CDR15 v Minister For Immigration and Anor (No.2)

[2015] FCCA 2827

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDR15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 2827

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – no jurisdictional error – application dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr.44.11, 44.12

Migration Act 1958 (Cth), ss.198AD, 476

Applicant: CDR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2854 of 2015

Judgment of: Judge Street

Hearing date: 20 October 2015

Date of Last Submission: 20 October 2015

Delivered at: Sydney

Delivered on: 20 October 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Mr Markus
Australia Government Solicitors

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules.

2. The applicant pay the costs of the respondent fixed in the amount of $1000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2854 of 2015

CDR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced on 19 October 2015 and are within the court’s jurisdiction under s.476 of the Migration Act 1958 (Cth). Proceedings were returnable before the Court today for the grant of urgent interlocutory relief. That application has been dismissed. The first respondent has moved for the dismissal of the proceedings under rr.44.11 and 44.12.

2. The final orders as sought in the application are as follows:

   1. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from removing the applicant pursuant to s198 or s198AD of the Act other than according to law and consistently with the declarations in orders 2-4.

   2. A declaration that it is not reasonably practicable for the Respondent, his officers or agents, to remove the applicant from Australia within the meaning of s198 or s198AD of the Migration Act unless and until consideration has been given by the Minister of Australia’s non-refoulment obligations (under the Refugee Convention; the Convention Against Torture; and the International Covenant on Civil and Political Rights) arise from the applicant’s son Protection Visa application, according to law.

   3. Costs.

   4. Such further order or other relief as the Court deems fit.

3. No interlocutory orders were formulated, albeit that the applicant identified that he wishes interlocutory relief, pending the determination of the matter.

4. The grounds of the application are identified as follows:

   1. The applicant is a citizen of China.

   2. The applicant claimed that Australia owed protection obligation in respect of him and his wife.

   3. The process by which the claims of the applicant that Australia owed protection obligation in respect of him and his wife was completed.

   4. The applicant has a 10 years old son namely Jun Tao Cao who became an Australian Citizen on his 10th birthday. He now is studying in year 5.

   5. The applicant has a 9 years old son namely Ju Tao Cao who will become an Australian Citizen on 28 June 2016. He lodged Protection Visa application on Friday, 16 October 2015. As he is minor, the applicant will speak on his son’s behalf to articulate the minor’s application. Without the applicant’s articulation, the minor’s Protection Visa has significant negative impact on the application and the process does not comply with procedure fairness.

5. The grounds of the application identify to the applicant’s son, who is now an Australian citizen, and identify the applicant’s second son as having lodged a protection visa application on 16 October 2015.  The grounds refer to the applicant’s ability to assist the pursuit of that application, and asserts the applicant’s presence as being necessary for grounds of procedural fairness.  It is clear from the application that the applicant’s wife is also in Australia.

6. The matters identified in the grounds do not identify any reasonably arguable issue that could give rise to a ground for the declaratory relief identified. The pursuit of the applicant’s second son’s protection visa is not an issue that gives rise to any arguable issue of an excessive jurisdiction under s.198. I note s.198AD has no application and that it is not suggested that the applicant is to be removed to a regional processing centre.

7. The grounds of the application and prayers for relief fail to disclose any arguable case within the meaning of r.44.12. I am satisfied that it is an appropriate in which the court should exercise its jurisdiction to dismiss the application under r.44.12.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:22 October 2015