Tuivaga v Minister for Immigration and Multicultural Affairs

[2001] FCA 1219

FEDERAL COURT OF AUSTRALIA

Tuivaga v Minister for Immigration & Multicultural Affairs
[2001] FCA 1219

MAKARETA TUIVAGA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1121 OF 2001

GYLES J
SYDNEY
16 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1121 OF 2001

BETWEEN:	MAKARETA TUIVAGA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	16 AUGUST 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the respondent.

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 1121 OF 2001

BETWEEN:	MAKARETA TUIVAGA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	16 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT (EX TEMPORE)

1. This is an application for an order of review of a decision of the Migration Review Tribunal (“the Tribunal”) of 17 July 2001, in which the Tribunal affirmed the decision of a delegate of the respondent Minister finding that the visa applicant was not entitled to the grant of a bridging Visa E (Class WE) and affirmed the decision under review to request a $20,000 security.  I note that the conditions to be imposed on the visa by the Tribunal were different to those proposed by the delegate and that the Tribunal’s method of describing what was done may have been slightly inaccurate because of the complicated interplay between visa, visa conditions and securities under the Migration Act 1958 (Cth) (“the Act”).

2. The grounds of review for decisions of this character are laid down by s 476 of the Act. The application for an order of review in this case does not refer to any ground of s 476. This is not said in any technical sense, because what is said in the application does not even refer indirectly to any such ground of review. The applicant, who is present with an interpreter, was unable to advance any reason in favour of the review which would come within s 476.

3. Not surprisingly, counsel for the respondent submitted that the only proper course open to me was to dismiss the application. Having read the Tribunal’s decision and the very helpful written submissions of counsel for the respondent, I decided that I would not simply dismiss the application without seeking assistance from counsel for the respondent as to some aspects of the matter about which I was not entirely clear. I had in mind the possibility that I might take advantage of O 80 of the Federal Court Rules if a proper case for that emerged. However, counsel for the respondent has been able to satisfy me sufficiently that there is no obvious error which might fall within s 476 of the Act. There is no proper case for O 80 to be utilised.

4. Having said that, I do not mean to imply that I have considered this matter as if the applicant had presented a substantive case.  The applicant has not done so and it is not for either the respondent or me to make a case for her.  The transcript of the argument will reveal what has passed between myself and counsel for the respondent, which is of course far from a full argument on all points which might conceivably arise.  In the circumstances, I have no alternative but to dismiss the application and order that the applicant pay the costs of the respondent of the application.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:              4 September 2001

The applicant was self-represented
Counsel for the Respondent:	S Kaur-Bains
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 August 2001
Date of Judgment:	16 August 2001