Hu v Minister for Immigration - [2005] FMCA 1920

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HU v MINISTER FOR IMMIGRATION

[2005] FMCA 1920

MIGRATION – Interlocutory relief – show cause proceeding – application dismissed.

Federal Magistrates Court Act 2001 rr.44.12(1)(a)

Applicant:

YI JIE HU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

MLG1582 of 2005

Judgment of:

O'Dwyer FM

Hearing date:

9 December 2005

Delivered at:

Melbourne

Delivered on:

9 December 2005

REPRESENTATION

Counsel for the Applicant:

Mr Cheung and Mr Tringas

Solicitors for the Applicant:

David K Kin Cheung

Counsel for the Respondent:

Mr Horan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 the Application filed on 8 December 2005 be dismissed.
The Applicant pay the Respondent's costs fixed in the sum of $1,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1582 of 2005

YI JIE HU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT
(ex tempore)

Introduction

This proceeding comes before me on an application filed on

8 December 2005 wherein the applicant, who is presently detained in the Maribyrnong Detention Centre, seeks the following interlocutory relief:
“1.An injunction be issued today preventing the first respondent from deporting the applicant from Australia.
2. An order in the nature of habeas corpus releasing the applicant from detention.
3.In the alternative, fees for detention to be waived.”

(that is, in the alternative to the order in respect of habeas corpus)
The general background, as I understand it, from the very limited material provided, is that the applicant is a Chinese national who was granted a student visa to undertake studies in Australia. The first course enrolled in by the applicant was that of Bachelor of Accounting at Holmesglen.
That education provider reported the applicant for both unsatisfactory attendance and poor academic achievement, as I understand it. As a consequence, her student visa was revoked. That revocation, however, was subject to a review by the Migration Review Tribunal, and, as a consequence, the revocation was set aside; with the end result that there was no revocation of the student visa in the first instance.
In the intervening time, however, the applicant enrolled in a different course at the Australian College of Hair Design. She was accepted into that course and the enrolment was acknowledged. However, what then happened was that her student visa, with the effluxion of time, had expired. She was subsequently apprehended on 9 November 2005 and detained in the detention centre at Maribyrnong.
Her solicitor, Mr Cheung, on 10 November 2005, the day following her detention, filed an appointment of migration agent indicating and confirming his appointment to act on her behalf in respect of her migration matters. The applicant and a co–tenant of hers were both arrested at the same time.
The applicant and the co–tenant were detained at Maribyrnong and

Mr Cheung acted for both. However, there were two different case officers appointed, one of course for the applicant and a different person for the co‑tenant. Mr Cheung, because of work demands, instructed both the case officers to provide his clients with applications for bridging visas.
In respect of the co–tenant, the case officer complied with the presentation of the required form for the application for a bridging visa and that particular person has subsequently been released on a bridging visa with certain conditions and, I understand, with a surety of $15,000.00. I am not aware of the other conditions. However, in respect of the applicant, Mr Cheung advises that there were some difficulties in having the case officer assist the applicant in applying for a bridging visa.
Mr Cheung, from the bar table, asserts that, as best I understand his comments, the case officer for the applicant had taken a very – for want of a better description, and it is only my description – tough attitude to the question of granting a bridging visa to the applicant. He states that in telephone conversions it was evident that the case officer had an intention to refuse any bridging visa.
The respondent says that this whole proceeding is misconceived.

The respondent says that there has been no refusal of a bridging visa as no application has been made for one. It is still open to the applicant to make an application for a bridging visa even today. Should an application for a bridging visa be made, it will be considered within two working days and a decision made; or, alternatively, if a decision is not made within two working days, then automatically the bridging visa will be granted.
The respondent says that the proper process to be adopted in this matter is that an application be lodged. It will be considered; and, should it be refused or should the conditions of a bridging visa be onerous, then the applicant has available to her a review process. This, the respondent says, is something that should be done, and can still be done even today, and is the proper course of action to be followed.
Mr Cheung was unable to give me a precise date upon which he became aware that there were difficulties with the question of a bridging visa for the applicant, but in any event it is clear from a letter produced by Mr Cheung dated 21 November 2005 that he was informed that it was possible for the applicant to apply for a bridging visa and that some of the conditions that may apply would be that there be a surety of $15,000.00 (the same condition as applied to the

co–tenant) and that there be production of a valid ticket for the applicant to return to China.
The reason why the ticket was stipulated was because the applicant has indicated that she does intend to voluntarily leave Australia but she seeks a little more time to allow her to settle her affairs in Australia. For instance, she says that she would like to re–claim fees that she has paid in respect of the Australian College of Hair Design of some $18,750.00 as she has not commenced that course; and she would also like to settle debts that she owes to her friends.
By her application before me today, it is my view that the applicant has effectively put the cart before the horse. It has always been open to her, through her migration agent Mr Cheung to formally lodge an application for a bridging E visa. Mr Cheung has reacted to difficulties he was apparently having with the applicant’s case officer by initiating these proceedings, and in my view has pursued a wrong course of action in doing so.
The appropriate course of action which has always been open to

Mr Cheung being the registered agent for the applicant, was on her behalf to file an application for a bridging E visa; but he has failed to do so. He must accept primary responsibility for delay on this issue. Mr Cheung now tells me that after he leaves here today he will do so. What will happen as a consequence of that is that the process previously discussed of the assessment of the bridging visa application will take effect. If it is successful, his client will be released. If it is unsuccessful, his client is afforded review processes.
There are obvious issues between Mr Cheung and the case officer he was dealing with, at least from Mr Cheung’s understanding. Those issues are irrelevant, but they seem to have clouded Mr Cheung’s judgment.
I do not believe, as Mr Cheung has asked me to do, that it is appropriate that I adjourn the matter so that people can be put on affidavit to test the veracity of his statements from the bar table and to afford him an opportunity to cross–examine the case officer.

This would be extending a proceeding unnecessarily in this court; for, as I have indicated, I am of the view that the application before me today is misconceived. It is misconceived because of the proper process that should have been followed has not been followed.
The amended rule that applies now in respect of show cause proceedings – and this is a show cause proceeding under r.44.12 of the Federal Magistrates Court Rules 2001 – states that:
“At a hearing of an application for an order to show cause the court may,
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application.”
For the reasons I have already mentioned, I am of the view that there is no arguable case for the relief claimed and that the appropriate course of action to be adopted is the dismissal of the application in toto.

I intend to order accordingly. The application filed on 8 December 2005 is dismissed. As a consequence of that too, I intend to order that the applicant pay the respondent's costs fixed in the sum of $1,000.00, which is pursuant to the appropriate scale.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM

Associate:

Date: 9 December 2005