FEDERAL COURT OF AUSTRALIA Bagheri v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 432 FARDIN BAGHERI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 34 of 2004 SELWAY J 25 MARCH 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 34 OF 2004 BETWEEN: FARDIN BAGHERI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SELWAY J DATE OF ORDER: 25 MARCH 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant to pay the respondent's costs to be taxed or agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 34 OF 2004 BETWEEN: FARDIN BAGHERI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SELWAY J DATE: 25 MARCH 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application purportedly made pursuant to sections 39 (b) and 44 of the Judiciary Act 1903 (Cth). The applicant seeks an order for his immediate release from detention at the Baxter Detention Centre. The minister claims that the detention is lawful pursuant to the provisions of the Migration Act. 2 On the face of it, the proceedings are within this court's jurisdiction under section 39B(1)(A)(c) of the Judiciary Act. If the detention was unlawful, I have the power and jurisdiction to order that the applicant be released. I note that the applicant has other proceedings before this court seeking his release from detention for separate and different reasons - see action number S 542 of 2003. He is represented in those proceedings. They are currently adjourned to a date to be fixed. 3 The applicant sought to be represented by Mr Akpata, who was then a fellow inmate of Baxter Detention Centre. I declined to allow Mr Akpata to represent him. Mr Akpata is not a lawyer of this court. However, I did eventually allow Mr Akpata to assist the applicant in the capacity of a McKenzie's friend. With the benefit of hindsight, this was a mistake. Mr Akpata was not able to assist either the applicant or the court. 4 It is not disputed that the applicant is an unlawful non-citizen. The applicant's argument is that he was entitled to and did apply for a bridging visa. The application was received by an officer of the department on 29 January 2004. Apparently no decision was made by the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') or anybody else as to whether to grant or refuse a bridging visa within 28 days, being the prescribed period for the purposes of section 75(1) of the Migration Act 1958 (Cth) (the Act) - see regulation 2.24 of the Migration Regulations. 5 The applicant says that he is consequently taken to have been granted a bridging visa - section 75(1) of the act. He says that as he now has a bridging visa he must be released from detention –pursuant to s 196(1)(c) of the Act. None of this is disputed as far as it goes. However the respondent says that the application for the bridging visa could not even be considered because it was not a valid application - see section 47(3) of the Act. 6 To be a valid application, the applicant must be an "eligible non-citizen" –as stated in s 75(1) of the Act. The term "eligible non-citizen" is defined in s 72 (1) of the act. The minister says that the applicant does not fall within any of the classes of "eligible non-citizen". In particular, he does not fall within the prescribed class as described in regulation 2.20 of the Migration Regulations. 7 The minister relies upon the affidavit of Marten Thomas Kennedy dated 17 March 2004 filed herein. On the face of it, that affidavit would seem to establish that the applicant was not an eligible non-citizen and that he was not entitled to apply for a bridging visa. When this matter was before the court on 18 March 2004, it was explained to the applicant that the issue seemed to be whether he was entitled to apply for a bridging visa. 8 The case was then adjourned to enable him to provide any information to the court as to his entitlement to apply. No information was provided although the applicant has made an extensive submission to the court. The applicant points to s 46 of the Act and says that this provides him with an entitlement to apply for a bridging visa. It does not seem to me that that section answers the problem of whether he was entitled to apply for a bridging visa under s 75 of the Act. 9 In any event the criteria specified for the purposes of section 46(3) of the act include that the applicant is an eligible non-citizen - see cl 1305 of sch 1 of the Migration Regulations. The question still remains whether the applicant met the criteria for applying for a bridging visa. The applicant also points to the provisions of sch 2 of the regulations which deal with the question whether a bridging visa should be granted if it had been considered. Again, those provisions do not answer the question of whether the applicant was entitled to apply. 10 In the circumstances, I am satisfied that the applicant was not entitled to apply for a bridging visa. Consequently, he is not deemed to have been given one under s 75(1) of the Act. Consequently, he is not unlawfully detained. For these reasons, the application is dismissed. The order of the court will be: 1. The application is dismissed. 2. The applicant to pay the respondent's costs to be taxed or agreed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway. Associate: Dated: 13 April 2004 Counsel for the Applicant: Applicant appeared in person Counsel for the Respondent: S J Maharaj with M T Kennedy Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 25 March 2003 Date of Judgment: 25 March 2003