SZDNK v Minister for Immigration
[2004] FMCA 511
•4 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDNK v MINISTER FOR IMMIGRATION | [2004] FMCA 511 |
| MIGRATION – Where applicant was the holder of a temporary visitor’s visa – where applicant had lodged an application for a protection visa – where applicant further lodged an appeal with the RRT – where delegate determined to cancel the applicant’s visa on basis that he had breached his visa conditions in that it was no longer the applicant’s intention to visit Australia temporarily – whether the delegate fell into jurisdictional error in the manner it reached its decision – where review of delegate’s decision to take place before MRT in near future – where applicant in immigration detention – whether applicant is being unlawfully detained. |
Federal Magistrates Court Rules 2001
Migration Act 1958 (Cth), ss.116(1)(g), 196(4)(a), 476(1), (6)(a)
Migration Regulations 1994 (Cth), reg.2.43
| Applicant: | SZDNK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1351 of 2004 |
| Delivered on: | 4 August 2004 |
| Delivered at: | Sydney |
| Hearing date: | 4 August 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs which I assess in the sum of $1,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1351 of 2004
| SZDNK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
There is before me today an application for review of a decision of a delegate of the Minister made on 30 September 2003. It was a decision by a delegate to cancel the applicant's temporary visitor's visa which the applicant had obtained and which contained conditions in respect of his employment. Under s.116(1)(g) Migration Act 1958 (Cth) and regulation 2.43 of the Migration Regulations 1994 (Cth) the visa of the type issued to the applicant can be cancelled on the grounds that the visa holder did not have, at the time of the grant of the visa or has ceased to have an intention only to stay in or visit Australia temporarily for business purposes. There was a considerable amount of evidence before the delegate concerning the applicant's intentions.
Firstly, the applicant had made an application for a protection visa on 4 September 2003. Secondly, it was being suggested that he was in fact employed as a casual kitchen hand at an Indian restaurant. Thirdly, there was before the delegate a fax from an organisation called Comfort Holidays saying that they had applied for the applicant to be given his visa on the basis that he was accompanying a group for whom he would be cooking a strictly Jain diet. The fax indicated that the applicant had left the group much to the embarrassment of the organisation.
The applicant made representations to the delegate but the delegate determined that sufficient grounds to satisfy him existed. The applicant had the right to seek review of the delegate's decision from the Migration Review Tribunal. He exercised that right and I am advised by Ms Watson who appears on behalf of the Minister that a hearing will take place before the Tribunal on Friday of this week, being 6 August 2004. This is the place where the applicant can dispute the facts upon which the delegate acted.
Before me he is restricted to relating that the delegate fell into jurisdictional error in a manner in which he made that decision. If there was no jurisdictional error, then the provisions of s.476(6)(a) would apply to s.476(1) and this court would have no jurisdiction to deal with the matter. The applicant addressed me at length. He believes he is wrongfully detained. He believes that his detention has arisen out of his being unable to read or write.
He believes it was wrong of the delegate to confine him on the basis of the facsimile from Comfort Tours, but he makes no mention whatsoever of the fact that he applied for a protection visa or that when his application was unsuccessful he sought relief from the Refugee Review Tribunal which gave its decision on 28 November 2003.
Once a visa validly issued has been cancelled the former visa holder is liable to detention pursuant to s.189 of the Migration Act. He has to remain in detention pursuant to s.196 of the Act until he is removed from Australia or granted a visa. The applicant has not been granted a visa and he is still in Australia. He must therefore remain in detention unless I should find under s.196(4)(a) that he is unlawfully detained. I can make no such finding. The applicant's visa has been lawfully revoked and the scheme of the Act requires him to remain at Villawood or such other places as designated.
I dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $1,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules. I note that the applicant said to me on several occasions that he does not understand why he cannot return to India. It seems to me that if this is a genuine wish, it is one that should be granted so that the Tribunal and probably this court and probably the Federal Court and possibly even the High Court of Australia can be saved from any further requirement to deal with these claims.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
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