Golovchenko v Minister for Immigration - [2012] FMCA 1119

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GOLOVCHENKO v MINISTER FOR IMMIGRATION

[2012] FMCA 1119

MIGRATION – Application for judicial review – application erroneously dismissed for non-attendance – application to reinstate proceeding – no decision made in any event – applicant leaving Australia voluntarily in 2004 – application to Court not made until 2012 – no adequate explanation for delay – no prospects of success – application dismissed.

Migration Act 1958, ss.188, 476
Federal Magistrates Court Rules 2001, r.16.05(2)(a)

Applicant:

ALEXEY GOLOVCHENKO

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

MLG 743 of 2012

Judgment of:

Burchardt FM

Hearing date:

1 November 2012

Date of Last Submission:

1 November 2012

Delivered at:

Melbourne

Delivered on:

12 December 2012

REPRESENTATION

The Applicant:

No appearance

Counsel for the Respondent:

Mr Brown

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the respondent’s costs fixed at $2,000.00 in total.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 743 of 2012

ALEXEY GOLOVCHENKO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

On 8 June 2012, the applicant filed an application “for an order that the respondents show cause why remedy should not be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act 1958

(“the Act”) in respect of the migration decision specified on page 2”.
The decision asserted to have been made was a decision of Glenn Kiehne, and the date of the decision was asserted to be “25.11.2004, advised on 15.05.2012”.
The application sought that the decision of the respondent be quashed and sought the following relief by way of orders:
1.    Find that by removal me to Moldova, the Respondent breached Australia’s obligation under Article 7 of the “International Covenant on Civil and Political Rights”
2.    Find that by removal me to Moldova, the Respondent breached Australia’s obligation under Article 3 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”.
3.    Find my removal on 29 November 2004 from Australia as unlawful and the removal must to be quashed.
4.    Order the Respondent to restore the situation which was on 29 November 2004.
4.1 Order the Respondent to restore my Bridging visa “E”.
4.2 Find that cancellation of my Bridging visa “E” was unlawful.
4.3 Order the Respondent to return me to Australia.
5.    Order the Respondent to pay the cost of this application.”
Under the heading “Grounds of application” the applicant asserted:
“Based on section 474(3)(g) of the Migration Act 1958 I am seeking judicial review of my removal from Australia to Moldova and I believe that having me removed from Australia to Moldova the Respondent breached Australia’s obligations under Article 3 of the “CONVENTION AGAINST TORTURE and other Cruel, Inhuman or Degrading Treatment or Punishment” and article 7 of the “International Covenant on Civil and Political Rights”.
Based on section 474(3)(j) of the Migration Act 1958 I am seeking judicial review of the failure to take a decision not to remove me from Australia to Moldova and I believe that by failing to take a decision not remove from Australia to Moldova the Respondent breached Australia’s obligations under Article 3 of the “CONVENTION AGAINST TORTURE” and Other Cruel, Inhuman or Degrading Treatment or Punishment” and article 7 of the “International Covenant on Civil and Political Rights”.
By having me removed from Australia to Moldova, DIAC breached the principles of “natural justice” and my removal was made in “bad faith” because the DIAC did not take all available measures to find out whether I would face significant problems if a residence permit in Moldova was not granted to me or not. Therefore on 29 November 2004 the DIAC breached Australia’s obligations under Article 3 of the “CONVENTION AGAINST TORTURE and Other Cruel, Inhuman or Degrading Treatment or Punishment” and article 7 of the “International Covenant on Civil and Political Rights”. (sic)
Under the heading “Grounds of application for extension of time” the applicant asserted:
“On 29 November 2004 (the date I was removed from Australia) I believed that I was citizen of Moldova or I was granted a residence permit in Moldova and this point of view was confirmed by the following information: “Our office accepts your assertion that did not voluntary leave Australia and that you were compliant because you believed a residence permit had been obtained for you”. (Annexure 1, pages 1-3). Source: Commonwealth Ombudsman 17 December 2007.
I am asking the Court for extension of time because on

29 November 2004 I did not know that after arrival to Moldova I had no right to get a residence permit in Moldova.”
The grounds continued by making reference to an alleged failure on the part of the Department of Immigration and Citizenship (“DIAC”) to take all available measures to find out whether Mr Golovchenko would be granted a residence permit in Moldova and submitted that if he had known that he did not in fact have a right to a residence permit there, he would have lodged an application in the Federal Court against his removal from Australia. He therefore sought an extension of time.
The application was supported by an affidavit affirmed on 21 May 2012 which runs to a number of pages. It is not appropriate for detailed recitation.
The affidavit is in large part difficult to follow, although it is clear that

Mr Golovchenko has some familiarity with the Migration Act. The affidavit confirmed the assertions in the application that

Mr Golovchenko left Australia on the understanding that he was entitled to residence in Moldova. It repeated the assertion that he had been told this by a representative of the respondent.
It is worthy of note though, that in paragraph 1.4.2 under the heading “Grounds for Extension of Time” nothing is said as to why there was delay from 2004 until 2012 when the application was made.
From materials set out at pages 9 and following, it appears that

Mr Golovchenko may have arrived in Australia in 1999. His application for a protection visa was refused although he was given a bridging visa pending the resolution of that application.
It is clear from the materials annexed to the affidavit that the question of whether or not Mr Golovchenko was, in fact, entitled to any sort of visa in respect of going to Moldova is shrouded in confusion, but it is also clear, in the materials as a whole, that he returned voluntarily.
It would appear from materials that ultimately, Mr Golovchenko obtained Russian citizenship.
It is clear that Mr Golovchenko has raised the matters that concern him with the Commonwealth Ombudsman.
Taken from the papers as a whole, it would seem that

Mr Golovchenko’s complaint relates to misconduct in the form of his being mislead by departmental officials to leave on the misunderstanding as to his status when he would arrive in Moldova.
The response filed by the respondent sought that the application be dismissed because it was seven years out of time and had no realistic prospects of success. It noted that the applicant was seeking review of a primary decision made on 25 November 2004 to remove the applicant from Australia under s.188 of the Act. It was asserted the Court had no jurisdiction to review the matter.
On 1 August 2012, Registrar Allaway made Orders for the hearing of the matter on a date to be fixed, which was subsequently set for

3 September 2012.
On that date, the matter was called and, upon the non-appearance of the applicant, the application was dismissed for his non-attendance. It should be noted that there is material on the Court file, recorded by my associate, which notes that the notice of listing had been forwarded to a representative of ADI on their undertaking to forward it directly to the applicant. An invoice for fees was sent to ADI dated 15 August 2012 and on 25 August 2012, an application for the reduction of fees on the basis of financial hardship was executed by the applicant in Moscow. ADI is indentified as the applicant’s address for service on the application to lodge on 3 June 2012.
On 8 October 2012, the applicant filed an application in a case which in part was misconceived but order 4 sought:
“Take (sic) a decision in my absence because I shall not be able to represent myself in the Court.”
The application was supported by an affidavit filed 4 September 2012. Relevant to the question of an extension of time, the following was asserted:
“1.3.3 From 30 November 2004 to June 2012 I was not able to get a valid address in Australia to complete the conditions section 6.01 of the Federal Magistrates Court Rules 2001 to make a valid application to the Court.
1.3.4 Having received all needed documents under FOI Act, I was not sure that I will lodge an application for a judicial review because I did not have a valid address in Australia.
1.3.5 I have to advise the Court that I lived in Australia for a period of five years and only in May 2012 I was able to get a valid address in Australia and the address I found was in Melbourne and the address was not in Brisbane where I lived for a period of 3 years. Without a valid Australian address I could not have lodged an application for a judicial review and the Court would not have accepted application without a valid Australian address. As soon as I was able to get a valid Australian address I lodged an application for judicial review.”
The application also addressed the issue of what I might describe as the applicant’s underlying and fundamental complaint. It is clear that his complaint arises from the alleged wrong-doing on the department or officers of the Department in, as he would put it, misleading him as to his prospects of residence upon his arrival in Moldova. Two further affidavits, both filed 8 October, assert further matters from Mr Golovchenko. He also lodged a notice of address for service which gives ADI his address for service.
The affidavit which runs to paragraph 1.9, affirmed on 26 September 2012, relevantly says that he was outside the Russian Federation from 1 to 19 September 2012 and did not have access to the Australian Embassy in Moscow during that time and, therefore, could not lodge any application. I accept that is so. I note that in his affidavit, also filed on 8 October which runs to paragraph 7.7, the applicant asserted at paragraph 4.2 that:
“In my application filed 8 June 2012 I advised the Court that I shall not be able to represent myself in the Court therefore I would like to ask the Court to take a decision in this case in my absence.”
That assertion is repeated at paragraph 6.2 of the affidavit.
In the circumstances, the Court has accepted the submission of counsel for the respondent that the matter should, indeed, proceed in

Mr Golovchenko’s absence. The paragraph (paragraph 12.2) of his extensive earlier affidavit in which he asked that the matter be heard in his absence, was clearly not noticed by me at the time that I made the decision in September.
In the ordinary way of things, it would clearly be appropriate to reinstate Mr Golovchenko’s application in the sense that, while the whole question of giving him notice and his intention to appear or otherwise has been confused by his use of ADI as an agent, the fact is that he did not attend Court on that date because he was unable to do so. He had in fact asked the Court to determine the matter in his absence and the Court should have done so.
Nonetheless, I do not propose to reinstate the application but rather to dismiss the application in the case.
There are two reasons for this.
The first is that there is simply no adequate explanation by

Mr Golovchenko for the delay between 2004 and when he left Australia in 2012 when this application was filed.
Although Mr Golovchenko says that he had no address in Australia, the fact is that at least until 2007, as the annexures to his materials clearly show, he was involved in freedom of information requests and correspondence with the Federal Ombudsman.
Delay of this order is fatal to an application for extension of time. Furthermore, as counsel for the respondent in my view correctly submits, there is simply no decision to review. It appears that

Mr Golovchenko left Australia entirely voluntarily. His real complaint is not his removal, but the alleged misconduct of the representatives of the respondent in misleading him as to the basis of his visa status upon arrival in Moldova.
As discussed briefly with counsel during the hearing, this might be said to give rise to some sort of possibility of actions in deceit or in some other tort, although one notes that the delay has been so extensive that any such action would, presumably, face significant limitation problems in any event.
The reality is that Mr Golovchenko’s application is doomed to fail and cannot possibly succeed.
For this reason, and because the delay in the application is inexcusably long, there is no purpose to be served in granting Mr Golovchenko the reinstatement he seeks. I will simply order that the application made by Mr Golovchenko be treated as an application that the Court set aside its Judgment pursuant to r.16.05(2)(a) of the Federal Magistrates Court Rules 2001, and I will dismiss the application.
Counsel for the respondent foreshadowed that in the event that the application were dismissed, costs would be sought and fixed in the sum of $500 and, in my view, that sum is entirely reasonable. I will order that the applicant pay the respondent’s costs fixed at $500.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 12 December 2012