MCINDOE v Minister for Immigration - [2012] FMCA 1261

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCINDOE v MINISTER FOR IMMIGRATION

[2012] FMCA 1261

MIGRATION – Fijian applicant in detention – no valid visa – application for stay of removal – pending application for Australia citizenship – delay in citizenship application – whether removal would prejudice her citizenship application – whether removal would be a denial of procedural fairness and natural justice – removal would not prejudice application – application dismissed.

Federal Magistrates Act 1999 (Cth), s.15
Migration Act 1958 (Cth), ss.198(6), 476

Applicant:

ROSEMARY MCINDOE

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

SYG 2091 of 2012

Judgment of:

Nicholls FM

Hearing date:

26 September 2012

Date of Last Submission:

26 September 2012

Delivered at:

Sydney

Delivered on:

26 September 2012

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondent:

Mr R O'Shannessy

Solicitors for the Respondent:

Minter Ellison

ORDERS

The application made on 25 September 2012 is dismissed.
There is no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2091 of 2012

ROSEMARY MCINDOE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

I have before me an application made on 25 September 2012 that I make an order pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) and s.15 of the Federal Magistrates Act 1999 (Cth) that the applicant not be removed from Australia until her citizenship application is resolved. That is, an application for a stay of the applicant’s removal.
By way of background, I note the applicant is a Fijian citizen. It is unclear from the material put before the Court when the applicant arrived in Australia. The applicant does not currently hold a valid visa or any other permission to lawfully stay in Australia. At the present time, the applicant is being detained at Villawood Immigration Detention Centre. The applicant was informed on 25 September 2012 that she would be “deported” (removed) to Fiji on 27 September 2012 under s.198(6) of the Act as her “application for a substantive visa has been refused and finally determined” (see page five of applicant’s affidavit).
The applicant’s application for an injunction was supported by an affidavit sworn by the applicant and filed on 25 September 2012. The grounds of the applicant’s application are as follows:
“1. It will be unjust to remove me from Australia while my application for citizenship by descent is with the Department of Immigration and Citizenship.
2. It is a denial of procedural fairness and natural justice.
3. An injunction is required to stop the injustice of removing me in the interest of administration of justice.”
[I note here that she had been served by those officers acting for the Minister with relevant notices relating to her removal from Australia.]
As I explained to the applicant, the legal test that I am required to consider in resolving the application for a stay of removal, essentially, has a number of important elements.
First, is there a legal issue to be determined, that is to be heard? That is, is there a legal basis, because there is some legal question that needs to be heard or determined? In the applicant’s case, there is not. There is nothing that I can see relating to the process of the Notice of Removal and the Intention of the Notice of Removal, nor has the applicant told me anything in that process to say that some legal mistake has been made or that some legal issue arises such that I should delay her removal so that the Court could hear and resolve that legal issue. That process, on what has been put before me and from what the applicant has told me, appears to have been a proper process that complied with all of the legal requirements.
Second, is there a legal issue to be heard or tried or determined in relation to the applicant’s citizenship application? The answer is no, as no decision has yet been made. Had a decision been made, and had it been adverse to the applicant, she may have had an opportunity to seek review by the Administrative Appeals Tribunal.
However, no decision has been made and, in any event, the determination of that issue, while it may involve the Minister’s understanding of the law, does not on its face, require determination of a legal issue by this Court. There is no legal issue to be tried. On the central legal test that I am required to apply here, I cannot see that there is any legal issue to be tried. To that extent, I agree with the Minister.
A third consideration is whether there is any prejudice to the parties and, if there is prejudice, whether notwithstanding any prejudice, and on balance, the application for the stay of removal should nonetheless be granted. In this case, there is no prejudice to the applicant being removed from Australia in a legal sense because the applicant has no lawful authority to remain in Australia. The applicant has no visa and there is no legal impediment to her removal.
Far more importantly, and unfortunately for the applicant, the Act compels the Minister and his Department, to remove the applicant as she does not have the lawful authority to remain in Australia. There may be some exceptions to that proposition, but nothing that the applicant has said to me today would suggest that she falls into any of those exceptions.
I accept from what the applicant has said today that there will be an impact on her and it will be a difficult impact. I accept that. She is being sent back to Fiji in circumstances where all of the applicant’s known family is in Australia. However, when that impact is put against the compulsive force of the Act, it is an impact that unfortunately for the applicant, on balance, is not one that can assist in me making the order she seeks. As I said to the applicant, it is not the kind of thing, in light of the Act, that would assist her.
What is also relevant here is the delay in the applicant seeking to address the question of her continuing stay in Australia as an Australian citizen and then her consequential removal. The applicant’s explanation for the delay (essentially that she relied on the advice of a migration agent, and others) does not assist her. The issue (her continued stay in Australia) which she now says she wishes to raise with the Minister, could have been raised at least a year ago. The applicant has had ample opportunity to do so. Her explanation as to why she chose to do nothing is not satisfactory in the circumstances.
The timing of the application to the Court now is a matter that also counts against the applicant in this balance of interests, and prejudice, and impact upon the parties. The date of the application was 25 September 2012. This is the day after the applicant was served with a Notice of Intention to Removal.
In those circumstances, it is open to draw an inference that the only reason that the applicant has now pressed her claim to Australian citizenship, was because she was served with a Notice of Intention to Remove. The applicant has known for a year, on what she told me, of the possible consequences of her lack of authority to lawfully remain in Australia. Yet she did nothing. Then the day after she was told “you are going to be removed”, she made her application to the Minister. Then she comes to this Court and seeks further time in Australia so that her application for citizenship can be processed.
As I said to the applicant, with great respect, she must bear some responsibility for her inaction and what also appears to be her reaction to the Notice to Remove. There is an inference here that can be drawn, a view that can be taken, that the only reason that the applicant has sought to press this now is to avoid being removed from Australia.
However, and ultimately I accept that, in any event, even if the applicant were removed, her application for citizenship will proceed to be processed. The applicant says she has been told it may take three weeks. It may indeed take longer than that. But the fact of the matter is that if I do not grant the injunction – the stay that the applicant is seeking – she would not prejudiced in any way in her application for citizenship. It would not have the effect of extinguishing the application in any way. The application can continue to be processed while the applicant is overseas. The applicant being removed from Australia does not impact in any prejudicial way on her application for citizenship being processed.
What the applicant has put against these considerations is that she has nowhere to go in Fiji and nowhere to stay. I can understand the difficulty there. But that is not a difficulty that is such that would justify my granting any stay of the removal. The applicant going back to Fiji is a consequence, even in light of difficult financial circumstances and accommodation difficulties, of the fact that the applicant has no entitlement to remain in Australia, either as a citizen, or with any visa, to remain in Australia.
Given that any potential acquisition or recognition as a citizen is not prejudiced or impacted upon in that legal sense by the applicant going to Fiji, then I cannot see that there are any grounds left that would outweigh the applicant’s removal from Australia.
The application for stay of removal must therefore be dismissed. I will make an order accordingly.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Date: 30 January 2013