P v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

P v MINISTER FOR IMMIGRATION [2003] FMCA 190

MIGRATION – Deportation – stay of deportation decision – whether criteria for deportation satisfied – whether deportation should be stayed pending the outcome of family law proceedings or otherwise in the interests of children of the deportee.

FAMILY LAW – Children – parenting orders – residence – best interests of the children.

Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth), ss.48, 198

VDAT v Minister for Immigration(No 2) [2003] FMCA 166

Applicant: P

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ868 of 2003

Delivered on: 20 May 2003

Delivered at: Sydney

Hearing date: 20 May 2003

Judgment of: Driver FM

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondent: Mr A Markus
Australian Government Solicitor

ORDERS

1. The application and the motion are dismissed.

2. The applicant is to pay the respondent’s costs and disbursements, fixed in the amount of $800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ868 of 2003

P

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I have before me an urgent notice of motion and application under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (“the Migration Act”) from P seeking to stay a deportation order. P tells me that he has been informed that he is to be deported from Australia tomorrow, 21 May 2003. That fact I understand is not in dispute. P seeks the stay on the deportation order on the basis that he has four children born in Australia who he feels a responsibility for and who he does not wish to be separated from. He is currently held in immigration detention pending his deportation. P represented himself by telephone from the Villawood Detention Centre this afternoon.

2. Mr Markus, who appeared for the Minister, directed my attention to s.198(6) of the Migration Act which provides as follows:

   An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

   (a)the non-citizen is a detainee; and

   (b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

   (c)one of the following applies:

   (i)the grant of the visa has been refused and the application has been finally determined;

   (ii) the visa cannot be granted; and

   (d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

3. It is clear that P is a non-citizen in detention.  Mr Markus tendered a decision record dated 11 April 2001 which shows that on that day P was refused a general residence class AS visa also known as a spouse visa.  This was communicated to him on the same day. 

4. Mr Markus submitted, and I accept, that this was the last substantive visa sought by the applicant. He also submitted, and I…