Gurung v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 652

FEDERAL COURT OF AUSTRALIA

Gurung v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 652

DHAN GURUNG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W120 of 2002

CARR J
24 APRIL 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W120 OF 2002

BETWEEN:	DHAN GURUNG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CARR J
DATE OF ORDER:	24 APRIL 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application for leave to appeal is refused.

2.The applicant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W120 OF 2002

BETWEEN:	DHAN GURUNG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CARR J
DATE:	24 APRIL 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 19 April 2002 French J heard an application for an interlocutory injunction restraining the respondent from removing the applicant from Australia.  The factual background of the matter at that stage was set out in French J’s reasons given on that date for refusing the interlocutory injunction sought.  It was as follows:

   “In July 1999, the applicant came to Australia on a student visa.  He married a Ms Hannah King.  They separated in September 2001, but remain married.  They have a two year old child.  It was asserted that the marriage may not have irretrievably broken down although there was a conflict between the spouses. 

   The applicant’s wife took the child and moved to Melbourne last year and the applicant became very depressed.  About two and a half months ago he was notified that his visa was cancelled on the basis that his marriage was not ongoing.  He became more depressed.  He missed the child and became fearful of losing the child forever if he was deported. 

   Due to his depression he withdrew from life and did not attend to the cancellation of his visa or the removal of the child.  He was arrested and detained about one and a half months ago and remains in detention.”

2. The facts placed before French J differ from the facts which appear in the documents annexed to an affidavit sworn today and filed on behalf of the respondent.  The facts as deposed to in the respondent’s affidavit are that the applicant arrived in Australia on 6 July 1995 on a student visa valid for a stay until 17 August 1997.  The applicant applied for a further visa on 14 August 1997 which was refused on 24 November 1997. 

3. He commenced an application for review on 22 December 1997.  The Immigration Review Tribunal considered the matter and considered that the application was invalid and so determined on 13 May 1998.  The associated bridging visa, according to the information placed before the court by the respondent, ceased on 2 April 1998.  The applicant took no further action and lodged no further applications and thus became an unlawful non-citizen on 3 April 1998.  His status has not changed. 

4. The applicant now seeks leave to appeal from French J’s orders.  He also seeks an interlocutory order restraining the respondent from removing him from Australia. 

5. The tests for the grant of leave to appeal from an interlocutory order are reasonably well settled.  In essence, the interlocutory order must be seen to be attended with sufficient doubt to warrant reconsideration by a Full Court and, if wrong, to work substantial injustice if leave were refused.  I consider that in the circumstances of this case the second limb, ie substantial injustice, is satisfied.  That is, if the decision under challenge were wrong, then there is very likely to be a substantial injustice to the applicant in that in all probability, on the evidence before the Court, he will be removed from Australia before his substantive application is heard. 

6. However, I do not think that there is any doubt attending French J’s decision. His Honour held, in accordance with well established authority, that the administrative decision under challenge was made considerably more than 28 days before the application was filed in this court and that s 477(2) of the Migration Act 1958 (Cth) prohibits this Court from extending the time limited by s 477(1), i.e. 28 days from notification of the decision.

7. The applicant’s evidence is that he was notified of the visa cancellation about two and a half months ago.  This application was filed last Friday, on 19 April 2002. 

8. Mr V. De Alwis made submissions to French J to the effect that s 477 was ultra vires the Constitution.  He made other submissions as to the invalidity of the portions of the legislation which prevent this court from extending time.  In my view, his Honour’s reasons for rejecting those submissions are not attended with any doubt.  Mr De Alwis this afternoon repeated those submissions.  In my view, they are without substance and some of them verged on being nonsensical.  Accordingly I refuse leave to appeal.  I propose to make the following orders:

   1.Application for leave to appeal refused.

   2.        The applicant pay the respondent’s costs of the application for leave to appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Associate:

Dated:             23 May 2002

Counsel for the Applicant:	Mr V De Alwis
Solicitors for the Applicant:	MIGRANT Lawyers
Counsel for the Respondent:	Mr P J Corbould
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 April 2002
Date of Judgment:	24 April 2002