FEDERAL COURT OF AUSTRALIA Tuita v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 145 HENELE TUTUTAU TUITA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Q197 OF 2003 CARR, EMMETT & GYLES JJ 27 FEBRUARY 2004 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q197 OF 2003 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: HENELE TUTUTAU TUITA APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGES: CARR, EMMETT & GYLES JJ DATE OF ORDER: 27 FEBRUARY 2004 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's 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 Q197 OF 2003 BETWEEN: HENELE TUTUTAU TUITA APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: CARR, EMMETT & GYLES JJ DATE: 27 FEBRUARY 2004 PLACE: BRISBANE REASONS FOR JUDGMENT CARR J: 1 I agree with the orders proposed by Emmett J and with his Honour's reasons. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of Justice Carr. Associate: Dated: 8 June 2004 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q197 OF 2003 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: HENELE TUTUTAU TUITA APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGES: CARR, EMMETT & GYLES JJ DATE: 27 FEBRUARY 2004 PLACE: BRISBANE REASONS FOR JUDGMENT EMMETT J: 2 The appellant is a national of Tonga. On 1 August 2003 he applied for a Bridging E (Class WE), Subclass 050 Bridging (General) Visa under the Migration Act 1958 (Cth) ('the Act'). On 5 August 2003 a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister'), refused to grant a visa. On 6 August 2003, the appellant lodged an application with the Migration Review Tribunal ('the Tribunal') for review of the decision of the delegate. On 14 August 2003, the Tribunal affirmed the decision to refuse to grant a visa. 3 On 5 September 2003, the appellant filed an application to the Court for relief under s 39B of the Judiciary Act 1903 (Cth) ('the Judiciary Act'). The application claimed an order that the Court remit the matter to the Minister for reconsideration according to law and any other order that the Court might think appropriate. The grounds were stated as follows: '1. The proceeding involved s 78B of the Judiciary Act 1903. 2. The application involved s 51(xxvii) of the Commonwealth Constitution. 3. That the respondent had breached the UN Declaration of the Rights of the Child which involved s 75 of the Constitution with original jurisdiction of the High Court in all matters arising under any treaty. 4. The decision involved s 398 of the Judiciary Act 1903.' 4 It is manifest that the grounds do not justify the grant of any relief under s 39B of the Judiciary Act. The application does not, in fact, specify the decision in respect of which relief is sought. However, it is apparent that the application should be taken to refer to the decision of the Tribunal of 14 August 2003. 5 On 9 December 2003, a judge of the Court ordered that the application be dismissed with costs. His Honour gave oral reasons for that decision on that day. On 17 December 2003, the appellant filed a notice of appeal from the orders of the primary judge. The same relief is claimed in the notice of appeal as was claimed in the original application. The grounds of appeal stated in the notice of appeal are as follows: '1. That the judge erred in law and findings that the application involved a matter arising under the Constitution within the meaning of s 78B of the Judiciary Act 1903. 2. That the judge erred in findings that the respondent was not acting in good faith in the making of the decision. 3. That the judge erred in law and findings that the changes to Migration Act under ss 474, 475 and 476 involved issues of deep constitutional sensitivity affecting two basic principles that the rule required that any decision of government should be capable of being tested in a court of law. 4. That the judge erred in his judgement that the respondent had breached the UN Convention on the Rights of the involved s 75 of the Constitution. 5. That the appellant will file a Notice pursuant to s 78Bof the Judiciary Act 1903.' 6 Those grounds do not disclose any basis upon which the Full Court should interfere with the decision of the primary judge. Nevertheless, since the appellant is not represented by a legal practitioner, the Court has examined the reasons of the Tribunal to endeavour to ascertain whether there was any error on the part of the primary Judge. 7 The Tribunal's reasons are quite detailed and include an analysis of the legislative provisions pursuant to which a bridging visa could be granted. In particular, the Tribunal had regard to the criteria set out in Schedule 2 to the Regulations made under the Act ('the Regulations'), which must be met before a bridging visa could be granted. The criteria referred to by the Tribunal, include the following: (a) at the time of the application: · the applicant must be an unlawful non-citizen; · the applicant must meet the requirements of one of the subclauses of clause 050.212 of the Regulations. These subclauses include the requirement that the applicant has an outstanding request to the Minister for ministerial intervention that is one of a number of prescribed requests, including that the request is being assessed by an officer against the ministerial guidelines or is being personally considered by the Minister; and (b) at the time of the decision: · the above criteria must continue to be met; · if a bridging visa is granted, the applicant must abide by the conditions imposed on it. 8 Section 31(1) of the Act provides that there are to be prescribed classes of visas. Regulation 2.01 prescribes the classes of visa. One of the prescribed classes is the class of visa for which the appellant applied. Section 31(3) provides that the Regulations may prescribe criteria for a visa of a specified class. Regulation 2.03 provides that, for the purposes of s 31(3) of the Act, the prescribed criteria for the grant to a person of a visa of a particular class are the criteria set out in a relevant part of Schedule 2 of the Regulations. The relevant part of Schedule 2 is subclass 050. Specifically, clause 050.21 specifies the criteria to be satisfied at the time of an application. Clause 050.22 specifies criteria to be satisfied at the time of the decision. 9 Under clause 050.221, the applicant must continue to satisfy the criteria set out in clauses 050.211 and 050.212. It was necessary, therefore, for the appellant to have satisfied those latter clauses as at the time of the decision of the Tribunal. Those criteria, so far as they could possibly concern the appellant, are as follows: · Under clause 050.211(1)(a), the applicant must be an unlawful non-citizen. The Tribunal correctly found that that criterion was satisfied, since the appellant has not had a visa of any kind for some considerable time. · Under clause 050.212(1), the applicant must meet the requirements of one of the sub-clauses of that clause. The only possible relevant clause is clause 050.212(6). 10 Clause 050.212(6) provides that an applicant meets the requirements of the sub-clause if one of three circumstances exists. The first is that the applicant is the subject of a decision for which the Minister has the power to substitute a more favourable decision under, inter alia, s 417 of the Act, and is being assessed by an officer against the Minister's guidelines in relation to that matter. The second is that the Minister is personally considering whether to exercise, or to consider the exercise of, the Minister's powers to substitute a more favourable decision under s 417 of the Act in relation to the applicant. The third is that the Minister has decided, under s 417, to substitute a more favourable decision. 11 The last circumstance is not applicable to the appellant. However, it was necessary for the Tribunal to consider the possibility that one or other of the first two circumstances existed in relation to the appellant. The Tribunal was satisfied that the appellant is an unlawful non-citizen and was so at the time of the application. The only other possible criterion that the applicant could fulfil, is if the applicant had an outstanding request to the Minister for ministerial intervention. 12 The appellant entered Australia originally on 11 January 1994. He applied unsuccessfully for various visas. Bridging visas were issued while those applications were being dealt with. If there is an outstanding request to the Minister to substitute a more favourable decision under s 417 of the Migration Act, it must be shown that the request is being assessed by an officer against ministerial guidelines or is being personally considered by the Minister. 13 On 17 January 1995, the appellant applied for a protection visa under the Act. On 28 September 1995, a delegate of the Minister refused the application for a protection visa and the appellant then applied to the Refugee Review Tribunal ('the RRT') for review of the delegate's decision. On 28 May 1996, the RRT affirmed the delegate's decision to refuse to grant a protection visa to the appellant. Further applications for family residence visas were made in 1996 and refused in 1998. On 9 January 1999 the appellant's last bridging visa expired and the appellant then became an unlawful non-citizen, thereby satisfying the first criterion. On 27 June 2003 the appellant was detained on the basis that he was an unlawful non-citizen. 14 However, on 3 July 2003, the appellant lodged a request to the Minister to exercise his power under s 417 of the Act in relation to the decision of the RRT of 28 May 1996. Section 417(1) of the Act provides: 'If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the [Refugee Review] Tribunal under s 415 another decision, being a decision that is more favourable to the applicant, whether or not the [Refugee Review] Tribunal had the power to make that other decision.' Section 415 of the Act specifies the powers of the RRT when hearing an application for review of a decision of the delegate to refuse a protection visa. 15 Thus, at the time when the delegate made the decision to refuse to grant a bridging visa to the appellant, there was an outstanding request to the Minister under s 417 of the Act. The Tribunal concluded that the relevant criterion was not satisfied because, at the time of lodging the application for a bridging visa, the Minister had not actually embarked on the consideration of the request pursuant to s 417. That may well be an erroneous view that would have constituted jurisdictional error on the part of the Tribunal, with nothing more. 16 However, if it was an error, it was of no moment because the criteria for the grant of a bridging visa include a requirement that there be an outstanding request for ministerial intervention at the time of the decision. When the Tribunal made its decision on 14 August 2003, the Minister had made a decision not to consider the exercise of the power conferred by s 417. That decision was made on 9 August 2003. Thus, whether or not there was an outstanding request at the time of making the application for a bridging visa on 1 August 2003, at the time of the decision, there was no outstanding request for ministerial intervention under s 417. 17 It follows that there was no operative error on the part of the Tribunal and the primary judge properly dismissed the application for relief under s 39B of the Judiciary Act in respect of the Tribunal's decision. It follows that the appeal should be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraph is a true copy of the Reasons for Judgment herein of Justice Emmett. Associate: Dated: 8 June 2004 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q197 OF 2003 BETWEEN: HENELE TUTUTAU TUITA APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: CARR, EMMETT & GYLES JJ DATE: 27 FEBRUARY 2004 PLACE: BRISBANE REASONS FOR JUDGMENT GYLES J: 18 I agree. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of Justice Gyles. Associate: Dated: 8 June 2004 Counsel for the Applicant: The applicant appeared in person. Counsel for the Respondent: M T Brady Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 27 February 2004 Date of Judgment: 27 February 2004