Koroitamana v Minister for Immigration & Multicultural Affairs [2000] FCA 1579 (1 November 2000)

Last Updated: 14 November 2000

FEDERAL COURT OF AUSTRALIA

Koroitamana v Minister for Immigration & Multicultural Affairs

[2000] FCA 1579

IMMIGRATION - application to dismiss - no cause of action disclosed.

MAIKA KOROITAMANA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 717 of 2000

GOLDBERG J

1 NOVEMBER 2000

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 717 of 2000

BETWEEN:	MAIKA KOROITAMANA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	1 NOVEMBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 717 of 2000

BETWEEN:	MAIKA KOROITAMANA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GOLDBERG J
DATE:	1 NOVEMBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The applicant is presently in immigration detention pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act"). On 11 August 2000 he applied for the grant of a Bridging E (Class WE) Subclass 050 (General) Visa ("the visa"). On 15 August 2000, the delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") decided to refuse to grant the visa and on 16 August 2000 the applicant lodged an application for review with the Migration Review Tribunal ("the Tribunal"). On 17 August 2000, and again on 24 August 2000, the applicant requested the Minister to exercise his discretion in favour of the applicant pursuant to s 417 of the Act. On 23 August 2000, the Tribunal affirmed the decision of the Minister to refuse the grant of the visa to the applicant and on 19 August 2000, the applicant filed an application with the Court pursuant to Pt 8 of the Act to review the decision of the Tribunal.

2 There is a history of other applications for visas made by the applicant pursuant to various provisions of the Act to which I will refer in due course but I turn first to the applicant's grounds upon which he seeks to review the decision of the Tribunal. The grounds are:

"On the date of the hearing I stated that I have got a family here and my wife was a week away from giving birth and I've told them that I've got a letter to the minister and I was told that there wasn't nothing in their (sic) that would grant me a visa and that I don't meet the criteria in order to be granted a visa."

3 The respondent filed a notice of motion on 16 October 2000 seeking an order that the application be dismissed pursuant to O 20 r 2(1)(a) or (c) of the Federal Court Rules. In general terms, subparagraph (a) empowers the Court to dismiss a proceeding on the ground that it discloses no reasonable cause of action. Subparagraph (c) empowers the Court to exercise jurisdiction to strike out or dismiss a proceeding on the ground that it is an abuse of process of the Court.

4 Before turning to the particular issue present before the Court, it is desirable to understand the nature or the extent of the process specified in the Act for the application for, and the grant of, visas. Section 29(1)(b) of the Act provides for the Minister to grant visas to remain in Australia. Section 31 provides that the regulations may prescribe criteria for visas of a specified class. Section 37 provides for the grant of bridging visas under subdivision AF of the Act: see ss 72 to 76.

5 The Migration Regulations 1994 make provision for the granting of visas: reg 2.20 and following. Schedule 2 to the regulations sets out provisions with respect to the grant of particular subclasses of visas. Subclause 050 provides for bridging visas where the applicant has not applied for a protection visa. In order to be entitled to a bridging visa pursuant to subclause 050 an applicant must satisfy the criteria set out in the subclause at two stages, namely at the time of application for a visa and at the time that the decision is made whether to grant the visa. If an applicant does not satisfy one of the criteria set out in the Schedule then the applicant is not entitled to be granted a visa.

6 The applicant satisfied or met the criterion set out in subclause 050.211(1)(a) as he is at the present time an unlawful citizen. But in order to qualify for a bridging visa of the type sought the applicant had to meet one of the requirements set out in subclauses 050.212(2) to (9).

Reasoning of the Tribunal

7 I turn to the reasons of the Tribunal. The Tribunal correctly identified the relevant legislation and regulations to which it was required to have regard and then set out the evidence which was then before it. As I have noted earlier, the Tribunal found that the applicant was an unlawful non-citizen and did not hold a bridging E visa so that he met the criterion of subclause 050.211(1)(a). The Tribunal found that the applicant was not an eligible non-citizen of the kind set out in subregulation 2.20 subparagraphs (7), (8), (9), (10) or (11) and therefore met the criterion in subclause 050.211(2).

8 The Tribunal then correctly identified that in order to be entitled to the grant of the visa the applicant had to meet the requirements of one of the subclauses set out in regulation 050.212(2) to (9), both at the time of application and at the time of decision. The Tribunal then analysed the evidence in relation to each of the subparagraphs in 050.212 and reached the conclusion that the applicant did not satisfy the criteria in the respective subclauses. The Tribunal therefore found that the applicant could not satisfy clause 050.212 at the time of his application and concluded that the application for the visa must fail. The Tribunal affirmed the decision of the Minister to refuse the grant of the visa.

9 The matter comes before the Court by way of review under Pt 8 of the Act, the relevant decision of the Tribunal being a judicially reviewable decision for the purposes of s 475 of the Act. The matter does not come by way of a general appeal from the decision of the Tribunal, nor does it come generally by way of review of the administrative decision. As it comes by way of review under Pt 8 of the Act, in order to come within a ground of review open to the Court the applicant needs to satisfy one of the grounds set out in s 476 of the Act. Put shortly, the scope of review open to this Court is generally limited to the grounds specified in s 476 of the Act.

10 I should at this stage refer briefly to the history of the applicant's association and presence in Australia. He is a male national of Fiji and was born on 30 July 1964. On or about 29 December 1988, he arrived in Australia on a tourist sightseeing visa which expired on 29 April 1989. The applicant remained in Australia thereafter without being the beneficiary of any visa to stay or remain in Australia. On or about 29 August 1993 he applied for refugee status and permission to engage in employment. On 22 October 1993 that application was refused. Thereafter the applicant remained in Australia. On 10 April 1995, he applied for a protection visa which was refused on 6 November 1995. In the meantime he had applied in April 1995 for a bridging visa C with work rights which was granted to him on 6 November 1995 but which expired on 26 December 1996.

11 An application to the Tribunal to review the refusal of the protection visa which had been refused on 6 November 1995 was dismissed, and on 7 November 1996, the Tribunal affirmed the refusal of the protection visa. Thereafter, there were a number of requests made by or on behalf of the applicant for the Minister to exercise his discretion under s 417 of the Act which he declined to do on 7 October 1997 and 11 March 1998. On 10 May 1999, the applicant was detained as an unlawful non-citizen at the Immigration Detention Centre in Villawood and on 14 May 1999, he applied for a bridging visa E which was refused on 17 May 1999.

12 On the same day he applied to the Immigration Review Tribunal to review that refusal. That review was successful and on 26 May 1999 the Immigration Review Tribunal set aside the decision and directed that the applicant be granted a Bridging E (Class WE) Subclass 050 (General) Visa. He was thereupon released from immigration detention but that visa expired on 5 August 1999. The applicant was again detained as an unlawful non-citizen at Villawood on 28 March 2000, and two days later, on 30 March 2000 he applied for a bridging visa E which was refused on 31 March 2000. A subsequent application for a bridging visa E was refused and on 30 May 2000 the Migration Review Tribunal affirmed that refusal.

13 On 29 June 2000 the applicant applied for a protection visa (refused on 30 June 2000) and bridging visa E which was refused on 3 July 2000, and on 4 July 2000 he applied to the Migration Review Tribunal for a review of that refusal. The refusal was set aside and it was directed that the applicant be granted a bridging visa E. That visa was cancelled on 10 August 2000 pursuant to s 116 of the Act and on the following day the application which led to this hearing was made.

14 The grounds set out by the applicant in his application for review do not specify, or set out, any grounds of review open to the Court under s 476 of the Act. Confining myself to those grounds alone I am satisfied that no reasonable cause of action is disclosed. Nevertheless, I have considered the material which was before the Tribunal, and referred to in the affidavit in support of the motion to dismiss the application, to determine whether I can discern any ground of review which might be available to the applicant which has not been specified in his application. I am conscious of the fact that the applicant is a litigant in person, is not a citizen of this country, is not familiar with the Australian legal system and is not legally trained. I therefore consider it incumbent upon me not to restrict myself simply to the grounds which he has set out but to determine, as best I can, whether any grounds are available.

15 I am satisfied that there are no grounds available under s 476 of the Act upon which the decision of the Tribunal might be reviewed or upon which the decision of the Tribunal might be set aside. It follows therefore that I am satisfied that no reasonable cause of action has been disclosed by the applicant. When the applicant appeared before me today, he made it clear that he wanted to stay in Australia and did not want to go back to Fiji. He pointed to the fact that there was unemployment in Fiji, that he had young children to look after and that he did not know how he would be able to support and raise his children in Fiji. He indicated in the course of his submissions that his parents were living in Fiji and had made it known to him that there was nothing for him in Fiji.

16 The circumstances facing the applicant are no doubt difficult, but I have to take into account relevant legal principles which apply in this area. Notwithstanding any sympathy I may have for the plight of the applicant, I must determine this matter according to the relevant principles which apply. I am satisfied that no reasonable cause of action is disclosed by the application, or could be disclosed by the application, in relation to a review of the decision of the Tribunal. In those circumstances, it is not necessary for me to consider whether the application made by the applicant to this Court, or indeed to the Tribunal, should properly be characterised as an abuse of process, giving an independent ground upon which the proceeding might be dismissed. I confine myself to finding that the application does not disclose a reasonable cause of action and pursuant to O 20 r2 of the Federal Court Rules will be dismissed.

17 The application by the applicant filed 19 September 2000 is dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated: 7 November 2000

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Ms M Kennedy
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 November 2000
Date of Judgment:	1 November 2000