FEDERAL COURT OF AUSTRALIA

Madafferi v Minister for Immigration & Multicultural Affairs [2000] FCA 1612

MIGRATION LAW – application for interlocutory relief – whether Court has jurisdiction pursuant to s482(2) of the Migration Act 1958 (Cth) to grant a stay of decision of respondent – consideration of meaning of the words “securing the effectiveness of the hearing and determination of the appeal” – whether serious issue to be tried – consideration of balance of convenience

Ooi v Minister for Immigration & Multicultural Affairs [2000] FCA 514 followed

Lam v Minister for Immigration & Multicultural Affairs [2000] FCA 1226 considered

Bullock v The Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 applied

FRANCESCO MADAFFERI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 839 of 2000

MARSHALL J

MELBOURNE

1 NOVEMBER 2000

THE COURT ORDERS THAT:

1.                  Upon the applicant giving the usual undertakings as to damages, pending the hearing and determination of the proceeding the respondent by himself and his servants and agents be restrained from treating the applicant as an unlawful non-citizen for the purposes of the Migration Act 1958 (Cth).

2.                  Costs reserved.

3.                  The applicant have leave to file any amended application on or before 10 November 2000.

4.                  The applicant file and serve any further affidavit or affidavits on which he intends to rely at the trial on or before 24 November 2000.

5.                  The trial be by affidavit.

6.                  The directions hearing be adjourned to 10.15 am on 4 December 2000.

7.                  The matter be listed for trial at 10.15 am on 26 February 2001.

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

REASONS FOR JUDGMENT

1                     In this matter I am satisfied that the Court has the jurisdiction pursuant to s482(2) of the Migration Act 1958 (Cth) (“the Act”) to grant a stay of the Minister’s decision. I consider that the construction of the words “securing the effectiveness of the hearing and determination of the appeal” favoured by Madgwick J in Ooi v Minister for Immigration and Multicultural Affairs [2000] FCA 514, especially at [16] and [17], is one which is not clearly wrong. It is a construction that I consider that I am, having formed that view, bound to follow. I pause then to consider the test for the granting of an interlocutory injunction in the circumstances. The Minister contends that there is no serious issue to be tried in this matter by reference to the judgment of Lehane J in Lam v Minister for Immigration & Multicultural Affairs [2000] FCA 1226.

2                     Counsel have put competing submissions on the meaning of that judgment. It has been urged upon me on behalf of the Minister that consistent with his Honour's judgment I ought to form the view that there is no serious issue to be tried in this matter. On the other hand, counsel for the applicant submitted that the approach taken by Lehane J is one that should not be taken. However, at [25] of the judgment in Lam, Lehane J said:

“The question is not easy and is one on which minds might differ.”

3                     Whatever might be my final view of the matter, I consider, at least at this stage, the contrary view to that accepted by Lehane J to be arguable.

4                     In Bullock v The Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 at 472, Woodward J, with whom Smithers and Sweeney JJ agreed, said the following in respect to the test for interlocutory injunctions:

“The only point I wish to add for myself is that, when it becomes necessary to consider the balance of convenience, it is, I believe, quite proper to bear in mind the apparent strength of the applicants’ case; the two legs of the test need not be considered in isolation from each other. Thus an apparently strong claim may lead a court more readily to grant an injunction where the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises “a serious issue to be tried”) may still attract interlocutory relief if there is a marked balance of convenience in favour of it.”

5                     In my view, the circumstances of the present matter raise a serious issue to be tried in the later sense, that is, it is a more doubtful claim which may still attract interlocutory relief if there is a marked balance of convenience in favour of it. I consider that there is a marked balance of convenience in favour of interlocutory relief given the following circumstances:

(a)                the applicant is a long term resident of Australia;

(b)               the applicant is married to a citizen of Australia;

(c)                the applicant has children in this country; and

(d)               the applicant conducts a business and employs staff in Australia.

6                     On the other hand, if the application for interlocutory relief were dismissed, the applicant would be immediately placed in migration detention.

7                     In the circumstances, it is appropriate to make the following orders:

1.                  Upon the applicant giving the usual undertaking as to damages, pending the hearing and determination of the proceeding the respondent by himself and his servants and agents be restrained from treating the applicant as an unlawful non-citizen for the purposes of the Migration Act 1958 (Cth).

2.                  Costs reserved.

3.                  The applicant have leave to file any amended application on or before 10 November 2000.

4.                  The applicant file and serve any further affidavit or affidavits on which he intends to rely at the trial on or before 24 November 2000.

5.                  The trial be by affidavit.

6.                  The directions hearing be adjourned to 10.15 am on 4 December 2000.

7.                  The matter be listed for trial at 10.15 am on 26 February 2001.

Associate:

Dated:              10 November 2000