Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1467

FEDERAL COURT OF AUSTRALIA

Kosi v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1467

HEIVAHA KOSI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1114 OF 2002 MOORE J 6 DECEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1114 OF 2002

BETWEEN: HEIVAHA KOSI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGNEOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 6 DECEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. 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

NEW SOUTH WALES DISTRICT REGISTRY N 1114 OF 2002

BETWEEN: HEIVAHA KOSI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE: 6 DECEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 This is an application by Ms Heivaha Kosi ("the applicant") for review of a decision of the Migration Review Tribunal ("the MRT") on 27 September 2002. The Tribunal affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs ("the Minister") to refuse to grant the applicant a Bridging visa.

Background 2 The applicant first arrived in Australia in July 1990 on a Subclass V12 Visitor visa. This visa expired in January 1991, and the applicant remained in Australia unlawfully. On 27 August 1992, the applicant applied for Refugee status. This application was refused by a delegate of the Minister on 18 November 1992, and subsequently affirmed by the Refugee Review Tribunal ("the RRT") on 27 May 1993. The applicant then applied for a protection visa on 16 May 1994. She was granted an unconditional bridging visa on 1 September 1994 while her application was pending. On 22 November 1995, a delegate of the Minister refused to grant the applicant a protection visa. This decision was affirmed by the RRT on 6 June 1996. The applicant's bridging visa expired on 11 July 1996. 3 On 18 July 1996 the applicant requested that the Minister consider her case under s 417 of the Act. The Minister decided not to act on 27 June 1997. 4 On 20 April 1999 the applicant was located by compliance officers, and on 23 April 1999, she was granted a bridging visa. This bridging visa was granted on the understanding that the applicant was making arrangements to depart Australia voluntarily. Two more bridging visas were granted to the applicant, on 25 May 1999 and 25 June 1999. These bridging visas were granted following the provision of $2000 in security on behalf of the applicant. 5 The applicant failed to depart Australia as requested, and her last held bridging visa expired on 2 July 1999. She remained in Australia unlawfully, and the $2000 in security was forfeited. Police officers in Port Kembla located the applicant on 21 February 2002, and she was detained by the Department under s 189 of the Act. The applicant was interviewed by Department officers on 22 February 2002, following her detention. During that interview, the applicant stated that she has a daughter in Australia, and remained here so that she could be with her cousin. She also said that she worked as a cleaner from 1999 to 2001, and that she was presently unemployed. 6 On 25 February 2002, the applicant stated that she would be applying for a substantive visa. The applicant's daughter was granted a bridging visa on 26 February 2002, on the basis that arrangements were being made for her to depart voluntarily, or alternatively that arrangements were being made for private adoption of the applicant's daughter. 7 On 16 April 2002, the applicant requested the Minister consider her case under s 48B and s 417 of the Act. On the same day she lodged an application for a bridging visa, based on those current applications. The application for a bridging visa was refused on 18 April 2002. The applicant's request under s 48B was refused by the Minister on 8 May 2002. She is now prevented from lodging a subsequent application. The applicant was also informed on 8 May 2002 that the Minister had decided not to exercise his discretionary power under s 417. The Department then obtained travel documentation for the applicant and her daughter to depart Australia. 8 On 27 May 2002 the applicant lodged an application in the Federal Court, seeking a review of the two RRT decisions, made on 27 May 1993 and 6 June 1996. The applicant was unsuccessful in this application, and has appealed to the Full Court of the Federal Court. This appeal was heard on 5 December 2002. 9 The applicant has made a number of additional applications for a bridging visa, all based on the current Federal Court proceedings: · On May 31 2002, an application for a bridging visa was lodged, with an offer for $4000 in security. On 4 June 2002 this application was refused, and the decision was affirmed by the MRT on 18 June 2002. · On 26 July 2002 the applicant made another application for a bridging visa, offering security of $5000. This was refused by the Department on 31 July 2002, and affirmed by the MRT on 12 August 2002.