Qennadia v Minister for Immigration and Multicultural Affairs

[2001] FCA 783

FEDERAL COURT OF AUSTRALIA

Qennadia v Minister for Immigration & Multicultural Affairs [2001] FCA 783

VACHTCHENKOV QENNADIA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 878 OF 2001

EMMETT J
8 JUNE 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 878 OF 2001

BETWEEN:	VACHTCHENKOV QENNADIA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	8 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
   2. The applicant to pay the respondent’s 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	N 878 OF 2001

BETWEEN:	VACHTCHENKOV QENNADIA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	8 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant arrived in Australia on a Class 664 Visitor visa valid until 10 October 1991.  He applied for refugee status.  That application was refused and the decision was affirmed by the Refugee Review Tribunal on 31 October 1996.

2. A bridging visa that had been issued to the applicant pending the determination of his application for a protection visa expired on 19 December 1996. The applicant then became an unlawful non-citizen. Nevertheless he remained in Australia. On 7 February 201 the applicant was taken into custody in relation to a domestic violence offence. The police took possession of his passport. Since 7 February 2001 the applicant has remained in custody. While in custody he appears to have applied again for a protection visa. Such an application was prevented by s 48A of the Migration Act 1958 unless the Minister determined, pursuant to s 48B, that s 48A should not apply. The applicant sought the exercise of discretion by the Minister under s 48B. The Minister declined to exercise the discretion in his favour.

3. On 28 May 2001 this application was filed. It is expressed to be an application for review of the decision of the Minister under the Migration Act of which the applicant was notified on 25 May 2001. No further particulars are given of the decision. The application contains no particulars at all concerning the circumstances that give the applicant standing, nor of the grounds of the application, nor of any relief sought.

4. An inference might be drawn that the applicant was seeking to have the Minister’s decision under s 48B reviewed.  Even if that were so, it may be that there is no jurisdiction for this Court to entertain the application in any event.

5. Today is the day fixed in the application for the first directions hearing. When the matter was called on today there was no appearance for the applicant. The solicitor for the Minister has provided evidence that the applicant has been removed from Australia. The evidence discloses that, on 13 February 2001 a compliance officer of the Department received a handwritten note from the applicant requesting that he be removed from Australia as soon as possible. On 21 February 2001 the compliance officer completed a removal check-list, concluding that there was no impediment to the removal of the applicant from Australia pursuant to s 198 of the Migration Act. At that stage, there was no outstanding matter before the Minister under ss 345, 351, 417 or 454 of the Act.

6. On 28 May 2001 the compliance officer contacted the applicant by means of telephone, in preparation for his removal the following day.  He had a conversation as follows:

   “Compliance officer:     I understand that you asked for me, how can I help you?

   Applicant:“Me no go, me go to Federal Court.”

7. The compliance officer checked the departmental system and informed the applicant that there was no evidence to indicate that he had an application before the Court.  The compliance officer then said:

   “Do you have any evidence of the application being lodged in the Federal Court?”

8. No evidence was provided by the applicant.  The applicant was then removed from Australia on 29 May 2001.  As I have indicated that occurred in circumstances where an application had in fact been filed with the Court.  However, the Minister was not notified of the filing of the application until 29 May, 2001 at approximately 4.00pm.  By that stage, the applicant had been removed.

9. The application in its present form has no substance. It may be that it should be dismissed as incompetent.  In any event, the Minister simply asks that the application be dismissed pursuant to Order 10 Rule 3(2), which provides that if no applicant appears before the Court on a directions hearing, the Court may dismiss the application, or make any other order which it thinks proper.

10. In the circumstances it seems to me to be appropriate to order that the application be dismissed with costs. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             28 June 2001

Counsel for the Applicant:	No appearance
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 June 2001
Date of Judgment:	8 June 2001