Nguyen v Minister for Immigration

[2003] FMCA 271

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NGUYEN v MINISTER FOR IMMIGRATION [2003] FMCA 271

MIGRATION – Application to dismiss because of no substantive decision against which the applicant can seek relief – where applicant has no visa and is in immigration detention – summary relief claimed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.82

Applicant: VAN PHUC NGUYEN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 652 of 2003

Delivered on: 26 June 2003

Delivered at: Sydney

Hearing date: 26 June 2003

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Self-represented

Counsel for the Respondent: Ms D Watson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $2,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 652 of 2003

VAN PHUC NGUYEN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This case will be renamed as it appeared in the original application. Mr Van Phuc Nguyen is the applicant and the Minister for Immigration & Multicultural & Indigenous Affairs is the respondent. On 28 April 2003 the applicant in these proceedings filed an application with this court in the standard form normally used for applications made by persons who are seeking asylum in Australia. The application claims to be one made under s.39B of the Judiciary Act 1903 (Cth). It refers to a decision made on 19 November 2002. The application then continues as follows:

   “1. ‘Due to the circumstances that I in at Villawood Detention Centre, I have been unable to get any legal help, there is no interpreter here for me to help me fill out any necessary appeals or paperwork.  This is the first time I have appealed and I would like to do so now please’.”

2. The matter was set down for directions before a Registrar of this court.  The directions were heard on 5 June 2003 by which time the Minister had filed the application which is presently before me.  The Registrar asked the applicant if he wished to avail himself of some form of pro- bono legal assistance.  The applicant agreed and completed a form. 

   
   

   I note that in that form he states that he has $4,000 available to pay for legal fees.  I think it would be safe to assume that in these circumstances no pro-bono assistance would be given to him.

3. The application which is being made by the Minister is said to be being made pursuant to Order 20 Rule 2 of the Federal Court Rules.

4. In fact, the appropriate rule is Rule 13.10 of the Federal Magistrates Court Rules. It is in the following form:

   13.10 The court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceedings, if it appears to the court that in relation to the proceeding or claim for relief:

   (a)No reasonable course of action is disclosed; or

   (b)The proceeding is frivolous or vexatious; or

   (c)The proceeding is an abuse of the process of the court.

5. In order to understand the minister's claim it is best to recite the history of the applicant's life in Australia as appears in an affidavit of Hervee Dejean filed by the Minister and read, together with a statement made by the applicant in writing and submitted to this court.

6. The applicant is a 32 year old Vietnamese who migrated to Australia on 10 February 1989 when he was granted a BF-K 4672 permit.  This allowed him to make multiple entries into Australia until 13 October 1992.

7. On 12 December 1991 the applicant was granted a BF-155, known as a 5 year resident return visa.  The applicant last entered Australia on 6 April 1995.  For reasons which I am unable to explain, he travelled to Australia on that occasion on a document known as a “Titre de Voyage”. A copy of that document was produced to the court by the applicant.  In the affidavit of Mr Dejean it is stated that the Titre de Voyage gave no evidence that the applicant held any other Australian visa, although one must doubt that such a document would have been given to a person who did not have a valid right to enter Australia.

8. In any event, on arrival the applicant was granted a sub-class 773 (Border) visa. This visa expired on 7 May 1995. If the applicant had travelled on his old visa, he would have been entitled to return to Australia any time up to 12 December 1996. But, by operation of s.82(2) of the Migration Act 1958 (Cth), his 5 year resident return visa ceased upon issue of the border visa. This is because the border visa is considered to be a substantive visa and under the provisions of s.82(2) a substantive visa held by a non citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non citizen, comes into effect.

9. In any event, by 12 December 1996 at the very latest, the applicant ceased to have any valid visa in relation to his entry into Australia.

10. At some time after 7 May 1995 and before 19 November 2002, the applicant commenced to serve a term of imprisonment as a result of a conviction for the supply of prohibited drugs.  It would appear that by 24 June 2002 the Department of Immigration had discovered that the applicant was serving such a prison sentence and was not holding any other visa.  It therefore, on 24 June 2002, granted him a bridging visa which expired on his release on 19 November 2002.

11. On the applicant's release from custody he was immediately placed into immigration detention at Villawood.  The applicant told me that the trigger for this application to the court was that someone came around to him at Villawood, took his photograph and told him that he would be deported into Vietnam.  The applicant wished to resist such deportation because, as he says, he has nothing in Vietnam.

12. Ms Watson, who appears on behalf of the Minister, submits that this is a case to which Rule 13 should apply because there is no substantive, or any, decision against which the applicant can seek relief.  No special decision has been made to deport the applicant. He is not entitled to remain in Australia and therefore his deportation comes about by operation of law and not by virtue of any administrative decision.

13. Ms Watson argues that no decision was made on 19 November 2002.  All that happened was that the applicant, being in breach of the law by not having a visa to remain in Australia, was placed into immigration detention.  Ms Watson further states that the application itself is devoid of any indication of a reason why judicial review should be granted.

14. The applicant was not represented before me, he had the assistance of Mr Ambrose, a skilled interpreter.  He told me that he did not understand in 1995, how long the visa that he had been given was valid for.  He did not know he had to apply for another substantive visa.  Whilst I have my doubts that the Department, as represented at Sydney Airport, would not have advised the applicant of his particular situation, I accept that with the that with the best will in the world these matters can appear opaque to a foreign national who speaks little English.

15. But notwithstanding this, the fact is that Mr Nguyen did not apply for a new visa and his then current visa was allowed to expire. As of today he has no visa to remain in Australia, he has not applied for any visa and he is not the holder of any bridging visa. In these circumstances Ms Watson's arguments are irrefutable. There is no valid application to this court. There is no decision to review. There is no point in proceeding with the case. I dismiss the substantive application. I order that the applicant pay the respondent's costs which I assess in the sum of $2,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: