FEDERAL COURT OF AUSTRALIA

Moimoi v Minister For Immigration & Multicultural Affairs [1999] FCA 467

PAULO MOIMOI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

3 SEPTEMBER 1999

WHITLAM J

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.         The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The respondent (“the Minister”) applies for an order for dismissal pursuant to O 20 r 2 of the Federal Court Rules.  His motion has been heard today in the absence of the applicant who was present in court when the hearing was fixed on 19 August 1999.  The applicant’s failure to appear is unexplained.

2                     This proceeding was commenced on 11 June 1999.  The applicant seeks review under s 476 of the Migration Act 1958 (“the Act”) of a decision of the Immigration Review Tribunal (“the Tribunal”) given on 18 May 1999.  The Tribunal affirmed a decision of the Minister’s delegate refusing to grant the applicant a visa.

3                     At the first directions hearing, on 22 July 1999, the applicant appeared in person, accompanied by a Mr Fonua, who sought leave to appear for the applicant.  The applicant is a Tongan national, but he speaks English and I formed the impression that he was perfectly well able to understand what I was saying to him.  I did not give Mr Fonua, who is not a lawyer or a migration agent, leave to appear for the applicant.  Indeed there was no material before me which indicated any basis on which Mr Fonua might be given leave to appear, such as that he was a legitimate representative of an association of individuals who might have some interest in common with the applicant, or that he was a person more able to make a case on behalf of the applicant.

4                     The application for an order of review stated six grounds, only three of which can be readily fitted into the framework of s 476(1) of the Act.  Ground one alleged an error of law, ground two that procedures required by the Act or regulations were not observed, and ground three that the decision was induced by fraud, bad faith or actual bias.

5                     At the first directions hearing the matter was stood over for further directions on       19 August, in order to give the Minister an opportunity to consider whether he wished to apply for summary dismissal of the proceeding.  A notice of motion for summary dismissal was subsequently filed by the respondent and, as I have said, fixed for hearing today.  The applicant has filed no evidence in opposition to the motion.  Besides the reasons for decision of the Tribunal, the only other evidence received on the hearing of the motion was an affidavit by Murray John Allatt, the solicitor with the carriage of the matter on behalf of the Minister.  I shall return to the contents of that affidavit.

6                     So far as the first ground alleging an error of law is concerned, I need only say that I think the analysis of the law by the Tribunal in its decision is impeccable and there is nothing stated by way of particulars that suggests any error at all.  Nor, so far as the second ground is concerned, are any particulars provided of procedures that it is alleged were not observed.

7                     That leaves only the third ground, that the decision was induced by fraud, bad faith or actual bias.  The particulars of that allegation are set out in two numbered paragraphs which state:

(1)       The applicant was denied access to a scheme relating to unlawful non-citizens which the Minister and his officers had granted 2705 offshore applicants with bridging visas to remain in Australia while a resident visa application was processed overseas in breach of clause 3001 and 3002 involved fraud, bad faith or actual bias. 

(2)       The respondent and his department failed to follow its own policy in accordance with Migration Series Instruction MSI No. 121 effective              8 September 1995 in relation to clause 3001 clause 3002 involved fraud, breach and actual bias.

8                     Mr Allatt’s affidavit shows that exactly the some ground was relied on in another application under the Act by a Tongan national, Hiva Faleafa.  Mr Allatt annexes to his affidavit the Minister’s submissions in that case.  It is not necessary to set out that material.  That proceeding was the subject of a contested hearing before Einfeld J on 2 August 1999.  The application was dismissed: [1999] FCA 1091, and I need only say that what his Honour said in that case applies mutatis mutandis in the present case.

9                     All the grounds relied on by the applicant are, in my view, entirely hopeless.  No reasonable basis for the application is disclosed, and the Minister is entitled to have the proceeding summarily dismissed.  The applicant’s unexplained failure to appear today may also provide a basis to dismiss his application, but I emphasise that I am disposing of the proceeding by making the orders sought in the Minister’s motion.

10                  The application will be dismissed with costs.

Associate:

Dated:              15 September 1999

There was no appearance by the applicant.

Mr MJ Allatt, solicitor, of the Australian Government Solicitor appeared for the respondent.