TURNER v Minister for Immigration (No.2)

[2005] FMCA 1190

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TURNER v MINISTER FOR IMMIGRATION (No.2) [2005] FMCA 1190

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

1. Application dismissed.

2. 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

1. 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.

2. 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. 

3. 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.

4. 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.

5. 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: