Tuivasge v Minister for Immigration & Multicultural Affairs [2001] FCA 1528

FEDERAL COURT OF AUSTRALIA

Tuivasge v Minister for Immigration & Multicultural Affairs [2001] FCA 1528 MAKERETA TUIVASGE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1264 OF 2001 EMMETT J 19 SEPTEMBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1264 OF 2001

BETWEEN: MAKERETA TUIVASGE

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 19 SEPTEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The notice of motion received 18 September 2001 be dismissed. 2. There be no order as to the costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1264 OF 2001

BETWEEN: MAKERETA TUIVASGE

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 19 SEPTEMBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 24 July 2001 the appellant filed an application for an order of review in this Court. The application was handwritten. The only relevant material contained in the application was as follows: "All Tribunal decisions (RRT/MRT) was not fair and very harsh. I am now pleading for your compassionate decision and fairness. I would not be able to live a peaceful life if sent back to the volatile situation in Fiji." 2 When that matter came before a Registrar of the Court on 2 August 2001, according to a note on the Court file, discussion ensued as to what was being reviewed. According to the note it was agreed that a Migration Review Tribunal ("MRT") decision on a bridging visa was being reviewed and that any Refugee Review Tribunal ("RRT") decision made was to be the subject of a separate application. The appellant was informed that she should file one as soon as possible. 3 The application came before a judge of the Court for hearing on 16 August 2001. His Honour treated the application as an application for order of review of a decision of the MRT of 17 July 2001. In that decision the MRT affirmed the decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), finding that the appellant was not entitled to the grant of a Bridging Visa E (Class WE), and affirmed the decision under review to request security of $20,000. His Honour observed that the application did not refer to any ground in s 476 of the Migration Act, either directly or indirectly. His Honour noted further that the appellant, who represented herself with the aid of an interpreter, was unable to advance any reason in favour of the review that would come within s 476. Accordingly, his Honour concluded that the application should be dismissed with costs. 4 On 30 August 2001 the appellant filed a notice of appeal from those orders. In that part of the notice of appeal containing room for grounds there appeared the following: "Details will be send it later." Under the heading "Orders Sought" the following appeared: "I do not agree with the decision of Federal Court because I think they did not take in account all the grounds and circumstances so I want to appeal in full federal court in order to consider my case." 5 The Minister has given notice to the appellant of his intention to remove her from Australia by about midday tomorrow. Following that notification, the appellant caused a notice of motion to be sent to the Court registry by facsimile yesterday. The notice of motion claims as follows: "The RRT decision to be set aside: The Federal Court decision of 16/8/2001 to be appeal against." 6 No other relief was sought. An affidavit accompanied the notice of motion. It stated: "I am scheduled to appeal at the Federal Court of Australia on Friday 12/10/01. The letter from Immigration I received today regarding my removal. Please note above regarding my next appeal appearance." 7 Representatives of the Minister were informed of the receipt of the notice of motion and the affidavit. As I understand the position, the Minister was prepared to treat the notice of motion as an application for an interim injunction restraining removal of the appellant pending the determination of her appeal. 8 The appellant entered Australia on 19 December 1999 on a class TR Tourist (Short Stay) Visa. She was subsequently granted a Class TN Tourist (Long Stay) Visa due to expire on 19 August 2000. On 16 August 2000 the applicant sought a further Class TN Tourist (Long Stay) Visa and was granted an associated bridging A visa on that date. On 22 August she was granted a Class TN Tourist (Long Stay) Visa due to expire on 19 December 2000. 9 On 20 December 2000, having overstayed the term of the visa and having no other visa permitting her to remain in the migration zone, the appellant became an unlawful non citizen. On 18 April 2001 the applicant was detained by an officer of the Department of Immigration and Multicultural Affairs pursuant to s 189 of the Migration Act. On 26 April 2001 she lodged an application for a protection residence visa which also constituted an application for an associated Bridging E visa. The latter was refused on 1 May 2001. 10 On 28 May 2001 the Department refused the application for protection visa. On 30 May 2001 the appellant applied to the RRT for a review of that decision. In addition, on 2 July 2001, the appellant lodged an application for Bridging E Visa. She was advised on 3 July 2001 that consideration would be given to it upon lodgement of security in the sum of $20,000. No security was lodged and the visa was refused on 5 July 2001. On 6 July 2001 the appellant applied to the MRT for review of the refusal of the Bridging Visa E and the requirement for security. 11 After a hearing on 16 July 2001 at which the appellant gave oral evidence, the MRT on 17 July 2001, affirmed the decision concerning the refusal to grant a Bridging E Visa. On the same day the MRT affirmed the decision to request security in the sum of $20,000. On 19 July 2001 the RRT affirmed the decision to refuse a Protection Visa. The appellant then filed the application to which I have referred. 12 In the course of oral address today, the appellant appeared in person with the assistance of an interpreter. She said that she did not understand that she was required to file another application in respect of the review of the decision of the RRT. When asked what the ground of review was, she said that she was concerned about the way she would be treated as a Seventh Day Adventist. 13 I have no material before me as to the claims that were advanced before RRT, although the appellant tells me from the bar table that she advanced these claims. However, it is significant that the reasons for the decision of the MRT include the following, at paragraph 35: "The visa applicant has stated that her intention in coming to Australia was to financial support her family in Fiji and that she plans to stay in Australia to help her family. She said that she was not sure how she would do this." That, of course, is not decisive. Circumstances may well have arisen which would justify the applicant being treated as a refugee within the meaning of the convention. Alternatively there may well have been other reasons for her leaving Fiji. 14 In any event, however, no grounds have been advanced in relation to the decision of the RRT. Nothing was mentioned in the original application. If that were to be treated as an application for an order of review of the decision of the RRT, it is now too late to file another application. 15 Either way, it seems to me that there is no prospect of success in any appeal from the decision of the primary judge. There would be no utility therefore in granting an interim injunction restraining the removal of the appellant from Australia. Accordingly, I propose to dismiss the application. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.