FEDERAL COURT OF AUSTRALIA

Bilsky v Minister for Immigration & Multicultural & Indigenous

Affairs [2002] FCA 1402

MIGRATION – refusal of subclass 050 bridging visa (Class WE) by delegate – decision of delegate affirmed by Migration Review Tribunal – applicant removed from Australia prior to the hearing after proceedings for prerogative relief refused by High Court of Australia – applicant therefore did not appear – application dismissed.

Migration Act 1958 (Cth) ss 359A, 474

Federal Court Rules O 32 r 2(1)(c)

VLASTIMIL BILSKY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 945 OF 2002

CONTI J

13 NOVEMBER 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This application was made to the Court on 12 September 2002, and related to a decision of the Migration Review Tribunal (“MRT”) to affirm the refusal of a subclass 050 visa (Cass WE) by the Minister’s delegate. The grounds of the application were first, that the decision was invalid because it was “beyond the jurisdiction of the Tribunal”, and secondly, that the applicant was denied procedural fairness in beach of s 359A of the Migration Act 1958 (Cth), “… irrespective of the operation of section 474 of the Act”. Prerogative relief was sought from the Court.

2                     An affidavit sworn 12 September 2002 by the solicitor for the applicant was to the following effect:

(i)         On 28 August 2002, the applicant had applied for the abovementioned visa on the ground that he was making satisfactory arrangements to depart Australia; on 30 August 2002, the Minister’s delegate refused the application.

(ii)        On 2 September 2002, the applicant sought a review of the delegate’s decision from the MRT.

(iii)       On 3 September 2002, the applicant filed a writ of summons and statement of claim in the High Court of Australia relating to the refusal of the Refugee Review Tribunal of an application for a subclass 866 visa.

(iv)       After certain correspondence took place between the MRT and the applicant’s solicitors, and the applicant had appeared before the MRT on 11 September 2002 in support of his application, the MRT refused to grant the applicant a subclass 050 visa (Class WE).

3                     The applicant contended that the relief sought should be granted for the following reasons:

“1.       The Applicant contends that the decision made by the Migration Review Tribunal in respect of him on 11 September 2002 was invalid by reason that it was beyond the jurisdiction of the Tribunal.

            (a)        The Migration Review Tribunal denied the applicant procedural fairness in beach of Section 359A of the Migration Act 1958 (Cth). That section is an inviolable provision of the Act, irrespective of the operation of Section 474 of the Act.”

4                     The subsequent events which have occurred are set out in an affidavit of Andras Markus of the Australian Government Solicitor sworn on 11 November 2002. In short:

(i)         On 27 September 2002, Gaudron J dismissed the application of the applicant for an order nisi;

(ii)        Despite the applicant’s determination to pursue the proceedings in the Federal Court, the applicant was removed from Australia on 4 November 2002;

(iii)       Subsequently on 4 November 2002, the applicant’s solicitors informed the Australian Government Solicitor that they had ceased to act for the applicant.

5                     Understandably therefore the applicant did not appear in Court today, and the application was dismissed with costs, pursuant to Order 32 rule 2(1)(c) of the Federal Court Rules.

Associate:

Dated:              15 November 2002