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MIGRATION - Deportation - stay of deportation decision - whether criteria for deportation satisfied - whether deportation should be stayed pending the outcome of family law proceedings or otherwise in the interests of children of the deportee.

P v Minister for Immigration [2003] FMCA 190 (20 May 2003)

P v Minister for Immigration [2003] FMCA 190 (20 May 2003)
Last Updated: 13 June 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

P v MINISTER FOR IMMIGRATION
[2003] FMCA 190



MIGRATION - Deportation - stay of deportation decision - whether criteria for deportation satisfied - whether deportation should be stayed pending the outcome of family law proceedings or otherwise in the interests of children of the deportee.

FAMILY LAW - Children - parenting orders - residence - best interests of the children.



Family Law Act 1975 (Cth)

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth), ss.48, 198

VDAT v Minister for Immigration (No 2) [2003] FMCA 166

Applicant:
P



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ868 of 2003



Delivered on:


20 May 2003



Delivered at:


Sydney



Hearing date:


20 May 2003



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person

Solicitors for the Respondent:


Mr A Markus

Australian Government Solicitor


ORDERS

(1) The application and the motion are dismissed.

(2) The applicant is to pay the respondent's costs and disbursements, fixed in the amount of $800.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ868 of 2003

P


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. I have before me an urgent notice of motion and application under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) ("the Migration Act") from P seeking to stay a deportation order. P tells me that he has been informed that he is to be deported from Australia tomorrow, 21 May 2003. That fact I understand is not in dispute. P seeks the stay on the deportation order on the basis that he has four children born in Australia who he feels a responsibility for and who he does not wish to be separated from. He is currently held in immigration detention pending his deportation. P represented himself by telephone from the Villawood Detention Centre this afternoon.

2. Mr Markus, who appeared for the Minister, directed my attention to s.198(6) of the Migration Act which provides as follows:

An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a) the non-citizen is a detainee; and

(b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c) one of the following applies:

(i) the grant of the visa has been refused and the application has been finally determined;

(ii) the visa cannot be granted; and

(d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

3. It is clear that P is a non-citizen in detention. Mr Markus tendered a decision record dated 11 April 2001 which shows that on that day P was refused a general residence class AS visa also known as a spouse visa. This was communicated to him on the same day.

4. Mr Markus submitted, and I accept, that this was the last substantive visa sought by the applicant. He also submitted, and I accept, that by reason of the operation of s.48 of the Migration Act, P is unable to apply for a further substantive visa while he remains in Australia.

5. P had sought and was granted a bridging visa but that visa has expired. He sought review in the Migration Review Tribunal ("the MRT") of a decision to refuse him a further bridging visa. On 9 April 2003 the MRT affirmed the decision of the Minister's delegate refusing to grant a further bridging visa. At paragraph 38 of its reasons the MRT stated:

Taking account of the evidence before it and applying Jiang, Chen and Lin the Tribunal is not satisfied that at the time of application or decision the visa applicant had made or was the subject of acceptable arrangements to depart [meaning to depart Australia]. The Tribunal is not satisfied that the visa applicant met subclause 050.212(2) at the time of the application or that he meets clause 050.221 at the time of the decision on the basis of acceptable arrangements to depart.

6. Mr Markus submitted, and I accept, that in order to be granted a bridging visa and so be released from immigration detention, P would have to demonstrate that he has made acceptable arrangements to depart Australia. He has not made such arrangements. On the contrary, it is clear from his affidavit in support of his application that he wishes to remain in Australia to maintain his relationship with his children. Prima facie, the preconditions to deportation under s.198(6) of the Migration Act have been satisfied.

7. I questioned P about his children. There are four. The first child was born on 13 October 1996 and currently lives with her maternal grandmother. This child, a daughter, was born as a result of a relationship with a lady P married some years ago. The parties were divorced and subsequently P re-married. Three children were born of this second marriage. Those three children all live with their mother, P's second wife. P provided me with the full names and dates of birth of each of these four children, who I do not need to name for the purposes of this decision.

8. I arranged this afternoon for a search of the records of the Family Court and this Court to be conducted in order to determine whether there are any family law proceedings on foot in relation to any children of P. That search revealed one proceeding instituted in the Family Court on 7 April 1998. I obtained this afternoon the Family Court file relating to that proceeding. I am grateful to the Family Court for making available its file on very short notice. That file discloses that P applied for final parenting orders in relation to his eldest child and made allegations against the first child's mother which, if true, might have supported a residence decision in his favour. However, the file discloses that there was no appearance by either party to those proceedings when the matter was called on 19 June 1998. Registrar Messner of the Family Court made orders that the application was deemed withdrawn; secondly, that all issues were removed from the pending cases list; and, thirdly, that any further proceedings would need to be commenced by way of fresh application. As a result of my enquiries, I have not found any fresh proceedings to have been instituted in respect of the eldest child. P gave me to understand that a residence order may have been made in favour of the maternal grandparents but I have not been able to verify that.

9. P confirmed this afternoon that each of these four children are being cared for another person, noting that he is in immigration detention. The first child is being cared for by her maternal grandmother; the other three children are being cared for by their mother. P told me that he is in dispute with his present wife, the mother of the last three children, but he has not commenced any proceedings under the Family Law Act 1975 (Cth) ("the Family Law Act") in relation to those children.

10. If there were a serious issue relating to the welfare of any of these children it would be open to me in the exercise of jurisdiction under the Family Law Act to entertain an application for relief under that Act. In my view, if there were such an application, it would be open to this court in exercising jurisdiction under the Migration Act to order that the deportation be stayed upon the basis that the presence of P in Australia was required for the determination of family law proceedings. Further orders might, hypothetically, be required preventing the removal of a parent from Australia in the interests of the children. However, I am not satisfied that there is any serious issue relating to the welfare of any of these four children.

11. The allegations made in the former proceedings in the Family Court in relation to the mother of the first child were never dealt with and, in any event, that child is not now living with that woman. There is no suggestion that the maternal grandmother is an inappropriate carer. There are no allegations that the remaining three children should not be cared for by their mother. There is no need in these circumstances for me to invite and accept an application from P under the Family Law Act. I accept that he wishes to maintain his relationship with his children. If and when he is removed from Australia it would be open to him to make a further application for a substantive visa to return to Australia at some future date. In the meantime it would be open to him to seek to maintain his relationship with his children via mail, telephone, e-mail or other electronic means.

12. In the circumstances, I am persuaded that there is no reason to prevent the deportation order made against P being carried out at the time proposed.

13. I will dismiss the application and motion filed in this Court under the Migration Act.

14. On the question of costs, P has been wholly unsuccessful. In the circumstances, Mr Markus has sought an order for costs and has submitted that an order for costs in the sum of $800 would be appropriate.

15. P tells me that he does not have the means to pay any costs. That may well be right. However, an inability to pay costs is not a reason not to make a costs order: VDAT v Minister for Immigration (No 2) [2003] FMCA 166. I will order that the applicant pay the respondent's costs of and incidental to the application and motion, which I fix in the sum of $800.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 5 June 2003
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