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MIGRATION - Review of Migration Review Tribunal decision - refusal of a bridging visa - earlier application to review a previous rejection of a bridging visa application dismissed - same grounds of review advanced - lack of substance in grounds of review - applicant having no understanding of or belief in grounds of review - grounds of review suggested by a non party - indemnity costs.

Tavalu v Minister for Immigration [2003] FMCA 175 (5 May 2003)

Tavalu v Minister for Immigration [2003] FMCA 175 (5 May 2003)
Last Updated: 21 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TAVALU v MINISTER FOR IMMIGRATION
[2003] FMCA 175



MIGRATION - Review of Migration Review Tribunal decision - refusal of a bridging visa - earlier application to review a previous rejection of a bridging visa application dismissed - same grounds of review advanced - lack of substance in grounds of review - applicant having no understanding of or belief in grounds of review - grounds of review suggested by a non party - indemnity costs.



Federal Magistrates Court Rules 2001 (Cth)

Migration Regulations

NAAX v Minister for Immigration [2002] FMCA 348

NAAX v Minister for Immigration [2003] FCA 313

Applicant:
SILIA TAVALU



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ1303 of 2002



Delivered on:


5 May 2003



Delivered at:


Sydney



Hearing date:


5 May 2003



Judgment of:


Driver FM



REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:


Mr T Reilly



Solicitors for the Respondent:


Australian Government Solicitor


ORDERS

(1) The application is dismissed.

(2) Except by leave of the Court, no further application in this Court is to be accepted for filing from the applicant, relating to an application for a bridging visa while the applicant remains in Australia.

(3) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ1303 of 2002

SILIA TAVALU


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application to review a decision of the Migration Review Tribunal ("the MRT") made on 5 December 2002. The MRT affirmed a decision of a delegate of the respondent not to grant the applicant a class WE bridging visa. The applicant is currently held in immigration detention and sought the grant of a bridging visa so that she could be released.

2. This is the second occasion on which this applicant has come before me seeking to review a decision of the MRT on a bridging visa decision. The first occasion was dealt with by me in the matter of NAAX v Minister for Immigration [2002] FMCA 349. That decision was upheld on appeal in NAAX v Minister for Immigration [2003] FCA 313. Although this present application deals with a different decision of the MRT, the application filed on 12 December 2002 and the supporting affidavit, filed on the same day, raises essentially the same grounds as in the earlier proceedings. That, in itself, is a matter of concern to me. In NAAX, I found that there was no substance to the grounds of review set out in the application. Very similar grounds are advanced in this application.

3. A second matter of concern to me is that the applicant, when making oral submissions to me in support of her application, stated that she was simply relying upon advice and assistance from a Mr Fonua. It was clear from what the applicant said that she has no independent understanding of or belief in the grounds of review set out.

4. I permitted the applicant to file in court today written submissions that restate the grounds of review. However, there is no more substance in those written submissions than there is in the application and supporting affidavit. The applicant did seek time in order to engage legal representation to assist her. I refused an adjournment on the basis that I could not see that legal assistance would enable her to point to any jurisdictional error in the decision of the MRT.

5. The circumstances of this applicant are, to some extent, unfortunate. She is in immigration detention and appears to have been in immigration detention for a fairly significant period of time. She told me that she would like to be released and remain in Australia and support herself. However, that simply underscores the validity of the decision subject to review. The applicant has worked in the past in breach of a condition that she should not work. The MRT affirmed the decision not to grant a bridging visa because the MRT was not satisfied that the applicant would abide by a no work condition on the bridging visa. The MRT was clearly entitled to reach the decision it did on the material before it. There is no substance in any of the grounds of review advanced by the applicant.

6. Mr Reilly, who appeared for the Minister, has properly pointed out to me in pursuance of the respondent's role as a model litigant that the MRT presiding member dealt with an issue of the giving of security which was an issue not before the MRT for decision. On my reading of the reasons for the decision of the MRT, the issue of security was not determinative of the outcome of the MRT proceedings. Indeed, I do not read the decision as dealing with that issue as part of the determining factors. It is clear that the MRT made its decision on the basis of concern that the applicant would not abide by the no work condition on a bridging visa. The applicant's adviser raised the issue of security in the proceedings before the MRT and the presiding member sought to deal with it. The presiding member stated at paragraph 48 of the MRT's reasons for decision that the visa applicant had made application to review a decision not to request security when, in fact, there was no such decision to review.

7. It is not clear whether the presiding member was aware of the full circumstances or whether the presiding member was possibly led astray by the applicant. The presiding member may have simply been responding to the issue apparently raised by the applicant or may have simply wanted to give some guidance on the issue of security should it become relevant. I do not consider that the treatment of the issue of security by the presiding member establishes a jurisdictional error. Even if it did, I would not grant prerogative relief because it would be futile.

8. The decision under review was properly based on the concern of non-adherence to condition 8101 of the Migration Regulations. If this matter had come before me at an earlier stage, I would have been inclined to dismiss the application as frivolous or vexatious pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth). That is because the applicant has no understanding of or belief in the grounds of review that have been advanced. There is also no substance to those grounds.

9. As the matter came before me today for hearing, I have elected to hear the application. However, in my view, the applicant should not be permitted to bring a future application to review any further decision by the MRT on a bridging visa decision relating to the applicant's present stay in Australia without leave. It is not in the applicant's interest or anyone else's interest for repeated applications to be made in relation to successive administrative decisions where such applications are doomed. I will therefore order, in addition to dismissing the application, that no further application be accepted for filing, without leave of this Court, from the applicant relating to a decision on a bridging visa application while the applicant remains in Australia.

10. On the question of costs, Mr Reilly has sought an order for costs and has submitted that an order in the sum of $3,800 would be appropriate. Clearly, in this matter an order for costs should be made. In my view, the application should not have been brought at all and should certainly not have been made in the terms that it was made. An allegation of bad faith was made and was not supported. Spurious issues of constitutional law were raised that were dealt with in the earlier proceedings.

11. In my view, the respondent is entitled to an order for costs on an indemnity basis. My practice, however, is to fix an amount of costs. Mr Reilly has, on instructions, advised that the respondent's actual costs would be approximately $4,500. I will order that the applicant pay the respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $4,500.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 15 May 2003
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