Aben v Minister for Immigration - [2005] FMCA 637

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABEN v MINISTER FOR IMMIGRATION

[2005] FMCA 637

MIGRATION – Visa – application for interlocutory orders – no substantive application – no application for any visa – applicant seeks order to halt removal from Australia – no reviewable error.

PRACTICE & PROCEDURE – Litigation guardian – where one applicant is a minor – circumstances justifying dispensation with litigation guardian – parties to proceedings – where one applicant brings application in the name of two other applicants without their authority or knowledge.

Migration Act 1958 (Cth)

Applicant:

DAISY ABEN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 972 of 2005

Judgment of:

Scarlett FM

Hearing date:

21 April 2005

Date of Last Submission:

21 April 2005

Delivered at:

Sydney

Delivered on:

21 April 2005

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

The names of the third and fourth Applicants are to be deleted from the Court record.
The need for a litigation guardian in respect of the second Applicant is dispensed with.
The application is not competent.
The application is dismissed.
The name of the second Applicant and any details identifying the second Applicant are not to be published.
The first Applicant is to pay the Respondent’s costs fixed in the sum of $1,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 972 of 2005

DAISY ABEN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

There is an application before the Court originally brought by four applicants, a mother, son and two daughters. The mother and the son are currently in immigration detention and they have been in that situation since 4 February 2005. The son is a minor, he is 14 years of age. There were two other applicants named being the two daughters of the first applicant mother. One is an adult, one is 17 years of age who attains the age of 18 in July. I have ruled that I am not satisfied that either of the daughters, the adult or the minor, have been appropriately joined as applicants and I was indeed satisfied that I was not even sure that the younger daughter had been made aware of the application. In any event the mother would have no authority to join another adult as an applicant and I have directed that as the names of those applicants have been invalidly joined they should be removed as applicants and play no part in these proceedings.
As the second applicant is a child and his situation is aligned with that of his mother I have directed for the purpose of these proceedings that I will dispense with the requirement for him to have a litigation guardian.
The history of this application as I understand it, is that the parties entered Australia on 30 December 1995. They applied for student class TU visas which were valid until 30 December 1999. The visas expired after extensions on 11 January 2000, but the applicants did not leave Australia. No application for a visa was made on behalf of either applicant until after the applicants were taken into immigration detention. This took place on 4 February 2005 after the applicants had come to the notice of the New South Wales Police and were identified as unlawful non-citizens. They have remained in immigration detention since then.
Neither applicant has lodged or has had lodged on their behalf any application for a substantive visa. The mother has made an application for a bridging visa which was refused, an application to the Migration Review Tribunal was I am told withdrawn. A further application for a bridging visa was made on 24 March, that was refused by a delegate of the Minister and an attempt to lodge an application for review of that refusal to the Migration Review Tribunal on 7 April was unsuccessful as the Tribunal held that there was no eligibility to review. There is thus no application to the Migration Review Tribunal pending; there is no application for a substantive visa.
Arrangements had been made by the Department of Immigration and Multicultural and Indigenous Affairs to remove the two applicants from Australia and indeed airline bookings had been made for them to leave Australia at 10.25 yesterday. That of course has not happened as a result of the application which was lodged on 19 April 2005. There are three orders sought in the application. The first one says: "To have close ties with Australia, the children spend the formative years and formed a sense of identity with Australia." This is not an application for an order as such although it can be interpreted as an application for a visa to be granted to allow some form of temporary or other residency in Australia.
The second order says: "Not to be removed on 20 May 2005 from Australia." That is apparently an error as the date of removal specified was actually 20 April. It is by definition an interlocutory order.
The third application is, "To be released from Villawood Detention Centre until the matter is settled." That is also an interlocutory order.
Mr Markus for the solicitors for the respondent Minister has pointed out the application is not competent. What that means is that there is no jurisdiction to make any order that the applicant seeks. There is no substantive application, there is no application for any sort of a visa in existence, this application has been brought in a vacuum. A bridging visa, of course, is a temporary visa to cover a person's situation until some event can take place, either the granting of a permanent visa or as is often the case, making an application until appropriate arrangements to leave the country have taken place.
There is no ground to make any of the orders and certainly no ground to release the applicants from the immigration detention centre. I find that the application is not competent, the application must be dismissed, the respondent should proceed to make the appropriate arrangements as soon as possible. I am mindful of the fact that the second applicant is a child who was in year 9 at school, but he tells me that he has been having some form of schooling but not terribly satisfactory whilst he has been in detention and in my view it is not in his best interests to remain in an immigration detention centre for any period of time.
I require a transcript of my reasons for this decision and because of the urgency of the matter I think it should be made on a next day basis.
As far as the second applicant is concerned, he is a minor, he is a child, he is 14 years of age. He has been placed in a most unfortunate situation and it is very hard on him if he has been in the position where, whether he knew it or not, he was unlawfully resident in Australia without a visa. It is not to my mind in his best interests to have his identity publicised and I direct that the name of the second applicant is not to be published and is not otherwise to be identified.
I will make it quite clear that there is to be no mention of his relationship or connection in any way with the first applicant as well as not publishing his name or any other information that would identify him.
The application has been unsuccessful, indeed it was a misconceived application that was brought about by a desire on behalf of the applicant that she and the other applicant should remain in Australia. Whilst that is understandable it was an application that was not going to be successful and on the facts that are before me. I do not intend to make any order in as far as the second applicant is concerned, he is a child, he has been at school, he has no money and he did not run these proceedings himself and he, as I said, has been placed in a very difficult situation.
I order that the first applicant is to pay the respondent's costs in these proceedings in the sum of $1000. The application may be removed from the list of cases awaiting finalisation.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 12 May 2005