therefore sought to amend his case so as to challenge the imposition of the no-work condition on his second visa.
The primary judge did not permit him to amend his case to challenge the second visa because he did not think that the amended application could succeed. Having reached that conclusion his Honour then dismissed the remaining challenge summarily on the basis that it too had no reasonable prospects of success. I think, with respect, it might have been more accurate to have said that the challenge to the first bridging visa no longer served any purpose and was moot since the visa had expired. But nothing turns on this.
Mr Masone now seeks leave to appeal from the orders of the Federal Circuit Court. A similar problem now arises: the second bridging visa has now expired and there would be no utility in setting aside the decision to impose upon it a no-work condition. Although it is true, as Mr Masone correctly pointed out, that he lodged an application for a third bridging visa on 26 November 2020 the fact is that no bridging visa has yet been issued as a result of that application. This has the unfortunate consequence that there can presently be no justiciable dispute about the legality of the imposition of the no-work condition. The two earlier visas have expired and the application in respect of the third has not yet been determined.
By itself, this provides a sufficient reason to dismiss the present application for leave to appeal. Assuming in Mr Masone’s favour that it was unlawful for the Minister’s delegate to impose the no-work condition on the first or second visa, this could not result in the setting aside of the no-work condition imposed on those visas because both have expired and this would be pointless. For that reason, I must dismiss the application for leave to appeal.
Mr Masone’s basic point is that he needs to work because he is in a position of financial hardship. His best interests would be served by demonstrating his financial hardship in support of his bridging visa application. At present, in his most recent application the only financial hardship he puts forward is the adverse costs order made by the primary judge. This is a matter for Mr Masone, but it may be more useful for him to explain to the Department what his financial position is, ie, monthly income and expenses, assets and so forth.
Mr Masone indicated to me that he could not pay the costs order made by the court below and that he would not be able to afford to pay any costs order in this Court. The ordinary rule is that costs follow the event. That he is not able to meet such a costs order is, no doubt, unfortunate but it does not provide a principled basis for not making a costs order: Northern Territory v Sangare [2019] HCA 25; 265 CLR 164 at 173-174 [26], 176-177 [35] per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ.
I will therefore order that the application for leave to appeal be dismissed with costs.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram. Associate:
Dated: 5 February 2021
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