FEDERAL COURT OF AUSTRALIA

Tuita v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1583

HENELE TUTUTAU TUITA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q 132 OF 2003

DOWSETT J

9 DECEMBER 2003

BRISBANE

THE COURT ORDERS THAT:

1.         The application be dismissed. 

2.         The applicant pay the respondent’s costs of the proceedings.

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

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Migration Review Tribunal (the “Tribunal”) dated 14 August 2003.  The grounds as identified in the application are a little difficult to understand.  They were however expanded upon to some extent in an outline of submissions. 

2                     There is the suggestion of an issue arising under the Constitution.  However the applicant has made it clear in argument today that he does not pursue that ground.  The only matters which he presses are firstly, that his children wish to remain in Australia and secondly, that he and his wife wish to remain here to continue to be active in the affairs of a church which they have established in Brisbane.  I am satisfied that no constitutional issue arises, and that no question of notice need be addressed. 

3                     The applicant entered Australia on a Close Family Visitor (Short Stay) visa on 11 January 1994.  This visa expired on 11 February 1994.  He has made applications for other visas, including a protection visa.  He has held various bridging visas, but they have all expired.  On 3 July 2003 he asked the Minister for Immigration and Multicultural and Indigenous Affairs (the “Minister”) to intervene pursuant to s 417 of the Migration Act 1958 (Cth)in the decision made by the Refugee Review Tribunal in 1996 refusing his application for a protection visa.  On 1 August 2003 he applied for a bridging visa, apparently in connection with the s 417 application.

4                     On 5 August 2003 the Minister’s Delegate refused his application.  It may be that in so doing, he overlooked the s 417 application.  In any event, on 9 August 2003 the Minister decided not to accede to the s 417 application and on 12 August 2003, advised the Tribunal accordingly.  On 14 August 2003 the Tribunal heard an application to review the decision of the Minister’s Delegate refusing the application for a bridging visa.  By that time there was no extant application for a substantive visa, and the Tribunal therefore concluded, correctly as it seems to me, that there was no ground upon which a bridging visa could be issued to the applicant.  The matters canvassed by the applicant today do not go to the correctness or otherwise of that decision.  In those circumstances, the application must be dismissed.  I order that the applicant pay the respondent’s costs of the proceedings.

5                     I should record that the applicant has appeared with a gentleman to assist him as an interpreter.  However he has been able to communicate perfectly well with me, although some of my statements have been interpreted for his convenience.  I am quite satisfied that he is able to speak and understand English adequately.  Nonetheless I am grateful for the assistance that the interpreter has offered. 

Associate:

Dated:              5 January 2004