APPUCUTTY v Minister for Immigration - [2010] FMCA 754

FEDERAL MAGISTRATES COURT OF AUSTRALIA

APPUCUTTY v MINISTER FOR IMMIGRATION

[2010] FMCA 754

MIGRATION – Applicant seeking urgent injunctive relief to prevent deportation – no substantive claim articulated – very extensive prior unsuccessful litigation – application dismissed.

Applicant:

THEVENDRAM APPUCUTTY

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

MLG 1257 of 2010

Judgment of:

Burchardt FM

Hearing date:

10 September 2010

Date of Last Submission:

10 September 2010

Delivered at:

Melbourne

Delivered on:

10 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr J. Gibson

Solicitors for the Applicant:

Wimal & Associates

Counsel for the Respondent:

Mr D. Brown

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed.
The Applicant pay the Respondent's costs fixed in the sum of $1,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

No. MLG 1257 of 2010

THEVENDRAM APPUCUTTY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

By an application filed today, the applicant seeks orders, and the orders sought by the applicant are, relevantly, an interlocutory injunction directing that the respondent, together with servants and agents, refrain from removing the applicant from Australia pending the hearing and final determination of the application. The applicant also seeks prerogative relief in relation to a decision of the delegate of the respondent to grant a bridging visa on Friday 3 September 2010, expiring on Sunday 5 September 2010, and a further decision made on Monday 6 September to grant a visa expiring on Sunday 12 September 2010.
The applicant also seeks ancillary consequential relief to extend the applicant's bridging visa. Counsel for the respondent has told me something of the history of the applicant in Australia and I note that counsel for the applicant accepts that it is a correct recitation. The applicant arrived in Australia on 7 September 1996 on a short stay business visa valid for one month. On 23 September 1996 he sought a protection visa. It is not necessary or appropriate to set out the very lengthy history of subsequent applications to Courts seeking to extend the applicant's stay in Australia. It is sufficient to say that not one of them has had any measure of success and that at least one, namely an application as a child resident visa, seems to be bordering on the utterly misconceived.
As late as May of this year, the last s.351 application to the Minister was rejected, and the applicant was required to attend a Commonwealth medical officer to see if he was fit to travel to Sri Lanka from whence he comes. The applicant sent a second s.351 letter which was rejected on 26 August this year. That brings us, so to speak, up to speed with what has occurred in the case. From the affidavit filed in support of the application, it is apparent that the applicant applied for a bridging visa on 20 August 2010 which was granted until 5 September 2010, which was a Sunday, on condition that he was the subject of arrangements to depart Australia by 5 September 2010.
On 3 September, which was a Friday, the applicant attended the respondent's department and requested a further visa to enable him to resolve outstanding issues involving his health and capacity to travel. That is in paragraph 4 of his affidavit. The delegate refused to grant a visa for longer than the remaining period of the then existing visa, which was of course 2 days, until the Sunday. It was indicated by the delegate that if the applicant did not leave Australia by Sunday he would become unlawful and would be put in handcuffs and physically taken back to Sri Lanka. No opportunity has been given to the other side of that conversation to put on material but I am prepared to accept for present purposes that that may have been said.
On 6 September the applicant returned to the department and advised them of a review application he lodged with the Migration Review Tribunal (“the Tribunal”), it would seem, on Monday the 6^th, it cannot have been lodged on the Sunday. The delegate granted the applicant a further week, till Sunday 12 September, with the same conditions of departure by that date. On Thursday 9 September, the applicant went to the department and sought a further extension, but was told that no extensions would be granted.
The applicant deposes at paragraph 10 of his affidavit that the grant of the first visa for only two days expiring on a Sunday, and again the second visa on the same basis expiring on a Sunday, gave rise to a presupposition that the sole purpose of granting them was to ensure that if he did not leave Australia he would become an unlawful non‑citizen and subject to immediate detention and removal. Counsel for the applicant submits that the way in which the delegate went about their position was improper as to purpose. He has referred me to two authorities about the propriety in that regard.
Regulation 050.2 requires that all applicants must satisfy the primary criteria, and regulation 050.212 relevantly provides that an applicant meet the requirements of the subclause if the Minister is satisfied that the applicant is making or is the subject of acceptable arrangements to depart Australia. Counsel submits that the two-day period imposed, expiring on a Sunday, and the second period expiring on a Sunday, shows that there was an ulterior purpose, namely, the removal of the applicant from Australia, and that the decision shows on its face that the delegate did not properly turn their mind to the exercise of their discretion. It is put that if the delegate was not satisfied that appropriate arrangements were being made he/she should not have granted the visa and that in the circumstances, the exercise of discretion was completely wrong.
It is important to note that what the applicant seeks is injunctive relief. I sought to inquire from counsel for the applicant what, so to speak, his substantive case was, because a bridging visa is only designed to bridge, normally, the determination of more substantive claims.

No such claims were articulated. The question, therefore, is whether there is a serious question to be tried as to whether the delegate properly exercised their mind to the exercise of power and discretion that they had. It seems to me quite plain that following an absolutely endless period of litigation, the applicant's legal avenues ran out and the department quite properly moved to remove him from Australia.
He was given a period of time to do so, and the decision that gave him two days until Sunday, 5 September 2010, did no more than effectively reinforce the decision already made. The further decision to extend it to Sunday, 12 September, did no more than give the applicant a further short period of time in which to depart. In the context of the undisputed history of the matter, that decision is eminently understandable and, in my view, entirely appropriate. To the extent, however, that there might be said to be a serious question to be tried as to the appropriateness of the delegate's decisions, I would regard it as a very weak one.
That then would take us to the balance of convenience. The applicant has exhausted, and I think in the circumstances that is the right word, enormous avenues of legal challenge, and been utterly unsuccessful at every step. I am conscious that I have none of the background papers that go to support his original assertions as to his convention difficulties, but the fact is that they failed before the Courts on numerous occasions.
The reality is that the balance of convenience is that if I make an order in his favour, this saga continues for a further period of time, albeit that counsel for the applicant described it as coming towards an end, and if I do not make it, the applicant will be taken into custody and removed from Australia, subject only to proper investigation of any health issues he may wish to raise. Since health issues are the only matters he raises, it is difficult to see how the balance of convenience favours the making of the orders sought. In my view, the position is overwhelming. The application should be dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Burchardt FM.

Associate:

Date: 10 September 2010