Kopiev v Minister for Immigration and Multicultural Affairs

The case of Kopiev v Minister for Immigration and Multicultural Affairs involves the applicant, who is a non-citizen, challenging the legality of his removal from Australia. The applicant had previously applied for a Bridging Visa E, which was refused by the Migration Review Tribunal (MRT). Following this decision, the Minister for Immigration and Multicultural Affairs ordered the applicant's removal from Australia. The applicant then sought judicial review of the MRT's decision. The primary legal issue before the court was whether the Minister was required to allow the applicant to remain in Australia until at least the first directions hearing on 19 October 2000, considering the provisions of s 198(6) of the Migration Act and s 482 of the same Act.

The court examined whether s 198(6) of the Migration Act, which imposes a duty to remove an unlawful non-citizen "as soon as reasonably practicable", precluded the Minister from delaying the applicant's removal pending the outcome of the judicial review. The court noted that in Attorney-General (NSW) v Ray, it was held that a deportation order could be delayed for proper reasons, such as enabling the deportee to pursue a civil claim. The court found that similar reasoning might apply to s 198(6) of the Migration Act, suggesting that the Minister could have lawfully delayed the applicant's removal pending the outcome of the review proceedings. However, the court also considered s 482(1) of the Migration Act, which provides that the institution of proceedings for judicial review does not prevent the taking of action to implement the decision or in reliance on the making of the decision. The Explanatory Memorandum to the Migration Reform Bill 1992 supported the view that judicial review proceedings should not inhibit the exercise of the power to remove unlawful non-citizens from Australia.

The court concluded that the applicant's application for judicial review was not sufficient to prevent his removal from Australia. While it was arguable that the Minister could have delayed the removal pending the outcome of the review, the court found that the provisions of s 482(1) of the Migration Act permitted the Minister to proceed with the removal. The applicant's claim for compensation for his alleged unlawful detention was not tested at the time of his removal, but the court noted that the applicant had apparently been granted a bridging visa on 10 August 2000, suggesting that his claim might have some merit. However, this did not alter the outcome of the case.

ORDERS:
1. The application be dismissed, without prejudice to any claim the applicant may bring in respect of his detention at any time during the period 26 June 2000 until 16 October 2000.
2. There be no order as to costs.