Lundqvist v Minister for Immigration

[2014] FCCA 819

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUNDQVIST v MINISTER FOR IMMIGRATION [2014] FCCA 819

Catchwords:
MIGRATION – Review of decision of Minister for Immigration and Border Protection to remove – urgent application – applicant already on aircraft – balance of convenience.

Applicant: MARIA LUNDQVIST

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 962 of 2014

Judgment of: Judge Raphael

Hearing date: 8 April 2014

Date of Last Submission: 8 April 2014

Delivered at: Sydney

Delivered on: 8 April 2014

REPRESENTATION

Solicitors for the Applicant: Parish Patience

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. No order as to costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

SYG 962 of 2014

MARIA LUNDQVIST

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

1. At about 3.30pm this afternoon, Mr Jones, a partner in the firm of Parish Patience, indicated that he wished to make an application on behalf of Maria Lundqvist for an injunction to restrain her from being deported out of Australia.  The matter came before me at approximately 3.35pm.  Ms Watson appeared by telephone on behalf of the Australian Government Solicitor.  So far as everyone in the court is aware, the flight upon which Ms Lundqvist had been placed was due to leave Kingsford-Smith Airport at 3.30pm, and has almost certainly left at 3.52pm when this judgment is commenced.

2. It appears that Ms Lundqvist was an overstayer under some form of visa, and had been one for approximately one year before she was found and placed into immigration detention on 20 February 2014.  It also appears that on 28 March 2014 she was provided with a notice of removal by the Department, which would have indicated that her removal was to take place today.  She did not contact Mr Jones until 2.40pm today. 

3. Ms Lundqvist is not a refugee or an asylum seeker. The court is not clear of her nationality, but was told that the reason that she wishes to remain in Australia is to apply for a spouse visa.  These are visas which can be applied for both within Australia and without.  And so there would appear to be little disadvantage in declining to grant the injunction which, although unlikely to have any effect at all, could possibly delay the departure of a flight at very great cost – in respect of which no undertaking as to damages has been proffered. 

4. The court is told that Ms Lundqvist has not actually applied for a spouse visa, she has merely evinced an intention of doing so.  She has applied for a bridging visa; this was refused.  It is said that she has made an application to the Migration Review Tribunal for review of that decision.  It is on the basis of this application that Mr Jones moves the court for the injunction.

5. Injunctions of this nature should only be granted in the most unusual circumstances, such as where a person who believes that his or her life is in danger seeks an injunction to remain in the country so that proceedings which they have already commenced can be properly concluded.  There may have been some argument in favour of Ms Lundqvist had she contacted Mr Jones and sought his advice and provided him with a retainer, some time shortly after 20 February 2014.  There may even have been some case if she had done this some time after 28 March 2014.  But not to do anything until 2.40pm on the day upon which she is bound to be deported, strikes the court as a failure to act in her own best interests, and a failure to comprehend that these sorts of applications must be fair, both to the applicant and to the proposed respondent. 

6. For these reasons, the court declines to grant any relief.  Given the fact that Ms Lundqvist is, in all probability, at some 35,000 feet above Australia, heading away from this country, there really is little point in making any order for costs. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  23 April 2014