FEDERAL COURT OF AUSTRALIA

WAJC v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1631

MIGRATION – judicial review – claim for interlocutory relief -  applicant for protection visa – applicant entered Australia unlawfully by boat – claimed to be minor – removed from Christmas Island to Nauru – brought to Australia under statutory power to appear as witness in coronial inquest – kept in detention while in Australia – statutory designation as “transitory person” – need of medical treatment – whether consent by Minister for removal from Christmas Island to Nauru a condition of the power of removal – relief claimed in relation to detention of applicant and guardianship – whether court has jurisdiction to entertain applications – jurisdiction barred by ss 494AA and 494AB of Migration Act 1958 – application dismissed.

Migration Act 1958 (Cth) s 198A, s 494AA, s494AB

Immigration (Guardianship of Children) Act 1946 s 6, s 6A

Applicants WAIV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1186 cited

WAJC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W352 OF 2002

FRENCH J

23 DECEMBER 2002

PERTH

THE COURT ORDERS THAT:

The application is dismissed.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an urgent application in which interlocutory relief is sought on behalf of a national of Afghanistan who, it is said, is still a minor, being about 17 years of age.  The applicant who came to Australia unlawfully in 2001, was taken to Christmas Island and thence removed to the Republic of Nauru.  He was recently brought from Nauru to Perth to give evidence in a coronial inquest relating to the death of two women following the sinking of the boat on which he travelled to Australia from Indonesia.  It was the Minister’s intention that the applicant be removed from Australia on Sunday, 22 December 2002.  That proposed removal was the subject of a short term stay order made by this Court on 20 December 2002.  Pursuant to directions of the Court the applicant filed a formal written application for judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth) and other statutes on 23 December 2002 together with supporting affidavits.  When the matter came on for directions and the hearing of a claim for further interlocutory relief on 23 December, the Minister raised a challenge to the jurisdiction of the Court.  After hearing argument I ruled, on 23 December, that the Court has no jurisdiction to entertain the application, which was thereafter dismissed.  The reasons for that decision which were, in substance, delivered orally on 23 December follow.

Factual Background and History of Proceedings

2                     The applicant arrived in Australia by boat without lawful authority in November 2001.  The boat on which he was travelling from Indonesia sank in the vicinity of Ashmore and Cartier Reefs which are part of Australia.  It is not in dispute that two women on board the boat drowned at the time of it sinking. The applicant claims to have come from Afghanistan and to have intended to apply for a protection visa upon reaching Australia.  He sought the visa on the basis, inter alia, that he had a well-founded fear of persecution by Taliban forces in Afghanistan.  He says he is a minor and that he was born on or about 21 September 1985.

3                     The applicant was taken to the Australian Territory of Christmas Island on or about 15 November 2001.  There he was interviewed and, he said, filled out a form requesting a visa to stay in Australia.  From Christmas Island the applicant was flown to the Republic of Nauru by Australian government authorities on or about 31 December 2001.  In Nauru he was interviewed by officers of the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA).  He was assessed for refugee status but the assessment was adverse.  He applied for review of that assessment.  The review was conducted by an officer of DIMIA who subsequently refused his application for refugee status.  In a letter to the applicant, hand delivered at the Nauru Offshore Processing Centre, the officer stated:

“You recently requested a review of the refugee status assessment which found you not to be a refugee.  Following a thorough review and assessment of your claims and careful consideration of all available information, you have been found not to meet the criteria for protection, as set out in the United Nations Refugees Convention, as amended by the Refugees Protocol.  Accordingly, you have been found not to be a refugee.”

The reasons for his failure to meet refugee criteria were said to be:

1.         He had not established that his fear was well-founded.

2.         He had not established that there is a reasonable possibility he would experience the harm he feared if returned to his country of origin.

3.         He had not established that his fear related to a violation of human rights sufficient to amount to persecution.

4.         He had not shown that he suffered treatment of such a gravity that it could amount to persecution.

5.         He had not established that he was unable or unwilling because of his fear of persecution to avail himself of the protection of his country of origin.

6.         He was unable to substantiate that his fear of persecution was well-founded in light of the information about the situation in his country of origin.

4                     Prior to the applicant’s removal to the Republic of Nauru from Christmas Island, the Minister was given an information brief on the relocation of Christmas Island detainees. In a minute to the Minister, which was obtained under Freedom of Information legislation by the applicant’s solicitors, the Minister was told that operational planning had commenced to move detainees on Christmas Island to Nauru and Manus Island Processing Centres.  Under the heading “Unaccompanied Minors” it was said:

“16.     There are 31 male unaccompanied minors on Christmas Island in the two detention facilities

            twenty one 16 and 17 year olds.  All claim to be Afghani.

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17.       As you know HREOC is currently investigating all minors in Detention.  There is going to be a particular focus on the discharge of your responsibilities under the IGOC Act.  We are currently obtaining legal advice as to the implications of transferring unaccompanied minors in your care to another country.  Nevertheless, you would have to make a decision as their guardian to relocate the 30 unaccompanied and unattached minors from Christmas Island to Nauru.”

The “IGOC” Act is a reference to the Immigration (Guardianship of Children) Act 1946.  Under the heading “MINISTER’S ACTION” there was an entry which read; “UAMS TO GO/UAMS TO REMAIN ON CI.”  That is a reference to unaccompanied minors.  Neither option was crossed out but in handwriting there are words below which appear to read “as logistically required”.  The handwriting is difficult to read.  The Minister’s signature follows. 

5                     The applicant claims that while in Afghanistan his arm was injured by the Taliban and is scarred.  He says it causes him pain and that he does not have full use of his hand.  He was examined by an Australian specialist doctor in the hospital in Nauru.  The doctor prepared a report for DIMIA in which, according to the applicant, he expressed the opinion that the applicant required specialist treatment in Australia. 

6                     On or about 1 November 2002, the applicant was transferred to Australia from the Republic of Nauru primarily for the purpose of giving evidence at a coronial inquest.  According to an affidavit sworn by Mr Corbould of the Australian Government Solicitor, the applicant was interviewed by an officer of DIMIA before being removed from Nauru to Perth to attend the inquest and the conditions of his transfer were explained. 

7                     Following the applicant’s transfer to Perth for the purposes of giving evidence, his solicitors wrote to the Secretary of DIMIA on 5 November 2002 asking for copies of his medical records and also inquiring whether the Minister was prepared to exercise his discretion, for example under s 46A or s 48B of the Migration Act 1958 (Cth) to allow the applicant to live with his brother pending resolution of his situation.  His brother resides in Perth under a temporary protection visa.  It is not necessary for present purposes to refer to the extensive exchanges which subsequently occurred between the applicant’s solicitors and DIMIA.  However, on 7 December 2002 a medical report prepared by a Doctor Craig Smith, a hand and wrist surgeon, identified ongoing problems of the applicant as:

1.         Lack of sensation in the ulnar forearm and the hand.

2.         Lack of motor function in the ulnar nerve with muscle weakness; and

3.         Neuroma symptoms from the cutaneous nerve that had been cut and also from the ulnar nerve itself.

One of the options which was put to the applicant was to have nerve related surgery to excise the neuroma and nerve graft to try and give him improved sensation and perhaps improved muscle function in his long flexors.  It appears that this procedure cannot be carried out before the end of January.

8                     Some concerns have been expressed about the applicant’s mental health and previous incidents of self-harm have been reported.

9                     On Friday, 20 December 2002, Mr Corbould wrote to the applicant’s solicitors in reply to their letter of 5 November.  He advised that the Minister had indicated he did not wish to turn his mind to considering the applicant’s request, “relating to the lifting of the s 46A or s 46B bar”.   On the same day an urgent application was made to the Court orally by counsel for the applicant to restrain his imminent return to Nauru.  The Court was informed, and it was common ground, that it was intended by the Minister that the applicant be returned to Nauru on the basis that he would be brought back to Australia at the end of January for the purpose of undergoing the medical treatment recommended by Dr Smith.  He was booked on a flight out of Australia on Sunday, 22 December.  I granted a short stay to Monday, 23 December in order to hear fuller argument on the question of interlocutory relief.  I understand, as I was informed at the time, that this had the effect of deferring his removal from Australia until 30 December, which is the date of the next flight that can be arranged for him.

10                  The orders I made on 20 December 2002 were in the following terms:

“1.       The Respondent is restrained until 5.00pm on Monday 23 December 2002 or further order from removing the Applicant from Australia.

2.         The claim for interlocutory relief is otherwise adjourned to 2.30pm on 23 December 2002.

3.         The applicant is to file and serve an application and any affidavits in support on or before 2.30pm on Monday 23 December 2002.

4.         There be liberty to apply.

5.         The applicant be brought to the Court for the resumption of the interlocutory claim on 23 December 2002.”

11                  The matter came on again for hearing on 23 December 2002.  An application had been filed invoking, inter alia, the jurisdiction of the Court under s 39B of the Judiciary Act.  The applicant claimed final relief in the following terms:

“1.       A permanent injunction preventing the respondent from taking any step to effect the removal of the applicant from the jurisdiction of the Court and more particularly from the State of Western Australia pending further order of the Court;

2.         Mandamus requiring the respondent to receive the applicant’s application for a protection visa and to consider it according to law;

3.         Certiorari quashing the respondent’s decision by which the Republic of Nauru became a declared country for the purposes of the Migration Act;

4.         Orders removing the respondent as guardian of the applicant and placing him in the custody of the Department of Community Development of Western Australia;

5.         Alternatively, an order removing the respondent’s servants and agents as the persons having his custody, care and control and placing him in the custody, care and control of the Department of Community Development of Western Australia;

6.         A declaration that the respondent breached his statutory duty:

            (a)        by permitting the removal of the applicant from Australia without his authority in writing; or

            (b)        further in the alternative by failing to take the best interests of the applicant into consideration in giving his authority in writing for his removal from Australia.”

Interlocutory relief is also claimed:

“1.       An interlocutory injunction restraining the respondent by his servants and agents from removing the applicant from the jurisdiction of the Court and the State of Western Australia until further order.

2.         An order making the applicant a ward of the Supreme Court of Western Australia until further order.

3.         An order that the applicant be placed in the care custody and control of the Director General of the Department of Community Development or his or her delegate pending further order of the Court.”

Affidavits were filed on behalf of the applicant and the Minister and read for the purposes of the claim for interlocutory relief without cross-examination of the deponents. 

12                  At the threshold it was submitted for the Minister that the Court has no jurisdiction to entertain the application by reason of ss 494AA and 494AB of the Migration Act.

Statutory Framework – The Migration Act 1958

13                  It is necessary in considering the jurisdictional objection to have regard to the statutory framework within which the claim is brought.  I refer first to certain general provisions of the Act.  In s 5 an “offshore entry person” is defined to mean:

 “… a person who:

 (a)      entered Australia at an excised offshore place after the excision time for that offshore place; and

(b)       became an unlawful non‑citizen because of that entry.”

The term "unlawful non‑citizen" is defined in s 14 of the Act thus:

“1.       A non-citizen in the migration zone who is not a lawful non‑citizen is an unlawful non‑citizen.

2.         To avoid doubt a non‑citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non‑citizen.”

This has to be read with the definition in s13 of a “lawful non‑citizen” which provides:

"1.       A non-citizen in the migration zone who holds a visa that is in effect is a lawful non‑citizen.

2.         An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen.”

For present purposes it is sufficient to refer to subs (1) of each of those provisions to establish that a non‑citizen in the migration zone who does not hold a visa that is in effect is an unlawful non‑citizen.

14                  The term “excised offshore place” is also defined in s 5 thus:

“excised offshore place means any of the following:

(a)       the Territory of Christmas Island;

(b)       the Territory of Ashmore and Cartier Islands;

(c)        the Territory of Cocos (Keeling) Islands;

(d)       any other external Territory that is prescribed by the regulations for the purposes of this paragraph;

(e)        any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph;

(f)        an Australian sea installation;

(g)       an Australian resources installation.”

15                  Section 198A authorises an officer to take an offshore entry person from Australia to a country in respect of which a declaration is in force under subs (3).   This section is in the following terms:

“198A(1)  An officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3).

       (2)  The power under subsection (1) includes the power to do any of the following things within or outside Australia;

(a)       place the person on a vehicle or vessel;

(b)       restrain the person on a vehicle or vessel;

(c)        remove the person from a vehicle or vessel;

(d)       use such force as is necessary and reasonable.

       (3)  the Minister may:

(a)       declare in writing that a specified country:

            (i)         provides access, for persons seeking asylum to effective procedures for assessing their need for protection; and

            (ii)        provides protection for persons seeking asylum, pending determination of their refugee status; and

            (iii)       provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

            (iv)       meets relevant human rights standards in providing that protection; and

(b)       in writing, revoke a declaration made under paragraph (a).

       (4)  An offshore entry person who is being dealt with under this section is taken not to be in immigration detention (as defined in subsection 5(1)).

      (5)  In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.”

It is not in dispute that the Republic of Nauru is a country in respect of which a declaration is in force under s 198A(3).

16                  Section 198A should be read, for present purposes, with s 494AA of the Migration Act which provides:

“494AA(1)  The following proceedings against the Commonwealth may not be instituted or continued in any court:

(a)       proceedings relating to an offshore entry by an offshore entry person;

(b)       proceedings relating to the status of an offshore entry person as an unlawful non-citizen during any part of the ineligibility period;

(c)        proceedings relating to the lawfulness of the detention of an offshore entry person during the ineligibility period, being a detention based on the status of the person as an unlawful non-citizen;

(d)       proceedings relating to the exercise of powers under section 198A.

      (2)  This section has effect despite anything else in this Act or any other law.

      (3)  Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

      (4)  In this section:

Commonwealth  includes:

(a)       an officer of the Commonwealth; and

(b)       any other person acting on behalf of the Commonwealth.

ineligibility period means the period from the time of the offshore entry until the time when the person next ceases to be an unlawful non-citizen.

offshore entry means an entry into Australia that occurs:

(a)       at an excised offshore place; and

(b)       after the excision time for the offshore place concerned.”

Statutory Framework – The Migration Legislation Amendment (Transitional Movement) Act 2002

17                  The provisions of the Act so far mentioned are of a general application and were in effect prior to the most recent amendment which has a direct bearing on these proceedings.  That is the Migration Legislation Amendment (Transitional Movement) Act 2002. That amending Act was the subject of a Second Reading Speech on 13 March 2002.  In the Second Reading Speech the Minister said, having referred to earlier amendments passed in September 2001 relating to border protection:

“While continuing to be vigilant, the Government recognises that there are some situations where it may be necessary to bring to Australia some persons who have been taken to a declared country.

 This Bill proposes amendments which will allow such a person, called a ‘transitory person’, to be brought to Australia from one of the declared countries in exceptional circumstances.”

18                  The term "transitory person" is of central importance to these amendments and a definition of that term is introduced by the amendments into subs 5(1) of the Act.  Thus "transitory person" means:

“(a)     an offshore entry person who was taken to another country under section 198A or;

(b)       a person who was taken to a place outside Australia under paragraph 245F(9)(b) or;

(c)        a person who, while a non-citizen and during the period from 27 August 2001 to 6 October 2001:

            (i)         was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa; and

             (ii)       was then taken by HMAS Manoora to another country; and

            (iii)       disembarked in that other country

            but does not include a person who has been assessed to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol.”

The notion of assessment to be a refugee for the purposes of the Refugees Convention is not further defined although it may be assumed that it includes assessment by the United Nations High Commission on Refugees. 

19                  The amendment introduces a new s 46B entitled, “Visa applications by transitory persons”, which provides:

“(1)     An application for a visa is not a valid application if it is made by a transitory person who:

            (a)        is in Australia and;

            (b)        is an unlawful non-citizen.

(2)       If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.”

Section 46A which is also mentioned earlier, effectively bars visa applications by “offshore entry persons” subject to a similar discretion in the Minister to lift the bar “in the public interest”.  The following subsections (3) to (7) inclusive, of s46B,  relate to the procedures under which Ministerial statements of determinations are laid before Parliament, the contents of such statements and the times within which they must be laid before the Parliament.

20                  The amending Act inserts a new s 198B which provides:

“(1)     An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia.

(2)       The power under subsection (1) includes the power to do any of the following things within or outside Australia:

            (a)        place the person on a vehicle or vessel;

            (b)        restrain the person on a vehicle or vessel;

            (c)        remove the person from a vehicle or vessel;

            (d)        use such force as is necessary and reasonable.

(3)       In this section, officermeans an officer within the meaning of section 5, and includes a member of the Australian Defence Force.”

The section, on the face of it, provides authority to officers to bring transitory persons to Australia with or without their consent.  Section 198C provides for certain transitory persons who have been in Australia for a period of six months or more to seek assessment of their claim to be a refugee directly from the Refugee Review Tribunal subject to certain procedures that are set out in that provision and s198B. 

21                  The final relevant provision of the amending Act is that which introduces into the Acta new  s 494AB entitled “Bar on certain legal proceedings relating to transitory persons”:

“(1)     The following proceedings against the Commonwealth may not be instituted or continued in any court:

            (a)        proceedings relating to the exercise of powers under section 198B;

            (b)        proceedings relating to the status of a transitory person as an unlawful non-citizen during any part of the ineligibility period;

            (c)        proceedings relating to the detention of a transitory person who is brought to Australia under section 198B, being a detention based on the status of  the person as an unlawful non-citizen;

            (d)        proceedings relating to the removal of the transitory person from Australia under this Act.

   (2)    This section has effect despite anything else in this Act or any other law.

  (3)     Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

(4)       In this section:

            Commonwealth includes:

            (a)        an officer of the Commonwealth and;

            (b)        any other person acting on behalf of the Commonwealth.

            ineligibility period means the period from the time when the transitory person was brought to Australia under section 198B until the time when the person next ceases to be an unlawful non-citizen”

Statutory Framework – The Immigration (Guardianship of Children) Act 1946

22                  The relevant provisions of this Act are ss 6 and  6A.  Section 6 provides:

“6.  The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.”

Section 6A provides:

“6A(1)  A non-citizen child shall not leave Australia except with the consent in writing of the Minister.

 (2)  The Minister shall not refuse to grant any such consent unless he is satisfied that the granting of the consent would be prejudicial to the interests of the non-citizen child.

 (3)  A person shall not aid, abet, counsel or procure a non-citizen child to leave Australia contrary to the provisions of this section.

Penalty: Two hundred dollars or imprisonment for six months.

 (4)  This section shall not affect the operation of any other law regulating the departure of persons from Australia.”

23                  The term “non-citizen child” is defined in s 4AAA relevantly as follows:

“4AAA(1)  Subject to subsections (2) and (3), a person (the “child”) is a non-citizen child if the child:

(a)       has not turned 18; and

(b)       enters Australia as a non-citizen; and

(c)        intends, or is intended, to become a permanent resident of Australia.”

The other subsections of s 4AAA are not relevant for present purposes.

Whether the Court has Jurisdiction to Entertain the Application

24                  In the course of argument it emerged that the following matters were not in dispute:

1.         The applicant is an offshore entry person within the definition of that term in s 5 of the Migration Act.  He is a person who entered Australia at “an excised offshore place”.  This is so whether the point of entry is regarded as Ashmore Reef or Christmas Island.  He is a person who became an unlawful non-citizen because of that entry.

2.         The applicant was taken from Australia to another place, ie the Republic of Nauru.

3.         The applicant has not been assessed to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol.

25                  The applicant’s claim to be a minor and therefore a “non-citizen child” and, under the guardianship of the Minister, is not conceded by the Minister in these proceedings but I assume for present purposes that he is.  I also assume for present purposes, that there is no evidence that the Minister consented to his removal from Christmas Island to the Republic of Nauru.  The question then is whether the applicant can bring these proceedings in this Court or whether he is barred from doing so by s 494AA and 494AB of the Migration Act.

26                  The applicant denies the application of s 494AB to his proceeding on the basis that he is not a transitory person.  He says he is not a transitory person because it is an element of the definition of such a person that he or she was taken to another country from Australia under s 198A.  The applicant says he was not taken to another country under s 198A because the section has to be read in light of the requirements of s 6A of the Immigration (Guardianship of Children) Act.  This, he says, conditions the power conferred by s 198A upon the existence of a ministerial consent.

27                  The difficulty with this proposition is that the basis upon which the applicant puts in question his status as a transitory person is that the officer removing him to Nauru exceeded his powers under s 198A.  Section 494AA bars proceedings in any court “relating to the exercise of powers under section 198A”.  This operates to deprive this Court of such jurisdiction as it might otherwise have under s 39B of the Judiciary Act to entertain such proceedings.  The Court cannot look behind the exercise of the powers under s 198A in order to determine whether or not the applicant is a transitory person. Yet it is the absence of power under s 198A where ministerial consent has not been given to their exercise, that is critical to the applicant’s submissions.

28                   Assuming as it must therefore, that the applicant is a transitory person, the Court has no jurisdiction to entertain the application as the application relates to the detention of a transitory person and is barred by s 494AB.  Contrary to the submissions made by counsel for the applicant, there is no relevant distinction able to be drawn on the basis that it is the mode of detention rather than its continuance that is challenged.

29                  The combination of ss 494AA and 494AB in effect limit the jurisdiction conferred upon this Court so that it cannot entertain these proceedings.  As I remarked in Applicants WAIV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1186, the Parliament may confer jurisdiction under Ch III of the Constitution on a federal court or the courts of the various States.  Subject to constitutional limitations not relevant here, that jurisdiction may be as wide or as narrow as the Parliament defines it to be.  To the extent that ss 494AA and 494AB withdraw from the jurisdiction otherwise conferred on this Court under s 39B of the Judiciary Act, matters described by the classes of proceedings set out in subs (1) of those sections, the Court must accept the limits of its jurisdiction so defined and that in this case it does not have jurisdiction to entertain the application made.  Nothing in those sections however is intended to affect the jurisdiction of the High Court under s 75 of the Constitution.  Nor could it.  The appropriate place to bring this application was in the High Court under s 75(v). 

30                  The application must be dismissed.

Acting Associate:

Dated:              24  December 2002