Black v Minister for Immigration
[2012] FMCA 726
•3 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BLACK & ANOR v MINISTER FOR IMMIGRATION | [2012] FMCA 726 |
| MIGRATION – Application for reinstatement of second applicant’s spouse visa application – whether the Court has jurisdiction to consider application seeking orders for reinstatement of second applicant’s spouse visa application – whether in the light of s.49 of the Migration Act 1958 (Cth) any decision has been made enlivening the jurisdiction of the Court – application dismissed for want of jurisdiction. |
| Migration Act 1958 (Cth), ss.49, 474, 476 |
| First Applicant: | RICHARD BLACK |
| Second Applicant: | MARYNA YEMCHUK |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 1319 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 3 August 2012 |
| Date of Last Submission: | 3 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2012 |
REPRESENTATION
| The first named applicant appeared in person. |
| Appearing for the Respondent: | Mr A Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The proceeding before this Court, commenced by way of application filed on 18 June 2012, is dismissed on the basis that this Court has no jurisdiction to consider the application.
The applicants pay the costs of the respondent fixed in the amount of $1,296.
NOTE A: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).
NOTE B: A document headed “Amended Application”, dated 3 August 2012 and signed by Richard Black, was tendered by the applicants and marked Exhibit 1A on the issue of the jurisdiction of the Court.
NOTE C: A hand written document by Maryna Yemchuk, was tendered by the respondent and marked Exhibit 2R.
NOTE D: A letter dated 29 May 2012, on the letterhead of the Australian Department of Immigration and Citizenship and addressed to Maryna Yemchuk, was tendered by the respondent and marked Exhibit 3R.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1319 of 2012
| RICHARD BLACK |
First Applicant
| MARYNA YEMCHUK |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
On 18 June 2012, the applicants filed an application in this Court seeking judicial review of what is claimed to be a decision of the Department of Immigration and Citizenship (“the Department”) to accept a withdrawal of a spouse visa application provided by the second applicant.
On 26 June 2012, the respondent filed a response challenging the jurisdiction of this Court to entertain such an application. The matter was listed at the time of filing of the application for a directions hearing this morning before me.
Mr Richard Black, being the first applicant, purported to appear for both applicants. It was unclear to me the standing that Mr Black had to be a party to the proceeding on the application as filed and in having regard to the relief sought. In particular, the relief sought in the application was that the second applicant’s spouse visa application be reinstated and that the Department’s record be amended to reflect that reinstatement. The relief sought also included a direction to the Department that it permit the second applicant to return to Australia to continue the interview relating to the granting of her spouse visa.
The grounds of the application are expressed to be that at the time of the withdrawal of her spouse visa application, the second applicant was depressed, had been acting irrationally, was not in a state of mind to comprehend the finality of withdrawing her application and was emotional, vulnerable and suggestible.
In relation to the issue of whether or not this Court has jurisdiction to entertain the application, Mr Black tendered an amended application which was marked Exhibit 1A. That amended application does not directly identify or go to supporting the jurisdiction of this Court. However, if I am satisfied that the Court has jurisdiction, Exhibit 1A does particularise further the applicant’s grounds of complaint.
The respondent’s solicitor, Mr Markus, tendered two documents. The first document was handwritten apparently by the second applicant stating that she wished to withdraw her partner application and that she did not wish to be with Mr Black. It is dated 28 May 2012 and is marked received 29 May 2012. That document was marked Exhibit 2R on the issue of the Court’s jurisdiction. Mr Markus tendered a further document marked Exhibit 3R, being a letter dated 29 May 2012 addressed to the second applicant acknowledging her withdrawal of her application for a partner visa and providing her with further information about her personal position.
At the heart of the response by the respondent as to why the Court does not have jurisdiction this morning is that the Court’s jurisdiction is confined to considering jurisdictional error in respect of particular decisions, pursuant to ss.476 and 474 of the Migration Act 1958 (Cth) (“the Act”). Section 474(3) of the Act notes various decisions in respect of which the Court may have jurisdiction.
However, s.49(1) of the Act makes clear that an applicant for a visa may, by written notice given to the Minister, withdraw his or her application.
On the evidence before me this morning, written notice was given to the Minister by the visa applicant, the second applicant in this proceeding, to withdraw her partner application. In those circumstances, s.49(2) of the Act provides that an application that is withdrawn is taken to have been disposed of.
Further, s.49(3) of the Act states that:
“For the purposes of section 48 and 48A, the Minister is not taken to have refused to grant the visa if the application is withdrawn before the refusal.”
In the circumstances, there is no opportunity for any decision to be made by the Minister upon the withdrawing of an application in accordance with s.49(1) of the Act that is capable of review by this Court. The statutory consequence is that the application is taken to have been disposed of.
In response to Mr Markus’ submissions, Mr Black contended that there was an implied jurisdiction in the Court to correct errors on the face of the respondent’s record. However, the only evidence of any record before the Court this morning is Exhibit 3R and there is no error on the face of that record that would support such a contention.
In the circumstances, I am not satisfied that the Court has jurisdiction to consider either the application presently filed on 18 June 2012 or Exhibit 1A, being the proposed amended application.
Accordingly, the proceeding before this Court, commenced by way of application on 18 June 2012, should be dismissed with costs on the grounds that this Court has no jurisdiction to consider the proceeding further.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 17 August 2012
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