MIGRATION – Dismissal of proceedings in absence of applicant.
Applicant:
MICHELLE TURNER
Respondent:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File Number:
SYG 558 of 2005
Judgment of:
Raphael FM
Hearing date:
17 August 2005
Date of Last Submission:
17 August 2005
Delivered at:
Sydney
Delivered on:
17 August 2005
REPRESENTATION
For the Applicant:
No appearance
Solicitors for the Respondent:
Clayton Utz
ORDERS
Application dismissed.
No order as to costs.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY
SYG558 of 2005
MICHELLE TURNER
Applicant
And
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Respondent
REASONS FOR JUDGMENT
In this matter I gave a judgment on 1 July 2005. The orders which were consequent upon that judgment provided the applicant with time to file a further amended application on or before 22 July 2005. It is clear from my judgment that the further amended application was meant to add as a cause of action the applicant's claims regarding the activities of the Department of Immigration and Multicultural and Indigenous Affairs in her case. The applicant did file an amended application but frankly it was little better than the earlier one and did not plead the possible claims of trespass or false imprisonment that were presaged in the affidavit which was attached to this amended document.
I now have before me an affidavit of Sharon Anne Burnett, dated 11 August 1005, which indicates that the applicant departed Australia on 7 July 2005 and she has no right to re-enter Australia on the visa with which she departed. It is therefore clear that the substantive application requiring judicial review of a decision of the Migration Review Tribunal no longer has utility and should be dismissed.
If the applicant had filed a coherent claim against the department it would have been justiciable in this court under the court's accrued jurisdiction and in those circumstances I would have allowed that part of the case to remain open even though the applicant is no longer in the country. But she has not done this and it is therefore appropriate for me to dismiss the proceedings numbered SYG558/2005.
The applicant may still have certain rights against the department which she can consider with her legal advisers during the course of the limitation period.
The applicant is not here to argue against a request for costs by the department. I note, however, that the department was unsuccessful in its application for summary judgment. I think in all the circumstances the appropriate order to make in this case is that there should be no order for costs.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
Details
AGLC
TURNER v Minister for Immigration (No.2) [2005] FMCA 1190
Case
[2005] FMCA 1190
Decision Date
CaseChat Overview and Summary
The matter before the Federal Court was an application by the applicant, Mr. Turner, seeking judicial review of a decision by the Minister for Immigration. The dispute centred around the Minister's refusal to grant the applicant a visa under the Migration Act 1958 (Cth). The applicant argued that the decision was unreasonable and constituted a breach of procedural fairness. The court was required to determine whether the Minister's decision was legally sound, including whether it was made in accordance with the relevant statutory provisions and whether the applicant's rights were appropriately considered.
The primary legal issues involved the application of the Migration Act and the principles of administrative law, particularly the scope of judicial review for decisions made by the Minister for Immigration. The court had to examine whether the Minister's decision was based on an error of law, whether there was a failure to consider relevant material, and whether the decision was so unreasonable as to be unjust. Furthermore, the court assessed whether the applicant had been afforded procedural fairness, including the right to be heard and to respond to adverse information.
In evaluating the Minister's decision, the court found that the decision-making process was conducted in accordance with the statutory requirements and the principles of natural justice. The court held that the Minister had correctly applied the relevant provisions of the Migration Act and that the decision was not based on an error of law. The court also determined that all relevant material had been considered and that the applicant had been afforded procedural fairness. As a result, the court dismissed the application for judicial review, finding that the Minister's decision was lawful and reasonable. Consequently, the application was dismissed with no order as to costs.