AFR21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 929

FedCFamC2G|2025-06-17

The applicant's argument appears to be that, at the time the applicant applied for a bridging E visa on 7 June 2019, it was possible the applicant could seek Ministerial intervention under s 417 of the Act "or other regularisation options", and therefore his protection visa application was "not finally determined" or, on application of VHAY, was still "on foot".
I do not accept this argument. As recorded by the Tribunal at [24], the applicant's evidence before the Tribunal was that the "[applicant] has no proceedings seeking protection or seeking to review his application for protection", including any judicial review proceeding in a federal court. It followed that the applicant did not satisfy (b)(i) or (ii). That the applicant could make a request to the Minister under s 417 of the Act, which step the applicant had not taken by 7 June 2019, did not mean that the applicant satisfied (b)(i) or (ii).
For the above reasons, the applicant's written submission does not identify a jurisdictional error in the Tribunal's decision.

At the hearing before the Court on 19 May 2025, the applicant made oral submissions to the effect that he disagreed with the Tribunal's decision, and he wanted to stay in Australia. These submissions, obviously, do not identify a jurisdictional error in the Tribunal's decision.

At the conclusion of the hearing, the Court invited submissions from the parties on costs. Ms Pieri sought an order that the applicant pay the first respondent's costs in the sum of $5,900, which was less than the first respondent's solicitor/client costs. I consider this amount is reasonable. The applicant stated that he was unable to pay this amount. However, I consider that indigence of a losing applicant who, by making and progressing the application to hearing, has forced the respondent to incur legal costs does not affect a determination of an amount which is reasonable in the present matter: see Al-Mamun v Minister for Immigration & Multicultural Affairs [2000] FCA 1058 at [5]. I will make an order for costs in the amount sought by Ms Pieri.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

Grounds 1 and 2 are generic and devoid of particulars. A "failure to particularise a ground of review is itself a sufficient basis to dismiss it": NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37].

The Tribunal at [24] effectively found that, in relation to subparagraph (b) of each of reg 2.20(7), (8), (9) and (10) (see paragraph 5 above), the applicant was neither a person who "made a protection visa application that is not finally determined" within the meaning of (b)(i) nor a person who "applied for judicial review of a decision to refuse a protection visa" within the meaning of (b)(ii).
In relation to the Tribunal's finding at [24] concerning (b)(ii), the reasoning in VFAY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 14 (VFAY) supports a reading of sub-paragraph (b)(ii) as concerning an application "for judicial review of a decision to refuse a protection visa" which is "on foot" (VFAY at [19]) or which "had not been determined" (VFAY at [20]).
It is stated in the applicant's written submission:

At a glance