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MIGRATION - Review of Migration Review Tribunal decision affirming a delegate's refusal of a bridging visa - whether the application should be struck out due to the unavailability of the applicant.

PRACTICE AND PROCEDURE - Application by the respondent for the principal application to be struck out due to the unavailability of the applicant - applicant removed from Australia by the respondent prior to the hearing of the respondent's application - whether the respondent was entitled to remove the applicant from Australia considered - whether any useful purpose would be served by any further hearing of the principal application considered.

Zhang v Minister for Immigration [2003] FMCA 67 (24 February 2003)

Zhang v Minister for Immigration [2003] FMCA 67 (24 February 2003)
Last Updated: 17 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION
[2003] FMCA 67



MIGRATION - Review of Migration Review Tribunal decision affirming a delegate's refusal of a bridging visa - whether the application should be struck out due to the unavailability of the applicant.

PRACTICE AND PROCEDURE - Application by the respondent for the principal application to be struck out due to the unavailability of the applicant - applicant removed from Australia by the respondent prior to the hearing of the respondent's application - whether the respondent was entitled to remove the applicant from Australia considered - whether any useful purpose would be served by any further hearing of the principal application considered.



Federal Magistrates Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.198, 417, 481

Kopiev v Minister for Immigration [2000] FCA 1831

Applicant:
XIU RU ZHANG



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ40 of 2003



Delivered on:


24 February 2003



Delivered at:


Sydney



Hearing date:


24 February 2003



Judgment of:


Driver FM



REPRESENTATION

No appearance by the applicant

Solicitors for the Respondent:


Ms E Warner

Australian Government Solicitor


ORDERS

(1) The application for review is struck out.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed at $500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ40 of 2003

XIU RU ZHANG


Applicant

And

MINISTER FOR IMMIGRATION &MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. I have before me an application made by Ms Warner on behalf of the respondent Minister in these proceedings to strike out a review application filed on 17 January 2003. The application for review sought to review a decision of the Migration Review Tribunal ("the MRT") which affirmed a decision by a delegate of the Minister to refuse to grant the applicant a bridging visa.

2. It is apparent from the history of that matter that the applicant had sought and been refused a protection visa and had earlier been granted a bridging visa for the duration of the review process relating to the protection visa. Ms Warner has provided me with a chronology which establishes that the applicant arrived in Australia on 17 August 1999 and lodged a protection visa application on 2 September 1999. This was refused by a delegate on 31 January 2000. The applicant applied for review by the Refugee Review Tribunal ("the RRT") of the delegate's decision on 28 February 2000. The RRT affirmed the delegate's decision not to grant a protection visa on 15 August 2000. The applicant sought the intervention of the Minister under s.417 of the Migration Act 1958 (Cth) ("the Migration Act"), but the Minister decided on 27 November 2000 not to consider the exercise of that power.

3. The applicant applied for a bridging Class E Visa on 2 January 2003 which was refused by a delegate on the following day. The applicant applied for a review of that decision to the MRT on 7 January 2003 and the decision was affirmed by the MRT on 16 January 2003. Ms Warner has tendered the decision of the MRT. The applicant applied to this Court for a review of that decision on 17 January 2003. I am grateful to Ms Warner for that chronology.

4. A directions hearing was held in the proceedings before this Court on

29 January 2003, but at that time no directions could be given because, although the applicant was present, the applicant required a Mandarin interpreter and no interpreter was available. The matter was adjourned for further directions on 5 February 2003. In the meantime the Commonwealth had decided to remove the applicant from Australia. That decision was communicated by one means or another both to the Minister's legal advisers and to the applicant's legal adviser. I understand that the applicant's legal adviser contemplated some action to restrain the Commonwealth from removing the applicant from Australia but in the event no such action was taken. When the matter was called on for further directions on 5 February 2003 the applicant had already been removed; the applicant had been removed on 3 February 2003.

5. I am told by Ms Warner that at the directions hearing on 5 February 2003 she was asked by a registrar to make contact with the applicant in China. Her affidavit filed in Court today deposes as to what she did. A letter was sent to the applicant in China on 7 February 2003, advising her of the re-listing of the matter for further directions today. It is very likely that the applicant has by this stage received that letter. It is unlikely that the applicant would, in the available time, have been able to respond either to Ms Warner or to her former legal adviser in Australia. It is apparent from the decision of His Honour Sackville J in Kopiev v Minister for Immigration [2000] FCA 1831, decided on 15 December 2000, that under the Migration Act, the making of a review application does not of its own force prevent the operation or implementation of a decision which is subject to review. The relevant provision in the Act in its current form is s. 481. It follows that, subject to any decision by the Court to stay the operation of a decision or otherwise prevent the removal of a person from Australia, the Minister was at liberty to take steps to remove the applicant.

6. Under s.198(6) of the Migration Act, a duty is imposed to remove a person from Australia at the earliest practicable time when such removal is called for. In my view, it is not practicable to remove an applicant in legal proceedings from Australia at least until the Court has had an opportunity to consider the making of orders to stay the operation of the decision under review or, more specifically, to consider whether to make orders restraining the removal of an applicant from Australia. Be that as it may, in this case I am satisfied that the applicant's legal adviser was made aware of the impending removal of his client from Australia and had a reasonable opportunity to seek relief from the Court. He chose not to do so.

7. I am satisfied in the circumstances that no useful purpose would be served by the continuation of these legal proceedings. I will, therefore, order that the application for review be struck out. In accordance with the Federal Magistrates Court Rules 2001 (Cth), this is an application made in the absence of a party. Accordingly, it would be open to the applicant to seek to have that order vacated, in due course, in response to the letter she has received from Ms Warner, should she elect to give instructions to her legal adviser in Australia to seek to continue her legal proceedings in this Court.

8. I am satisfied that it would be appropriate, having struck out the application, to make an order for costs in favour of the respondent Minister. Ms Warner has sought an order in the sum of $500 which is, by any account, modest. I will order that the applicant pay the Minister's costs of and incidental to the application, which I fix in the sum of $500.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 13 March 2003
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