Lewai v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant is a Fijian who entered Australia on 9 April 1994 on a visitor's visa. He has remained in Australia ever since. In the intervening years the applicant has made a number of applications for visas of various kinds, and from time to time he has been granted bridging visas for various periods. 2 It is sufficient for present purposes to record that on 24 July 1997, or on 22 August 1997 (it is not clear which, but it does not matter which), the applicant lodged an application to remain permanently in Australia with the Department of Immigration & Multicultural Affairs ("DIMA"), which application was refused on 5 March 1999. On 17 August 1999 the Migration Review Tribunal ("MRT") declined to accept an application for the review of that decision on the grounds that the application for review was lodged out of time. That was the last occasion on which the applicant applied for a substantive visa. 3 In January 2000 the younger child of the applicant was born in Australia. In January 2001 the older child of the applicant arrived in Australia on a visitor's visa. At about that time the children applied for protection visas which were refused by the Minister's delegate. On 22 February 2001 an application was made to the Refugee Review Tribunal ("RRT") on behalf of the children for review of the delegate's decision. That application has not yet been determined by RRT. 4 In about April 2001 the applicant became an unlawful non-citizen when a bridging visa earlier granted to him expired. On 10 July 2001 the applicant was located by DIMA and taken into custody. He remains in immigration detention. 5 On 25 July 2001 the applicant applied for a Bridging Visa E which application was refused by the Minister's delegate on 27 July 2001. On 8 August 2001 MRT affirmed the delegate's decision that the applicant was not entitled to the grant of a Bridging Visa E. 6 On 17 August 2001 the applicant lodged an application for an order of review of that decision with this Court. The grounds of the application were simply described as: "refer to submission". The reference to "submission" is a reference to a document which the applicant lodged with the Court on 17 August 2001. It is sufficient for present purposes to state that this document does not invoke any of the grounds of review for which s 476 of the Migration Act 1958 (Cth) ("the Act") makes provision. 7 The matter came before a registrar of the Court for directions on 30 August 2001. On that occasion the respondent indicated that there was a possibility that the applicant might be removed from Australia before the substantive hearing, although directions were then given with a view to the matter proceeding for hearing on 22 November 2001. 8 By facsimile dated 31 August 2001 the applicant wrote to my associate requesting that the matter be relisted before the Court because: "I wish to be granted a removal stay certificate as it has been indicated to me by DIMA officials that they may remove me at any time prior to the hearing date." 9 The matter was listed for directions on 6 September 2001. The applicant appeared for himself on that occasion. He told me that he was first notified that he would be removed from Australia on 5 September 2001, and the first he knew that the matter had been listed before me was when information to that effect was given to him by a DIMA official when he woke up on the morning of 6 September 2001. He told me that he had not had the opportunity of consulting his legal advisers, nor was he prepared to present argument as to why he should not be removed from Australia. On the other hand, the solicitors for the Minister had prepared a carefully reasoned document, with references to authority, as to why the stay application for interlocutory relief should be dismissed. I thought that it was unfair to expect the applicant to be in a position to respond to that material, hence I adjourned the proceedings until 7 September 2001, and granted an injunction restraining the Minister from removing the applicant from Australia in the meantime. It is not seriously in dispute, and in any event it emerges from the removal checklist Exhibit 1, that it is proposed to remove the applicant from Australia, in reliance upon s 198(6) of the Act. 10 When the matter came on for hearing at 10.15 am on 7 September 2001, Mr Zipser appeared for the applicant. He informed me that the applicant seeks to remain in Australia until a determination by RRT of the applications for review of the decision to refuse protection visas to his two children. The applicant seeks to remain in Australia because: - the children require the applicant's financial support while they remain in Australia. The children will also suffer emotional hardship if the applicant is removed from Australia; - if the children are entitled to a protection visa, the applicant may be able to apply for a visa on the basis that his children are entitled to remain in Australia. The only basis for that possibility put forward by Mr Zipser was the provisions of s 417 of the Act. 11 Mr Zipser submitted that there were three grounds on which the applicant was entitled to remain in Australia until these matters are resolved. He described the grounds as being: - the "reasonably practicable" issue; - the "absence of power" issue; and - the "acceptable arrangements" issue. 12 The first two of those grounds challenge the propriety of the applicant's removal from Australia pursuant to s 198 of the Act. That is not a matter which is within the scope of the application for an order of review lodged on 17 August 2001. Further, it is a departmental officer, rather than the Minister, who is threatening to remove the applicant from Australia pursuant to s 198 of the Act. Nonetheless, I heard submissions in support of a claim for interlocutory relief to restrain the threatened removal of the applicant upon the basis that appropriate proceedings invoking the jurisdiction of the Court under s 39B of the Judiciary Act would be filed and served by 11 September 2001, returnable on 12 September 2001. That application became N 1301/2001. The respondents to that application are the DIMA officers who signed the removal check list, Exhibit 1.