Takitaki v Minister for Immigration and Multiculturaland Indigenous Affairs - [2002] FCA 445

FEDERAL COURT OF AUSTRALIA
Takitaki v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 445
MIGRATION LAW - application under s 39B of the Judiciary Act 1903 (Cth) for relief by way of prerogative writ in relation to two decisions of the Migration Review Tribunal refusing applications for bridging visas – whether error made by Tribunal in the first decision fell outside the operation of privative clause – whether the Tribunal made an error of law in the second decision.
Migration Act 1958 (Cth) ss 59, 474(1)
Judiciary Act 1903 (Cth) s 39B
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 followed
Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602
cited
NAAX v The Minister for Immigration and Multicultural Affairs [2002] FCA 263 cited
NABE v The Minister for Immigration and Multicultural Affairs [2002] FCA 381 cited
SIAATOUTAI TAKITAKI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1649 OF 2001
SIAATOUTAI TAKITAKI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 181 OF 2002
HILL J
9 APRIL 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DISTRIBUTION

NEW SOUTH WALES DISTRICT REGISTRY

N 1649 OF 2001

BETWEEN:

SIAATOUTAI TAKITAKI
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

HILL J

DATE OF ORDER:

9 APRIL 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs of the application.

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 181 OF 2002

BETWEEN:

SIAATOUTAI TAKITAKI
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

HILL J

DATE OF ORDER:

9 APRIL 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The application be dismissed.

2.          The applicant pay the respondent’s costs of the application.
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

BETWEEN:

SIAATOUTAI TAKITAKI  N 1649 OF 2001
APPLICANT

AND:
BETWEEN:
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

SIAATOUTAI TAKITAKI  N 181 OF 2002
APPLICANT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

HILL J

DATE:

9 APRIL 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Before the court is an application made under s 39B of the Judiciary Act1903 (Cth) in effect seeking writs of mandamus, certiorari or prohibition against the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), in relation to two decisions of the Migration Review Tribunal (“the Tribunal”) refusing his application for bridging visas and affirming decisions to that effect made by the Minister or a delegate of the Minister.
The history of applications made by the applicant since his arrival in Australia on 11 June 1988 is set out in a chronology appearing as part of the submissions put to me by counsel for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Takitaki v Minister for Immigration and Multiculturaland Indigenous Affairs [2002] FCA 445
Case: [2002] FCA 445
Decision Date: 9 APRIL 2002

CaseChat Overview and Summary

In the case of Takitaki v Minister for Immigration and Multicultural and Indigenous Affairs, the applicant, Takitaki, sought judicial review of two decisions made by the Minister regarding his eligibility for a bridging visa. The High Court was tasked with determining whether the Tribunal's decisions contained any errors that warranted the grant of a prerogative writ.

The primary legal issue was whether the Tribunal had made any jurisdictional error or error on the face of the record that would justify judicial intervention. With respect to the second decision, the court found that the Tribunal's conclusion that the applicant would not comply with any imposed conditions was a matter for the Tribunal, and the court lacked the jurisdiction to review the merits of the applicant's case. However, the court identified an issue with the first decision, as the Tribunal had erred in its interpretation of the applicable law.

The court concluded that although the applicant had made subsequent applications for a bridging visa, the Tribunal's error in the first decision did not pertain to its jurisdiction or an error on the face of the record. The court decided to rest its judgment on the basis that the error did not go to the Tribunal's jurisdiction. Given the findings, the application was dismissed, and the applicant was ordered to pay the respondent's costs of the application.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application.

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HILL J

Counsel for the Minister has submitted in respect of the second decision that no basis at all has been made out either to show jurisdictional error or error on the face of the record such as would found the grant of a prerogative writ. Indeed, it is clear to me that in this second decision the Tribunal has made no error of law at all. Its finding that the applicant would not comply with any condition imposed, even if security were given, is ultimately a matter for it. The Court has no jurisdiction to consider for itself whether that conclusion should be reached. The Court is not engaged in a review of the merits of the applicant's case. I would ordinarily dismiss the application relating to the second decision. There is no need for me to consider in respect of it the consequences of s 474(1) of the Act. CONCLUSIONS IN RESPECT OF THE FIRST DECISION There is, however, a matter which arises in relation to the first decision to which I now turn. It is submitted for the Minister that I should dismiss the application in respect of the first decision for three reasons. First, it is submitted that I should do so as a matter of discretion because the applicant subsequently made a further application for the same kind of bridging visa and that application has been dealt with by the Tribunal in the second decision and on its merits. Evidence before me shows also that yet a further application for a bridging visa was made by the applicant, refused by the Minister or a delegate and referred to the Tribunal. That further application was given on 5 April 2002 when the Tribunal affirmed the Minister's decision and found that he was not entitled to the grant of a Bridging Visa (Class WE). To return the matter again to the Tribunal would mean that within a very short space of time the same issues would be before the Tribunal. It was pointed out also that s 74 of the Migration Act1958 (Cth) would permit the applicant, within thirty days of the last refusal of a bridging visa again to apply for a new visa. I am told from the Bar Table that no fee is payable so it is said that to set aside the present decision and have it referred back to the Tribunal would in reality be an exercise in futility. There is much to be said for the argument, although as counsel for the Minister conceded, the making of a new application could involve the lapse of further time during which the applicant would be still in detention. Further there is the possibility, although it is somewhat remote, that the applicant's circumstances might have changed since the last occasion he was before the Tribunal on 5 April 2002. I prefer, however, to rest my decision on other grounds. Secondly, it was submitted that the error made by the Tribunal was not one that went to the Tribunal's jurisdiction nor was it an error on the face of the record in the sense that those words are used in connection with writs of certiorari. In my view the error made was not one which went to jurisdiction. The question of what the record is in cases of writs of certiorari is not an easy one and the present is not a case in which it is appropriate to consider whether the reasons of the Tribunal form a part of the record in a relevant sense.

Ratio Decidendi

Legal Principle Established

Established by: HILL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA	GENERAL DISTRIBUTION
NEW SOUTH WALES DISTRICT REGISTRY	N 1649 OF 2001

BETWEEN:	SIAATOUTAI TAKITAKI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	9 APRIL 2002
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 181 OF 2002

JUDGE:	HILL J
DATE:	9 APRIL 2002
PLACE:	SYDNEY