FEDERAL COURT OF AUSTRALIA

VQAB v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1022

IMMIGRATION – application to restrain removal of protection visa applicant involved in outstanding litigation – Minister declining to give undertaking

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 198

SDAE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 959 cited

VQAB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V461 of 2003

HEEREY J

19 SEPTEMBER 2003

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application for an interlocutory injunction is dismissed.

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

REASONS FOR JUDGMENT

1                     There is before the Court a motion by notice dated 19 September 2003 which seeks an injunction, both interim and interlocutory, restraining the Minister from removing the applicant from Australia pending the determination of this proceeding, or further order,

2                     The applicant is an Iranian national.  He arrived in Australia on 1 November 1999.  He lodged an application for a protection visa on 6 January 2000 which was refused by a delegate of the Minister on 22 March 2000.  The Refugee Review Tribunal (the Tribunal) affirmed this decision on 21 June 2000.

3                     On 10 June 2003 the applicant commenced the present proceeding seeking relief under s 39B of the Judiciary Act 1903 (Cth) and s 475A of the amended Pt 8 of the Migration Act 1958 (Cth).  

4                     The basis of the application for injunction is that pro bono counsel several weeks ago sought from a solicitor at Blake Dawson Waldron, solicitors for the Minister, an undertaking that the applicant not be removed until the determination of his application by this Court.  On 16 September the solicitors wrote to counsel stating, amongst other things:

As a matter of policy our client does not generally remove people who have outstanding litigation relating to a substantive visa.  Our client is aware of the applicant's application and has recorded it on its business systems.  However our client gives no undertaking not to remove the applicant from Australia because to do so would be inconsistent with the Migration Act 1958.

5                     Apparently this morning counsel was informed by a solicitor in Adelaide, who was with a refugee-assisting organisation, that they had been advised that the applicant had received a letter of "Offer extension or financial assistance for reintegration to Iran" dated 1 September 2003.  The letter stated that should the package not be accepted he would be returned involuntarily and without financial assistance as soon as practicable.  The letter gave him 14 days in which to consider accepting the offer.

6                     It is also said that in a matter of SDAE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 959, heard recently by Mansfield J in Adelaide, counsel appearing for the Minister told the court that she was instructed that the Minister did not feel bound not to remove an applicant whose matter had not been finally determined. 

7                     It is further said that the Baxter Immigration Detention Centre where the applicant is currently detained is the subject of a "shutdown" this weekend.  It is said that there is therefore a serious risk in the light of the respondent's stance towards applicants in the position of the present applicant that he may be forcibly removed.

8                     I have read the applicant's contentions of fact and law which are on the file.  The respondent's contentions are due on 26 September, that is next week.  The matter is in the docket of Sundberg J and will be heard either late this year or sometime early next year.  I have read the applicant's contentions of fact and law but I have not had before me the decision of the Tribunal or any other material.  I assume nevertheless for present purposes that the applicant has an arguable case for the relief that he seeks.

9                     Before me Ms Greaves on behalf of the Minister said that on her instructions the Minister had no intention to remove the applicant from Baxter.  The Minister accepted that the applicant has a "live application" for review before the Federal Court.  Ms Greaves said that giving an undertaking would be inconsistent with the duty imposed on the Minister by s 198 of the Migration Act.  She opposed the grant of an injunction on the basis that there was no need for it to be given.

10                  I should mention that because the applicant is in detention his position is not protected by the usual bridging visa granted to asylum seekers challenging refusal of protection visas in the courts. 

11                  I have to be satisfied whether there is a serious or substantial risk that the applicant would be deported before the hearing of his applicant for review.  I am not satisfied that there is such a risk, or indeed any lesser degree of risk.  I accept and treat seriously the statement given to this court by Ms Greaves on behalf of the Minister that there is no intention to remove the applicant from Baxter Detention Centre. 

12                  Without making any formal order I would indicate that, relying on the good faith of the Minister, I would expect that if there were to be any change in that intention that the Minister would give reasonable notice to the applicant's pro bono counsel Mr Gibson.  On that basis I dismiss the application for an interlocutory injunction.

Associate:

Dated:              25 September 2003