Fifita v Minister for Immigration & Multicultural Affairs [2001] FCA 192 (26 February 2001)

Last Updated: 7 March 2001

FEDERAL COURT OF AUSTRALIA

Fifita v Minister for Immigration & Multicultural Affairs [2001] FCA 192

KATALINA FIFITA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1297 OF 2000

SUNDBERG, HELY & STONE JJ

26 FEBRUARY 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1297 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	KATALINA FIFITA APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	SUNDBERG, HELY & STONE JJ
DATE OF ORDER:	26 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the appeal be dismissed; and

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	N 1297 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	KATALINA FIFITA APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	SUNDBERG, HELY & STONE JJ
DATE:	26 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 The appellant last entered Australia on 31 August 1996. On 20 September 1996 she applied for a protection visa. The application was rejected by the Minister's delegate on 15 April 1997. This decision was affirmed by the Refugee Review Tribunal on 2 December 1997. Apparently the appellant became an unlawful non-citizen on 6 January 1998 when her bridging visa expired, and it appears that on 27 September 2000 the appellant was placed into immigration detention.

2 On 5 October 2000 the appellant applied on form 470F for a Class BU (sub-class 836 (Carer)) visa. The Minister's delegate notified the appellant on 6 October 2000 that her application for permanent residence was invalid as she was subject to a "s 48 limitation on further applications". The effect of s 48 of the Migration Act 1958 (Cth) ("the Act") is that a person who was refused a protection visa after last entering Australia can only apply for a visa of a class prescribed for the purposes of s 48. Regulation 2.12 of the Migration Regulations ("the Regulations") lists the classes of visas prescribed for the purposes of s 48 but a Class BU visa is not included in the list. The application for a Class BU visa was thus not a valid application (s 46(1)(d)) and could not be considered by the Minister (s 47(3)).

3 The appellant sought a review of that decision. That application was dismissed by Sackville J on the basis that the delegate's decision was not shown to have involved any reviewable error. It is from that decision that the appellant appeals to this Court.

4 On 31 October 2000 the appellant obtained an information sheet (Form 1026i) from the Department of Immigration & Multicultural Affairs that was printed in 1999. That information sheet stated that a person who had been refused a visa could nonetheless apply for a Change in Circumstances (Residence) visa. The Regulations have not provided for that class of visa since 1 July 2000 and it is not the class of visa for which the appellant applied. Sackville J correctly held that neither the existence of this document nor the fact that it was given to the appellant after these proceedings could have any bearing on the question of whether the delegate's decision involved an error of law. That question is to be determined by reference to provisions of the Act and the Regulations rather than by reference to departmental documents, particularly documents issued after the institution of these proceedings.

5 The appellant's second submission is that the delegate's decision given on 6 October 2000 was a decision reviewable by the Immigration Review Tribunal ("IRT") pursuant to s 346 of the Act. Section 346 was repealed by the Migration Legislation Amendment Act (No 1) 1998 (Cth) which replaced the IRT with the Migration Review Tribunal ("MRT"). The only issue raised by the application for an order of review is whether the delegate's decision was wrong in law. No issue was raised in the proceedings before Sackville J as to whether that decision was reviewable either by the Immigration Review Tribunal or the Migration Review Tribunal, and so far as the papers before us reveal the appellant has not sought a review of the delegate's decision by either Tribunal. The appellant's second submission leads nowhere. In any event, it fails to take account of s 47(4) of the Act which provides that a decision that an application is not valid and cannot be considered, is not a decision to refuse to grant a visa.

6 Finally, the appellant adverts to recent press publicity that the Minister has personally used his powers under the Act, described in the newspaper article annexed to the appellant's submissions as "mercy" powers, to grant visas to nationals of various countries. The appellant argues that this is in some way discriminatory to the appellant. The only issue before this Court is whether the delegate's decision of 6 October 2000 was correct in law. The matters recently canvassed in the press have no bearing on that question. For these reasons the Court is of the opinion that the appeal should be dismissed with costs.

7 The Court orders:

(1) that the appeal be dismissed; and

(2) that the appellant pay the respondent's costs of the appeal.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 6 March 2001

	The appellant appeared in person
Counsel for the Respondent:	Mr G Kennett
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	26 February 2001
Date of Judgment:	26 February 2001