Smith v Minister for Immigration and Multicultural &

[2002] FCA 306

FEDERAL COURT OF AUSTRALIA

Smith v Minister for Immigration & Multicultural &
Indigenous Affairs [2002] FCA 306

SALVINO B. SMITH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 90 OF 2002

EMMETT J
11 MARCH 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 90 OF 2002

BETWEEN:	SALVINO B SMITH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	11 MARCH 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed; and

2.        the applicant pay the respondent’s costs.

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	N 90 OF 2002

BETWEEN:	SALVINO B SMITH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	11 MARCH 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a national of Fiji.  On 9 January 2002 he applied for a Bridging E (Class WE) visa.  A delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (“the Minister”), decided to refuse to grant a visa on 11 January 2002.  The applicant therefore applied to the Migration Review Tribunal (“the Tribunal”) for review of that decision.  On 23 January 2002 the Tribunal affirmed the decision of the delegate.  According to the reasons of the Tribunal the only subclass in respect of which any claims were advanced was sub-class 050, the criteria for which are set out in Part 050 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”)

2. The Tribunal was satisfied that the applicant had made a valid application for a Bridging E (Class WE) subclass 050 visa and that he met the criteria of clause 050.211 of being an unlawful non-citizen and not being an eligible non-citizen of the kind set out in sub-regulations 2.20 7, 8, 9, 10 or 11.  If he were an eligible non-citizen of that kind, he would not have satisfied the criteria relevant in the first place.

3. For the grant of a bridging general visa of this class, it was necessary for the applicant to meet one of the requirements of clause 050.212 subclauses (2), (3), (3A), (4), (5), (6), (6A), (7), (8) or (9).  The applicant sought only to establish that he met the requirements of subclause 050.212(2).  That requirement is that the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

4. The Tribunal was not satisfied that, at the time of the application, the applicant had a valid travel document.  The evidence indicated that the Department of Immigration & Multicultural & Indigenous Affairs had taken action to forward to the Fijian High Commission a passport application for the applicant.  There was, however, no evidence that a passport had been issued or any indication of how long it would take the Fijian authorities to process the application.  The Tribunal was therefore not satisfied that, at the time of the decision, the applicant had a valid travel document.  The Tribunal was also not satisfied that, at the time of the application, the applicant had a ticket for travel to an acceptable destination and a booking to depart Australia. 

5. On the basis of those findings, the Tribunal was not satisfied that the applicant had made, or was the subject of, acceptable arrangements to depart Australia and therefore the requirements of subclause 050.212(2) were not satisfied, either at the time of application or at the time of the decision.  The Tribunal then went on to consider each of the other sub-clauses of clause 050.212 and concluded that the applicant did not meet any of the requirements of those provisions.  The Tribunal considered, therefore, that the applicant did not meet any of the criteria and that the Tribunal had no alternative but to affirm the decision of the delegate refusing to grant a bridging visa.

6. The application to this Court for an order of review specifies as the grounds of the application the following:

   “The Department of Immigration has facilitated the process of obtaining a passport.”

   The relief claimed in the application was an order that the applicant be released from detention because of the deterioration of his health and that he be given a bridging visa to enable him to have the opportunity to apply for a substantive visa. 

7. Apart from the material that was before the Tribunal, the applicant relied on additional evidence consisting of his Fiji  passport and communications and interdepartmental minutes relating to the medical condition of the applicant and his detention.  The copy of the passport indicates that it expired in November 1996.  There is also evidence before me of an application for a Fiji passport dated 10 October 2000 yet there is no evidence to indicate when any such application might be granted.

8. The other evidence consisted of a recommendation by the managers of Villawood Immigration Detention Centre that the applicant be transferred to D Ward at the Long Bay State Correctional Facility where he can be more adequately treated and better managed.  The document recorded that the applicant is on a local medical management plan and that, due to his erratic behaviour and aggressiveness, he has to be secured in his room at the Detention Centre for long periods.

9. Another document of 3 October 2000 records consideration within the Department of the possibility of removal of the applicant from Australia because of the difficulty of managing his detention.  There is no evidence before me as to what has happened in the meantime.  I would draw the inference that the applicant has been in detention of one form or another since October 2000.

10. Section 474 of the Migration Act 1958 (Cth) provides that a “privative clause decision”:

    “(a)     is final and conclusive; and

    (b)must not be challenged, appealed against, reviewed, quashed or called into question in any court; and

    (c)is not subject to prohibition, mandamus, injunction, declaration or certiorari  in any court on any account. “

    The decision of the Tribunal which is the subject of this application for review, is a privative clause decision. The basis upon which it might, notwithstanding the provisions of s 474(1), be possible for this Court to interfere with a decision of the Tribunal is that the decision was given in bad faith or was not a bona fide attempt to exercise the power of the Tribunal, or did not purport to be an exercise of the power conferred on the Tribunal by the Act.

11. On the face of the Tribunal’s reasons for its decision, the Tribunal was purporting to make a decision as to whether or not to grant a bridging visa of the relevant sub-class, that is, bridging general.  There is no reason to doubt, on the material before me, that the Tribunal was acting in good faith and was purporting to make a decision under the Act.

12. In those circumstances I consider that this application is misconceived and that there is no power for the Court to deal with it.  In any event, on the material recorded in the Tribunal's reasons, there is no reason to doubt the correctness of the decision.  That is not to say that some further evidence might conceivably have been adduced on behalf of the applicant.  However, no such evidence was adduced before the Tribunal.  Whether there is other administrative review available to the applicant in relation to other decisions concerning his detention is not a matter before this Court and it is not a matter on which this Court can make any comment.

13. In my view the application must fail and I consider therefore that I should order that the application be dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             19 March 2002

Counsel for the Applicant:	The applicant appeared in person assisted by his mother, Ms K Smith and brother, Mr E Smith
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	11 March 2002
Date of Judgment:	11 March 2002