NAIE v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 491

FEDERAL COURT OF AUSTRALIA

NAIE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 491

IMMIGRATION – judicial review of a decision of the Migration Review Tribunal affirming a decision of delegate of the respondent Minister for Immigration and Multicultural and Indigenous affairs not to grant the applicant a Bridging E (Class WE) visa – where the applicant did not meet the criteria of the visa and was unable to show any error of law on the part of the Migration Review Tribunal.

COSTS – indemnity costs – appropriateness of indemnity costs where no ground can be made out for any relief and where no ground is even attempted to be made out.

Judiciary Act 1903 (Cth) – s 39B
Migration Regulations 1994 (Cth) – reg 050.212

NAIE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N40 OF 2003

HILL J
23 APRIL 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N40 OF 2003

BETWEEN:	NAIE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	23 APRIL 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent Minister’s costs on an indemnity basis.

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	N40 OF 2003

BETWEEN:	NAIE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	23 APRIL 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applies to the Court pursuant to s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision made by the delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs refusing to grant to her a Bridging E (Class WE) visa, a decision affirmed by the Migration Review Tribunal.

2. The applicant is a citizen of the Republic of China.  She applied for a bridging visa on 2 December 2002.  A delegate of the Minister refused to grant the visa and in consequence the applicant applied to the Migration Review Tribunal to review the decision of the delegate.

3. The background facts to the application for review are set out in the Tribunal's decision and I do not need to repeat them. The Tribunal found that the relevant criteria to assess the application is that set out in regulation 050.212 of the Migration Regulations 1994 (Cth). For the applicant to succeed she needed to establish that both at the time the application was made and the time of decision she met the criteria in subclause 050.212(1).

4. The Tribunal considered each of the criteria and concluded that the applicant did not meet any of the threshold criteria.  It accordingly affirmed the decision of the respondent Minister.

5. The applicant applied to the Court claiming that the Tribunal had failed to make a bona fide attempt to exercise its powers and claimed lack of reasonableness, failure or constructive failure to comply with the Migration Act 1958 (Cth) or that there had been a denial of nature justice to her. No doubt the application was prepared with the assistance of some person who at least understood what might be potential grounds for judicial review.

6. Accompanying the application was an affidavit of the applicant stating that she wished to stay in Australia because she had a fear of persecution in China.  It seems that the applicant was a practitioner of Falun Gong and had at some stage applied for a protection visa which was refused.  Apparently that application is no longer the subject of appeal proceedings.

7. When the matter was called this morning the applicant could not indicate any error in the Tribunal's decision.  The applicant was unrepresented although she had the assistance of an interpreter.  It is perhaps not surprising that an unrepresented applicant is unable to indicate in what respect an administrative decision with which the applicant disagrees is wrong in law.  However, in a case such as the present where at any time it would be open to the applicant to apply again for a bridging visa and where the applicant does not know what errors there are, if any, of a decision of the Tribunal, the application can be seen to be frivolous and a waste of resources both of the respondent Minister and of the Court.

8. I have read the Tribunal's decision with some care having regard to the fact that the applicant is unrepresented. I can detect in it no ground that would constitute a basis for the relief sought under s 39B of the Judiciary Act 1903 (Cth). In the circumstances I would dismiss the application.

9. There must come a time when applicants realise that applications should not be brought to a court in circumstances where there is no ground for them and where the only consequence of the application is the time delay that it produces.  I think that where absolutely no ground can be made out for any relief and where no ground is even attempted to be made out, it is appropriate that an order of costs be made on an indemnity basis payable by the applicant.  I would accordingly dismiss the application and order the applicant to pay the respondent Minister's costs on a solicitor and client basis.

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

Associate:

Dated:            15 May 2003

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	23 April 2003
Date of Judgment:	23 April 2003