Lee v Minister for Immigration - [2008] FMCA 1675

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1675

MIGRATION – Application to restrain departure from Australia.

Migration Act 1958 (Cth), s.198

Lee v Ministerfor Immigration [2008] FCA 1023

Applicant:

HYUK KYU LEE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2360 of 2008

Judgment of:

Raphael FM

Hearing date:

11 December 2008

Date of Last Submission:

11 December 2008

Delivered at:

Sydney

Delivered on:

11 December 2008

REPRESENTATION

For the applicant:

In person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Interim application dismissed.
Applicant to pay the First Respondent's costs assessed in the sum of $1,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2360 of 2008

KYUK KYU LEE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

There comes before me today an urgent application by Mr Lee to restrain the Minister from exercising his powers under s.198(6) of the Migration Act1958 (the “Act”) and removing the applicant from immigration detention and returning him to his home in Korea.
On 9 December 2008, the Australian Government solicitor wrote to Mr Lee informing him that the Minister intended to remove him from Australia pursuant to s.198 on 16 December 2008. It provided in paragraph 4 of that letter a history of the applicant's stay in this country, including a large number of applications for various visas and applications for judicial review of refusals of various visas over a period commencing in 1996 and ending on 11 September 2008 when the applicant made an application to this court for judicial review of a decision of the Migration Review Tribunal to refuse to grant him a Bridging Visa E.
The applicant now seeks this injunction so that his application can be heard before the court in February 2009 on a date set down by Cameron FM at a recent directions hearing.
It seems to me that there would only be utility in granting the injunction if the eventual result of the review proceeding in this court might be that the applicant could remain in Australia. But that could only be the case if the applicant was an applicant for a substantive visa of some sort. The letter from the Minister and the decision of the Migration Review Tribunal makes it quite clear that this is not the case.
There is no application by this applicant for any form of substantive visa. He has merely made a series of applications for Bridging Visas, mostly Bridging Visas which rely upon him making an effort to remove himself from Australia. Those Bridging Visas were all cancelled because the applicant made no attempt to remove himself from Australia and did not comply with the obligations of those Bridging Visas that he received.
These matters are referred to by the Tribunal at [47] of its findings and reasons at [CB 145]:
“As referred to in the Tribunal's s.359A letter, the applicant's last five consecutive Bridging E Visas granted from 4 June 2008 until 23 June 2008 were all subject to conditions 8510 (present valid passport) and 8511 (present valid ticket). The applicant failed to present a valid passport or a valid ticket at the expiry of all five of the abovementioned visas and this led to the cancellation of his last Bridging E Visa on 24 June 2008 when he presented at the Compliance counter of the Department at close of business without a valid passport or valid ticket. The applicant has not provided evidence that he has a valid airline ticket or booking to depart Australia, either at the time of the application or at the time of this decision ... and I am not satisfied on the evidence before me that the applicant genuinely intends to depart Australia. I find on the evidence before me that the applicant has been given every opportunity to make acceptable arrangements to depart Australia and that he has failed to avail himself of that opportunity. Having regard to all of the evidence before me, I am not satisfied that at the time of the application the applicant was making or was the subject of acceptable arrangements to depart Australia. I find that he did not meet the requirements of cl.050.212(2) at the time of the application.”
The Tribunal dealt with all the other grounds upon which the applicant could possibly obtain a Bridging Visa E and came to the conclusion that none of them were relevant, including, and I believe most importantly, that the Tribunal was not satisfied on the evidence that at the time of application the applicant had made a valid application for a substantive visa of a kind that could be granted if the applicant was in Australia or that he would make such an application within the period allowed for that purpose.
In his application for review of that decision, the applicant says in his grounds of application:
“(i)There is no reason to cancel Bridging Visa E due to no travel documents;
(ii)I was taken to Bankstown Community Mental Hospital to have admission to the hospital for treatment.”
Those grounds of application do not in any way address the possibility that a jurisdictional error has been made by the Tribunal in its decision. It seems to me that the possibility of the applicant succeeding in an application for judicial review before this court is so slight as to be nugatory.
Before me today the applicant told me about a series of visas that he had applied for, including an application for a Criminal Justice Stay Warrant, and appeared to be arguing that if he obtained his Bridging Visa E he could continue his application for this type of visa. However, this matter was considered by Lindgren J in Lee v Ministerfor Immigration [2008] FCA 1023. At [26] of that decision his Honour said :
“Section 198(6) of the Act is mandatory in its terms. It has the effect that an "officer” (defined in s.5 of the Act) must remove the applicant from Australia "as soon as reasonably practical". The fact that the applicant desires to prosecute his appeal on 22 July 2008 does not render it not "reasonably practical" for an officer to remove him from Australia prior to that date. This court does not have a general jurisdiction to relieve from the effect of s.198(6).”
I take it from that decision of his Honour's that he was not prepared to grant the applicant a similar form of injunction to restrain the removal of the applicant prior to an appeal against a conviction that he had had recorded against him in the Burwood Magistrates court.
I have been made aware that the appeal decision has now been handed down and the applicant's appeal was dismissed. Whilst the applicant tells me that he is considering the making of a further appeal to the Supreme Court, it appears that no formal application has yet been made and certainly an appeal has not been set down for hearing. In any event, the attempt by the applicant to tie the request for review of the decision of the Tribunal on 24 June 2008 to his Criminal Justice Stay Warrant Application is impermissible.
Mr Reilly, who appears for the Minister points out that an applicant is entitled to make as many applications for Bridging Visas as he or she would wish. Each refusal of such an application is capable of being reviewed by a court. If the applicant was allowed to remain in the country pending continual reviews of unsuccessful decisions to grant him a Bridging Visa he would never leave. If the Bridging Visas were in no way attached to the grant of a substantive visa this would be a totally unacceptable situation.
It seems to me that as I am satisfied there is no merit in the substantive application before this court, that there is no utility in the grant of a Bridging Visa that is not connected to an application for a substantive visa and that there is no arguable error of law in the decision of the Migration Review Tribunal, the balance of convenience lies with the Minister who wishes to comply with his obligations under s.198(6) of the Act to deport this applicant.
For those reasons I dismiss the application. I order the Applicant to pay the First Respondent’s costs which I assess in the sum of $1,500.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 12 December 2008