NABY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1475

FEDERAL COURT OF AUSTRALIA

NABY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1475

MIGRATION – privative clause decision - application for a bridging visa – no request for security – whether Migration Review Tribunal made an error of law in considering whether to request security – whether error of law protected by privative clause

Migration Act 1958 (Cth) ss 368, 417, 430, 474 Migration Regulations 1994 (Cth) Sch 2 cl 050.223

Applicant VAAN of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 197 applied Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 referred to NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 applied NABM of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 294 referred to SBBS v Minister for Immigration & Multicultural &Indigenous Affairs [2002] FCAFC 361 cited NABY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1062 of 2002 BRANSON J 28 NOVEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1062 of 2002

BETWEEN: NABY

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 28 NOVEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT the application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1062 of 2002

BETWEEN: NABY

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 28 NOVEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

introduction 1 The applicant seeks review of a decision of the Migration Review Tribunal ('the Tribunal') made on 20 September 2002 affirming a decision of a delegate of the respondent not to grant the applicant a bridging visa and not to request a security. BACKGROUND FACTS 2 The applicant has travelled to Australia on three occasions. In 1991 he was subject to a supervised departure from Australia as a result of having remained in Australia unlawfully after the expiration of his visa. On the applicant's second visit to Australia he departed from Australia on 14 March 2000, before the expiry of his visa. 3 The applicant most recently arrived in Australia on 22 October 2000 on a tourist visa. He lodged an application for a protection visa on 22 November 2000, the day his tourist visa expired. He was issued with a bridging visa. His application for a protection visa was refused on 8 December 2000 and the Refugee Review Tribunal affirmed this decision on 12 June 2001. The applicant's bridging visa ceased on 10 July 2001 and since then the applicant has not held a visa and has remained in Australia unlawfully. The applicant was detained by the police on 11 July 2002 and transferred to Villawood Immigration Detention Centre. 4 On 15 July 2002 the applicant applied for a bridging visa and on 26 July 2002 this application was refused. Meanwhile, the applicant lodged an application under s 417 of the Migration Act 1958 (Cth) ('the Act') seeking to have the respondent ('the Minister') intervene on his behalf. On the basis of the s 417 application, the applicant submitted a further application for a bridging visa on 27 August 2002. A delegate of the respondent refused this further application for a bridging visa on 28 August 2002. The applicant sought review of this decision in the Tribunal. 5 On 10 September 2002 the applicant told the Tribunal that his father, a church minister who resides in Australia, could lodge a security for the applicant. The Tribunal granted the applicant until 19 September 2002 to raise a security. On 17 September 2002 the applicant informed a Tribunal officer that the applicant could provide a security of $1000 and that the applicant's father could provide a security of $2000. The Tribunal officer was unable to make any contact with the applicant's father to confirm this offer. 6 On 20 September 2002 the Tribunal affirmed the decision not to grant a bridging visa and not to request a security.