MZYIZ v Minister for Immigration & Anor [2010] FMCA 449 (28 June 2010)

Last Updated: 30 June 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYIZ v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 449

MIGRATION – Application for writ of prohibition to restrain Minister from placing applicant in detention and from deporting him from Australia – mandamus – sought to compel the Minister to determine an application for a bridging visa according to law – visa granted – writ not required.

Migration Act 1958 (Cth), ss.5, 13, 14, 72, 73, 189, 198, 417, 476, 477; pts.5, 7 Migrations Regulations 1994, sch.2 Federal Magistrates Court Rules 2001, r.44.15

SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167 VFAY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 14

Applicant:

MZYIZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 795 of 2010

Judgment of:

Turner FM

Hearing date:

16 June 2010

Date of Last Submission:

16 June 2010

Delivered at:

Melbourne

Delivered on:

28 June 2010

REPRESENTATION

Counsel for the Applicant:

Ms Germov

Solicitors for the Applicant:

Wimal & Associates

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application for a writ of prohibition restraining the Minister from removing the applicant from Australia is dismissed.
(2) The application for a writ of prohibition restraining the Minister from placing the applicant in detention is dismissed.
(3) The application for a writ of Mandamus directing the Minister to issue a bridging visa to the applicant is dismissed.
(4) Each party is to bear their own costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 795 of 2010

MZYIZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. A Delegate of the Minister refused a visa for the applicant in this case. The Refugee Review Tribunal (the “RRT”) affirmed that decision. The applicant has sought judicial review by the Court.
2. The applicant applied to the Minister pursuant to s.417 of the Migration Act 1958 (the “Act”) for the Minister to exercise his personal discretion to substitute a decision more favourable to the applicant than that made by the RRT. The application was rejected.
3. The applicant was told by an official of the Department that he had to leave Australia by 11 June 2010 – that was extended to 17 June 2010. The Court was told on 16 June 2010 that the Minister had no present intention to deport the applicant on 17 June 2010, and that the applicant was free to apply for a bridging visa. The Court adjourned the hearing on 16 June 2010 to enable the applicant to make that application if he wished. The Court has since been advised that the applicant has been granted a bridging visa valid until 12 July 2010.
4. In SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167 the power of the Minister to remove an unlawful non-citizen from Australia was discussed.
   • [1] “The Minister can exercise this power only if the facts satisfy the description in s.198(6)(c)(i) of the Migration Act 1958 (Cth) ("the grant of the visa has been refused and the application has been finally determined").”

Section 5(9) defines “finally determined” as where a decision is made and is no longer subject to review under Part 5 or 7.

5. The RRT affirmed a decision of the Delegate not to grant the applicant a protection visa. The RRT issued its decision on 4 January 2010.
6. The applicant’s application for a visa has been finally determined as defined in s.5(9).
7. The application for judicial review by the Court is made under s.476 of the Act. The application to the Court is not an application under Part 5 or 7 of the Act and therefore does not affect the question whether the application for a visa is “finally determined.”
8. Therefore the Minister has the power under s.198(6)(c)(i) [if an unlawful non-citizen is a detainee s.198(6)(a)] to remove the applicant from Australia. However as the applicant has been granted a bridging visa he is not at present an unlawful non-citizen (s.13 and 14 of the Act).
9. By application filed with the Court on 16 June 2010 the applicant seeks a writ of prohibition preventing the Minister or his Department from removing the applicant from Australia until the principal application filed with the Court on 1 June 2010 is determined.

As stated above that application is not made under Parts 5 or 7 of the Act – therefore the application for a visa has been “finally determined” and rejected.

10. As the applicant has obtained a bridging visa, the Court finds no reason to restrain the Minister, his Department or its employees or agents from removing the applicant from Australia, and in the exercise of its discretion the Court dismissed that application for a writ of prohibition.
11. The applicant seeks also a writ of prohibition restraining the Minister from placing the applicant in detention pursuant to s.189.
12. Section 189(1) provides that if an officer knows that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.

The applicant is in the migration zone. He has been refused a visa. The decision affirming the decision of the Delegate was made on 4 January 2010. He now holds a bridging visa.

The applicant is not an “unlawful non-citizen” as he has been granted a bridging visa.

The Court sees no necessity to prohibit the applicant being placed in detention.

13. The application for writ of prohibition is dismissed.
14. The applicant has applied for a writ of Mandamus directed to the Minister to grant the applicant a bridging visa pursuant to cl.050212(4)(a) of sch.2 to the Migration Regulations 1994.

That sub-clause relates to an applicant who has applied for a judicial review of a decision in relation to a visa other than a decision to refuse to grant a visa. The application here relates to a decision to refuse to grant a visa. Therefore cl.050.212(4) does not apply to the applicant. That application is dismissed. In any event, a bridging visa has now been granted and Mandamus is not required.

15. In Court, Ms Germov for the applicant stated that, alternatively, an application is made under cl.050.212(3A). The applicant meets the requirement of that sub-clause, but it is submitted by Ms Mitchell for the first respondent that the Minister or his Department are not amendable to a writ of Mandamus directing that a visa be issued. The Court accepts that submission as the Minister has a discretion even where the criteria are satisfied (s.73). At most a writ is available to direct the Minister or the appropriate officer in his Department to determine an application by the applicant under sub-cl.050.212(3A) for a bridging visa according to law. A bridging visa has now been granted and a writ is not required. The application for a writ of Mandamus is dismissed.
16. The applicant has applied for a writ of Mandamus directed to the Minister to grant the bridging visa pursuant to cl.050.512. That
    sub-clause is part of cl.050.5 which deals with when bridging visas come into effect. There are no grounds for a writ of Mandamus in the terms sought and that application is dismissed.
17. Ms Germov relied on the decision in VFAY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 14.

The primary question there was whether an applicant for special leave to appeal to the High Court in relation to a decision to refuse a protection visa was an eligible non-citizen within s.72(1) of the Act. Justice Ryan described that issue as the “sole issue in the proceeding” Ibid [7]. That issue does not arise in this matter.

18. The next question in VFAY was whether an applicant who had lodged an application for special leave to appeal to the High Court in relation to a decision to refuse a protection visa had “applied for judicial review within s.72(1) of the Act.” Justice Ryan described that as “the issue in this matter” Ibid [5]. That issue does not arise in this matter.

The applicant here applied for judicial review on 1 June 2010 and included an application pursuant to s.477 for an extension of time. That applicant for an extension of time will be determined when the matter comes on for hearing. The only relevance the Court finds in the decision in VFAY is the passage in para.20 as follows:

[20] “As there is on foot an application for special leave, the applicant’s substantive application for a visa has not been finally processed. The judicial system in Australia permits a final appeal to the High Court from a judicial determination. Therefore the fact that an application for special leave is required as a step in the exercise of that right of final appeal does not mean that the right does not exist unless special leave is granted. Rather, refusal of special leave extinguishes the right.”

The passage of course has some relevance to sub-cl.050.212(3A). If an extension of time is not granted the applicant will still have applied for judicial review and the proceedings are not yet completed.

Costs

19. Rule 44.15 of the Federal Magistrates Court Rules 2001 provides the Court with a discretion to award costs. The applicant could have avoided the proceedings by speaking to Ms Mitchell who represented the first respondent, and, who tried unsuccessfully to contact the applicant by telephone at 2.20pm on 16 June 2010. As a result of discussions in Court the applicant sought and was granted a bridging visa. The application for a bridging visa could have been made without the need to issue proceedings.

The Court decides that each party should bear their own costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:

Date: 28 June 2010