Nevodtchikova v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 354

FEDERAL COURT OF AUSTRALIA

Nevodtchikova v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 354

SVETLANA NEVODTCHIKOVA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 459 of 2003

ALLSOP J
11 APRIL 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N459 of 2003

BETWEEN:	SVETLANA NEVODTCHIKOVA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	11 APRIL 2003
WHERE MADE:	SYDNEY

THE COURT:

1.  Makes no order.

2.   Reserves the question of costs.

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	N459 of 2003

BETWEEN:	SVETLANA NEVODTCHIKOVA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	11 APRIL 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me, as duty Judge, an application brought by a national of Russia by the name of Nevodtchikova.  Ms Nevodtchikova is not here.  She filed an application under the Judiciary Act1903 (Cth) and the Migration Act 1958 (Cth) (the Act) in the Sydney Registry of this Court today.

2. The application seeks review of a decision refusing to revoke the cancellation of her visa.  There is no specific claim for interlocutory relief, however, there is a notice at the bottom of the second page where the applicant says:

   I have been advised that the DIMIA Officers intend to collect me from Villawood at 4.00pm on 11 April 2003 and will be taken to Airport to be deported at 7.00pm on this day.

   That is today.

3. There is then a notice about a police report. 

4. Late this afternoon Mr Markus rang the Court indicating that he was instructed to act in this matter by the respondent.  Very properly the respondent Minister, as soon as he became aware of the application, instructed the Australian Government Solicitor and Mr Markus has notified the Court that he was the person to be contacted.

5. The application has a return date of Thursday, 1 May 2003.  By way of particulars as to what it is about, it is stated there has been a breach of the rules of natural justice.  Mr Markus has provided to me, and I will have it marked as exhibit A, a letter to the applicant dated 10 April 2003 and four enclosed pages, two of which are repetitious, amounting to at least part of the notification of cancellation of a visa under s 128 of the Act.

6. The applicant had a permanent class 801 visa granted to her on 4 June 2001.  This visa was cancelled on 10 February 2003 while the applicant was out of the country.  It was cancelled under s 128 of the Act which specifically provides that the Minister may cancel a visa without notice to the holder of the visa.  The regime for providing notice to the former visa holder and the appropriate reconsideration of the cancellation is set out in a regime in ss 129, 130, and 131 of the Act and the attendant regulations dealing with the matters there referred to as proscribed.

7. I should say that while I do not have the applicant before me, I called this matter on and I asked Mr Markus to come to Court because as I read the application in its totality by the litigant person, with the notation on the second page to which I referred, I took this as an application amongst other things for interim relief restraining the placement of the applicant on a flight this evening.  That is why I am dealing with the matter in the way I am.

8. The material which is in exhibit A reveals that in all likelihood, and I will infer that, the notice under s 129 required by the Act was sent to the applicant some time in February requiring a response by 29 March 2003.  I do not know whether the applicant received that.  It may well be that she did not.  That is certainly the inference from the first page of her application.  She had a visa stamped in her passport.  She sought to return to Australia and at the airport, from the first page of exhibit A, appeared to have been informed that her visa had been cancelled.  I would infer from the regular conduct of affairs that she was in all likelihood given a copy of the notice of cancellation under s 129.

9. I have examined that notice and on the face of it, it appears to substantially comply with s 129 in relation to the information given as referred to in pars 129(1)(a), (b), (c), (d) and (e).  The notice is intended to be given in the prescribed way.  Regulation 2.47 indicates that it must be given in writing for a person in immigration detention which the applicant may have been by the time she was given the notice.  It must be given in person.  It does not matter whether the applicant was in immigration detention at this point because I infer that she was given this.  The likelihood is that she was given this in person at the airport.

10. The regime in the Act includes s 130 which deals with prescribed periods for para 129(1)(c).  Paragraph 129(1)(c) requires a specified time for the invitation to the holder to show, in the specified time being prescribed, that the ground does not exist or that there is a reason why the visa should not have been cancelled.  Regulation 2.46 in the present circumstances prescribes a choice:

    If he or she is in Australia when he or she is given the notice of the cancellation:  (as appears to have been the case here)

    (i)if he or she wishes the cancellation to be reconsidered while he or she is in Australia – 5 minutes; or

    (ii)if he or she wishes the cancellation to be reconsidered while he or she is outside Australia, and he or she departs Australia as soon as possible after being given a notice of the cancellation – 28 days

11. Given the contents of the first page of exhibit A, I infer that a choice was probably made by the visa holder to have the matter reconsidered at the airport.  In those circumstances little time, as the regulation identifies, needed to be given to comply with ss 129(1)(c) and 130.

12. The applicant has an application on foot; though more difficult it can be prosecuted from Russia.  Agents, solicitors or migration agents can be retained, affidavit material can be prepared and if there is any need for cross-examination that may, subject to relevant conventions, treaties and diplomatic considerations, be able to be done via a video-link.

13. While I am concerned that this matter, or matters of this kind, come on so quickly it is in a sense no fault of the Department that this has occurred.  This lady in a sense turned up unannounced at the airport.  I do not know whether she had notice of the visa cancellation by the post to Russia.  Whether she did or she didn't, the Department was faced with an arrival at the airport without a current visa.  There is nothing to indicate to me that she was given time to respond not provided for by the regulations made by the executive under authority granted to it by Parliament.

14. The lack of natural justice in cancelling the visa without telling the applicant in once sense is inherent within the operation and statute of s 128.  The natural justice is provided for in ss 129, 130 and 131.  If, as appears to have been the case, the applicant sought reconsideration at the airport the regulations provide for a very short period of time.

15. In all the circumstances and in the absence of a formal and precise application I do not propose to make any order at the present time. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop J.

Associate:

Dated:            15 May 2003

No appearance by the applicant
Solicitor for the Respondent:	Australian Government solicitor
Date of Hearing:	11 April 2003
Date of Judgment:	11 April 2003