Koroitamana v Minister for Immigration & Multicultural Affairs [2000] FCA 1579

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).