FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 667

MIGRATION – applicant an unlawful non-citizen injured while in immigration detention –whether orders should be made restraining his removal from Australia – whether the applicant unfit to travel – whether pendency of civil proceedings justifies restraining removal.

Judiciary Act 1903 (Cth), s 39B(1)

Migration Act 1958 (Cth), ss 198(5), 474

Federal Court of Australia Act 1976 (Cth), s 23

Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 46PP(1)

Yan Li v Minister for Immigration and Multicultural Affairs [2001] FCA 1414, followed.

He v Minister for Immigration and Multicultural Affairs [2001] FCA 1368, cited.

LIANG WEI LI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

N 428 of 2002

SACKVILLE J

SYDNEY

27 MAY 2002

THE COURT ORDERS THAT:

1.                  The application for interlocutory relief be dismissed.

2.                  The applicant pay the first respondent’s costs of the application for interlocutory relief.

3.                  No order for costs as between the applicant and the second respondent.

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

REASONS FOR JUDGMENT

1                     This is an application for an order restraining the respondents from removing the applicant from Australia pending further orders of the Court.  The matter was listed urgently before me on 22 May 2002 and was adjourned part-heard until 24 May 2002.  I announced at the end of the hearing that I was not proposing to issue an injunction.  These are my reasons for dismissing the application for interlocutory relief.

2                     The applicant is a Chinese national.  He is an unlawful non-citizen, who is in immigration detention, being held at Villawood Immigration Detention Centre (“the Centre”).  The evidence suggests that the applicant held a business visa which expired in February 2002, and that he was taken into detention on 7 March 2002.  It is common ground that he has no application on foot for another visa.  There is no suggestion that he is entitled to apply for a further visa.

3                     The respondents to the application are, respectively, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) and Australian Correctional Management Pty Ltd (“ACM”), which apparently administers the Centre.

4                     It appears that on 14 March 2002, the applicant was knocked over by other detainees who were involved in what he has described to his solicitor as a “running brawl”.  In consequence, he sustained a fractured left patella.  The applicant was operated on at Liverpool Hospital on 17 March 2002.  He was released from the hospital on 20 March 2002.  He has had metal pins or wires placed in his knee, which will need to be removed within several months.

5                     On 26 March 2002, the applicant and his wife were informed by ACM officers that they were to be removed from Australia.  On that day they were taken to Sydney Airport.  They were not, however, removed, apparently because the captain of the aircraft refused to take the applicant as a passenger on the aircraft.  The applicant and his wife were returned to the Centre.

6                     The applicant was interviewed on 17 April 2002 by an employed solicitor of the firm now acting for him.  The main purpose of that meeting was to take instructions from the applicant in relation to the incident which took place on 14 March 2002, with a view to commencing proceedings in respect of that incident. 

7                     On 13 May 2002, the applicant instituted proceedings in this Court against the Minister and ACM.  In these proceedings, the applicant seeks a variety of orders, including damages.  The statement of claim filed on the applicant’s behalf alleges that the Minister and ACM owed him a duty of care to ensure that he was free from violence at the Centre and that he would receive proper and adequate medical treatment should he be injured.  It is further alleged that the Minister and ACM breached their duty of care to the applicant when he was assaulted and that he was denied adequate treatment for the injuries he sustained on that occasion.  There may be a question as to whether the Minister, as distinct from the Commonwealth is a proper respondent to those proceedings, but that need not be pursued at this stage.

8                     On 14 May 2002, the applicant’s solicitors made a complaint on his behalf to the Human Rights and Equal Opportunity Commission (“HREOC”).  The complaint alleges that the police had failed to investigate what is said to have been an assault at the Centre and that he has been the subject of racial discrimination.  He also complains of lack of access to an interpreter and says that an attempt should not have been made to remove him from Australia on 26 March 2002.

9                     The present motion was filed on 22 May 2002, in consequence of the applicant’s solicitors being told by an officer of the Department of Immigration and Multicultural and Indigenous Affairs that removal of the applicant from Australia was imminent.  An urgent hearing took place on that day.  As the matter was adjourned part-heard to 24 May 2002, the Minister, by his solicitor, gave an undertaking not to remove the applicant from Australia before 4 pm on 24 May 2002.

10                  The applicant invokes the jurisdiction of the Court under s 39B(1) of the Judiciary Act 1903 (Cth) for the interlocutory relief he seeks.  He puts his case on three bases:

• first, he says that he is unfit to travel and that this is enough for the Court to intervene;
• secondly, he says that he should be permitted to remain in Australia to pursue the civil proceedings he has commenced; and
• thirdly, he says that he should be permitted to remain in Australia to pursue a complaint he has made to HREOC and criminal investigations he has sought to initiate.

The arguments put on behalf of the applicant bore a distinct resemblance to those put to (and rejected by) Emmett J in Yan Li v Minister for Immigration and Multicultural Affairs [2001] FCA 1414 (an application for injunctive relief pending an application for leave to appeal Emmett J’s decision was dismissed in He v Minister for Immigration & Multicultural Affairs [2001] FCA 1368).

11                  The Minister says that he is obliged to remove the applicant from Australia by virtue of s 198(5) of the Migration Act 1958 (Cth) (“Migration Act”), which provides as follows:

“(5)     An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen:

(a)               is a detainee; and

(b)               was entitled to apply for a visa in accordance with section 195, to apply under section 137K for revocation of the cancellation of a visa, or both, but did neither.”

12                  Ms Watson, who appeared on behalf of the Minister, accepted that if the applicant was not medically fit to travel, it could not be said that it was “reasonably practicable” to remove him.  She did not accept, however, that in such circumstances the Court would have power to restrain the applicant’s removal.  She submitted that s 474(1) of the Migration Act, read in conjunction with s 474(2) and (3)(g), prevented the Court granting an injunction.  Those provisions are as follows:

“(1)     A privative clause decision

(a)               is final and conclusive;

(b)               must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2)       In this section:

            privative clause decision means a decision  of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

(3)       A reference in this section to a decision includes a reference to the following:

…

(g)   doing or refusing to do any other act or thing”.

13                  On the issue of the applicant’s fitness to travel, I admitted into evidence a letter signed by Dr Ireland, the orthopaedic surgeon who treated the applicant in Liverpool Hospital.  The medical records show that Dr Ireland saw the applicant twice after the latter’s discharge from hospital, on 3 April 2002 and 8 May 2002.  On 3 April 2002, Dr Ireland reported that the wound was well-healed and that the fracture was healing in good alignment.  He advised that the applicant could commence weight bearing with his brace in situ.  On 8 May 2002, Dr Ireland reported that the x-rays showed that the fracture was sound.  Dr Ireland expressed the view that the applicant could progress to full weight bearing and range of motion as tolerated with the aid of physiotherapy.

14                  In his letter, dated 23 May 2002, Dr Ireland confirmed an opinion previously expressed to Dr Amin, a general practitioner who attends the Centre on a sessional basis, that the applicant “is fit to travel”.  If this was the extent of the evidence, it would be clear that there is no danger to the applicant if he were required to travel by air to China.  I would infer from the evidence given by Ms Watson as to the circumstances in which the letter was obtained, that Dr Ireland was well aware of the nature of the travel being contemplated when he wrote the letter.

15                  On the second day of the hearing, however, oral evidence was given on behalf of the applicant by Dr M Guirgis, an orthopaedic specialist, who had examined the applicant that morning at the request of the applicant’s solicitor.  Dr Guirgis confirmed that the fracture was healing satisfactorily and that the applicant’s progress was as would be expected with an injury of the kind he had sustained.  At first, Dr Guirgis said that the applicant was fit to travel.  He qualified that opinion later by saying that the applicant was at greater risk of deep vein thrombosis by reason of the unlikelihood that he would be able to move around the cabin during the flight of ten hours or so to China.  As I followed his evidence, Dr Guirgis did not suggest that the applicant would be physically unable to move around the cabin to the extent necessary to minimise any risk, but that the applicant would experience heightened pain if he attempted to place weight on his left leg and that he would be reluctant to experience that pain.  Rather curiously, Dr Guirgis based that opinion in part upon what he said was his experience with the level of pain that Chinese patients would be prepared to tolerate.

16                  Dr Guirgis acknowledged that there were specific measures that the applicant could take to minimise the risk of deep vein thrombosis that might otherwise attend immobility during the plane journey, such as the use of a stocking and the consumption of aspirin before or during the flight.  Dr Guirgis also was unable to quantify the additional risk that the applicant would experience because he was unfamiliar with the relevant statistical information.

17                  I should add that Dr Y Lucire, a psychiatrist, also gave evidence on behalf of the applicant.  She reinforced Dr Guirgis’ evidence that the applicant’s perception of pain would inhibit his movement in the aircraft, although not necessarily for precisely the same reasons as given by Dr Guirgis.  She also said that there was no psychological or psychiatric reason why the applicant could not travel to China.

18                  In these circumstances, I think I should accept the opinion of the applicant’s treating doctor (that is, Dr Ireland) that the applicant is fit for travel.  I appreciate and recognise that, because of the urgency with which the case was brought on, the applicant’s solicitor did not have the opportunity to cross-examine Dr Ireland.  I have taken that into account.  In essence, however, Dr Guirgis did not dispute that the applicant’s injury was healing well, but pointed to an unquantified increased risk of deep vein thrombosis arising from likely immobility during travel.  His evidence is consistent with the risk of harm to the applicant being extremely slight bearing in mind the precautions that the applicant can readily take to reduce that risk.  Moreover, the evidence suggests that the applicant will be able, if he chooses, to be mobile, at least to a limited extent, during the flight, even though this may cause him pain.

19                  I therefore conclude that no basis has been demonstrated on health grounds for the Court preventing the Minister removing the applicant from Australia pursuant to s 198(5) of the Migration Act.

20                  In Yan Li v Minister, Emmett J expressed doubts as to the juridical basis for granting relief designed to enable an unlawful non-citizen to pursue a civil claim for damages.  His Honour accepted (at [30]) that s 23 of the Federal Court of Australia Act 1976 (Cth) confers power to prevent the abuse or frustration of a court’s process.  He was doubtful whether the power extends to restraining the removal of an unlawful non-citizen simply to ensure that civil proceedings instituted by the non-citizen be effectively prosecuted.  Like Emmett J, I do not think it necessary to resolve this question in the present case.

21                  The applicant did not adduce evidence that established that there are serious issues to be tried in relation to his claim for damages.  The evidence shows that the applicant sustained injuries in an incident that occurred at the Centre on 14 March 2002.  But the allegation that the Minister (or the Commonwealth) and ACM breached a duty of care they owed to the applicant was supported by no more than assertion.  The absence of evidence supporting the existence and breach of the duty is a powerful reason to decline to grant the relief sought by the applicant, assuming that there is power to do so.

22                  In any event, I am not satisfied that the applicant will be unable to prosecute the civil action.  There has been ample opportunity for the applicant’s legal representatives to obtain detailed instructions from the applicant as to the events of 14 March 2002.  He was first interviewed by his legal representatives on 17 April 2002, over five weeks prior this hearing.  The instructions were sufficiently detailed to enable them to file an application and statement of claim on behalf of the applicant on 13 May 2002.  Moreover, as Mr Tees accepted, the case based on breach of duty will depend heavily on the evidence of persons other than the applicant.

23                  It is true that, unlike Yan Li v Minister, the applicant has not yet given evidence in the proceedings.  Mr Tees seemed to acknowledge in his affidavit, however, that oral evidence could be given by video-link if necessary, but he pointed to the fact that the cost of a video-link to China might be as much as $1,000 to $1,500 per day, an amount beyond the applicant’s reach.  This overlooks the power of the court hearing the damages claim to make appropriate orders, in the interests of justice, to ensure that the applicant has the opportunity to give evidence in the proceedings.  If the cost of a video-link were the only barrier to the applicant giving evidence, I have little doubt that the difficulty could be overcome, if necessary, by appropriate costs orders.  The Court might rule, for example, that the applicant’s evidence in chief could be given in affidavit form but that the Commonwealth (assuming it becomes a party to the proceedings), if it wished to cross-examine him, should, in the first instance, bear the costs of the necessary video-link.

24                  There would seem to be no major difficulty in obtaining the medical evidence necessary to support the applicant’s case.  Dr Guirgis said that he already had sufficient information to prepare a report on the applicant’s physical condition.  There is no reason to doubt that Dr Ireland would be available.  Dr Lucire said that she needed only a further twenty minutes with the applicant to complete a report as to his psychological condition and prognosis for the future.  To the extent that the applicant’s representatives require further instructions from the applicant, there is nothing to indicate that he will be unable to give them from China.  Doubtless, it will be more difficult than if he remains in Australia, but the evidence does not suggest that any barriers will be insuperable.

25                  In short, I am not satisfied that removal of the applicant from Australia will lead to the civil proceedings instituted on his behalf being frustrated or rendered incapable of prosecution to a fair and just conclusion.  In such circumstances, I do not think it appropriate to grant an injunction restraining removal of the applicant pending the hearing or determination of the whole or part of the proceedings.  The effect of such an order, under existing laws, would be to require the Commonwealth to keep the applicant in detention in Australia for a considerable period, with no prospect of his being able to remain in the country after the proceedings were heard.

26                  Mr Tees, who appeared for the applicant, next relied on s 46PP(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“HREOC Act”).  It provides as follows:

“(1)     At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Magistrates Court may grant an interim injunction to maintain:

(a)               the status quo, as it existed immediately before the complaint was lodged; or

(b)               the rights of any complainant, respondent or affected person.”

27                  No evidence was adduced to show that the complaint made to HREOC has substance.  In my opinion, s 46PP(1) of the HREOC Act cannot be intended to justify the grant of an injunction restraining the removal of a non-citizen from Australia simply because the non-citizen has lodged a complaint with HREOC that may or may not have substance.

28                  In any event, it has not been shown that the applicant will be prevented from pursuing the complaint with HREOC if he is removed from Australia.  There is nothing to suggest that he will be unable to give sufficient instructions to his solicitors to enable the complaint to be addressed by HREOC.

29                  Finally, Mr Tees submitted that an injunction should be issued to enable the applicant to seek redress under the criminal law.  For the reasons given by Emmett J in Yan Li v Minister at [49]-[51], I think this claim, which was not developed, is misconceived.

30                  In my opinion, the applicant has failed to establish grounds for the injunctive relief he seeks.  His application must be dismissed.  The applicant must pay the Minister’s costs.  As Mr Christos, who appeared for ACM, accepted, ACM had little interest in these proceedings.  As between the applicant and ACM, there should be no order as to costs.

31                  Since I have concluded that the applicant’s claim for interlocutory relief must fail, there is no need to consider whether s 474(1) of the Migration Act would prevent the claim succeeding in any event.

Associate:

Dated:              27 May 2002