Bistrov v Minister for Immigration and Multicultural Affairs [2001] FCA 1103

FEDERAL COURT OF AUSTRALIA

Bistrov v Minister for Immigration and Multicultural Affairs [2001] FCA 1103

Migration Act 1958 ss 48, 417(1), 417(7), 478(1)(b) Bistrov v Minister for Immigration and Multicultural Affairs [2001] FCA 977 par [5] RONI BISTROV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 793 of 2001 WEINBERG J 6 AUGUST 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V793 OF 2001

BETWEEN: RONI BISTROV

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WEINBERG J

DATE OF ORDER: 6 AUGUST 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application for an interlocutory injunction be refused. 2. The application be dismissed. 3. The applicant 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

VICTORIA DISTRICT REGISTRY V793 OF 2001

BETWEEN: RONI BISTROV

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WEINBERG J

DATE: 6 AUGUST 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant, Roni Bistrov, seeks an injunction restraining the Minister for Immigration and Multicultural Affairs ("the Minister") from removing him from the country pending the hearing of an application for what he describes as: "1. Bridging visa E, 050, subclass (ING). 2. Termination of Deportation Orders after 48 hours issued 2/08/01." 2 The applicant filed this application from the Maribyrnong Detention Centre where he has been for some time. It appears that it was filed in response to a notice from the respondent that his removal from Australia was imminent. 3 The background to this application may be briefly stated. The applicant is an Israeli national who sought a protection visa. The application was refused. The refusal was upheld by the Refugee Review Tribunal ("the RRT") in a decision handed down on 9 March 2001. The applicant applied for a review of that decision under Pt 8 of the Migration Act 1958 ("the Act'). That application was filed on 22 June 2001. The respondent applied by notice of motion to have the application dismissed on the ground that it was not lodged within the 28 day time period specified by s 478(1)(b) of the Act. 4 On 26 July 2001 Sundberg J held that the Court had no power to extend the prescribed time and dismissed the application as the Court had no jurisdiction to entertain it; see Bistrov v Minister for Immigration and Multicultural Affairs [2001] FCA 977 par [5]. His Honour added: "Nothing really turns on the dismissal because, as the applicant has stated, the application for a protection visa was made by mistake. By his own admission, he had applied for the wrong type of visa.." 5 It seems that the applicant had been advised by his migration agent to apply for a protection visa because the tourist visa under which he had been permitted to enter Australia was granted upon condition that he not apply in Australia for any substantive visa, other than a protection visa. It was in that sense that the applicant submitted that he had "applied for the wrong type of visa". 6 The applicant submitted that he ought to be given the opportunity to remain in this country because he had reconciled with his former wife who had come to reside in Australia, and they had a young child from whom he did not wish to be separated. The difficulty with that submission is that s 48 of the Act provides that a non-citizen who is refused a visa may only apply for a visa of a class prescribed for the purposes of that section, but not for a visa of any other class. There are no visas prescribed for the purposes of s 48 for which the applicant might be eligible. Accordingly, the only course open to him is to make application to the Minister under s 417(1) for the substitution of a more favourable decision than that arrived at by the RRT. Section 417(7) provides that the Minister does not have a duty to consider whether to exercise the power under s 417(1). 7 In these circumstances the applicant's claim is wholly misconceived. There is no serious issue to be tried and the application must be dismissed with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.