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MIGRATION - Application to review decision of Migration Review Tribunal to refuse to grant Bridging Visa - relevance of application by children of applicant for interlocutory injunction to restrain their detention - whether jurisdictional error.

Vaiangina v Minister for Immigration [2004] FMCA 566 (30 August 2004)

Vaiangina v Minister for Immigration [2004] FMCA 566 (30 August 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VAIANGINA v MINISTER FOR IMMIGRATION
[2004] FMCA 566



MIGRATION - Application to review decision of Migration Review Tribunal to refuse to grant Bridging Visa - relevance of application by children of applicant for interlocutory injunction to restrain their detention - whether jurisdictional error.



Migration Act 1958

Mashood v The Commonwealth of Australia [2003] FCA 1147

Akomeah v The Commonwealth of Australia [2003] FCA 1476

Vaiangina v The Commonwealth [2004] FCA 751

MIEA v Wu Shan Liang (1996) 185 CLR 259

Applicant:
PULIUVEA VAIANGINA



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ1068 of 2004



Delivered on:


30 August 2004



Delivered at:


Sydney



Hearing date:


30 August 2004



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Nil



Solicitors for the Respondent:


Australian Government Solicitors


ORDERS

(1) That the application is dismissed.

(2) That the applicant pay the respondent's costs set in the amount of $1,800.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ1068 of 2004

PULIUVEA VAIANGINA


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal made on 5 April 2004 affirming a decision of a delegate of the respondent that the applicant was not entitled to the grant of a Bridging E Class WE visa. The applicant entered Australia as the holder of a student visa on 1 March 1995. A further student visa was granted in 1997 which ceased on 10 March 1999. The visa applicant has remained unlawfully in Australia since the cessation of his student visa on 10 March 1999. He was located by Departmental compliance officers on 2 February 2004 together with his de facto wife and three children.

2. He was taken into detention. On 4 February 2004 he applied for a bridging visa. He was unsuccessful and that decision was affirmed on review by the Tribunal. Meanwhile on 6 February 2004, his wife and three children were granted bridging visas, although his wife is now in detention. On 26 February 2004, the applicant made a request for Ministerial intervention pursuant to section 351 of the Migration Act 1958. According to the Tribunal reasons for decision on 12 March 2004 he was advised a decision was made that the Minister had no power to intervene. A second request made on 3 March 2004 met a similar fate on 23 March 2004.

3. The visa application in question in these proceedings is an application that was made on 19 March 2004 in which, according to the Tribunal reasons for decision, the applicant stated that he was waiting for a response from the Minister and had personal property to collect and may have security available. The application was refused by a delegate of the respondent on 23 March 2004. On that date two of the visa applicant's children, who were born in Australia, lodged an application in the Federal Court seeking, among other things, interlocutory injunctions restraining their own removal and also the removal of their parents from Australia, pending resolution of a matter currently before the High Court (Plaintiff S441 of 2003 v Commonwealth of Australia).

4. On 25 March 2004 the applicant sought review by the Tribunal of the decision to refuse him the Bridging E visa. The Tribunal recorded that it sent him a letter inviting comments on information it considered would be the reason or part of the reason for affirming the decision, in particular, that he did not appear to meet the primary criteria for the grant of a Bridging E visa. This letter referred to the Federal Court proceedings and stated that the request to the Minister was the second such request and had by then been finalised. The applicant was given an opportunity to comment on 5 April 2004 and he did so. The Tribunal held a hearing on 5 April 2004 at which the applicant gave evidence about his willingness to leave Australia but the absence of a ticket to depart and his financial circumstances.

5. The Tribunal found that the applicant did not meet any of the criteria in sub-clauses 050.212(2) to 050.212(9) of Part 050 of Schedule 2 to the Migration Regulations at the time of application or at the time of decision and hence did not meet sub-clause 050.212(1) or clause 050.221. On that basis it stated that it had no alternative but to affirm the decision. It was therefore not necessary for the Tribunal to determine whether the applicant would abide by conditions it would impose on a bridging visa were one to be granted. Nor was it necessary to consider the issue of security.

6. In reaching its decision the Tribunal referred to each subclause of clause 050.212 and addressed in particular detail those grounds it saw as most relevant, in particular sub-clause 050.212(2) that the visa applicant is making or is the subject of acceptable arrangements to depart Australia. It had regard to the evidence of the applicant as to the steps he had taken in relation to travel plans and the applicable principles. It was not satisfied that the applicant met this requirement either at the time of application or decision.

7. The Tribunal also addressed in some detail the applicant's request to the Minister under section 351 of the Migration Act finding that as it was the second such request it did not satisfy paragraph 050.212(6)(b)(i)(C). Nor, on the evidence, were the other requirements of either subclause (6) or (6A) of clause 050.212 met.

8. The applicant filed an application in this Court on 13 April 2004. It contends generally that the Tribunal "failed to account all the issues and facts" related to the visa application. It refers to the applicant's children's application for interlocutory relief in the Federal Court and the anticipated hearing dates in relation to that case and the outstanding High Court decision about the status of a child born to a non-citizen.

9. Despite consent orders made at the directions hearing on 28 April 2004, the applicant did not file an amended application with particulars as ordered. The application itself does not identify any error, let alone a jurisdictional error, in the Tribunal reasons for decision. As the applicant is self-represented I have considered whether any jurisdictional error is apparent.

10. The legal representative for the respondent provided information to the Court in relation to the proceedings by the applicant's children in the Federal Court and the connection between their proceedings and the High Court proceedings. On 23 March 2004, the applicant's two Australian-born children filed an application seeking, among other things, an interlocutory injunction restraining removal of their parents from Australia. However the notice of motion in that matter dated 28 May 2004 on which the children proceeded, sought only to restrain removal of the applicants from Australia and their detention. The applicant's children did not pursue their original application for a further order restraining removal and/or detention of the applicant and his wife. In that respect my attention was drawn to a number of decisions of the Federal Court. In Mashood v The Commonwealth of Australia [2003] FCA 1147 Goldberg J considered similar applications in relation to children and also in relation to parents. His Honour found no basis for the grant of interlocutory relief in favour of the parents on the basis that ultimately there was no substantive relief available to them in their own right. He proceeded to make orders in relation to the children in that case. (Also see Akomeah v The Commonwealth of Australia [2003] FCA 1476 where orders were also made in relation to children).

11. On 1 June 2004 Jacobson J considered the application for interlocutory relief filed by the applicant's two Australian-born children. In Vaiangina v The Commonwealth [2004] FCA 751 His Honour granted interlocutory injunctions restraining detention of the children. The respondent gave an undertaking that she would not remove the children from Australia until the High Court handed down its decision in Plaintiff S441. Conditions were imposed in relation to the care of the children by their aunt.

12. In these proceedings the applicant relied generally on the circumstances of his children. He sought to tender to the Court an unsigned letter in support from his wife. That letter does not take issue with the specifics of the Tribunal decision in relation to the primary criteria for a bridging visa, but rather seeks that on humanitarian grounds the Court release or facilitate in some way the release of the applicant to look after the children.

13. However the Court does not have any power to remit the matter on humanitarian grounds or to order the release of the applicant on that basis in these proceedings. I note in that respect that, on the authority of Mashood there would be no basis for interlocutory relief restraining detention of the applicant if there was no substantive relief available to him in his own right. Having considered the information that is now before me in relation to the proceedings instituted by the applicant's children, I am satisfied that nothing in those proceedings or in relation to the children's circumstances discloses any error by the Tribunal in the approach it adopted to the applicant's application for a bridging visa. The Tribunal was aware of and, so far as relevant, took into account the Federal Court proceedings to which it referred. Such application does not establish that the Tribunal made an error in finding that the applicant did not meet the primary criteria for the bridging visa. The proceedings by the children were not merits review or judicial review proceedings involving the applicant in a sense that would satisfy any of the sub-clauses of clause 050.212. There was no evidence of any substantive visa application by the applicant or by a member of his family.

14. In the course of oral submissions the applicant also took issue with the factual findings of the Tribunal, in particular in relation to whether he was making arrangements to depart Australia. Merits review is not available in the Court; MIEA v Wu Shan Liang (1996) 185 CLR 259. The Tribunal findings on this issue were open to it on the material before it and no error is disclosed.

15. The applicant also complained generally about a requirement that he provide a bond or security and his understanding that there was a concern that he would not abide by conditions. Neither factor was relevant to the Tribunal decision that is presently before the Court. Neither issue was considered because the applicant did not meet the primary criteria.

16. The applicant also complained that the decision was not based specifically on him but was based on the Tribunal's experience in past cases. However, it is apparent from the Tribunal reasons for decision that it properly considered the applicant's claims and evidence, in particular in relation to arrangements to depart Australia and that it properly had regard to the applicable law and principles. There is nothing in the Tribunal reasons for decision to indicate any jurisdictional error in its treatment of this issue or otherwise. As no jurisdictional error has been established there is no alternative but to dismiss the application.


RECORDED : NOT TRANSCRIBED

17. The applicant has been unsuccessful. There are no circumstances that justify departing from the principle that costs should follow the event. The applicant raised his lack of funds. Impecuniosity is not a reason for not making a costs order in this instance although it may be taken into account by the respondent in determining whether and how to seek to recover any costs that are ordered.

18. The costs incurred in the present proceedings were clearly considerably less than might be incurred in a more complex case having regard to the limited amount of preparation needed, the absence of preparation of a bundle of relevant documents other than a copy of the Tribunal decision and the absence of written submissions from the respondent. In all the circumstances of this particular case, bearing in mind the nature of this and other similar matters, I consider that an appropriate amount of costs is the sum of $1,800.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 8 September 2004
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