Bizuneh v Minister For Immigration & Multicultural Affairs

REASONS FOR JUDGMENT (ex tempore) 1 By his application filed on 31 December 1999, the applicant seeks review of a decision dated 24 December 1999 of the Migration Review Tribunal. The Tribunal's decision affirmed a decision of a delegate of the respondent Minister refusing to grant the applicant a Bridging E (Class WE) Visa, Sub-Class 050 (General). The Court has jurisdiction to review such decisions: See ss 474, 475 (1)(a), 476(1) and 486 of the Migration Act 1958 (Cth) ("the Act"). 2 There has been a lengthy course of litigation initiated by the applicant. The earliest proceeding is N 508 of 1999 by which the applicant sought review of a decision of the Refugee Review Tribunal affirming a refusal to grant him a protection visa ("the First Proceeding"). In the First Proceeding, on 13 August 1999 the applicant joined with the respondent Minister in consenting to orders dismissing his application and ordering him to pay the Minister's costs in an amount of $850. Those orders were entered on 30 August 1999. 3 On 28 October 1999 the applicant attempted to file in the First Proceeding a notice of motion seeking an order setting aside the order of dismissal. Apparently he did so after a disappointing outcome of an application by him to the Minister for exercise of the Minister's discretion under s 417 of the Act. The notice of motion was brought to the attention of Tamberlin J who, on 10 November 1999, pursuant to O 46 r 7A of the Federal Court Rules, directed the Registrar not to accept it. 4 Then the applicant commenced proceeding N 1427 of 1999 on 10 December 1999 ("the Second Proceeding"). The document commencing the Second Proceeding purported to apply for an extension of time in which to file and serve a notice of appeal from a judgment of Tamberlin J given on 10 November 1999 (the form of application stated "10/10/99" but this was clearly an error). That application is pending and is returnable before the Court on 7 February 2000. 5 On 21 December 1999 the applicant commenced proceeding N 1465 of 1999 ("the Third Proceeding") by which, in substance, he seeks an order that he be discharged from the Villawood Detention Centre or that he be transferred "to another custody where the Department has no control". In the Third Proceeding the applicant has filed a notice of motion seeking a hearing of that application during the current Court vacation. He is not ready to have a final hearing of the Third Proceeding today. Directions will need to be made in that proceeding. 6 By the present proceeding ("the Fourth Proceeding") the applicant seeks review of the decision of the Migration Review Tribunal mentioned earlier. In this proceeding also the applicant moved for an urgent hearing during the Court vacation. He said that he was in a position to have this proceeding heard finally today. So was Mr Markus, the solicitor from the Australian Government Solicitor's Office, who represents the Minister. These reasons for judgment relate to that final hearing. 7 The reasons for decision of the Tribunal dated 24 December 1999 are, in their relevant part, quite short and I can come immediately to the critical point. Under the Migration Regulations 1994 certain criteria must be satisfied for the granting of a Bridging E (Class WE) Visa, Sub-Class 050 (General). Relevantly, the applicant must satisfy one or other of the following subclauses:

"050.212(3A) An applicant meets the requirements of this subclause if: (a) the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and (b) …. (i) … (ii) the applicant has applied for judicial review of a decision to refuse to grant the visa and the judicial proceedings (including any proceedings on appeal) have not been completed. 050.212(4) An applicant meets the requirements of this subclause if: (a) the applicant has applied for judicial review of a decision in relation to a substantive visa, other than a decision to refuse to grant a visa" 8 The reasoning of the Tribunal in relation to the terms of those two paragraphs appears in paras 19 and 20 of its reasons for decision which are as follows: "19. The applicant has lodged in the Federal Court two applications. The first application is for an extension of time to file and serve a Notice of Appeal. The application is necessary as the applicant did not file, within the prescribed time, a Notice of Appeal against the refusal of Justice Tamberlin to allow the applicant to file an application to set aside the consent orders that had been made on 13 August 1999. Without this leave the applicant is unable to file an appeal against the decision which finalised the applicant's application for a protection visa. It follows that, at this time, the applicant cannot have an appeal pending against the decision that finalised the applicant's application for a protection visa. The application for judicial review of the refusal to grant the applicant a protection visa has therefore been finally determined at this time. As the application for judicial review has been completed the applicant is unable to satisfy subclause 050.212(3A)(b)(ii). 20. If Justice Tamberlin's decision to refuse to allow the applicant to file a Notice of Motion is considered to be a decision other than a decision to refuse to grant a visa, the applicant must satisfy subclause 050.212(4)(a) if he is to be entitled to a grant of a bridging visa. The applicant at this time does not have the right to file a Notice of Appeal. That right has yet to be determined. Without the right the applicant cannot file the Notice of Appeal. The applicant has not, therefore, applied at this time for judicial review of a decision in relation to a substantive visa, other than a decision to refuse to grant a visa. The applicant cannot satisfy 050.212(4)(a) as he has not applied for judicial review of a decision. He is not presently entitled to do so." 9 I think that the Tribunal's reasoning is correct. There is not yet any "proceeding on appeal" from any decision given in the First Proceeding (N 508 of 1999). 10 Similarly, the applicant does not have pending an application for judicial review of a decision in relation to a substantive visa. 11 No matter how one may try, it is impossible to see any basis on which the applicant satisfies either of the two criteria mentioned, which, I note, must be satisfied both at the time of the application and of the decision on it. 12 Before it can be said that there is a proceeding on appeal within subcl 050.212(3A)(b)(ii) certain difficulties will need to be overcome by the applicant. I will not embark upon a discussion of them. Mr Markus has raised the question whether Tamberlin J's direction to the Registrar was a judgment of the Court from which appeal can lie. If it was, the applicant would need leave to appeal from it because it was interlocutory. There is also a question as to the Court's power to set aside the consent order of dismissal of the First Proceeding in light of the fact that it has been entered: see Federal Court Rules O 35 r 7(2). 13 For the above reasons the orders of the Court are that: 1. The application be dismissed. 2. The applicant pay the respondent's costs. [I also made an order under O 80 r 4 referring the applicant to the Registrar for referral to a legal practitioner on the Pro Bono Panel.]

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