FEDERAL COURT OF AUSTRALIA

Gogna v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1063

MIGRATION – appeal from decision of Migration Review Tribunal affirming decision of delegate not to grant bridging visa – no error of law – application based on compassionate grounds – no discretion to act on compassionate grounds

Migration Act 1958 (Cth) s 474

Potier v Minister for Immigration and Multicultural Affairs, [2000] FCA 1662 referred to

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 referred to

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 applied

MANDEEP GOGNA v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 688 OF 2002

TAMBERLIN J

SYDNEY

16 AUGUST 2002

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant to 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                     In this matter the delegate for the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) and the Migration Review Tribunal (“the Tribunal”) have found that the applicant is not entitled to the grant of a Bridging E (Class WE) visa.  No error of law or principle has been referred to or identified on behalf of the applicant that would warrant judicial review of the decision made by the Tribunal in this matter.  The representations primarily put forward by the applicant’s solicitor, Mr Bharati, go to compassionate grounds.  It is stated that the applicant is in a relationship and that he and his partner are expecting the birth of their child early in September of this year.  The applicant says that he wishes to stay in Australia only for a temporary period of time, until the birth of his child.

2                     The role of this Court is to review the decision of the Tribunal with a view to determining whether there has been any error of law or principle in the matter, having regard to the restrictive provisions contained in the Migration Act 1958 (Cth) (“the Act”).  The Tribunal in this case has referred to the relevant considerations and to the criteria which are applicable and finds that none of them were made out.

3                     This Court does not have a general discretion to act on purely compassionate grounds.  It is reviewing a decision made by the Tribunal.  A letter has been tendered by the applicant dated 1 August 2002 from the Canterbury Hospital, and I have considered that letter.  It cannot go in any true sense to a question of error in the decision of the Tribunal because it was written after the decision of the Tribunal was given.

4                     I have also been referred to a decision of Wilcox J in Potier v Minister for Immigration and Multicultural Affairs, [2000] FCA 1662 in which his Honour refers to a submission based on similar grounds.  In that case his Honour pointed out that the provisions of the Act are mandatory and that the Minister must act if certain matters are made out or if other matters are not made out.  His Honour’s remarks are apposite to the present case.  Accordingly, I am not satisfied in this case that any ground for review on accepted legal principles is available in relation to the decision not to grant the bridging visa.

5                     On 15 August 2002, the Full Court of this Court handed down a judgment in the matter of NAAV v Minister for Immigration and Multicultural and Indigenous Affairs  [2002] FCAFC 228 in which the Court discussed the principles laid down in the decision in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (“Hickman”) and confirmed that s 474 of the Act operates according to the principles laid down by the High Court in Hickman.  I am bound by that decision.  Applying the principles set out in Hickman as to the proper application of s 474 of the Act to the circumstances of the present case requires the conclusion that, even if there were any error made out on the part of the applicant, it would come within the protection afforded to the decision of the Tribunal by s 474 and I am bound to accept the decision as being within jurisdiction.

6                     I should add that it may be possible for the applicant to make an application to the Minister for the exercise of discretion in his favour.  This is a matter which the applicant may pursue but on which I can express no binding view.  There has been no error made out in the application before this Court.  It is not possible to exercise a general humanitarian discretion based on compassionate grounds and accordingly the application should be dismissed with costs.

Associate:                                                                     Dated: 3 September 2002