NABL v Minister for Immigration and Multicultural Affairs

Federal Court of Australia Act 1976 (Cth) s 50

Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth)

Judiciary Act 1903 (Cth) s 39B

Migration Amendment (Judicial Review) Act 2001 (Cth)

Migration Regulations 1994 (Cth) Part 050 of Schedule 2, clauses 050.21, 050.22, subregulation 1.12

Federated Engine Drivers' and Fireman's Association of Australasia v Broken Hill Proprietary Co Ltd [1911] HCA 31; (1911) 12 CLR 398 applied

Khatri v Price [1999] FCA 1289; (1999) 95 FCR 287 applied

R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 referred to

R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387 referred to

VBA v Minister for Immigration and Multicultural Affairs [2001] FCA 1797 referred to

VAZ v Minister for Immigration and Multicultural Affairs [2001] FCA 1805 referred to

Walton v Philip Ruddock, Minister for Immigration and Multicultural Affairs [2001] FCA 1839 referred to

Geilinger v Gibbs [1897] 1 Ch 479 referred to

Fernee v Gorlitz [1915] 1 Ch 177 referred to

X v Minister for Immigration and Multicultural Affairs [1999] FCA 995; (1999) 92 FCR 524 referred to

R v Danaher; Ex parte Olzer Industries Pty Ltd [1969] VicRp 55; [1969] VR 445 referred to

Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62 referred to

Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 referred to

NABL and Others v Minister for Immigration and Multicultural Affairs

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

1 This is an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) made on 31 October 2001 affirming a decision made by a delegate of the Minister on 21 September 2000 to refuse to grant a Bridging Visa E (Class WE) to each of the three applicants. The applicants are three Russian nationals. They have not been named in this judgment or these reasons because of the terms of s 91X of the Migration Act 1958 (Cth) (the Act) introduced into the Act in late 2001. There is, perhaps, some doubt as to whether s 91X applies to the position of the applicants. However, the answer to that question goes part of the way to answering the substantive issues in the case. During the hearing the second applicant gave evidence. To ensure compliance with s 91X, I made an order under s 50 of the Federal Court of Australia Act 1976 (Cth) prohibiting publication of the evidence, in so far as the record of the evidence disclosed the name of the second applicant, although there was no suggestion before me of any need for confidentiality or the possibility of any sur place claim arising from public knowledge of the proceedings.

2 Before turning to the claim, it is necessary, as the first duty of the Court (Federated Engine Drivers' and Fireman's Association of Australasia v Broken Hill Proprietary Co Ltd [1911] HCA 31; (1911) 12 CLR 398, 415; and Khatri v Price [1999] FCA 1289; (1999) 95 FCR 287, 289-290), to establish the jurisdictional basis for the application before me in the light of the changes to the Act made in 2001, which took effect on 2 October 2001. (As to these changes see Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001; Migration Amendment (Excision from Migration Zone) Act 2001; Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001; Migration Legislation Amendment Act (No 1) 2001; Migration Legislation Amendment Act (No 5) 2001; Migration Legislation Amendment Act (No 6) 2001; Migration Legislation Amendment (Judicial Review) Act 2001; The Border Protection (Validation and Enforcement Powers) Act 2001.)

3 There is no doubt that the decision of the Tribunal was a `privative clause decision' for the purposes of s 474 of the Act, which was inserted into the Act by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). The definition of this phrase in subs 474(2) is as follows:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

A private clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

5 It might be thought that subs 474(1) and paras 474(1)(b) and (c), in particular, were intended to deny jurisdiction to any court (to the extent that it was within the power of the Parliament so to do) in such decisions. However, s 474 does not say, in terms, that this Court (the jurisdiction of which is statutorily based) has no jurisdiction to deal with a privative clause decision under subs 39B(1) and para 39B(1A)(c) of the Judiciary Act 1903 (Cth). Subsection 39B(1) and para 39B(1A)(c) are in the following terms:

(1) Subject to subsection (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

...

(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

6 Section 476 of the Act, on the other hand, makes clear that certain decisions are outside of the jurisdiction of the Federal Court. For example, subs 476(1) provides:

Despite any other law (including section 483A, sections 39B and 44 of the Judiciary Act 1903, section 32AB of the Federal Court of Australia Act 1976 and section 39 of the Federal Magistrates Act 1999), the Federal Court and the Federal Magistrates Court do not have any jurisdiction in relation to a primary decision.

7 The revised explanatory memorandum in respect of the Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth) (the Bill) makes it plain that the Parliament did not intend to deny this Court jurisdiction under s 39B of the Judiciary Act in the review of decisions not dealt with by s 476 (such as the Tribunal's decision here). Paragraphs 14 and 15 of the revised explanatory memorandum explained s 474 as follows:

New subsection 474(1) introduces a privative clause for decisions made under the Migration Act, regulations made under that Act or other instruments under that Act except for decisions made under the provisions set out in new subsection 474(4) or as prescribed under new subsection 474(5). A privative clause affects the extent of judicial review by both the Federal Court and the High Court of decisions covered by the clause.

A privative clause is a provision which, although on its face purports to oust all judicial review, in operation, by altering the substantive law, limits review by the courts to certain grounds. Such a clause has been interpreted by the High Court, in a line of authority stemming from the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, to mean that a court can still review matters but the available grounds are confined to exceeding constitutional limits, narrow jurisdictional error or mala fides_._

8 The intention, so disclosed, was not to express a lack of jurisdiction in this Court, which jurisdiction otherwise arises from the operation of s 39B of the Judiciary Act, but rather to affect the scope of review by the Court by means of s 474.

9 The relationship between s 39B of the Judiciary Act, these new provisions, including s 474, the balance of the Act and the effect of the so-called "Hickman principle" (R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, 615-6 and R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387, 399-400) is not the subject of authoritative judicial pronouncement. (However see for assistance VBA v Minister for Immigration and Multicultural Affairs [2001] FCA 1797; VAZ v Minister for Immigration and Multicultural Affairs [2001] FCA 1805; and Walton v Philip Ruddock, Minister for Immigration and Multicultural Affairs [2001] FCA 1839.)

10 The course which I propose to adopt is to analyse the decision of the Tribunal on the basis that it is subject to review in the ordinary way under the general law concerning the relief contemplated by subs 39B(1) of the Judiciary Act. It will only be if some error of law or justiciable flaw in the decision is apparent, on what might be termed conventional administrative law bases, that there will be the occasion to consider the effect of the recent amendments to the Act, in particular s 474, and to determine the proper limits of review of the Tribunal's decision. I take this approach despite the procedural flaws reflected in the application, as to which see [21] below.

11 I raised this approach with Mr Kennett, counsel for the respondent, who indicated that he did not wish to put any submissions to the effect that this approach was wrong or inappropriate. No objection was taken to my dealing with the matter in this way by reason of the flawed form of the application.

13 The three applicants are Russian nationals. The third applicant, who is 15 years of age, is the eldest son of the first and second applicants who are husband and wife. The three applicants arrived in Australia on visitors' visas on 29 June 1991. The visas were valid to 30 September 1991. On 30 October 1991 the three applicants lodged an application, or applications, for protection visas primarily through an application lodged by the first applicant (the husband). The application or applications for these protection visas was or were refused by a delegate of the Minister on 17 July 1992. On 19 April 1999 the Refugee Review Tribunal (the RRT) affirmed this decision to refuse the protection visas. On 26 May 1999 the applicants requested Ministerial intervention under s 417 of the Act. On 14 October 1999 the applicants were advised that the Minister would not intervene in their case. Meanwhile, on 28 June 1994 and 12 July 1997, two sons were born to the first and second applicants.

14 In order lawfully to pursue the various applications to which I have referred, the applicants were issued various bridging visas. For instance, on 26 May 1999 a bridging visa was granted to enable Ministerial intervention under s 417 to be sought. Three subsequent bridging visas were granted on 1 June 1999, 2 August 1999 and 7 October 1999. The basis of the grant of these visas was the continuing request for Ministerial intervention. After the applicants were advised in writing that the Minister would not intervene, a further bridging visa was granted on 13 January 2000 (at the expiry of the preceding visa). This bridging visa was granted until 14 February 2000 and was based upon the request by the Department for suitable departure arrangements to be made and the production of a passport. Apparently, on 13 January 2000 the first applicant had produced a receipt for lodgement of a passport application with the Consulate General of Russia.

15 Meanwhile, on 9 November 1999 the second and third sons applied for protection visas in their own right. These applications were rejected. The date of rejection is not clear from the papers before me. Applications were filed by the young sons for review by the RRT of the decision to refuse them protection visas.

16 On 14 February 2000 a further bridging visa was granted until 28 February 2000 on the basis that travel arrangements were being put in place. A further application for a bridging visa was made on 28 February 2000 and on 27 March 2000. That further bridging visa was granted until 27 April 2000, again on the basis of the applicants making suitable departure arrangements and production of passports.

17 On 27 April 2000 the applicants applied for further bridging visas. Each applicant made an application on that date. As referred to below, this application was made on the basis of the claims of the two young sons for protection visas. On 21 September 2000 the Department wrote to the applicants informing them that a decision had been made to refuse to grant the visas applied for. The letter indicated that a review of this decision was available in the Tribunal, the application having to be made no later than 19 October 2000. It is this rejection which gave rise to the Tribunal decision, review of which is before me.

18 On 21 September 2000 each of the applicants sought and was granted a further bridging visa on the basis that the application for review was pending before the Tribunal.

19 On 5 March 2001, while the application was pending before the Tribunal, the RRT affirmed the decision of a delegate not to grant protection visas to the second and third sons. An application for review of this decision was made to this Court. On 23 July 2001 Gyles J dismissed the application. The applicants to this application were, of course, minors (seven and four respectively). As such, the application was made by their next friend, their mother, the second applicant: see Order 43 Rule 1 of the Federal Court Rules. An appeal has been lodged from the orders of Gyles J and will be heard on 19 February 2002.

20 On 18 September 2001 there was a hearing before the Tribunal in relation to the applicants' application for review of the delegate's refusal on 21 September 2000 to grant a bridging visa. The Tribunal's decision was made on 31 October 2001.

21 The application for an order for review in this Court of this decision of the Tribunal was filed on 12 November 2001. Notwithstanding the amendments to the Act contained in the various Acts passed by the Commonwealth Parliament last year, in particular the Migration Amendment (Judicial Review) Act 2001 (Cth), the application was made seeking relief based on para 476(1)(e) of the Act in the form in which it appeared prior to the above-mentioned amendments. The Tribunal, as can be seen from the above chronology, handed down its decision after the changes to the Act. Therefore, there is no identifiable ground of review contained within the application other than that which can be gleaned from the otherwise inappropriate ground identified in the application based on superseded legislation. The ground, as identified in the application, was in the following terms:

"The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision."

22 No particulars were given. As can be seen, this is simply a repetition of part of the text of para 476(1)(e) as it appeared in the Act in its previous incarnation.

23 The applicants have filed submissions. It is to those submissions which I will direct my attention in due course.

24 Before examining the submissions of the applicants, I should say something about the legislation as it applies to these visas. Section 73 of the Act empowers the Minister to grant a bridging visa if he or she is satisfied that an eligible non-citizen satisfies the relevant criteria prescribed. Subsection 31(3) provides that the regulations may prescribe criteria for visas of a specified class, with the exception of types of visas not relevant here.

25 The applicants applied for Bridging E Visas - Subclass 050. The relevant class of visa (Class WE) of Bridging E Visa is established by clause 1305 of Schedule 1 to the Migration Regulations 1994 (Cth). To this class there are two subclasses - 050 (Bridging (General)) and 051 (Bridging (Protection Visa Applicant)): see subclause 1305(4). The applicants pressed their claim under the former subclass, as was necessary for them to do in the light of their unsuccessful attempts at obtaining a protection visa and in the light of the terms of s 48A of the Act which, subject to Ministerial waiver under s 48B, prevents a non-citizen, while in the migration zone, making a further application for a protection visa where the grant of such a visa has been refused.

26 The criteria for a subclass 050 visa are set out in Part 050 of Schedule 2 to the Migration Regulations. In clause 050.21 the criteria to be satisfied at the time of application are set out. In clause 050.22 the criteria to be satisfied at the time of decision are set out.

27 The Tribunal correctly identified this framework for analysis. It then proceeded to examine whether or not the criteria laid down in clause 050.21 had been satisfied. The submissions of the applicants were principally directed to a number of those criteria and the consideration given to them by the Tribunal.

28 Before proceeding to the criteria, it is necessary to set out a little more factual detail. In applying for the visas which were refused, the applicants, through their adviser, argued that they should be granted bridging visas on the ground that the two younger children had outstanding review applications in respect of protection visas before the RRT. The delegate refused to grant a visa on that ground. Apparently, however, the delegate told the first and second applicants that given the unusual and exceptional circumstances of the case, she would be prepared to grant a Bridging E Visa for three months if the applicants produced evidence of departure arrangements. She further stated that this visa would be extended until the RRT applications of the two young children were finalised. The applicants' adviser apparently informed the delegate that the applicants could not meet such an arrangement and he continued to maintain that the applicants should be granted Bridging E Visas on the grounds of the on-going review applications of the two younger children. On this basis the applications were refused. The applicants then applied to the Tribunal for review. The Tribunal in its reasons noted that in applying to it for review, the applicants continued to base their claim for a Bridging E Visa on the two younger children's review before the RRT.

29 On 21 May 2001, before the hearing, the Tribunal sent the applicants letters under s 359A of the Act inviting the applicants to comment upon certain information which the Tribunal considered could form the reason, or part of the reason, to affirm the decision under review. In these letters the following appeared:

You are invited to comment, in writing, on the following information:

You have in the past had a Protection visa application refused. As result you are prevented by section 48A of the Act from lodging a further application for a Protection visa. Therefore you cannot be a secondary applicant to your children's applications for Protection visas.

In addition the Refugee Tribunal has informed us that [the two infant sons'] review applications were affirmed on 5 March 2001. As such their applications have been finally determined.

At the time you applied for the Bridging E visa the delegate offered to grant a Bridging E visa to you if you could produce evidence that you were making arrangements to depart Australia. Your adviser stated that you were not in a position to pay the required fee to obtain a Russian passport. There is no evidence that you have been able to obtain a passport since or are otherwise in the process of making arrangement to depart Australia.

This information is relevant to the review, because if true, it may indicate that you do not have a ground for the grant of a Bridging E visa. In order to be granted a Bridging E Visa it is necessary that you satisfy one of the grounds in clause 050.212 at the time of the application and at the time a decision is made by the Tribunal.

You were unable to afford the fee for a Russian passport and have also applied to the Tribunal for a waiver of the application fee.

This information is relevant to the review because, if the information is true, it may indicate that you are not financially able not [sic] abide by the conditions which would be imposed on a Bridging E visa if granted.

...

30 The applicants' adviser responded on their behalf by letter dated 18 June 2001 stating that although the decision of the delegate concerning the two young sons had been affirmed by the RRT, they had applied to the Federal Court for review and this review was not finalised. On 23 July 2001 this review was finalised at first instance by the decision of Gyles J, although there is a pending appeal in the Full Court. At this point the adviser argued that, based on the Family Law Rules, the parents of the children should be viewed as joined to the review proceedings of the two younger children. The adviser also argued that the position of the mother as next friend meant that the applicants, or at least the second applicant, should obtain a visa.

31 It is perhaps appropriate to set out part of this letter of the adviser dated 18 June 2001, setting out these matters at a little length.

...

5. The other issue raised in your letter refers to the fact that the applicants have not made adequate arrangements to depart Australia (there are issues regarding a Russia passport's fee; and etc. [sic]). Unfortunately I have no other option but to disagree with your opinion that the aforementioned issue is relevant. The fact that the applicants have failed to settle all questions in relation to obtaining their passport is irrelevant because the applicants [sic] application for the bridging E visa particularly relied on the fact that their children, [names of supplied] applied for a Protection visa and then for review of the Department's decision and their application was not determined by the RRT.

6. I would like you to take into consideration the Order 15 (Rule 11) of the Family Law Rules. As we have already pointed out "an application is made in proceedings concerning the maintenance, or care, welfare and development, of a child, a parent of the child who is not an applicant in the proceedings, must be joined as a respondent in the proceedings, unless the court, or a Registrar, otherwise orders". If, in proceedings of the kind referred to in subrule outlined above: (a) a parent of the child is not a party to the proceedings; and (b) no other party applies to join the parent as a respondent in the proceedings; (c) the court, or the Registrar, may order that the child's parent or parents be made a respondent or respondents in the proceedings.

7. I would like you to take into account the identical case of Mr and Mrs [name supplied]. As I have already indicated in my previous letter their doughtier [sic] applied for a Protection Visa (File No: N99/28648) after their application was finalised by the DIMA, the RRT and the Minister for Immigration, who decided not to exersise [sic] his power under section 417 of the Act. It is relevant to know that Mr. and Mrs [name supplied] were granted a bridging E visas on the basis that their child made a valid application for a substantive visa (Protection Visa). The Compliance Section of the Department took into account the above mentioned Order 15 (Rule 11) of the Family Law Rules and found that [the first and second applicants] were entitled to bridging E visas. I would also like to note on 1 May 2000 the Tribunal [name supplied] remitted the matter for reconsideration.

8. Finally I wish to comment on your conception regarding the applicant's possible usability [sic] to comply with conditions imposed on a Bridging E visa. I wish to note that the MRT has found that the applicants were able to pay the prescribed fee, which may serve as an indication of their ability to comply with mentioned conditions. I would also like to note that there are organisations and private figures (the Russian Orthodox Church, the applicants' friends and relatives) who, being aware of the applicants' circumstances; being aware of the applicants' inability to go back to Russia; of the applicants' fear and desperation, provide the applicants with adequate support.

9. I agree with you that [the first and second applicants] are experiencing bitter financial and moral difficulties. Despite the fact they have lived in Australia for almost 10 years; despite the fact that two of their three children were born in Australia; despite the fact that almost all applicants' relative reside in Australia; despite the fact that there is no place for them to return to in Russia; despite the fact that there is a chance that the applicants will be subjected to ill-treatment and discrimination should they go back to Russian Federation - the Department of Immigration continue to make unfair and unjustified decisions. However, despite the above facts they have managed and will manage to survive due to help and support from Russian community. Therefore I state that the applicants will comply with conditions imposed on their bridging E visas.

...

32 It is clear from this letter that a decision had been made by the applicants not to make travel arrangements because of the view taken by the adviser that it was not necessary to do so on the basis that the applicants were entitled, so it was put by the adviser, to a bridging visa in the light of the substantive applications of the two young sons and the live review proceedings in relation thereto. Also in this letter, the adviser appeared to take issue with the proposition that the applicants' financial position was such as to make compliance with conditions which would be imposed on the visa unlikely. In the context in which the adviser's comments in paragraph 8 of his letter arose, he was clearly saying that travel arrangements need not be put in place because of a claimed right to the visa otherwise, not that the applicants could not afford to put in place the travel arrangements with attendant travel documents.

33 A hearing that took place before the Tribunal. I set out what appears at paragraphs 25, 26 and 27 of the Tribunal's reasons concerning that hearing:

25. The Tribunal sent a further invitation to the visa applicants to appear before it to give evidence and present arguments. The visa applicants appeared before the Tribunal on 18 September 2001. At the hearing the visa applicants [the first and second applicants] gave evidence and confirmed their visa and family history. They referred to their two children [names supplied] who were born in Australia and to the fact that they had now been with their children in Australia for ten years. They stated that they could not return to Russia. They thought that there was no respect for rights in Russia and that they would be subject to persecution. They had not obtained Russian travel documents and were afraid to approach the Russian consulate after all so many years. Other friends in a similar situation had had problems obtaining documents. They did not have valid travel documents and had not made any arrangements to depart Australia. They intended to pursue their case on behalf of their children to the Minister and through the court.

26. The visa applicant adviser told the Tribunal that the children's appeal to the Federal Court had been affirmed but that an appeal had been made to the Full Federal Court. He drew the Tribunal's attention to the Family Court Rules [sic] again arguing that there was an analogous application made in proceedings concerning the maintenance, care, welfare and development of the children in the Full Federal Court and that the parents who were not parties to the proceedings should be joined as being respondent to the proceedings. The advisor [sic] suggested that this would be sufficient for the visa applicants to have a ground under subclause 050.212(6). The adviser produced a copy of the short minutes of the order of the Federal Court listing [the second applicant] as the next friend of the two applicants, [the two younger children].

27. The adviser also argued that a similar situation had applied in another case he had represented and those applicants had been granted Bridging E visas on the basis of their child's application for a Protection visa.

34 After an examination of Part 050 and the criteria laid down in clause 050.21, the Tribunal concluded that the applicants did not satisfy the criteria in clause 050.21 and so were not entitled to a Bridging E Visa. Mr Kennett carefully and helpfully took me through the critera in clause 050.21, in effect retracing the steps of the Tribunal, and submitted that no operative reviewable error can be found in the approach of the Tribunal.

35 First, the Tribunal was satisfied that the applicants were unlawful non-citizens and were not eligible non-citizens of the kind set out in subregulation 2.20(7) to (11). Thus, the Tribunal came to the view that the applicants satisfied the criterion in subclause 050.211 in Schedule 2. Also, whilst the Tribunal found that the younger sons' RRT review application had been dismissed and that Gyles J had dismissed their application for review, it recognised that the sons had appealed to the Full Court of the Federal Court. As such, the Tribunal recognised that there was a pending application for review of the decision to refuse protection visas for the younger sons.

36 The Tribunal then recognised that it was necessary for the applicants to meet the criteria in subclause 050.212(2), or (3), or (3A), or (4), or (4AA), or (5), or (5A), or (6), or (6A), or (7), or (8), or (9) at the time of application. (It was also necessary for this satisfaction to occur as at the time of the Tribunal's decision: clause 050.221.)

37 The Tribunal first dealt with subclause 050.212(2) which was a requirement that the Minister be satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia. The Tribunal noted that at the time of the application the delegate offered to grant the applicants a Bridging E Visa if evidence of departure arrangements were produced. The Tribunal found that the applicants' adviser stated that his clients were not in a position to pay the required fee to obtain Russian passports. The Tribunal said that there was no evidence before it that the visa applicants had since obtained travel documents or were otherwise in the process of making arrangements to depart. Mr Kennett submitted that these were findings of fact reasonably open to the Tribunal and not subject to review. There may be some doubt about the basis for the conclusion that what the Tribunal ascribed to the adviser accurately reflected the letter to which I have referred. However, a case was not made that this was an error. No evidential basis for this was laid. Further, even if they did have the resources to pay any fee for a passport, the evidence is plain that the applicants had not made, nor were they the subject of, any arrangements to depart Australia at the time of the application and at the time of the decision. This was so, at the very least, because of the view taken by the adviser of the lack of requirement for such arrangements; such a view being reflected in the letter referred to in [31] above. Consequently, no operative error was shown by the Tribunal in reaching its conclusion about subclause 050.212(2).

38 The Tribunal then turned to subclauses 050.212(3) and (3A) and concluded that the applicants did not meet the criteria in them. The terms of these subclauses are as follows:

050.212

...

(3) 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 that application has not been finally determined; or

(b) the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.

(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) either:

(i) 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; or

(ii) the Minister has applied for judicial review of a decision in relation to a refusal to grant the applicant's substantive visa, and the judicial review proceedings (including any proceedings on appeal) have not been completed.

39 The Tribunal rejected the arguments of the applicants' adviser that the husband and wife, the first and second applicants, should be considered joined in the application by the two younger sons on the basis of their being the parents of those two applicants, and that thereby the parents (first and second applicants) should be considered as having a valid application for a substantive visa for the purposes of paras (3)(a) and (3A)(a). The first argument apparently put to the Tribunal in support of this argument was that this conclusion arose from the Family Law Rules, Order 15 Rule 11. Also, the adviser sought to rely on the fact that the mother was named as the next friend of her two children in the Federal Court appeal. The Tribunal rejected these arguments and concluded that none of the applicants should be seen as having a substantive visa application of any kind by reason of the existence of substantive applications (though in a process of review) by the two younger sons.

40 The Tribunal was correct to conclude that the criteria in subclause (3) had not been satisfied. The applicants did not have a valid application for a substantive visa. Section 48A of the Act disentitled the applicants, who had had their application for a protection visa refused, from making a further application, subject to Ministerial waiver under s 48B. The mechanisms relied upon by the applicants to overcome this hurdle, the form of the Family Law Rules and the fact that the mother was the next friend in the review litigation, do not lead to the conclusion that the applicants or any of them became party to the two younger children's application in the RRT. The Family Law Rules are and were irrelevant. They had no effect on the nature of the application for review before the RRT. The next friend provisions of the Federal Court Rules (Order 43 Rule 1) could have no effect on the antecedent application to the RRT for review under Part 7 of the Act.

41 Also, even ignoring the question as to whether the applicants are to be taken as becoming parties to the application of the two younger children (which is not the case), that application at the time of the decision of the Tribunal had been "finally determined". Subsection 5(9) of the Act provides that an application under the Act is "finally determined" when review or time for review under Part 5 or 7 is over. At the time of the application to the Tribunal the two sons' RRT applications were on foot, but they were completed by the time of the Tribunal's decision. So, the criteria in subclause 050.212(3) could not, for this reason, be satisfied at the time of decision for the purposes of clause 050.221.

42 There was no basis for any conclusion that the Minister was satisfied of the matters in para (3)(b).

43 The Tribunal was correct to conclude that the criteria in subclause (3A) had not been satisfied. First, for the reasons expressed above, the applicants did not have a valid application for a substantive visa. Therefore the necessary criterion in subclause (3A)(a) could not be satisfied. Further, the applicants had not applied for judicial review of the decision to refuse to grant the protection visas to the two younger sons. Rather, the two sons had applied. The second applicant, the boys' mother, was the next friend of the two boys for the purposes of Order 43 of the Federal Court Rules. Nevertheless that did not make it her application.

44 Under Order 43 Rule 1 of the Federal Court Rules a minor may sue by his or her next friend. As the terms of that rule make clear, the suit is not by the next friend in the sense that it is not changed into an action by the parent or guardian. It remains an action by the minor, but it may be brought through the agency of the next friend. It is a way of legitimising what, without a next friend, could be seen as an irregular application and one liable to be ordered to be struck out: see generally Geilinger v Gibbs [1897] 1 Ch 479; and Fernee v Gorlitz [1915] 1 Ch 177. However, in some circumstances, litigation is not precluded by the absence of a guardian in this way: see generally X v Minister for Immigration and Multicultural Affairs [1999] FCA 995; (1999) 92 FCR 524 and R v Danaher; Ex parte Olzer Industries Pty Ltd [1969] VicRp 55; [1969] VR 445. It is plain from Order 43 that the next friend is no more than a procedural mechanism to overcome difficulties in litigation posed by the litigant not being able to enter into contracts with a lawyer, to provide instructions to the lawyer, to advise in relation to the appropriateness of a settlement and to provide security for the other party's costs: see Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62, 83, 100 and 113. The procedure for a next friend for a minor was inherited from the former Chancery practice where a debtor who was sued by an infant creditor could, if he or she asked for it, have some adult person named as security for the costs of the summons. The appointment of the next friend cures irregularity, but it does not transmogrify the application into one which is really by the next friend. The next friend is an office designed for the protection of the party infant and of the other side to the litigation. It is for the next friend to conduct the minor's proceedings in the best interests of the minor.

45 Thus the criteria in subpara (3A)(b)(i) were not satisfied. Self evidently the criteria in subpara (3A)(b)(ii) were not satisfied.

(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; or

(aa) the Minister has applied for judicial review of a decision in relation to the applicant's substantive visa application, other than a decision relating to a refusal to grant the substantive visa; or

(b) the applicant has applied for merits review of a decision to cancel a visa; or

(ba) the applicant has applied under section 137K of the Act for revocation of the cancellation of a visa; or

(bb) the applicant has applied for merits review of a decision under section 137L of the Act not to revoke the cancellation of a visa; or

(c) the Minister is satisfied that the applicant will make an application of a kind referred to in paragraph (b), (ba) or (bb); or

(d) the applicant has applied for judicial review of the validity of a law that affects:

(i) the applicant's eligibility to apply for a substantive visa; or

(ii) the applicant's entitlement to be granted or to continue to hold a substantive visa.

47 The Tribunal dealt only with the criterion in para (4)(a). It found that the applicants did not meet subclause 050.212(4) as they had not applied for judicial review of a decision in relation to a substantive visa, other than a decision to refuse the grant of a visa. The only application for review which they claimed to be a party to was one in relation to the grant of a visa. Thus, even leaving aside the difficulties in the way of any conclusion that the applicants or any of them were parties or was a party to the judicial review proceedings, the decision was to refuse a visa. As such, para (4)(a) was inapplicable.

48 The Tribunal did not deal with paras (4)(aa) to (d). Since the paragraphs in (4) are in the alternative, compliance with any of the criteria in (4)(a) to (d) would see compliance with (4). However, clearly, none of them was applicable on its face. The Tribunal was entitled to ignore them.

49 Subclause 050.212(4AA) was next. That clause is in the following terms:

(4AA) An applicant meets the requirements of this subclause if:

(a) the applicant is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in:

(i) paragraph (3A) (b); or

(ii) paragraph (4) (a); or

(iii) paragraph (4) (aa); or

(iv) paragraph (4) (d); and

(b) the person whose substantive visa application is the subject of the judicial review proceedings is not a party to a representative proceeding; and

(c) the applicant made a substantive visa application that was combined with the substantive visa application mentioned in:

(i) paragraph (3A) (a); or

(ii) subclause (4).

50 The applicants sought to make this subclause relevant by the characterisation of the applicants as members of the "family unit" of the two younger sons who had the substantive visa applications the subject of judicial review proceedings mentioned in para (3A)(b): para (4AA)(a)(i). If this were merely a matter of the application of ordinary English it would be difficult to see why this was not correct. However, there are a number of difficulties with any attempt of the applicants to argue that they satisfied the criteria in subclause (4AA). First, the criteria in (a), (b) and (c) are cumulative. Taking (c) first, for the reasons already set out, the applicants did not have a substantive visa application. Nor could it be said, even on their arguments to which I have referred, that they had an application which was "combined" with the substantive visa application of the sons.

52 In paragraph 37 of its reasons, the Tribunal dealt with para (4AA)(a). The Tribunal referred, not only to the effect of s 48A and the lack of an application by the applicants, but also to the fact that the applicants (the mother, father and elder brother) were not members of the "family unit" of the two younger sons (the brothers of the third applicant). This rather startling conclusion is in fact correct. The phrase "family unit" is defined in subregulation 1.12(1) as follows:

Subject to subregulation (2), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

(a) a spouse of the family head; or

(b) a dependent child of the family head or of a spouse of the family head; or

(c) a dependent child of a dependent child of the family head or of a spouse of the family head; or

(d) a relative of the family head or of a spouse of the family head who:

(i) does not have a surviving spouse or any other relative (other than the family head) able to care for that relative in the relevant country; and

(ii) is usually resident in the family head's household; and

(iii) is dependent on the family head; or

(e) a relative of the family head or of a spouse of the family head who:

(i) has never married or is widowed, divorced or separated; and

(ii) is usually resident in the family head's household; and

(iii) is dependent on the family head.

53 The definition would require the applicants or one or more of them to be the spouse, dependant child or dependant grandchild of the two sons, as set out in (a) to (c), or a relative of the two sons of the description set out in (d) and (e). They did not fall into any of these categories.

54 Thus, the criteria in para (4AA) could not be satisfied.

55 The Tribunal also rejected the application of subclause 050.212(4A). It was correct in doing so since there was no evidence that the applicants had joined a class action proceeding in either the Federal Court or the High Court.

56 The Tribunal rejected the application of subclause of 050.212(5) on the basis that the applicants had not held visas which had been cancelled under subs 140(1) or (3) This was correct.

57 The Tribunal did not refer to the possible application of subclause 050.212(5A). However, that was not an operative error since there could be no satisfaction of this clause for reasons similar to those concerning subclause 050.212(5): the applicants had not held visas that had been cancelled under subss 140(1), (2) or (3), nor had another person's visa been cancelled under s 137J.

58 The Tribunal also concluded that the visa applicants did not meet subclause 050.212(6) as they were not the subject of a decision for which the Minister had the power to substitute a more favourable decision under ss 345, 351, 391, 417 or 454. The applicants had in the past made a request under s 417 of the Act, but the Minister had decided not to intervene on 14 October 1999. There was no evidence, the Tribunal found, (and the contrary was not asserted before me) that the visa applicants currently had a request before the Minister under any of those sections. Therefore it was plain that para (6)(a)(ii) could not be satisfied. As such, para (6)(a) was not able to be satisfied. Paragraphs (6)(b) and (c) were not applicable. Therefore the Tribunal was correct in concluding that the applicants did not meet subclause (6).

59 The Tribunal also found that the applicants did not meet subclause 05.212(6A) as they did not currently hold Bridging E Visas granted on the basis of a request to the Minister under subclause 050.212(6). This was correct. Also, neither subparas (6A)(b)(i) or (ii) could be satisfied, on the evidence. Thus, the Tribunal was correct in its conclusion of a failure to satisfy subclause 050.212 (6A).

60 The criterion in subclause 050.212(7) was irrelevant as the applicants were not in criminal detention.

61 The Tribunal found that the applicants did not meet subclause 050.212(8) as they did not currently hold a Bridging E Visa granted as a result of a valid application made in Australia for a substantive visa of the kind that could be granted if the applicant was in Australia. The applicants did (and do) hold bridging visas, but they were granted to support the legality of their presence in Australia during the contest in the Tribunal and in this Court. They have not been granted bridging visas as a result of a valid application for a substantive visa. For the reasons set out above, they did not, and do not, have a valid application for a substantive visa. The Tribunal was correct in its finding that the criteria in subclause (8) were not met.

62 The Tribunal then found that the visa applicants did not meet subclause 050.212(9) as they were not seeking judicial review of a visa of the kind there referred to. That was plainly correct.

63 The Tribunal therefore found that at the time of the application the applicants failed to meet any of the grounds in subclauses 050.212(2) to (9) and as such they failed to meet clause 050.212. For the reasons expressed above, there was no operative error in that conclusion.

64 The submissions of the applicants focused upon subclauses 050.212(3A), (4) and (4A). As best I understand the submissions, the argument was put forward on the same basis that it was put to the Tribunal. That is, on the subsistence of judicial review proceedings (now before the Full Court) of the two younger sons. Reliance continued to be placed on the Family Law Rules, and the position of the second applicant (the mother) as the next friend in the Federal Court appeal. I have dealt with these arguments above. The applicants also pointed to decisions concerning other successful visa applicants who appeared, by their names, also to be Russian. These other cases were pointed to, almost rhetorically, in order to show the error of the Tribunal and the delegate in this case. No evidence was put before me about these applications. Such evidence would, in all likelihood, not have been admissible. What has happened in other cases is irrelevant to the lawfulness of what has happened in this case.

65 The Tribunal in [47] to [49] also placed reliance upon the failure to satisfy a criteria at the point of decision. The Tribunal referred to the finding of the delegate that the applicants did not satisfy clause 050.222 because there was no evidence on the file that an interview had been conducted with an officer of the Department. Mr Kennett has indicated that the respondent does not seek to rely upon this part of the Tribunal's reasons. It is unnecessary to deal with this part of the reasons since the conclusions of the Tribunal on clause 050.221 are sufficient to found the course it took.

66 For the above reasons, I am of the view that the Tribunal's conclusions lacked any apparent operative reviewable error.

67 This view as to the lack of any apparent operative reviewable error makes it unnecessary for me to consider the reach and effect of s 474 of the Act.

68 For these reasons the application must be dismissed.

69 I have been troubled by the question of costs. The Tribunal dealt, if I may so, in a clear and largely comprehensive manner with complex inter-related provisions of regulations of some considerable length. The second applicant gave evidence and indicated that no one had ever explained the totality of these regulations to her. She also gave evidence that prior to the application in this Court she perused the Court book prepared on behalf of the respondent. She became aware of a form filled in by the Department for the benefit of the Tribunal. In that form there was an abbreviated identification of the criteria set out in subclause 050.212(4AA). This abbreviation was in the following terms:

Is the subject of, or is the family member of a person who is the subject of, judicial review proceedings as prescribed by the criteria.

70 Uninstructed by the detail of the regulations and in particular subclause (4AA) which might give content to the phrase "as prescribed by the criteria", the second applicant could reasonably have felt that the Tribunal and the delegate had failed adequately to appreciate that she, her husband and their first son were family members of persons (the two younger sons and brothers) who were the subject of judicial review proceedings. This attempt to reduce the complexities of the regulations and in particular subclause 050.212(4AA) to plain English is, and was, well capable of misleading a reader. It would no doubt not mislead someone in the position of the Tribunal member who would no doubt peruse and understand the precise terms of the relevant regulations.

71 As is clear from earlier parts of these reasons, the applicants were advised by a migration adviser prior to, and during, the hearing before the Tribunal. That person plainly took a view, and a clear one, as to the entitlement of the applicants to a visa in the absence of their making suitable travel arrangements to leave Australia. He was wrong. There was no investigation of the extent of the retainer of the migration agent, save and except that there are letters on the file and before me which would indicate a close appreciation of the position of the applicants by the adviser.

72 I am troubled about awarding costs in circumstances where the unravelling of complex regulations is such a difficult task for litigants who do not speak English. The usual rule is that a successful party should have his or her costs. However, the award of costs is the subject of a wide discretion, though one to be exercised judicially. The first and second applicants have three children. They have been in Australia for over ten years. Their application for a bridging visa was rejected, and correctly so, on the application of complex inter-related regulations. On the evidence it may well have been the case that, properly advised, they should and could have put in place travel arrangements which would have seen the Departmental officer grant a bridging visa until such time as the final disposition of the judicial review proceedings of the two young sons. If the two infant sons are successful in their application for a protection visa, it would no doubt be the case that due consideration would have to be given to the family unit in the light of the different definition of the phrase "family unit" in clause 866.112 in Schedule 2 and bearing in mind the principle of family unity recognised as underlying the Convention relating to the Status of Refugees (1951): cf Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [74].

73 Without wishing to be critical of the applicants' adviser, if it were the case that the applicants were able to put in place travel arrangements pending the disposition of the younger sons' applications for judicial review, it might have been wise to have done so in order to provide another basis for the visas in addition to the arguments which were otherwise propounded.

74 In the particular circumstances of the case, I do not propose to make an order for costs against the applicants.

75 I should add that nothing that I have said about the complexity of the regulations or about the terms of the form sent by the Department to the Tribunal should be taken as any criticism of the Department or any officer of it. Similarly, my view as to costs does not reflect in any way a view that any officer of the Department or the Tribunal dealt with the matter otherwise than entirely properly.

76 I should also express my appreciation to Mr Kennett. I asked him to address me first so that the applicants might better appreciate the legal elements of the case. His oral submissions were presented with clarity and precision.

I certify that the preceding seventy six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

The applicants appeared in person (with the assistance of an interpreter)