Brodnanova v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 159 (3 January 2002)

Last Updated: 27 February 2002

FEDERAL COURT OF AUSTRALIA

Brodnanova v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 159

MIGRATION - urgent interlocutory application to restrain deportation - applicant mentally confused - nevertheless no basis for the Court to intervene

NORA BRODNANOVA v MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS

N7 of 2002

MADGWICK J

3 JANUARY 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7 of 2002

BETWEEN:	NORA BRODNANOVA APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	3 JANUARY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7 of 2002

BETWEEN:	NORA BRODNANOVA APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	3 JANUARY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1 This is an urgent interlocutory application for an injunction to restrain the respondent Minister from removing the applicant from Australia. It is now approximately 11:25am and arrangements have been made by the respondent Minister to have the applicant depart on an aircraft scheduled to leave Sydney at 12:30pm today with, among other arrangements, a medical escort.

2 The applicant, it appears, came to Australia in late 2000 on a student visa to study nursing. Her visa, it appears, was cancelled in about November 2000 or 2001 because of allegedly false information provided by others about the applicant. At this point, or soon after, it is presumed that she was notified of her liability for removal from Australia. She has been assessed by treating doctors as fit to travel. For at least a week she has been an in-patient of the psychiatric ward at Bankstown Hospital and, while she speaks good English, Mr Jones, her solicitor, informed the Court, and I accept without reservation, that she is confused.

3 The applicant has not presently instructed Mr Jones as to any material which would indicate that she is able to make any credible application for refugee status nor is there any material before me which would point to any particular harm that might befall her either by travelling back to Russia, the country of her nationality, or by being returned there.

4 Her psychiatric state is a matter for concern and regret but, as I indicated in the course of argument, even in such cases as this, it seems to me that one would need to be able to show some possibility that serious harm might befall her if deportation proceeds or that there is something which indicates that there is at least a realistic possibility that she might have a case which requires the Court's intervention.

5 I pass over what may be some formidable difficulties in regards to time limits and jurisdiction. For the purpose of this application I am prepared to assume that the Court would have jurisdiction at least to preserve the subject of the litigation, so as to ensure that no injustice is about to occur. However, I repeat that some case must be made out, even where as here the applicant is under a mental disability. The applicant has not lodged any application for review of the decision to cancel her student visa with the Migration Review Tribunal, so as to enable her to come to this Court for judicial review of any such decision, if one had been made. Nor has she sought the Minister's intervention under s 351 of the Migration Act 1951 (Cth). Further, the applicant does not claim that she was denied any right to be heard before the respondent Minister's delegate when her student visa was cancelled. Therefore, there is no proper basis for the Court to intervene.

6 Accordingly, the application will be dismissed but, on account of the applicant's mental condition, there will be no order as to costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 26 February 2002

Solicitor for the Applicant:	Michael Jones, Solicitor
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 January 2002
Date of Judgment:	3 January 2002