Uranek v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 37

FEDERAL COURT OF AUSTRALIA

Uranek v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 37 BOZENA MARIA URANEK V MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS Q135 OF 2002 FINN, DOWSETT & JACOBSON JJ 11 MARCH 2003 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q135 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: BOZENA MARIA URANEK

APPLICANT

AND: MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FINN, DOWSETT & JACOBSON JJ

DATE OF ORDER: 11 MARCH 2003

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. Leave to appeal be granted. 2. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q135 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: BOZENA MARIA URANEK

APPLICANT

AND: MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FINN, DOWSETT & JACOBSON JJ

DATE: 11 MARCH 2003

PLACE: BRISBANE

REASONS FOR JUDGMENT

THE COURT: 1 The applicant/appellant, Bozena Uranek, is a Dutch citizen who is a permanent resident in this country. She seeks leave for an extension of time in which to appeal to this Court against an order of the primary judge rejecting her application to challenge a "privative clause decision" made by the Administrative Appeals Tribunal ("the Tribunal"). In that decision the Tribunal affirmed the decision of the Minister's delegate to reject an application for a spouse visa by Abdelali Byasse, a Dutch citizen who was born in Morocco ("the visa applicant"). That application was made on the basis of the visa applicant's 1997 "marriage" to Ms Uranek in New Zealand. That marriage was found by the Tribunal to be bigamous, though the participants in it had not, in consequence, committed any criminal offence in this country. 2 The Tribunal's decision was, in substance, that (a) the visa applicant had failed to establish that he was of good character within the meaning of s 501 of the Migration Act 1958 (Cth) ("the Act"); and (b) the discretion to grant the visa notwithstanding such an adverse finding should not be exercised in his favour. In the course of its reasons the Tribunal indicated that it considered that Ms Uranek's status as a permanent resident should be reviewed in light of the evidence before it. 3 The Tribunal's decision was challenged by Ms Uranek on a multiplicity of grounds in an application for judicial review which was taken to have been made under s 39B of the Judiciary Act 1903 (Cth). Ms Uranek represented herself before the primary judge as she has done also before this Court. The primary judge, after adverting both to the various grounds stated in Ms Uranek's application and to the significant number of additional grounds raised in her written submissions, dismissed the application on the following bases: "No legal error is apparent in the Tribunal's approach to the Direction. The applicant seeks a review of the evidence and findings and the Court did not have such a jurisdiction even prior to the recent amendments to the Act. There was no denial of procedural fairness. Indeed, although the applicant requested an interpreter for this hearing, and one was provided, it was apparent that she did not need one. The Tribunal witness could not be located, but their evidence could nevertheless be accepted. There is nothing to indicate bad faith on the part of the Tribunal. Its decision was reached after a careful analysis of the evidence and objective facts. It could not be said to be in any way racially motivated." 4 Ms Uranek now seeks to appeal to this Court. Two of her grounds of appeal (challenging the constitutionality of s 474 of the Migration Act) are now untenable in light of the High Court's decision in S157/2002 v Commonwealth of Australia [2003] HCA 2. The remaining three grounds (i) attributed ten errors to the Tribunal which were not corrected by the primary judge; (ii) challenged the Tribunal's exercise of its discretion not to grant the visa notwithstanding its adverse character finding; and (iii) alleged that the Hickman principles had been satisfied. These various grounds were added to significantly in oral and written submissions.