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1 This is an appeal from the decision of Moore J of 6 December 2002. His Honour dismissed the appellant's application for review of the decision of Migration Review Tribunal (the `Tribunal') made on 27 September 2002. The Tribunal had refused the appellant's application for a bridging visa.

2 The subclass relevant to the application was subclass 050, which refers to a Bridging (General) Visa. The appellant satisfied certain of the key criteria for such a visa, but two issues remained for the Tribunal's consideration. It was necessary for it to consider what conditions were appropriate to be attached to the visa, if it were granted, and whether the appellant would meet those conditions. The latter was especially important in view of the appellant's quite lengthy history of being granted bridging visas to depart Australia and not complying with them. On the last occasion her non-compliance had resulted in the forfeiture of monies, some $2,000, which had been provided by others by way of security, to meet the condition of the visa.

3 The Tribunal considered that the appellant's history indicated that she had a strong desire to remain in Australia and showed that she would breach conditions and break the migration laws to do so. It could not be concluded, it determined, that the requirement of security, regardless of the level of it, as a condition of her visa, would influence her to comply.

Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003]

Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 113 (22 May 2003)
Last Updated: 30 May 2003


FEDERAL COURT OF AUSTRALIA
Kosi v Minister for Immigration & Multicultural &

Indigenous Affairs [2003] FCAFC 113


HEIVAHA KOSI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1389 of 2002

CARR, KIEFEL & ALLSOP JJ

22 MAY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N1389 of 2002




BETWEEN:
HEIVAHA KOSI

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
CARR, KIEFEL & ALLSOP JJ


DATE OF ORDER:
22 MAY 2003


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1 The appeal be dismissed.

2 The appellant pay the respondent's costs of the appeal.

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
N1389 of 2002




BETWEEN:
HEIVAHA KOSI

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGE:
CARR, KIEFEL & ALLSOP JJ


DATE:
22 MAY 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT

THE COURT

1 This is an appeal from the decision of Moore J of 6 December 2002. His Honour dismissed the appellant's application for review of the decision of Migration Review Tribunal (the `Tribunal') made on 27 September 2002. The Tribunal had refused the appellant's application for a bridging visa.

2 The subclass relevant to the application was subclass 050, which refers to a Bridging (General) Visa. The appellant satisfied certain of the key criteria for such a visa, but two issues remained for the Tribunal's consideration. It was necessary for it to consider what conditions were appropriate to be attached to the visa, if it were granted, and whether the appellant would meet those conditions. The latter was especially important in view of the appellant's quite lengthy history of being granted bridging visas to depart Australia and not complying with them. On the last occasion her non-compliance had resulted in the forfeiture of monies, some $2,000, which had been provided by others by way of security, to meet the condition of the visa.

3 The Tribunal considered that the appellant's history indicated that she had a strong desire to remain in Australia and showed that she would breach conditions and break the migration laws to do so. It could not be concluded, it determined, that the requirement of security, regardless of the level of it, as a condition of her visa, would influence her to comply.

4 His Honour did not consider whether s 474 of the Migration Act 1958 (Cth) should be applied to the decision and the effect it would have if it were. His Honour considered the Tribunal's reasoning. His Honour could not discern any error in it.

5 The appeal to this Court raises questions relevant to the application of s 474. Allegations of bad faith and the other Hickman conditions are relied upon (see R v Hickman, ex parte Fox and Clinton (1945) 70 CLR 598). Only some of these allegations were made before his Honour and, as we have said, his Honour did not decide the matter on the basis that s 474 might apply to limit the appellant's right to review. In so far as the allegations might also be relevant to whether there was jurisdictional error, there has not been shown to be any substance in them and we infer that they were simply listed to provide some grounds in the notice of appeal. The fourth ground states that the appellant wishes to issue a notice pursuant to s 78B of the Judiciary Act 1903 (Cth), but it is not said on what basis the notice would issue and what point is sought to be raised with respect to the Constitution.

6 We can discern no error in the tribunal's approach to its task or in its reasoning. His Honour's decision was, in our view, correct and the appeal should be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr, Kiefel and Allsop.




Associate:

Dated: 30 May 2003

Counsel for the Appellant:
The Appellant appeared in person with the assistance of an interpreter






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
22 May 2003






Date of Judgment:
22 May 2003


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