Nacika v Minister for Immigration and Multicultural Affairs

[2001] FCA 109

FEDERAL COURT OF AUSTRALIA

Nacika v Minister for Immigration & Multicultural Affairs [2000] FCA 109

MIGRATION – detention – whether reviewable error in determining the amount of security

Migration Act 1958 (Cth) s 476(1)
Migration Regulations 1994 (Cth) subdivisions 050.21 and 050.22

NACIKA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 53 OF 2001

JUDGE:         MERKEL J
DATE:           16 FEBRUARY 2001
PLACE:         MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 53 OF 2001

BETWEEN:	WAISALE R NACIKA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	16 FEBRUARY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT the application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 53 OF 2001

BETWEEN:	WAISALE R NACIKA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE:	16 FEBRUARY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant has applied to the Court for review of two decisions by the Migration Review Tribunal (“the MRT”).  The first decision affirmed a decision made on 8 January 2001 by the delegate of the Minister not to grant the Applicant a Bridging E (Class WE) visa, subclass 050.  The second decision affirmed a decision by an authorised officer that related to the requiring of a security of $30, 000 for compliance with conditions if the visa was to be granted and to the refusal to grant such visa.

2. The applicant has represented himself throughout the proceeding and was unable to state the grounds of reviewable error under section 476(1) of the Migration Act 1958 (Cth) (“the Act”) upon which he relies. In order to determine his application fairly I directed that the respondent (“the Minister”) prepare a Court Book and an outline of facts and contentions.

3. The background to the present application is set out in the MRT’s reasons for decision.  The applicant arrived in Australia in June 1996 from Fiji on a Short Stay (Visitor)(Class TR) visa and since that time appears to have endeavoured to remain in Australia. 

4. The last bridging visa held by the applicant was granted on 30 July 1998 after the required security of $3,000 had been lodged.  The visa included conditions about reporting, residing at a specific address and work and study restrictions.  The applicant stopped reporting and, consequently, on 8 November 2000 an authorised officer of the Department of Immigration and Multicultural Affairs decided that the security was to be forfeited.  On 8 December 2000 the applicant was apprehended at his place of employment and placed in detention.  On 15 December 2000 an authorised officer determined that a security deposit of $30, 000 would be required if a bridging visa were to be granted.

5. On 5 January 2001 the applicant applied for a bridging visa which was refused on the basis that he was unable to meet any of the criteria of clause 050.212 of the Migration Regulations1994 (“the Regulations”). The delegate further found that he was not satisfied that the applicant would abide by the conditions of a bridging visa, including the provisions of the $30,000 security deposit, which the applicant had failed to lodge.

6. The applicant has essentially asked the Court for a review of his case on the merits, which is impermissible under Pt 8 of the Act. The Minister has provided a comprehensive outline of the relevant facts and his contentions plainly demonstrate that no reviewable error of law in the making of the two decisions under review has been established.

7. In order to succeed in an application for a visa it is necessary for an applicant to satisfy all the criteria for the grant of the visa as set out in Part 050 of the Regulations. The criteria are divided into criteria that must be satisfied at the time of the application for the visa (set out under item 050.21) and at the time of the decision on the application (set out under item 050.22). Relevantly, the criteria that must be satisfied at the time of the decision include the following:

   “050.223 The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.

   050.224  If an authorised officer has required a security for compliance with any conditions that the officer has indicated to the applicant will be imposed on the visa if it is granted, the security has been lodged”

8. There was clearly material before the MRT upon which it was open to it to find that the security of the amount of $30, 000 was appropriate in the circumstances. In that regard the applicant’s prior history was such that the authorised officer and the MRT were entitled to be concerned about the risk of absconding by the applicant. While the amount of the security is substantial and clearly beyond the applicant’s means to pay, no ground has been made out that the decision to require such security involved a misuse of power or any other reviewable error under Pt 8. It is also clear that the applicant has not paid the security of $30, 000 and therefore could not satisfy the criterion in item 050.224 of the Regulations.

9. In view of the above conclusions it is appropriate to dismiss the applicant’s application for review.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated:             16 February 2001

Counsel for the Respondent:	Ms C Beaton-Wells
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	16 February 2001
Date of Judgment:	16 February 2001