FEDERAL COURT OF AUSTRALIA

NAEX v Minister for Immigration & Multicultural &
Indigenous Affairs [2002] FCA 1633

MIGRATION – removal from Australia – pending application before Court for constitutional writs in respect of decision of Migration Review Tribunal affirming decision to refuse bridging visa – urgent application for interlocutory relief restraining Minister from removing applicant pending final hearing and determination of proceeding – whether serious question to be tried as to whether applicant would obtain the constitutional writs sought – balance of convenience – construction of s 198 Migration Act 1958 (Cth).

Migration Act 1958 (Cth) s 198

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 applied

NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 applied

Huo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 383 applied

WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409 applied

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited

SBBO v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 963 cited

Li v Minister for Immigration & Multicultural Affairs [2002] FCAFC181 applied

Kopiev v Minister for Immigration & Multicultural Affairs [2000] FCA1831 cited

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 192 ALR 581 cited

NAEX v MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS

N 1272 OF 2002

LINDGREN J

21 DECEMBER 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application for interlocutory relief be refused.

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

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

REASONS FOR JUDGMENT

introduction

1                     This proceeding was commenced on 2 December 2002 and is fixed for hearing before the Docket Judge on 6 February 2003.  As Duty Judge, I am required to deal this afternoon, Saturday afternoon, with an urgent application for an interlocutory injunction restraining the respondent (“the Minister”) from removing the applicant from Australia on Monday.

General

2                     The applicant applied for a protection visa and was refused it by a delegate of the Minister.  That refusal was affirmed by the Refugee Review Tribunal as long ago as 27 April 2001.  That decision is not in question.

3                     The applicant seeks constitutional writs in respect of a decision of the Migration Review Tribunal (“the Tribunal”) made on 19 November 2002 affirming a decision of a delegate of the Minister made on 8 November 2002 refusing the applicant a bridging visa E (class WE).  The effect of the writs, if granted on or following the hearing on 6 February 2003, would be, as the application recognises, that the Tribunal’s decision would be set aside and the matter would be remitted to the Tribunal for rehearing.

4                     I will not summarise all the relevant conditions to be satisfied for the issue of the visa sought by the applicant.  It was a “subclass 050 (General)” visa.  The condition relevant for present purposes is that the applicant was making, or was already the subject of, “acceptable arrangements to depart Australia”.  The Tribunal was not satisfied that this condition was satisfied.

5                     It is proposed to remove the applicant from Australia pursuant to subs 198(6) of the Migration Act 1958 (Cth) (“the Act”), this coming Monday, 23 December 2002.  The decision to remove him was apparently taken in the week commencing Monday 9 December 2002, that is to say, after this proceeding was commenced.

6                     Subsection 198(6) of the Act is as follows:

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

(a)       the non-citizen is a detainee; and

(b)       the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c)        one of the following applies:

(i)        the grant of the visa has been refused and the application has been finally determined;

(ii)       the visa cannot be granted; and

(d)       the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.”

The expression “officer” is defined in s 5 of the Act to mean, relevantly, an officer of the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”).  The applicant concedes that he is “an unlawful non-citizen” and that conditions (a) to (d) of subs 198(6) are satisfied.  But, as will appear, he submits that the expression “as soon as reasonably practicable” signifies that he cannot be removed as soon as Monday.

7                     The interlocutory relief sought today has not been formulated in a notice of motion.  This is not said as a criticism – the applicant was and is in immigration detention and, until this afternoon, has not been represented by a legal practitioner.  Mr V Wan of counsel appears for him.  His representation of the applicant, albeit on only a couple of hours’ notice, has been helpful to the Court, as, of course, has been the representation of the Minister by Mr GT Johnson of counsel.

8                     In substance, the interlocutory relief sought is an injunction restraining the Minister from removing the applicant pending the final hearing and determination of the proceeding.

9                     On the application for interlocutory relief I must take into account:

·        whether there is a serious issue to be tried as to whether the applicant will obtain the final relief he seeks; and

·        the balance of convenience. 

These two considerations are inter-related, so that the strength of one may compensate for a weakness of the other.  One may be so weak that the strength of the other will be required to compensate, if interlocutory relief is to be granted.

Serious question to be tried

10                  I have read carefully the reasons for decision of the Tribunal.  The Tribunal was not satisfied, for reasons which it gave, of the fact that at the time of the applicant’s application for the visa and at the time of the decision on that application, the applicant was making, or was the subject of, “acceptable arrangements to depart Australia”.  The Tribunal referred to factual matters touching the applicant’s conduct while in Australia which caused it to have misgivings that he would, if released from immigration detention, depart Australia voluntarily.

11                  In his application to this Court for review of the Tribunal’s decision, the applicant identifies three grounds:  that the Tribunal ignored relevant considerations in making its decision;  that the Tribunal denied the applicant natural justice or procedural fairness; and that the Tribunal appeared to give rise to a reasonable apprehension of bias.  Even prior to the introduction in October 2001 of the privative clause provision now found in subs 474(1) within Part 8 of the Act, those grounds were not available grounds for review of a decision of the Tribunal.

12                  Subsection 474(1) of the Act makes it very difficult indeed for a person aggrieved with a decision of the Tribunal to succeed in a challenge to it in this Court.  The effect of subs 474(1) was considered by a five member Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (“NAAV”).  The approach of the majority in NAAV was summarised by another Full Court in NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 (“NABM”) at [24], as follows:

“In NAAV v Minister, von Doussa J (with whom, on this point, Black CJ and Beaumont J agreed) stated (at [635]) that the Migration Act contained a hierarchy of provisions of which, in relation to privative clause decisions, s 474(1) was intended by Parliament to be the leading provision.  His Honour held that ‘apparently inconsistent provisions of the Act’ are to be construed as subject to the restrictions in s 474(1).  Consequently, the effect of s 474(1) is to expand the jurisdiction of the relevant decision makers, including the Tribunal, so that a decision that is affected by irregularities that would, in the absence of s 474(1), amount to jurisdictional error will be within power, subject to satisfying the so-called Hickman conditions.  The Hickman conditions require that the decision 

·        be a bona fide attempt to exercise the power which the Migration Act reposes in the decision maker;

·        relate to the subject matter of the Migration Act;

·        be reasonably capable of reference to the power.

In addition, it follows from the reasons of the majority in NAAV v Minister that a decision will not be protected from judicial review if it contravenes what is variously described as an ‘inviolable’ condition, ‘jurisdictional factor’ or ‘structural elements’ found in the legislation: at [12], per Black CJ; at [619], per von Doussa J.”

This passage was noted without disapproval by Full Courts in Huo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 383 at [12] and WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409 at [3].

13                  Appreciating the difficulty which NAAV poses for his client, Mr Wan says that the applicant would wish to amend the application so as to delete the reference to a reasonable apprehension of bias and to substitute for it an “actual bias” ground.  It has been said, however, that actual bias may not always negate the bona fides of a decision for the purposes of R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (“Hickman”); cf SBBO v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 963 at [8].  But more importantly, it is not simply a matter of amending the application so that it will refer to a ground falling within Hickman; there must be some evidentiary basis for thinking that the Tribunal did not act in fact in good faith.  There is nothing on the face of the Tribunal’s reasons for decision to suggest bad faith and Mr Wan did not point to anything indicating bad faith.

14                  Mr Wan submits that I should not treat NAAV as the last word in relation to the effect of the privative clause in view of the fact that two appeals were heard by the High Court on 3 and 4 September 2002 in which the constitutional validity of that provision was considered (apparently, Plaintiff S157 of 2002 v Commonwealth and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002).  He suggests that if I were to obtain and read a transcript of the argument on those appeals, I would think that the privative clause may well be held invalid.  But I will not speculate in this regard and proceed on the basis that the judgment of the Full Court of this Court in NAAV is, indeed, the last word for me, sitting at first instance this afternoon.

15                  In the light of the privative clause provision and the only grounds for challenging it which have been suggested, I conclude that there is not shown to be an arguable challenge available to the decision of the Tribunal.

16                  This conclusion alone requires that interlocutory relief be refused.

17                  In the alternative, the removal decision is itself a privative clause decision within subs 474(1) of the Act, however the “decision” in question may be identified, and no Hickman grounds for attacking it are shown: cf Li v Minister for Immigration & Multicultural Affairs [2002] FCAFC181 per Heerey J with whom Conti J agreed.

Balance of convenience

18                  It is unnecessary for me to consider the balance of convenience, but I will do so briefly.

19                  Let it be assumed that on or following the hearing on 6 February 2003, the applicant obtains the final relief he seeks.  He will continue to be in immigration detention following that decision:  a favourable decision will not itself be a decision that the bridging visa be issued. 

20                  Now let it be further assumed that in due course, after a rehearing by the Tribunal, the bridging visa is issued.  The applicant’s case is, and must be, that if this happens and he is released from detention pursuant to the visa, he will leave Australia almost immediately.  The inconvenience in his being removed in two days’ time, as against his remaining in detention for some months and then being free for, say, two or three weeks before leaving this country is said to be of two kinds.  First, he would not be able to sell his motor car, tools and personal and household belongings, including a television set and stereo equipment This matter was addressed by the Tribunal, which thought that his being removed would not prevent a friend of his (who offered before the Tribunal to act as the applicant’s guarantor and to lodge a bond of $15,000) from selling those items of property. I agree.  The inconvenience in this respect is negligible.

21                  The second and major point argued this afternoon by Mr Wan on behalf of the applicant is that a removal, as distinct from a “supervised departure”, would have adverse consequences for him in his country of nationality and destination, the People’s Republic of China.  But there is no evidence to this effect, and, as noted earlier, the applicant was previously not accepted to be a refugee to whom a protection visa should be issued.

22                  The balance of convenience does not favour the grant of interlocutory relief either.

Subsection 198(6) and s 481 of the Act

23                  Subsection 198(6) was set out earlier.  Since the applicant concedes that the conditions of subs 198(6) of the Act are satisfied, he concedes that that subsection imposed on an officer of the Department an obligation to remove him from Australia “as soon as reasonably practicable”. 

24                  The applicant does not rely on the initiation and pendency of this proceeding as making it not “reasonably practicable” for him to be removed on Monday.  He could not successfully do so because s 481 of the Act provides, relevantly, that the making of an application of the kind that commenced this proceeding does not:

“(a)     affect the operation of the decision; or

(b)       prevent the taking of action to implement the decision; or

(c)        prevent the taking of action in reliance on the making of the decision.”

(cf Kopiev v Minister for Immigration & Multicultural Affairs [2000] FCA1831 which concerned the then subs 482(1), the predecessor of s 481.)

25                  Mr Wan’s submission, on behalf of the applicant, is that next Monday is not “reasonably practicable” because, in the circumstances, reasonable practicability requires the substitution of a régime of “supervised departure” for that of “removal”.  The circumstances relied on are the two considerations referred to in [20] and [21] above.

26                  In my opinion those two considerations do not establish that it is not reasonably practicable for the applicant to be removed on Monday.  My reasons sufficiently appear at [18] to [22] above.

27                  Apparently it is practicable for an officer to remove the applicant from Australia on Monday.  Accordingly, given the applicant’s concessions and my conclusion expressed in the preceding paragraph, subs 198(6) of the Act obliges him or her to remove the applicant from Australia, no later than then.

28                  I cannot presently conceive of circumstances in which it would be right for the Court to make an order, the effect of which would be to require an officer not to discharge such a clear statutory obligation.  (I concede that in exceptional cases the clear and unambiguous express terms of a statute have been required to yield to what is held to be a different legislative intent: cf Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 192 ALR 581).

29                  For this additional reason, interlocutory relief should be refused.

conclusion

30                  For the above reasons the application for interlocutory relief is refused with costs.

Associate:

Dated:              7 January 2003