FEDERAL COURT OF AUSTRALIA

Fifita v Minister for Immigration & Multicultural Affairs [2001] FCA 1304

Migration Act 1958 (Cth) s 475(1), 475(2)(c), 478(1)(b)

ETILINA FIFITA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1231 OF 2001

HELY J

7 SEPTEMBER 2001

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Tonga who arrived in Australia on 4 March, 1997 travelling on a tourist visa.  Thereafter she secured extensions of that visa until 4 March 1998.  As a result of compliance action she was located on 2 March 1999, by which time she was eight months pregnant.  She was granted a Bridging Visa E until 9 May 1999 to allow the applicant to remain in Australia until the birth of her child as she had informed the Department of Immigration & Multicultural Affairs (“DIMA”) that she would leave the country following the birth of that child.

2                     On 12 May 1999 a letter was sent by DIMA to the applicant advising her that she was an unlawful non-citizen, and whilst the information which I have is less than precise, it seems that the applicant was detained on about 20 June 2001.  By this time the applicant had given birth to her daughter.  On 21 June 2001 the applicant applied for a Bridging Visa E on behalf of her daughter.  The application was refused on 22 June 2001 and the applicant was notified of that refusal by letter of 22 June 2001 which letter also informed her that if she wished to apply to the Migration Review Tribunal (“MRT”) for a review of that decision, she had to do so by 26 June 2001.

3                     No such application was made.  On 21 August 2001 the applicant was advised by DIMA that arrangements had been made for her to leave this country on 23 August 2001.  On 22 August 2001 the applicant lodged an application for an order of review.   The decision of which that application sought a review was simply described as “MRT”.  The applicant was said to be aggrieved by that decision because it was an “unfair decision”.  The grounds of the application were stated to be as follows:

“I am prepared to and willing to abide by any conditions imposed if released from immigration detention centre. What is more pressing concern is if I return to the volatile situation in Tonga I would be in an extremely vulnerable situation.”

4                     On 23 August 2001 the applicant refused to board the flight and was taken back to immigration detention.  On 30 August 2001 the Minister lodged a notice of objection to competency on the grounds that firstly the decision identified in the application as “MRT” does not exist.  Secondly, there is no “judicially reviewable decision” within the meaning of s 475(1) of the Migration Act 1958 (Cth) (“the Act”) in respect of the applicant capable of being the subject of an application to the Federal Court of Australia. 

5                     The objection to competency must be upheld.  On the evidence there is no decision of MRT which has been made in relation to the applicant which is susceptible of review in this Court.  The delegate's decision on 22 June 2001 refusing the daughter's application for a bridging visa is an MRT reviewable decision and thus not a judicially reviewable decision pursuant to s 475(2)(c) of the Act.  In any event ,even if that were not the case, the application for an order of review was not made within the 28 day period fixed by s 478(1)(b) of the Act.

6                     I have endeavoured to explain to Ms Fifita that this Court is a court of law which is bound by the laws of this country just as much as everybody else is.  The law of this country is that this Court has no jurisdiction to entertain the case which Ms Fifita wishes to bring.  I therefore have no choice but to uphold the objection as to competency and to dismiss the application for an order of review.

7                     The Minister seeks an order that the application should be dismissed with costs.  It seems to me that the application is misconceived and bound to fail.  The objection to competency was taken at an early stage of the proceedings and prima facie the Minister is entitled to his costs.  I am prepared to assume that Ms Fifita does not have any money and that she cannot afford to pay a costs order.  But even making that assumption in her favour, it provides an insufficient reason for not making an order in the Minister's favour for costs.

8                     I order that the application be dismissed with costs.

Associate:

Dated:              12 September 2001