SZFMW v Minister for Immigration
[2009] FMCA 1203
•3 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFMW v MINISTER FOR IMMIGRATION | [2009] FMCA 1203 |
| MIGRATION – Review of decision of a delegate of the Minister not to remove a condition on the applicant’s last substantive visa – interlocutory application to prevent removal from Australia. |
| Migration Act 1958 (Cth), ss.48, 48B, 195, 198, 417 Migration Regulations 1994 |
| SZFMW v Minister for Immigration & Anor [2006] FMCA 768 SZFMW v Minister for Immigration & Anor [2006] HCATrans 138 |
| Applicant: | SZFMW |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2957 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 3 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 3 December 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Ms C Kwak Carroll & O’Dea |
| Solicitors for the Respondent: | Mr A Markus Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application for interlocutory relief is refused.
The application filed on 3 December 2009 is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2957 of 2009
| SZFMW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me, as an urgent duty matter, an application filed earlier today seeking review of a decision of a delegate of the Minister yesterday not to waive a condition, condition 8503, attaching to the applicant’s last substantive visa. For practical purposes the matter is brought before me today to seek interlocutory relief in the form of an order staying the applicant’s removal from Australia until the determination of the application before the Court. The applicant has been notified his scheduled removal at 3.50pm tomorrow.
The application is supported by an affidavit by the applicant which refers to his detention in the Villawood Detention Centre since 4 March 2009 and a depressive condition which is said to be a consequence of that detention. Annexed to the affidavit are psychological reports which support that contention, as well as documentation relating to the most recent decisions by the Minister’s Department relating to the applicant. I also have before me exhibit R1, which provides further documentation relating to the decision sought to be reviewed before the Court and, in particular, an assessment of the circumstances of the applicant against the Migration Regulations dealing with the waiver of conditions on the substantive visa.
I accept from statements made by Mr Markus, for the Minister, from the bar table that the applicant has most recently been in Australia since 16 January 2003. He entered Australia on a short-term visa for the purposes of a family visit and that visa was subject to condition 8503. Prior to the expiry of that visa the applicant applied for a protection visa on 23 February 2003. That application was refused on 27 March 2003 and the applicant sought review by the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the decision of the delegate on 11 December 2003. There followed unsuccessful applications in this Court[1], the Federal Court[2] and the High Court[3] to review the decision of the Tribunal. The applicant also made a second application to the Tribunal, which the Tribunal found, correctly in my view, that it had no jurisdiction to deal with. The applicant has also made numerous requests for Ministerial intervention pursuant to ss.417 and 48B of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant has attempted to apply for further substantive visas, but has not made an application which was found to be valid.
[1] SZFMW v Minister for Immigration & Anor [2006] FMCA 768, SZFMW v Minister for Immigration & Anor [2008] FMCA 1274
[2] SZFMW v Minister for Immigration [2006] FCA 1110, SZFMW v Minister for Immigration [2008] FCA 1862
[3] SZFMW v Minister for Immigration & Anor [2006] HCATrans 138
I accept from the medical evidence that the applicant does have a depressive condition which may be a consequence of his detention, but it is open to the applicant to bring an end to that detention by leaving Australia voluntarily. Clearly, he does not want to. The applicant fears harm in Lebanon, but he has been found not to be a person to whom Australia owes protection obligations under the Refugees Convention and the Migration Act. No doubt there would be further opportunities for the applicant’s medical condition to be examined if he remained in Australia but it is not, in my view, part of the function of this Court to provide an opportunity for an extension of a stay in Australia simply for that reason.
In my view, the application before the Court to review the refusal to waive the condition 8503 on his last substantive visa is doomed to fail because there is no arguable case that the delegate’s decision was unlawful. The submissions advanced by the applicant’s solicitor were directed more at the hypothetical possibility of the applicant making some form of further application which, whether it was invalid or not, might engage the machinery provisions of the Migration Act to extend his stay in Australia. Further, in my view, ss.195 and 48 of the Migration Act provide an additional barrier to the applicant in terms of his substantive application before this Court. Section 198(6) of the Migration Act requires the removal of the applicant from Australia as soon as is reasonably practicable. It is a matter for the officers of the Minister’s Department to consider when the applicant’s removal is reasonably practicable, but the present application before the Court should not be put forward as a barrier to that removal. There is, in my view, no compelling reason for the Court to look to the general circumstances of the applicant, including his medical condition, in relation to his removal. That is, no doubt, a matter which will be in the minds of the Minister’s officers and any carrier in whose charge the applicant may be placed for the purposes of removal.
I conclude, therefore, that there is no serious question to be tried in the application before the Court and the balance of convenience does not favour the granting of the interlocutory relief sought. I will order that the application for interlocutory relief is refused and the application filed on 3 December 2009 is dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $1,400. The applicant, through his solicitor, did not wish to be heard on the general issue of the making of the costs order or the quantum of it. I am satisfied that costs of not less than $1,000 have been reasonably and properly incurred on behalf of the Minister when considered on a party and party basis. I will order that the applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,000.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 8 December 2009
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