Turner v Minister for Immigration
[2005] FMCA 946
•1 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TURNER v MINISTER FOR IMMIGRATION | [2005] FMCA 946 |
| MIGRATION – Application of respondent for summary judgment – where the MRT had set aside the decision of the delegate to set aside the applicant’s business entrance visa – where the applicant was still informed that her status was unlawful – whether the applicant has a claim that would be justiciable if properly pleaded – whether the substantive application is of no utility as the applicant’s visa had expired. |
| Administrative Decisions (Judicial Review) Act 1977 |
| Applicant: | MICHELLE B TURNER |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 0558 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 1 July 2005 |
| Date of Last Submission: | 1 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2005 |
REPRESENTATION
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Interim application dismissed.
The applicant to the substantive application file a further amended application together with an affidavit in support on or before 22 July 2005.
The respondent to file her response together with any affidavits upon which she intends to rely on or before 11 August 2005.
Matter to be restored for further directions at 9.30 am on 17 August 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 0558 of 2005
| MICHELLE B TURNER |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application by the respondent for summary judgment in respect of an application commenced on 4 March 2005. The applicant appears to seek a review of a decision of the Migration Review Tribunal made on 7 January 2005 but appends a claim, which would be judiciable by this court under its accrued jurisdiction, for what appears to be trespass in relation to the behaviour of the officers of the Department of Immigration, Multicultural and Indigenous affairs. That application was amended on 6 June 2005 to make the application more one against the department and an application for judicial review, presumably, under the Administrative Decisions (Judicial Review) Act 1977. In order to understand the application by the Minister clearly it is best to recite the facts as they appear from an outline of submissions helpfully prepared by the Minister's representative.
Ms Turner is an American citizen. She was granted a subclass 977 business entrance short validity visa on 9 March 2004. She arrived in Australia on 10 March 2004. The visa allowed her, during the period of one year, to enter and leave Australia and remain in Australia after entry for a period of three months at any one time. On 7 June 2004 the applicant departed Australia but returned on 10 June 2004. However, on that date her visa was cancelled. The applicant applied for and was granted a bridging visa.
The grounds upon which the visa was cancelled seemed to be that the department believed that the applicant was working, which was in breach of a visa condition. The applicant sought review of that decision from the Migration Review Tribunal on 21 June 2004. On
31 January 2005 the Tribunal set aside the decision of the delegate to cancel the visa which meant that on that day the visa resumed its effectiveness. Notwithstanding this, on 2 March 2005 the respondent's compliance division located the applicant and informed her that her status was unlawful. She claims that as a result of the activities of the department on that day and previously she has suffered harassment, depression and trauma for which she holds the department responsible. On 9 March 2005 the twelve month period during which the applicant was required to enter Australia on her subclass 977 visa expired. This meant that the last day she would be entitled to remain in Australia would be 9 June 2005. That day has now passed. The Minister argues that the applicant's claim to have the decision of the Tribunal reviewed is of no utility because her visa has expired.
If the only claim that the applicant had made was for review of an apparently favourable decision in respect of a visa that has now expired I would have had no hesitation in acceding to Mr Chami's request to award summary judgment to the Minister. It would have meant the ending of futile proceedings. But this is not all that the applicant claimed. Even though her applications seem to me to be in parts misguided t his may well be because the applicant is unrepresented and does not fully understand the nature of the claim which she articulated in her first application.
As the applicant has articulated a claim which if properly pleaded would be justiciable in this court as part of this court's accrued jurisdiction, I would not be prepared to give summary judgment. However, the applicant must amend her claim so that it is properly pleaded. She advised me orally that she had been to a solicitor at some stage. It would appear that she is capable of returning and having a further amended application prepared.
The orders I make are therefore:
(i)Interim application dismissed.
(ii)The applicant to the substantive application file a further amended application together with an affidavit in support on or before 22 July 2005.
(iii)The respondent to file its response together with any affidavits upon which she intends to rely on or before 11 August 2005.
(iv)Matter to be restored for further directions at 9.30 am on 17 August 2005.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
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