Swierczynski and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Mr Swierczynski applied to the Administrative Appeals Tribunal for a review of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision to refuse him a Bridging E (Class WE) visa under section 501 of the *Migration Act 1958* (Cth). The refusal was based on character grounds, with concerns that Mr Swierczynski posed a risk to the Australian community due to potential re-offending.

The primary legal issue before the Tribunal was whether it had the power to dismiss Mr Swierczynski's application under section 42B of the *Administrative Appeals Tribunal Act 1975* (Cth). This section permits the Tribunal to dismiss an application if it is satisfied that the application is frivolous, vexatious, misconceived, lacking in substance, has no reasonable prospect of success, or is otherwise an abuse of process. The Tribunal was required to consider whether Mr Swierczynski's application, in light of his voluntary departure from Australia, fell within these grounds for dismissal.

The Tribunal reasoned that while Mr Swierczynski's stated intention was to make submissions regarding the visa refusal and potentially enable future visa applications, his voluntary departure from Australia meant he was no longer within the Australian migration zone. Consequently, the Bridging E visa, which requires the applicant to be within the migration zone for its grant, could no longer be issued to him. The Tribunal considered that the power under section 42B is discretionary and should be exercised with regard to fairness and justice, assessing whether there is any utility in conducting a merits review. Although Mr Swierczynski's application was not frivolous or vexatious at its inception, his subsequent departure rendered the relief sought legally unavailable.

Therefore, the Tribunal exercised its discretion under section 42B(1)(b) of the *Administrative Appeals Tribunal Act 1975* and dismissed the application, finding that it had no reasonable prospect of success and that there was no possibility of any practical benefit to the applicant.