Taumoepeau v Minister for Immigration and Multicultural Affairs

[2001] FCA 840

FEDERAL COURT OF AUSTRALIA

Taumoepeau v Minister for Immigration & Multicultural Affairs [2001] FCA 840

DANIEL TAUMOEPEAU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 363 of 2001

SANDRA FINAU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 364 of 2001

HESITINGI FAAPOI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 365 of 2001

EMMETT J
5 JUNE 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 363 OF 2001

BETWEEN:	DANIEL TAUMOEPEAU APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

N 364 OF 2001

BETWEEN:	SANDRA FINAU APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

N 365 OF 2001

BETWEEN:	HESITINGI FAAPOI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	5 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        Each application be dismissed.

2.        The applicant in each case 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 363 OF 2001

BETWEEN:	DANIEL TAUMOEPEAU APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

N 364 OF 2001

BETWEEN:	SANDRA FINAU APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

N 365 OF 2001

BETWEEN:	HESITINGI FAAPOI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE:	5 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me three applications seeking an order of review of decisions made by the Migration Review Tribunal (“the Tribunal”) on 30 March 2001.  The applications are by Hesitingi Faapoi, Sandra Finau and Daniel Taumoepeau.  Mr Faapoi and Ms Finau live together as de facto spouses.  Daniel Taumoepeau (“Daniel”) is Ms Finau’s 14 year old son.  Ms Finau and Mr Faapoi and nationals of Tonga.  Daniel is a national of the United States of America. 

2. All three applicants entered Australia in accordance with valid migration documentation.  Ms Finau and Daniel entered Australia on 13 September 1994 on a visitor short stay visa that was valid until 13 December 1994.  Neither departed Australia thereafter and each continued to remain as unlawful non-citizens from 14 December 1994, until they were detained on 14 February 2001.  Since then they have remained in detention at the Villawood Immigration Detention Centre. 

3. On 20 April 1995, two days before his business short stay visa expired, Mr Faapoi lodged an application for a Sub-class 820 Spouse visa.  On 5 May 1998, the application for Sub-class 820 Spouse visa was refused.  On 9 June 1998, the Bridging visa that had enabled Mr Faapoi to remain in Australia pending the determination of his Spouse visa application expired.  However, Mr Faapoi did not depart Australia and continued to remain in Australia as an unlawful citizen from 10 June 1998 until he was detained on 14 February 2001.  He has similarly been detained in the Villawood Immigration Detention Centre since that time. 

4. On 16 February 2001, all three applicants lodged applications for Bridging E visas.  A delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), imposed conditions under which the applicants would be released from detention.  The conditions were the payment of security in the amount of $10,000 in respect of each of the adults, a valid passport, an airline ticket for departure within one week and the payment of detention costs.

5. On 26 February 2001, each of the applicants withdrew the applications for Bridging visas.  On 27 February 2001 a departmental officer wrote to Mr Faapoi and Ms Finau stating that if they lodged the security and presented an open airline ticket to the Department by 5 March 2001, a Bridging E visa would be granted.  The letter said that the visa would be granted initially for three days to allow the applicants to attend the Tongan Consulate and present evidence from the Consulate to the Department they had applied for a passport, but that if they did not lodge the security and present an airline ticket by 5 March 2001, the Department would make arrangements to remove the applicants from Australia.

6. On 5 March 2001, further applications for Bridging visas were lodged.  On 13 March 2001, the Minister’s delegate refused the applications in respect of the three applicants.  The basis for that refusal was that the applicants did not satisfy the criteria specified in the Migration Regulations.  On 15 March 2001, the applicants lodged applications for review of the decision to refuse the Bridging E visas to the Tribunal.  On 30 March 2001, the Tribunal affirmed the decisions under review in respect of each applicant.  The applications before me are for review of those decisions of the Tribunal. 

7. Section 31(1) of the Migration Act 1958 (Cth) (“the Act”) provides that there are to be prescribed classes of visa. Section 31(2) provides for certain specific classes of visa other than those prescribed. The Regulations prescribe classes of visa, one such class being a Bridging E visa. Section 65(1) provides:

   “65(1) After considering a valid application for a visa, the Minister:
              (a) if satisfied that:

   (i) the health criteria for it (if any) have been satisfied; and

   (ii) the other criteria for it prescribed by this Act or the Regulations have been satisfied; and

   (iii) the grant of the visa is not prevented by [other provisions of the Act]; and

   (iv) any amount of visa application charge payable in relation to the application has been paid;

   is to grant the visa…”

8. However, under s 65(1)(b), if the Minister is not satisfied as to those matters he must refuse to grant the visa. In other words, there is no discretion once the Minister or his delegate have considered the matters referred to in s 65(1)(a) and a judgment has been made about them. The only relevant requirement is that contained in s 65(1)(a)(ii), namely that the other criteria prescribed by the Act or the Regulations must have been satisfied. There is no suggestion that the other requirements of s 65(1)(a) have not been satisfied or that the Minister was not satisfied that they had been satisfied.

9. The prescribed criteria for Bridging E visas are set out in Part 050 of Schedule 2 to the Regulations.  The effect of clause 050.212(1) is that an applicant must meet the requirements of one of the sub-clauses of clause 050.212 that follow thereafter.  The Tribunal concluded that the only relevant criterion is that contained in sub-clause 2 of clause 050.212.  That sub-clause provides as follows:

   “(2) An applicant meets the requirements of this sub-clause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.”

10. Neither the delegate nor the Tribunal was satisfied that any of the applicants was making, or was the subject of, acceptable arrangements to depart Australia.  Rather the evidence of the two adult applicants was that no such arrangements were in place, or were being made.  That being so, not only was the Tribunal entitled to uphold the refusal of the grant but it was obliged to do so.  The applicants have appeared in person and do not appear to have had any legal assistance in connection with their applications.

11. The applications to this Court do not specify any ground within s 476(1) of the Act. In the space provided in the printed form of application, the following grounds are specified:

    MR FAAPOI:

    “Family members are Australian citizen.  Outstanding achievements in an occupation profession.”

    MS FINAU:

    “Family members are Australian citizen; and my profession.”

    DANIEL:

    “Family members are Australian citizen, student rights.”

    A complaint is also made in the section dealing with the relief claimed.  The three applications disclose the following:

    MR FAAPOI:

    “Decision inconsiderate regarding my family and business achievements. My contribution towards building Australia as the best place to live.”

    MS FINAU:

    “Decision inconsiderate regarding my family, my profession and contributions to the community, e.g. volunteer for giving blood to save lives with the Australian Red Cross since 1998.”

    DANIEL:

    “Decision inconsiderate regarding my family and my schooling, including four years representing my community in sports.”

12. My impression of the applicants is that they would make respectable citizens of Australia. However, I do not have jurisdiction to decide such a question. The only question before me is whether or not I can be satisfied that any of the grounds set out in s 476 of the Act apply to the decision of the Tribunal. I have read the reasons given in respect of each application by the Tribunal. It is not apparent to me that any of the grounds set out in s 476(1) of the Migration Act have been established. It follows, in my opinion, that each of the applications must be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             3 July 2001

Counsel for the Applicant:	The applicants appeared in person with Mr H Faapoi as spokesman.
Counsel for the Respondent:	Mr R Bromwich
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	5 June 2001
Date of Judgment:	5 June 2001