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MIGRATION - Application for an urgent injunction to hold back deportation - application to be taken out of detention - whether there is an imminent risk of deportation - balance of convenience - whether the applicant has "administrative matters" to attend to - whether the applicant had been denied procedural fairness - whether the applicant had known about the decision of the Refugee Review Tribunal.

Konglua v Minister for Immigration [2003] FMCA 124 (3 April 2003)

Konglua v Minister for Immigration [2003] FMCA 124 (3 April 2003)
Last Updated: 21 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KONGLUA v MINISTER FOR IMMIGRATION
[2003] FMCA 124



MIGRATION - Application for an urgent injunction to hold back deportation - application to be taken out of detention - whether there is an imminent risk of deportation - balance of convenience - whether the applicant has "administrative matters" to attend to - whether the applicant had been denied procedural fairness - whether the applicant had known about the decision of the Refugee Review Tribunal.



Migration Act 1958 (Cth), ss.417, 477

Lewai v Minister for Immigration [2001] FCA 1309

NAEX v Minister for Immigration [2002] FCA at 163

Arkan v Minister for Immigration [2000] FCA 1134

Applicant:
CHULEEPORN KONGLUA



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 495 of 2003



Delivered on:


3 April 2003



Delivered at:


Sydney



Hearing date:


3 April 2003



Judgment of:


Raphael FM



REPRESENTATION

Solicitors for the Applicant:


Miller & Associates



Counsel for the Respondent:


Mr G Cranwell



Solicitors for the Respondent:


Australian Government Solicitor


ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $1,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 495 of 2003

CHULEEPORN KONGLUA


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. In this matter, the applicant seeks an urgent injunction to restrain the Minister from deporting her from Australia. She also seeks an order directing the Minister to release her from immigration detention, and an order directing the Minister to issue a bridging visa.

2. The facts of the matter are set out in an affidavit filed on behalf of the applicant by her husband of a few days, Mr Wiseman. The applicant arrived in Australia on a short stay tourist visa on 26 February 2002. She appears to have met Mr Wiseman on 1 March 2002 and very soon thereafter commenced living with him. On 10 April 2002 she lodged an application for a protection visa. The application for a protection visa was dealt with speedily. It was refused by the delegate on 30 May 2002.

3. The applicant lodged a request for review by the Refugee Review Tribunal (RRT), on 2 July 2002 and that review was carried out and completed by 27 November 2002 when the Tribunal affirmed the decision of the delegate. What happened then was that the standard letter which advises that it attaches a copy of the Tribunal's decision was sent to the applicant. It is common ground that at the time the applicant was living in a unit at 686 The Kingsway, Miranda.

4. The applicant asserts that in the address that she gave the Tribunal for service, the number of that unit was given but there is no proof of that. In a document annexed to Mr Wiseman's affidavit, which is a further change of address for service lodged with the department, only the number of the block of units, number 686, is mentioned. In any event, the fact of the Tribunal's decision was most certainly made known to the applicant because Mr Wiseman deposes that on the 6 December, he made a telephone call to the Department making an inquiry as to the necessity for the applicant to obtain a further bridging visa.

5. At some stage between 6 December and 2 January, the applicant also made a request for ministerial intervention under s.417. It is suggested in the Migration Review Tribunal (MRT) decision on which I shall comment later, that this was, in fact, 6 December 2002. The applicant claims that the information which she received from the department was that the bridging visa, which she had in her passport, remained effective until the decision of the Minister on her s.417 application.

A copy of the visa is annexed to Mr Wiseman's affidavit as annexure A. The wording of the visa is in the following terms:

"Granted 10 April 02, the visa permits you to remain

in Australia under 28 days after notification of the primary/merits review/ judicial review decision or remittal or withdrawal of

your application in respect of application receipt no SC9582069772741."

There is no reference, in this visa, to a decision of the Minister under s.417.

6. On 25 February 2003, the applicant was located by departmental compliance officers at a brothel. The applicant claimed that she was in those premises for the purposes of collecting some money which was owed to her. Whilst being dealt with by the compliance officers, a Medicare card belonging to her sister was produced, either by the applicant herself, or by a search conducted of her possessions by a departmental officer. The applicant was, thereafter, detained at Villawood.

7. On 6 March 2003, the applicant lodged an application for a bridging

E visa based on departure grounds, and on the grounds of the ongoing request before the Minister. Certain assurances were requested and given concerning the obtaining of a ticket. By the time the matter came before the MRT no ticket had been obtained.

8. A delegate considered the application for the bridging E visa, and declined it. That decision was the subject of a review by the MRT, which was carried out speedily, and a decision was given on 26 March 2003. The decision rehearses the facts which I have set out in these reasons and other relevant facts in considerable detail. The decision-maker accepted that the applicant was a person who was entitled to a bridging E visa, but declined to grant it on the discretionary ground that he did not accept that the applicant was a person who would comply with any conditions placed upon the visa, including the mandatory conditions. The Tribunal considered the possibility of obtaining a satisfactory security bond and noted that one of $10,000 had been offered by Mr Wiseman and the applicant's sister, who is apparently an Australian citizen.

9. At [50] of the decision, the Tribunal says:

"The Tribunal has taken account of the financial circumstances of the guarantors, and the visa applicant's circumstances. The Tribunal is not satisfied that a security of $10,000 will provide a meaningful incentive for the visa applicant to abide by visa conditions. Taking account of the evidence before it and the findings above regarding the credibility of the visa applicant as a witness, the Tribunal finds that no amount of security will provide the necessary assurance that the visa applicant will abide by the conditions of the visa. The Tribunal finds that the visa applicant does not meet the requirements of clause 050.223, an essential criterion for the grant of a bridging visa E (class WE). The Tribunal also affirms the decision not to request a security."

10. The applicant through Mr Wiseman deposes to the fact that she fears that her deportation from Australia is imminent. Mr Cranwell, who appears on behalf of the respondent, indicated that no arrangements had yet been made but they may well shortly be made. The matter was brought on urgently. In his affidavit, Mr Wiseman states at [25]:

" Contrary to the findings of the DIMIA and the MRT, the applicant and I have asserted at all material times that the applicant will depart Australia to lodge an application for permanent residence of Australia on spouse grounds following the conclusion of all avenues of review in respect of her protection visa application. We maintain that the applicant has not been afforded procedural fairness in many respects as afore mentioned and that, had she not been wrongly detailed in the circumstances, would have been able to attend to various administrative matters relating to her proposed permanent residence application."

11. Mr Miller, who appeared on behalf of the applicant, argued that one of the procedural matters that he considered to be unfair, was the method of providing the RRT's decision to the applicant. I have already stated that I am not satisfied that this document was wrongly addressed. In any event, the existence of the document came to the notice of the applicant within a very few days of its date of posting.

12. Section 477 of the Migration Act 1958 (Cth) makes it clear that any application to this court or the Federal Court for review of an RRT decision must be made within 28 days. This is not a matter upon which the Court has any discretion. No application was made and no application has yet been made, so it would seem to me that all avenues of review in respect of the applicant's protection visa application have been exhausted.

13. The only matter that remains outstanding, so far as the applicant is concerned, is the completion of what are described as "various administrative matters" relating to a proposed permanent residence application. An application of this type can only be made from overseas. It is difficult to understand what administrative matters require the applicant to be freed from detention.

14. To the extent that this application is somehow predicated upon an argument that the decision of the MRT is capable of review, I would indicate that so far as I can recall no argument in that regard was addressed to me by the applicant's counsel.

15. Mr Wiseman, in his affidavit, makes a number of criticisms of the MRT's decisions, mostly on factual grounds. I have checked through these and, to my mind, many of the complaints are not well founded. Insofar as the decision of the Tribunal deals at length with all the assertions made by the applicant concerning her reasons for being in the brothel at the time of the raid, and the reasons for producing, or allowing to come into the possession of the officers, her sister's Medicare Card. Once that was done, it is the Tribunal's duty "par excellence" to make a decision upon what evidence it prefers. I am satisfied that the applicant has not made out that there is a serious issue to be tried between the parties.

16. Mr Cranwell has referred me to a number of cases concerning the balance of convenience. These include Lewai v Minister for Immigration [2001] FCA 1309; NAEX v Minister for Immigration [2002] FCA at 1633; and Arkan v Minister for Immigration [2000] FCA 1134. In all of these cases where the prospect of the applicant being released was only for a short period of time prior to him or her leaving the country, their Honours came to the conclusion that the balance of convenience favoured the respondent.

17. Nothing I have heard today convinces me that I should find otherwise in this case. In the circumstances I must dismiss the application, which I do. I assess the respondent's costs to be payed by the applicant in the sum of $1,500.00 pursuant to part 21 rule 21.02(2)(a) of the Federal Magistrate's Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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