NBAD v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 388

FEDERAL COURT OF AUSTRALIA

NBAD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 388

SZAOE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 100 distinguished

NBAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 64 OF 2004

GYLES J
25 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 64 OF 2004

BETWEEN:	NBAD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	25 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The proceeding continue.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 64 OF 2004

BETWEEN:	NBAD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	25 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicant is outside Australia.  In those circumstances it is submitted that the pursuit of the application is futile and ought to be peremptorily dismissed for that reason.  Counsel for the applicant submits that this course should not be taken as the applicant has hopes that there will be a way of returning to Australia in due course.

2. I have been provided with a copy of a decision of Driver FM in SZAOE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 100. It is submitted that I should follow the approach taken in that case by Driver FM who held that the application was moot.

3. I am not satisfied that I should take that course in this case.  It is correct that ultimately a visa cannot be issued without the applicant being in Australia, but it seems to me that the mere fact that she is presently outside Australia does not mean that there is no possibility of her return for the purposes of the case.

4. It is put that if she does return she would then be able to make a new and separate application for protection, which would not be caught by the provisions of s 48A of the Migration Act1958 (Cth). This may be correct but I am not certain that it is the case and we are, after all, looking at events some months ahead.

5. In all of the circumstances I was not prepared peremptorily to dismiss the proceeding as moot or futile.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             2 April 2004

Counsel for the Applicant:	I G Archibald
Solicitor for the Respondent:	D Watson of Australian Government Solicitor
Date of Hearing:	25 March 2004
Date of Judgment:	25 March 2004
Date of Publication of Reasons:	2 April 2004