NAAX v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAAX v MINISTER FOR IMMIGRATION [2002] FMCA 349

MIGRATION – Review of Migration Review Tribunal decision affirming a delegate’s refusal of a bridging visa – no reviewable error found.

Judiciary Act 1903 (Cth), ss.39B, 78B
Migration Act 1958 (Cth), ss.474, 475, 476

Migration Regulations

Vaea v Minister for Immigration [2002] FMCA 292

Applicant: NAAX

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1008 of 2002

Delivered on: 2 December 2002

Delivered at: Sydney

Hearing Date: 2 December 2002

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed at $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1008 of 2002

NAAX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This ex tempore judgment relates to an application filed in the Federal Court on 20 September 2002 to review a decision of the Migration Review Tribunal (“the MRT”) made on 6 September 2002.  The application is to review a decision of the MRT to confirm a refusal to grant the applicant a bridging E class WE visa.  The application has been transferred to this Court by order of his Honour, Gyles J on 15 October 2002.

2. The applicant is a Tongan national.  It seems that the present review application was initially treated as a review of a protection visa decision.  Hence, the applicant has not been identified in the court papers.  Out of caution, I have maintained that position in this judgment, although I do not think that it is necessary.

3. In her application and supporting affidavit the applicant asserts that the decision of the MRT was incorrect and wrong in law and that the decision involved s.78B and s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). The applicant also asserted that she met primary criteria for a bridging visa to be granted; that the decision of the delegate not to grant a bridging visa was done in bad faith and that the applicant is “not subject to mandatory detention is unconstitutional” - which I take to mean that the detention of the applicant is said to be unconstitutional.

4. The first ground of review is an invitation to review the merits of the MRT decision.  In his submissions filed on 28 November 2002, Mr Reilly, for the Minister, pointed out that that is not a course open to this Court. 

5. The second ground purportedly raises a constitutional issue. The applicant has issued a notice under s.78B of the Judiciary Act purporting to raise a constitutional matter concerning the validity of ss.474, 475 and 476 of the Migration Act 1958 (Cth) (“the Migration Act”). This is a very similar approach to that taken by applicants in some other proceedings involving persons from Tonga. I dealt with the issue…