NAAX v Minister for Immigration [2002] FMCA 349 (2 December 2002)

Last Updated: 5 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAAX v MINISTER FOR IMMIGRATION

[2002] FMCA 349

MIGRATION - Review of Migration Review Tribunal decision affirming a delegate's refusal of a bridging visa - no reviewable error found.

Judiciary Act 1903 (Cth), ss.39B, 78B

Migration Act 1958 (Cth), ss.474, 475, 476

Migration Regulations

Vaea v Minister for Immigration [2002] FMCA 292

Applicant:

NAAX

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1008 of 2002

Delivered on:

2 December 2002

Delivered at:

Sydney

Hearing Date:

2 December 2002

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) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed at $3,800.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SZ1008 of 2002

NAAX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This ex tempore judgment relates to an application filed in the Federal Court on 20 September 2002 to review a decision of the Migration Review Tribunal ("the MRT") made on 6 September 2002. The application is to review a decision of the MRT to confirm a refusal to grant the applicant a bridging E class WE visa. The application has been transferred to this Court by order of his Honour, Gyles J on 15 October 2002.

2. The applicant is a Tongan national. It seems that the present review application was initially treated as a review of a protection visa decision. Hence, the applicant has not been identified in the court papers. Out of caution, I have maintained that position in this judgment, although I do not think that it is necessary.

3. In her application and supporting affidavit the applicant asserts that the decision of the MRT was incorrect and wrong in law and that the decision involved s.78B and s.39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). The applicant also asserted that she met primary criteria for a bridging visa to be granted; that the decision of the delegate not to grant a bridging visa was done in bad faith and that the applicant is "not subject to mandatory detention is unconstitutional" - which I take to mean that the detention of the applicant is said to be unconstitutional.

4. The first ground of review is an invitation to review the merits of the MRT decision. In his submissions filed on 28 November 2002, Mr Reilly, for the Minister, pointed out that that is not a course open to this Court.

5. The second ground purportedly raises a constitutional issue. The applicant has issued a notice under s.78B of the Judiciary Act purporting to raise a constitutional matter concerning the validity of ss.474, 475 and 476 of the Migration Act 1958 (Cth) ("the Migration Act"). This is a very similar approach to that taken by applicants in some other proceedings involving persons from Tonga. I dealt with the issue of the constitutional validity of those sections in the matter of Vaea v Minister for Immigration [2002] FMCA 292. I will take the same approach in these proceedings. In my view there is no issue of constitutional validity either open for consideration in this Court or appropriate for consideration in this Court.

6. The applicant has also asserted that her detention is unconstitutional. However, that does not appear to be covered in the notice issued under s.78B of the Judiciary Act. In addition, the applicant has put no submissions to me on that issue. In the absence of any submissions,

I am entitled to proceed on the basis that the detention of the applicant is authorised by the Migration Act.

7. The applicant is correct in asserting that s.39B of the Judiciary Act is involved in this application. She is also correct in asserting that she met primary criteria for the grant of a bridging visa. That is because the MRT determined that the applicant met the first criterion, being the filing of an application to review a decision under the Migration and Judiciary Acts, albeit a decision by the Minister not to consider exercising his discretion to substitute a more favourable decision, which under the Migration Act, is not a reviewable decision in this Court or the Federal Court.

8. However, it is clear from the MRT reasons for decision (court book, page 80) that the MRT confirmed the refusal of the bridging visa to the applicant because the MRT was satisfied that the applicant would not abide by conditions imposed on such a bridging visa, in particular, the mandatory condition in clause 8101 of schedule 8 to the Migration Regulations, that the applicant not work. The applicant had been detected working previously in breach of that condition and there was ample evidence before the MRT that the applicant would probably be compelled to work if released from detention in order to support herself. In the circumstances, there was little option but for the MRT to confirm the refusal of the bridging visa. I can find no legal error in the decision of the MRT.

9. The applicant asserts that the decision by the delegate to refuse the bridging visa was done in bad faith. This Court is of course not reviewing the decision of the delegate, but the decision of the MRT. If bad faith is being asserted against the decision of the MRT then that allegation could not be sustained. Nothing has been put to me today by the applicant in support of the allegations of bad faith.

10. In the circumstances, it is clear that I must dismiss this application. The only effect of the privative clause in s.474 of the Migration Act in these proceedings is to confirm what is already the inevitable outcome of the application. Therefore, I will dismiss the application.

11. On the question of costs, Mr Reilly has sought an order for costs in favour of the respondent Minister. He has indicated that he seeks an order in the sum of $4,500. The applicant has told me that she is presently unable to afford to pay costs of that order, noting in particular that she is in immigration detention and unable to work. That may well be true and the applicant may never be able to pay an award of costs but that is not in itself a reason for me not to follow the general principle in civil proceedings and award costs in favour of the successful party.

12. The proceedings seem to me to have been relatively straightforward. Although I am told by Mr Reilly that costs in the sum of $4,500 are sought, the issues have been quite straightforward. I would have thought that an order for costs in that order would probably amount to an indemnity award. The Minister is entitled to representation by counsel today and that would increase the amount of costs payable by the Minister. Nevertheless, on the basis of awards of costs made in other matters I would consider an award of costs in excess of $4,000 as somewhat excessive in the circumstances.

13. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,800.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 13 January 2003