MOUSTAFA v Minister for Immigration - [2004] FMCA 400

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOUSTAFA v MINISTER FOR IMMIGRATION

[2004] FMCA 400

MIGRATION – Visa – bridging visa – injunction – application for injunction to restrain the Minister from removing the applicant from Australia prior to hearing of an application for a bridging visa – urgent application as applicant due to be returned to Egypt.

Migration Act 1958 (Cth)

Re Minister for Immigration and Multicultural and Indigenous Affairs ex parte Fejzullahu [2000] HCA 23

Applicant:

AHMED MOUSTAFA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ558 of 2004

Delivered on:

28 May 2004

Delivered at:

Sydney

Hearing date:

28 May 2004

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

In person via telephone

Solicitors for the Respondent:

Clayton Utz

ORDERS

I vacate the hearing date of 4 August for the substantive application.
All applications are dismissed.
The applicant is to pay the respondent’s costs in the sum of $2,500.
I require a transcript of the reasons for decision.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ558 of 2004

AHMED MOUSTAFA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application before the court has been brought by the applicant on an urgent basis. The applicant is currently in detention at the Villawood Detention Centre. In his application he asks for an order in the following terms and I quote:
Stay of execution of the respondent executing his deportation order sought by the Minister of Immigration.
The respondent Minister has made arrangements for the applicant to be removed from Australia tomorrow in order that he may return to his country of origin, namely Egypt. The applicant does not wish to return to Egypt at this stage or, indeed, at all. He has an application before this court returnable on Wednesday, 4 August 2004.
A brief history of the matter is that the applicant arrived in Australia on an entertainment visa on 10 September 1998. That visa ceased on the 22nd of that month. On 9 November 1998 the applicant applied for a protection visa. He was granted a bridging visa once he made that application.
The application for a protection visa was refused by a delegate of the Minister on 25 November 1998. The applicant then sought a review of that decision by the Refugee Review Tribunal. On 4 July 2000 the Refugee Review Tribunal affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant. His bridging C visa expired on 8 August 2000.
On 2 August shortly before that visa expired the applicant made a request to the respondent Minister pursuant to section 417 of the Migration Act. On 30 August 2000 the Minister decided not to exercise his discretion pursuant to that section. At that stage the applicant held a bridging E visa. He was granted a further bridging E visa on 4 October 2000 on the basis that he would depart Australia by 11 October 2000. He did not depart from Australia. On 6 December 2000 he joined a class action in the High Court and was granted a further bridging E visa. The action was dismissed by the High Court on 20 June 2003 and his bridging visa ceased on 18 July 2003. He has remained in Australia as an unlawful non-citizen since that date.
On 30 January 2004 he came to the notice of the New South Wales Police Service as a result of a traffic matter. He was subsequently detained and was transferred to the Villawood Immigration Detention Centre. He has remained at that detention centre ever since. On 2 February he applied for a further bridging visa on the basis that he needed time to sell his car and his furniture. That application for a visa was refused on 5 February 2004.
He thereupon lodged an application for review of that decision with the Migration Review Tribunal. The Tribunal held a hearing on 13 February 2004 at which the applicant gave evidence. He told the Tribunal that he wished to finalise his affairs including selling his car. He also told the Tribunal that he had a lot of debts. He provided a ticket issued on 12 February to depart Australia on 27 February.
The Migration Review Tribunal considered his application and on 16 February 2004 affirmed the decision and found that he was not entitled to the grant of a bridging E class WE visa. In paragraph 10 of the reasons for the decision the Tribunal said at pages 43 and 44 of the court book:
In this case the issue before the Tribunal is defined if the visa applicant meets one of the primary criteria for the grant of a bridging E visa contained in subclause 050.212(1) of the regulations. The criteria in this subclause must be satisfied both at the time of application and at the time of the Tribunal's decision. Of particular relevance is subclause 050.212(2) of the regulations whether the applicant is making or is the subject of acceptable arrangements to depart Australia.
What then happened was that the applicant was notified today that arrangements were made for him to be removed from Australia tomorrow. He was faxed a letter from the solicitors for the respondent which was dated 27 May 2004 and appears to have been faxed at 10 minutes to 5.00 on that day. It may well be the case that the applicant did not become aware of this letter until today. In any event, he has lodged his application which first came to the attention of the duty registrar on the afternoon of 28 May.
The Applicant seeks a stay of execution as he says of the order to remove him from Australia and he has this matter pending as it turns out in this court, although the application says the Federal Court, on 4 August. The reasons that he gives are:
I have a Federal Court matter pending on the date mentioned.

I have good, legitimate prospects to obtaining a bridging E visa. I wish to obtain legal information as well as representation in order to address my case to the fullest ability to the Federal Court to ensure all merits are taken to count.
Today, with the assistance of an interpreter, or I should perhaps more correctly say this evening, is that he fears persecution if he returns to his own country. If he returns to Egypt he has a prison sentence awaiting him because of his political views. He also owes a lot of money to people in Egypt. He wishes to present a case. He referred to his application for a protection visa which was unsuccessful and he says that if he were to be removed from Australia and sent to another country he would go. If he was required to Egypt it would be a catastrophe.
The respondent opposes the application. Mr Chami has referred me to the decision of Gleeson CJ in the matter of Re Minister for Immigration and Multicultural Affairs Ex parte Fejzullahu, the citation for which is [2000] HCA 23. That is a decision that was handed down on 10 April 2000. The issue in that case was whether to grant an injunction restraining the removal of non-citizens. His Honour, in dismissing the application, held that:
The principles to be applied in the exercise of the discretion to grant an interlocutory injunction are well-established and applicable in private as well as public law cases. Applicants for interlocutory injunctions must show that there is a serious question to be tried in the principal proceedings and that the balance of convenience favours the granting of an injunction.
Applying those principles to the matter before me today I note that the applicant does not have an application pending for a substantive visa. In other words, he does not have an application pending for a visa that would allow him to stay in Australia on a permanent basis. What he is seeking is an extension of a bridging visa. He seeks the extension of the bridging visa for matters of personal convenience, namely to arrange his affairs by selling a motor vehicle.
He has also given reasons to the extent that he fears a prison sentence for his political views if he were returned to his home country. He has also mentioned that he owes money to people in Egypt. Of course, where he has said that he fears being sent to prison for his political views in his home country he is pointing out the sort of matters that are considered when applying for a protection visa.
The applicant has already applied for a protection visa. That matter has been considered and it has been refused. The matter was the subject of a review by the Refugee Review Tribunal and was unsuccessful. He took part in proceedings before the High Court of Australia and that application was dismissed in 2003. I am of the view that the question as to whether or not the applicant is entitled to the grant of a protection visa has already been heard and decided.
As far as his claim that he owed money to a lot of people in Egypt is concerned that may well be so. That is not a ground for the issue of any sort of a visa to allow a person to remain in Australia, that remaining in Australia on a permanent or a temporary basis in order to avoid claims by outstanding creditors in one's home country will not avail any person and is not a ground for the issue of any sort of a visa. He has no outstanding applications for any sort of a visa except the extension of a bridging visa for reasons of personal convenience.
I am not satisfied that the applicant has shown that there is a serious question to be tried in the principal proceedings. I am not satisfied that the balance of convenience favours the granting of an injunction until the applicant's case can be heard on 4 August. Even if the court were to bring forward that application to an earlier date there is no material on the file which would indicate any reason as to why he should be granted an extension of a bridging visa which could only be granted if he had made arrangements to leave the country.
The evidence before me which is unchallenged from the Migration Review Tribunal is that he had told the Tribunal, in fact had told the respondent Department, that he had made arrangements to leave Australia and had not done so. He has not sought to challenge in any way the findings of the Migration Review Tribunal. The balance of convenience does not favour the granting of an injunction.
It is submitted by Mr Chami for the respondent that the Minister has an obligation to remove unlawful non-citizens from Australia if there is no reason for them to remain. I am of the view that granting an injunction would permit the applicant to remain in Australia to no avail but would involve a considerable degree of expense and inconvenience. I am the view that no case has been made out in respect of either of the tests set out by the High Court of Australia. The application for an injunction is refused. I dismiss all applications.
Costs follow the event in this jurisdiction and I note the applicant has been wholly unsuccessful. In my view this is a matter where I should make an order for costs and I propose to make an order that the applicant is to pay the respondent's costs of this application. It is normal for the Federal Magistrates Court to make an order for costs in a fixed sum rather than requiring costs to be assessed or taxed.
The applicant is to pay the respondent's costs of this application in the sum of $2500. I require a transcript of my reasons for this decision.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 23 June 2004