EJF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 518
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EJF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 518
File number(s): SYG 3006 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 16 June 2023 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of the Immigration Assessment Authority (Authority) affirming decision not to grant a Safe Haven Enterprise (class XE) (subclass 790) visa (SHEV) – after hearing of application applicant departed Australia with no entitlement to enter Australia – whether there would be utility in delivering reasons given that it is a criterion for the grant of a SHEV that the applicant be in Australia at the time of grant – no utility – application dismissed. Legislation: Migration Act 1958 (Cth) ss 473CC(2)(b), 476
Migration Regulations 1994 (Cth) Sch 2, cl 790.411
Division: General Number of paragraphs: 6 Date of last submission/s: 8 August 2022 Date of hearing: 11 May 2022 Place: Sydney Counsel for the Applicant: Mr D Hughes, by video Solicitor for the Applicant: D’Ambra Murphy Lawyers Counsel for the First Respondent: Mr J Kay Hoyle SC, by video Solicitor for the First Respondent: HWL Ebsworth ORDERS
SYG 3006 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EJF17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
16 June 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs set in the amount of $7,328.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
On 11 May 2022 I heard an application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (class XE) (subclass 790) visa (SHEV). I reserved judgment at the conclusion of the hearing.
On 8 August 2022 the lawyer for the Minister sent the following email to my Associate, and to the email address as stated in the “Notice of Intention to Withdraw as Lawyer” filed by the applicant’s former lawyer:
This matter was heard by his Honour Judge Manousaridis on 11 May 2022, and his Honour made orders reserving judgment.
On 4 July 2022, we were notified by the first respondent's Department that the applicant has departed Australia.
We liaised with the applicant's former representative, who has since filed a Notice of Withdrawal of Lawyer. We emailed the applicant using the last known email addresses provided by the applicant's former representative, asking him to confirm whether he wishes to proceed with his application (see below). We have not received a response.
We attach, for the Court's consideration, an affidavit filed by the first respondent on 18 July 2022 annexing screenshots from the Department's Integrated Client Services Environment database.
The first respondent is mindful that judgment is reserved and is in the Court's hands as to how it wishes to proceed in light of this information.
If required by the Court, the first respondent could make submissions about the applicant's change of circumstances, and how that would affect the utility of the grant of any relief in this matter.
On 18 July 2022 the Minister filed with the Court an affidavit made by Ms Hailey Rae Musgrove. In that affidavit Ms Musgrove deposes that on 4 July 2022 an officer of the Minister’s Department (Department) sent an email to Ms Musgrove attaching three screenshots from the Department’s Integrated Client Services Environment database. Those screenshots reveal that the applicant departed Australia on 19 May 2022; and that the Bridging (General) (subclass 050) visa he held at the time he departed expired when on 19 May 2022 he departed Australia. Ms Musgrove further deposes that she is instructed, and believes, the applicant has not been granted a visa since he left Australia.
The consequence of the applicant’s having departed Australia, and his having no right to enter Australia, is that, even if he were to succeed on his application before this Court, and the Authority, on remittal, had exercised the power under s 473CC(2)(b) of the Act to remit the delegate’s decision for reconsideration, the applicant would not be entitled to the grant of a SHEV. That is because cl 790.411 of Schedule 2 to the Migration Regulations 1994 (Cth) provides that the “applicant must be in Australia when the visa is granted”.
In these circumstances, there would be no utility in my delivering a judgment on the matter because, even if the applicant were to succeed, his application would be dismissed because it would be futile to remit the matter to the Authority. That is so because, even if the Authority remitted the decision to the delegate for reconsideration, the delegate would be bound not to grant a SHEV to the applicant because the applicant would not be able to satisfy cl 790.411.
I therefore propose to order that the application be dismissed, and that the applicant pay the Minister’s costs in the amount of $7,328, being the amount for which the Minister submits his costs should be set. I will also order that the Minister’s name be changed to its current description.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 16 June 2023
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