Cujba v Minister for Immigration and Multicultural Affairs

[2001] FCA 918

FEDERAL COURT OF AUSTRALIA

Cujba v Minister for Immigration & Multicultural Affairs [2001] FCA 918

OLEG CUJBA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1062 of 2001

NICOLAE CUJBA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 1063 of 2001

KATZ J
10 JULY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1062 of 2001

BETWEEN:	OLEG CUJBA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	KATZ J
DATE OF ORDER:	10 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1The application for interlocutory relief be dismissed.

2There be liberty to apply on 24 hours’ notice.

3Costs be reserved.

4The proceeding stand over for directions to 17 July 2001 at 9.30 am.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1063 of 2001

BETWEEN:	NICOLAE CUJBA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	KATZ J
DATE OF ORDER:	10 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1The Respondent be restrained from removing the Applicant from Australia until further order or the notification to the Applicant of a decision by the Respondent in response to the Applicant’s letter of 6 July 2001.

2There be liberty to apply on 24 hours’ notice.

3         Costs be reserved.

4         The proceeding stand over for directions to 17 July 2001 at 9.30 am.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1062 of 2001

BETWEEN:	OLEG CUJBA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
BETWEEN:	NICOLAE CUJBA  N 1063 of 2001 APPLICANT

AND:  MINISTER FOR IMMIGRATION
  & MULTICULTURAL AFFAIRS
  RESPONDENT    

JUDGE:	KATZ J
DATE:	10 JULY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter has come before me in circumstances in which there has not been time for Messrs Oleg and Nicolae Cujba (“the applicants”), who are cousins, to commence proceedings. However, I am assured by Mr Killalea, who appears for them, that a proceeding is proposed to be commenced by each of them, relying on subs 477(1) of the Migration Act 1958 (Cth) (“the Act”).

2. In his proposed proceeding, each applicant will claim that: in so far as par 477(1)(a) of the Act is concerned, the Minister for Immigration & Multicultural Affairs is a person who has a duty to make a judicially-reviewable decision; in so far as par 477(1)(b) of the Act is concerned, there is no provision which specifies a period within which the Minister is required to make that decision; and, in so far as par 477(1)(c) of the Act is concerned, the Minister has failed to make that decision. Each applicant will further claim that there has been unreasonable delay on the Minister’s part in making that decision.

3. Paragraph 477(1)(a) of the Act, in its reference to a judicially-reviewable decision, takes one back to subs 475(1) of the Act and, in particular, to par (c) of that subsection, from which one discovers that included among judicially-reviewable decisions for the purpose of, among other provisions, par 477(1)(a) of the Act are decisions made under the Act or the regulations relating to visas, other than decisions of either the Migration Review Tribunal or the Refugee Review Tribunal.

4. The decision under the Act relating to visas which, it will be said by each applicant in his proposed proceeding, the Minister has a duty to make can be discerned from a letter which the applicants wrote to the Minister on 6 July 2001. That letter stated:

   “Thank you for your letter by facsimile of 4 July 2001.  More particularly, thank you for your personal attention to our matter and for opening up the possibility of resolving this matter in our favour. 

   On that point we have been referred to s.133 of the Migration Act which provides that you might extend our former visas if the cancellation of those visas is revoked. The cancellation of Oleg’s visa was revoked by Order of the Federal Court on 8 June 2001 and clearly it is within your power to revoke the cancellation of Nicolae’s visa on 12 October 2000.

   We request you to please personally consider revoking the cancellation of Nicolae’s visa and then extending both our former visas for a 21 day period so that we might stay in Australia as tourists for that time.

   We ask you to please personally address our request and not remove it for consideration into the depths of the Department.  For our part, on receipt of your response to our request for 21 day tourist visas, and whether or not that response is positive, we promise to withdraw the current proceedings in the Federal Court and to abide by your decision.

   If we can assist with any further information we are happy to provide that at your request.  Thank you for your attention to our situation.”

5. In particular, it is to be noted that, in the second paragraph of the letter which I have just quoted, reference is made to s 133 of the Act. Subsection (2) of that section, in terms, confers a power on the Minister, in circumstances in which the cancellation of a visa has been revoked, to vary the time for which the visa is to be in effect.

6. The circumstances concerning the applicants are that each was granted, during 2000, a visa to travel to and remain in Australia.  Pursuant to his visa, it was necessary for each of the applicants to arrive in Australia by 31 October 2000.  Each of them did arrive before that date.  (In fact, each of them arrived on 13 October 2000.)  Each visa further provided for a three month stay in Australia following arrival, so that, if nothing else had occurred, each visa would have expired, by the ordinary effluxion of time, on 13 January 2001.  However, each of the visas which had been granted was later cancelled.

7. There is, however, this important difference between the circumstances of the cancellation of the two visas.  Nicolae’s visa was cancelled before he arrived in Australia, whereas Oleg’s visa was cancelled while he was in Australia. 

8. It appears to me to be plain beyond argument that the power conferred on the Minister by subs 133(2) of the Act is a power which may be exercised only in the case of a person whose visa has been cancelled while the person is outside Australia. From that, it follows that, in so far as Oleg sought the exercise of the Minister’s power under subs 133(2) of the Act, that request was bound to fail, since that provision had no application to his circumstances. On the other hand, in the case of Nicolae, the provision does appear to have potential application.

9. As I understand the position regarding Nicolae, he had earlier sought a revocation of the cancellation of his visa, but the Minister had declined to revoke that cancellation.  Then, on 8 June 2001, Conti J made an order that the Minister’s decision declining to revoke the cancellation of Nicolae’s visa be set aside.  That led to a subsequent consideration of the question of the revocation of the cancellation of Nicolae’s visa.  On 4 July 2001, a delegate of the Minister reached a decision identical in substance to that which had earlier been reached and then set aside by Conti J.

10. The request on behalf of Nicolae in the letter of 6 July 2001 is thus yet a further request by him for the revocation of the cancellation of his visa.

11. Mr Beech-Jones, who appeared for the Minister, conceded, at least for the purpose of the present interlocutory application, that it was arguable that the Minister could consider Nicolae’s request for the revocation of the cancellation of his visa and, if that revocation were cancelled, could consider as well the exercise of the power which is, in terms, conferred on the Minister by subs 133(2) of the Act. It appears to me, then, that, at least in so far as Nicolae is concerned, the judicially-reviewable decision which has been identified by Mr Killalea on Nicolae’s behalf is one which the Minister does have a duty to make. (Of course the Minister need not make the decision one way or another but he must at least make a decision with respect to the matter.)

12. Mr Killalea says that there has been unreasonable delay on the part of the Minister in making the decision regarding Nicolae.  In effect, what that means is that there has been unreasonable delay on the Minister’s part in taking from 6 July 2001 until now to make a decision on Nicolae’s request.  As there has been some considerable history (and even notoriety) concerning this matter, I am prepared to proceed on the basis that there is an arguable case of unreasonable delay on the Minister’s part, in so far as the request by Nicolae is concerned.

13. The next question which arises is whether, assuming that there be some arguable case of unreasonable delay on the Minister’s part concerning Nicolae, there is some interlocutory relief which the Court can grant.

14. That appears to take one to s 482 of the Act, and, in particular, to subs (2) and (3) of that section.

15. Subsection 482(2) of the Act specifically refers to the making of an application under s 477 of the Act in relation to a judicially-reviewable decision. (I repeat that Mr Killalea has foreshadowed the lodging by Nicolae of precisely such an application.) In circumstances in which an application has been made under s 477 of the Act, subs 482(2) of the Act confers on me a power to make such orders of the kind referred to in subs 482(3) of the Act as I consider appropriate for the purpose of securing the effectiveness of the hearing and determination of “the appeal”.  (I interrupt myself to say that I am quite unable to understand why the word “appeal” appears in subs 482(2) of the Act, but I will treat the subsection as though it referred instead to a review.)

16. When one turns to subs 482(3) of the Act, which subsection limits the power conferred on me by subs 482(2) of the Act, one discovers that the orders which can be made under subs 482(2) of the Act are orders staying or otherwise affecting the operation or implementation of the judicially-reviewable decision or a part of that decision.

17. As I said to Mr Killalea during argument, it is difficult, at least at first blush, to see an operation for subs 482(3) of the Act in connection with applications under section 477 of the Act. However, as the Parliament has specifically made reference in subs 482(2) of the Act to s 477 of the Act, I must, it appears to me, give a reading to subs 482(3) of the Act which would give it some work to do in connection with applications under s 477 of the Act. I accept the submission made by Mr Killalea that it would be appropriate to read subs 482(3) of the Act as permitting me to make orders that would affect the implementation of the judicially-reviewable decision which, it will be said, has not been made and the making of which, it will be said, has been unreasonably delayed.

18. It does appear to me that an order which would affect the implementation of that decision is an order prohibiting the removal of Nicolae from Australia.

19. Mr Beech-Jones, who appeared for the Minister, denied that such an order could properly be described as an order affecting the implementation of the decision, on the basis, as I understood him, that if Nicolae were to be removed from Australia, he could, if the Minister made, in his favour, the decision sought by him, return to Australia.  I regard that as too technical a view of the notion of securing the effectiveness of the hearing and determination of the review.  It appears to me that that effectiveness includes what I may describe as the practical effectiveness, as well as the legal effectiveness, of the hearing and determination of the review.

20. The result of what I have thus far said is that I consider it appropriate that I should make an order restraining, on an interlocutory basis, the removal of Nicolae from Australia.

21. It also follows from what I have thus far said that I do not consider it appropriate that I should make an equivalent order in the case of Oleg.

22. In view of the fact that, as I understand it, the applicants travelled to Australia together and have been treated similarly throughout their stay in Australia, it may be that the Minister might consider it appropriate to take no steps to procure the removal of Oleg from Australia pending the determination of Nicolae’s proposed application to this Court.  However, it is not for me to urge the Minister to take any particular course in that respect.

23. The effect, then, of what I propose is that an order will be made granting interlocutory relief to Nicolae.  In each proceeding, there will also be liberty to apply on twenty-four hours’ notice and costs will also be reserved.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate:

Dated:             17 July 2001

Counsel for the Applicants:	Mr R Killalea
Solicitor for the Applicants:	Low & Associates
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	10 July 2001
Date of Judgment:	10 July 2001