NAMG v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAMG & ORS v MINISTER FOR IMMIGRATION [2003] FMCA 541

PRACTICE AND PROCEDURE – MIGRATION – Jurisdiction of the Court to review a primary decision under the Migration Act 1958 (Cth) – need to resolve parenting issues under the Family Law Act 1975 (Cth) – possibility of concurrent proceedings under the Migration Act and the Family Law Act.

Family Law Act 1975 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.476

Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24

First Applicant:

Second Applicant:
Third Applicant:

NAMG

NAMH
NAMI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1199 of 2003

Delivered on: 20 November 2003

Delivered at: Sydney

Hearing date: 20 November 2003

Judgment of: Driver FM

REPRESENTATION

The first applicant appeared in person and for the third applicant

No appearance by the second applicant

Counsel for the Respondent: Mr R Bromwich

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

THE COURT DIRECTS THAT:

1. The hearing is adjourned to a date to be advised administratively.

THE COURT ORDERS THAT:

1. For the purposes of Part 11 of the Federal Magistrates Court Rules 2001 (Cth), NAMG is appointed as litigation guardian of NAMI, and NAMG is relieved of the obligation of filing an affidavit of consent or of notifying the respondent of her appointment.

2. Applicant NAMG has liberty to apply within 28 days under the Migration Act 1958 (Cth) or under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for relief in respect of the decision of the delegate made on 30 August 2001 in relation to her second child identified in the decision of the Refugee Review Tribunal made on 24 July 2002.

3. Such application, if made, will be heard concurrently with the present application.

4. Applicant NAMG has liberty to apply within 28 days for parenting orders under the Family Law Act 1975 (Cth) in relation to both children.

5. Such application, if made, should be directed to the Parramatta Registry of this Court with a copy of these orders.  Such application, if made, shall be referred to Federal Magistrate Driver for appropriate directions.

6. Costs of today’s hearing are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1199 of 2003

NAMG, NAMH, NAMI

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The application I have before me is to review a decision of the Refugee Review Tribunal (“the RRT”) made on 24 July 2002 and 13 August 2002 in relation to three applicants who were refused protection visas.  There is a father, a mother and one child from Peru.  Since the protection visa application was made, a second child had been born.

2. A separate protection visa application was made by the mother on 14 August 2001 to the Immigration Department.  That application was refused on 30 August 2001.  The RRT, in its reasons, (court book, pages 271-272) decided that it had no jurisdiction in relation to the protection visa application…