FEDERAL COURT OF AUSTRALIA

Mastipour v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2004] FCA 1571

MIGRATION- removal of non citizens – claim for damages for alleged breaches of duties of care whilst in immigration detention before this Court – application for interlocutory orders preventing applicant being removed from Australia pursuant to s 198(6) Migration Act 1958 (Cth) until the hearing and determination of these proceedings – whether Court has power to make such an order – Court’s power to prevent frustration of its processes – whether civil proceedings justifies restraining removal

Commonwealth of Australia Constitution s 75(v)

Federal Court of Australia Act 1976 (Cth) s 23

Migration Act 1958 (Cth) ss 5(1), 5(9), 189, 198(6), 474, 475A

Judiciary Act 1903 (Cth) ss 39B, 44

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Mastipour v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2003] FCA 952 cited

M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 146 cited

Rahmani v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 125 cited

Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 126 FCR 54 cited

Lewai v Minister for Immigration & Multicultural Affairs [2001] FCA 1309 cited

Jackson v Sterling Industries Ltd (1987) 162 CLR 612 cited

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 cited

Williams v Minister for the Environment & Heritage (2003) 199 ALR 352; [2003] FCA 627 cited

Tait v The Queen (1962) 108 CLR 620 cited

Li v Minister for Immigration and Multicultural Affairs [2001] FCA 1414 cited

He v Minister for Immigration & Multicultural Affairs[2001] FCA 1368 cited

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

P1/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1029 cited

P1/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1370 cited

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

Ex parte De Braic (1971) 124 CLR 162 cited

Edualino v Pilliod 309 F2d 294 (1962) cited

Attorney-General (NSW) v Ray (1989) 90 ALR 263 cited

Ex parte Abebe [1998] HCA 10 cited

NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 185 cited

WACM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1534 cited

MZUAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1390 cited

SRFB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1021 cited

Khan v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 432 cited

Tchoylak v Minister for Immigration & Multicultural Affairs (2001) 111 FCR 302 cited

Kopiev v Minister for Immigration and Multicultural Affairs [2000] FCA 1831 applied

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 cited

K Mason QC, ‘The Inherent Jurisdiction of the Court’, Australian Law Journal, vol 57, August 1983, p 449-459

MOHAMMED AMIN MASTIPOUR v SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS, AUSTRALIAN CORRECTIONAL MANAGEMENT PTY LTD & THE COMMONWEALTH OF AUSTRALIA

SAD 602 OF 2003

MANSFIELD J

3 DECEMBER 2004

ADELAIDE

THE COURT ORDERS THAT:

1.         The first and third respondents not remove the applicant from Australia until the hearing and determination of the proceedings or until the Court or a judge may sooner order.

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

REASONS FOR JUDGMENT

1                     The applicant seeks an interlocutory order against the first and third respondents restraining them from removing him from Australia until the hearing and determination of those proceedings.

2                     The applicant is a citizen of Iran currently held in immigration detention pursuant to s 189. of the Migration Act 1958 (Cth) (the Act).  He applied for a protection visa under the Act.  His application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs.  The Refugee Review Tribunal (the Tribunal) on review affirmed the delegate’s decision.

3                     In July 2003, the applicant was held at the Baxter Immigration Reception and Processing Centre (Baxter).  He alleges that, on 14 July 2003, he was placed in the management unit at Baxter and held there until 11 September 2003.  He was then transferred from Baxter following an order of the Court:  Mastipour v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2003] FCA 952.  An appeal from that decision resulted in a variation of the orders made, but a continuing restraint upon the first respondent, inter alia, from detaining the applicant at Baxter.

4                     The applicant claims damages against the respondents for breach of duties of care said to be owed to him by the respondents by reason of the circumstances in which he came to be placed in the management centre at Baxter, his detention there until 11 September 2003, the physical conditions of that detention and the restrictions imposed upon him during that restriction (which, he alleges, were not authorised under the Act).  He also alleges that, whilst he was in the management unit at Baxter, his young daughter was removed from Australia without the applicant’s knowledge or consent, even though he had custody of her, and in circumstances by which her proposed removal from Australia was concealed from the applicant until after her removal.  He claims that his daughter’s removal from Australia in its circumstances was done for the improper reason of pressuring the applicant to return voluntarily to Iran and so was beyond power.  Those matters are then alleged to have caused the applicant significant psychiatric injury.

5                     The applicant’s claims against the respondent have not progressed to hearing.  The normal interlocutory processes are still being undertaken.  In the meantime, the applicant has remained in immigration detention.

6                     On 18 November 2004, the applicant applied by notice of motion for an order restraining the first and third respondents from taking any action to remove the applicant from Australia until the hearing and final determination of his claims.  I was told in the course of submissions on the motion that the event precipitating the applicant’s concern that he might be removed from Australia before the present proceedings are heard, and on short or no notice, was that shortly beforehand he had withdrawn an application for special leave to appeal to the High Court from a decision of the Full Court of this Court declining to set aside the decision of the Tribunal.  Consequently, from that time there is no proceeding extant in which the applicant now seeks to establish his entitlement to a protection visa.  The applicant fears that he may now be removed from Australia, possibly without notice to his solicitors, so that he could not effectively prosecute these proceedings thereafter.

7                     The first and third respondents, by their solicitors but in correspondence expressing the views of the Department of Immigration and Multicultural and Indigenous Affairs (the Department), have asserted that these proceedings do not operate as a bar ‘to removal action required under the Act’.  On 17 November 2004, those solicitors indicated that the first and third respondents are now obliged to remove the applicant from Australia pursuant to s 198 of the Act, and that steps are being taken to ‘comply with this statutory obligation’.  I am satisfied on that material that there is a real risk that the applicant will be removed from Australia in the near future, and well before the hearing and determination of these proceedings, unless an order of the kind sought by the applicant is made.  The first and third respondents did not contend to the contrary.  Nor did they indicate that some period of notice would be given before the applicant’s removal from Australia.

8                     Hence, it is necessary to address the present notice of motion.

9                     Section 198(6) of the Act provides:

‘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.’

10                  It is common ground that, on its face, s 198(6) applies to the applicant.  He is an unlawful non-citizen, and a detainee.  He has made a valid application for a substantive visa – a protection visa – which has been finally determined, and apparently has made no other valid application for a substantive visa that can be granted whilst he is within Australia.  Section 48A of the Act precludes him from applying again for a protection visa whilst in Australia.

11                  It is significant to note the circumstances in which an application for a visa under the Act is finally determined.  Section 5(9) provides:

‘For the purposes of this Act, an application under this Act is finally determined when either:

(a)       a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or

(b)       a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.’

12                  Relevantly, Part 7 of the Act provides for review of decisions concerning protection visas by the Tribunal.  Part 7 does not provide for judicial review of such decisions.  Under s 475A in Part 8 of the Act, the jurisdiction of this Court under s 39B or s 44 of the Judiciary Act 1903 (Cth) is recognised.  In the case of jurisdictional error on the part of the Tribunal in a review conducted under Part 7 of the Act, this Court may therefore grant certain relief notwithstanding s 474 of the Act:  see Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.  The High Court of course has the power to grant such relief under s 75(v) of the Constitution.

13                  However, for the purposes of the Act, s 5(9) means that the applicant’s protection visa application was finally determined by the Tribunal affirming the delegate’s decision.  From that point, his application was the subject of a decision which was no longer subject to any form of review under Pt 7:  see M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 146 (M38/2002) at 156; Rahmani v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 125 at [13].

14                  The first and third respondents contend that, in the circumstances, s 198(6) applies directly to the applicant so that officers (including officers of the Department:  see s 5(1)) have a duty to remove him from Australia as soon as reasonably practicable.  They point out that s 198(6) is not discretionary but mandatory:  see M38/2002 at 155 [25], and 163 [55] and the authorities cited therein; Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 126 FCR 54 at [35]; Lewai v Minister for Immigration & Multicultural Affairs [2001] FCA 1309 at [14].  They therefore contend that the Court has no power to grant the interlocutory relief sought because to do so would involve the Court making an order inconsistent with s 198(6) of the Act.

15                  The question of whether there exists power to make the orders sought involves consideration of two propositions which apparently intersect.  It will be necessary to determine the consequences of their intersection.  One is that the Court cannot make an order which requires an officer of the Department to act inconsistently with a statutory obligation.  The other is the Court’s power to protect the integrity of its own processes.

16                  The applicant submitted that the Court has the power to make the orders sought.  The source of that power, it was submitted, is primarily s 23 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). Section 23 provides:

‘The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.’

There is no issue as to the jurisdiction of the Court to entertain the present proceeding.

17                  Senior counsel for the applicant submitted that under s 23 the Court is entitled to protect its own processes by making orders to prevent steps being taken that could frustrate or subvert those processes.  Reference was made to the following remarks of Deane J in Jackson v Sterling Industries Ltd (1987) 162 CLR 612 (Jackson v Sterling Industries)at 622 concerning s 23 of the FCA Act:

‘Wide though that power is, it is subject to both jurisdictional and other limits. It exists only "in relation to matters" in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the "kinds" of order, whether final or interlocutory, which are capable of properly being seen as "appropriate" to be made by the Federal Court in the exercise of its jurisdiction.’

That passage was cited with approval by Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 (Patrick Stevedores)at 32.  Their Honours there recognised that the power to prevent the abuse or frustration of the court’s process is ‘an established part of the armoury of a court of law or equity’, although their Honours did note, as Deane J observed in Jackson v Sterling Industries at 625, that any orders made must be framed ‘so as to come within the limits set by the purpose which [the order] can properly be intended to serve’.  In both cases the example of the Mareva injunction was cited as a type of order that can be made to prevent the court’s processes being frustrated.  In conclusion on this point the majority in Patrick Stevedores said at 33:

‘The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked.’ [My emphasis]

18                  In addition, the Court has an implied power to make orders which prevent its processes from being frustrated.

19                  Lindgren J in Williams v Minister for the Environment & Heritage (2003) 199 ALR 352; [2003] FCA 627 at [16] said:

‘A “superior court of record and … a court of law and equity”, such as this Court (FCA Act subs 5(2)), has inherent or implied power to make an interlocutory order which is necessary to enable it to perform its function as such a court.  An example of that power is the power to make an order directed to preserving the subject matter of litigation or to preventing its processes from being frustrated and an available form of proceeding from being rendered nugatory.’

His Honour listed in detail the cases supporting this power at [19].

20                  In Tait v The Queen (1962) 108 CLR 620 at 623 Dixon CJ said, in argument:

‘I have never had any doubt that the incidental powers of the Court can preserve any subject matter, human or not, pending a decision.’

21                  In his article ‘The Inherent Jurisdiction of the Court’ (1983) 57 ALJ 449 Keith Mason QC (as he then was) wrote at 449:

‘Faced with the limitless ways in which the due administration of justice can be delayed, impeded or frustrated, judges have responded with a vast armoury of remedies claimed to be part of their inherent jurisdiction.  This unwritten source of power is said to arise from the very nature of a court …  The mere fact that some statute or rule of court enables a court to deal with the particular problem in a particular way will not usually exclude inherent powers to deal with it in other ways.  Indeed, this jurisdiction may be asserted even though the conduct complained of may be in literal compliance with some statute or rule of court.’

22                  The intersection of those propositions has been considered in a number of cases.

23                  Li v Minister for Immigration and Multicultural Affairs [2001] FCA 1414 (Yan Li) concerned inter alia a claim for damages for breach of duty by the Minister and the body responsible for running the Villawood Detention Centre for physical and mental injuries suffered.  At an interlocutory stage the applicants sought an order preventing the Minister from removing the applicant from Australia until the determination, or at least the advancement, of various proceedings.  Emmett J stated that the judicial basis for granting the relief claimed ‘is not entirely clear’.  His Honour ultimately did not (and did not need to) decide whether the power under s 23 of the FCA Act could be exercised in the manner sought, as in any event he would not have made that order in the particular circumstances.   The applicants had already given all of the evidence they would be able to give before a judge of this Court, and there was no reason why further instructions could not be given via telephone.  His Honour therefore concluded that removal of the applicants would not frustrate the proceedings (see at [45] – [48].)

24                  In the related matter of He v Minister for Immigration & Multicultural Affairs[2001] FCA 1368, Sackville J stated at [12] – [13]:

‘The issue that has caused me some concern is the submission that his Honour [Emmett J] erred in refusing to grant an injunction restraining the removal of the five applicants still in Australia, including Mr He, by reason of the pendency of the claim for damages in this Court.  A submission has been made by Mr Carter, on behalf of the Minister, that s 198(6) of the Migration Act 1958 (Cth) (“Migration Act”) obliges the Minister to remove Mr He as an unlawful non citizen, and that that statutory obligation must prevail over any other principle of law that otherwise might be invoked to justify a temporary restraining order.

It is by no means obvious to me that the interpretation of s 198(6) of the Migration Act advanced by Mr Carter is correct, at least where proceedings are already under way against the Minister seeking damages.  Mr Carter has not suggested that the proceedings were instituted otherwise than in good faith.  In this connection I refer to my own decision in Kopiev v Minister for Immigration and Multicultural Affairs [2001] FCA 1831.  In my view, the construction of s 198(6) of the Migration Act, in the absence of an authoritative determination by the Full Court of this Court or the High Court, is an open question.’

25                  Sackville J considered a similar situation, in another claim for damages in Li v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 667 (Liang Wei Li).  Hi Honour stated at [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.’

26                  His Honour considered that in the circumstances of that case, as in Yan Li, it was inappropriate to make the order sought.  He concluded that the applicant could give his evidence via video-link from China (with the Court to order if necessary that the Commonwealth bear the costs of the video-link.)  Furthermore, medical evidence about the applicant’s condition (he sustained a fractured left patella after allegedly being knocked over by other detainees in a ‘running brawl’ at the Villawood Immigration Detention Centre) could be given by doctors who already had sufficient information to prepare reports on the applicant’s condition.  His Honour concluded that the removal of the applicant from Australia would not frustrate the civil proceedings or render them incapable of prosecution to a fair and just conclusion.

27                  The first and third respondents placed particular reliance on P1/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1029 (P1).  French J was confronted with an applicant seeking orders preventing the Minister removing him to Nauru while he had legal proceedings underfoot.  His Honour assumed for the purposes of the decision that he did have the power to make the order, but concluded it would be inappropriate in that situation to do so.  In addition, his Honour stated at [51]:

‘It is contended on behalf of the Minister that, pursuant to s 198(1A) the defendant is under a statutory duty to remove the plaintiff from Australia as soon as reasonably practicable.  Even if it be the case that the plaintiff is not a transitory person within the meaning of the Act, he is an unlawful non-citizen and an offshore entry person.  As an unlawful non-citizen he would be subject to the requirement to be taken into immigration detention pursuant to s 189(1) of the Migration Act until removed from Australia under s 198.  It is submitted on behalf of the Minister that the mandatory terms of the legislation leave no room for transitory persons or unlawful non-citizens to remain in Australia merely for the purpose of pursuing legal proceedings in this country.  I accept that submission.’

In that limited respect, his Honour appears to have taken the additional step which Emmet J and Sackville J had expressly declined to take, and what Sackville J had described as not an obvious one to take for the reasons he gave.  French J granted leave to appeal his interlocutory decision, however the appeal documents were filed one day after the due date and an application for an extension of time to file a notice of appeal was refused; see P1/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1370.

28                  Kopiev v Minister for Immigration and Multicultural Affairs [2000] FCA 1831 (Kopiev) concerned the Minister’s application to dismiss the proceedings because the applicant had not attended at a directions hearing.  He did not do so as he had been removed from Australia a few days beforehand.  The proceedings themselves sought review of a Migration Review Tribunal decision apparently affirming a decision not to grant the applicant a bridging visa, and damages for unlawful detention.  The Minister contended that the removal of the applicant was both authorised and required by s 196(6), despite the obvious irony of the circumstances.  Sackville J, in addition to saying at [23] that it is:

‘… by no means apparent that the direction contained in s 198(6) of the Migration Act … precluded the Minister from allowing the applicant to remain in Australia until at least the directions hearing …’

also said at [24]:

‘Section 198(6) imposes a duty, in the circumstances specified, to remove an unlawful non-citizen “as soon as reasonably practicable”.  In determining what is “reasonably practicable”, it may be relevant that there are legal proceedings on foot to which the non-citizen is a party or which he or she is required to attend.  In Attorney-General (NSW) v Ray (1989) 90 ALR 263 (S Ct NSW), Young J  was concerned with s 20(1) of the Migration Act which, at the time, required a person against whom a deportation order had been made “to be deported accordingly”.  His Honour construed s 20(1) to permit the Department to delay carrying out the deportation order for any “proper reason”: at 275.  His Honour referred to Singh-Dhillon v Mahoney, (unreported, 9 October 1986), where Sheppard J expressed the view that it would be lawful to delay execution of a deportation order to enable the deportee to pursue a genuine civil claim.  It is at least arguable that similar reasoning applies to s 198(6) of the Migration Act.   Nothing said by Hayne J in Re Minister for Immigration and Multicultural Affairs; Ex parte SE (1998) 158 ALR 735, at 740, suggests otherwise.’

29                  It is clear from the words in s 198(6) that it imposes a duty to remove the applicant from Australia.  In discussion on this point in NAEX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1633 Lindgren J stated at [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).’

30                  The duty to remove an unlawful non-citizen from Australia under s 198(6) is to be exercised ‘as soon as reasonable practicable’.  The Full Court in M38/2002 recognised that the duty imposed is therefore not an absolute one, but is to be exercised only when removal is reasonably practicable:  see at 165 – 166, [64] – [69].

31                  The respondents further submitted that if the first and third respondents could not remove an unlawful non-citizen because that person was involved in civil proceedings, this would frustrate the operation of the removal procedures under the Act.  They referred to the decision of the High Court in Ex parte De Braic (1971) 124 CLR 162 in this context, and in particular the following passage from the judgment of Windeyer J at 167:

‘Whether or not the applicant should later be permitted to return temporarily to this country to conduct a civil action is not a matter for the Court.  A prohibited immigrant cannot escape the consequences of his status and remain in Australia by commencing an action in an Australian court.’

That case involved a non-citizen being deported despite the fact he was a plaintiff in a civil proceeding against a newspaper.  There are, however, a number of significant factual differences between that case and the present.  The applicant there had been convicted of a number of offences in the Supreme Court of South Australia and had been sentenced to imprisonment for over two years, and his removal was pursued on that basis.  The civil action of the applicant was against a newspaper which printed an article about him, covering the charges of which he was later convicted.  It was unrelated to the detention of the applicant. It is of course clear that the mere institution of civil proceedings should not lead to the extension of the right or privilege of staying in Australia.  In Edualino v Pilliod 309 F2d 294  (1962) at 296 Swygert J stated:

‘To hold that an alien’s visa is automatically extended every time he becomes subject to the process of a court would result in a complete subjugation of the will of Congress to the will and actions of the alien and could easily serve as an inducement to unlawful acts.  Reason dictates against such a conclusion.’

Young J in Attorney-General (NSW) v Ray (1989) 90 ALR 263 at 268 after quoting the above passage said:

‘Thus, again whilst the point did not really arise, the court appeared to lean to the view that to say that a person cannot be deported because he is involved in civil litigation could be to create a serious loophole in the immigration laws because one can always get a friend or relative to sue one and so delay deportation.’

32                  In my view, the powers of the Court to ensure its processes are not frustrated extend at an interlocutory stage to the making of an order of the nature now sought.  The review of the decisions discussed above does not indicate that any decision has determined to the contrary, and I share with respect the views of Sackville J in Kopiev to which I have referred.

33                  There is not, in my view, a clear clash between the exercise of that power in appropriate circumstances and the duty which s 198(6) imposes.  The duty imposed by s 198(6) is a relative rather than an absolute one, as explained in M38/2002, and the Full Court in that case at 166 [69] recognised that there may be a range of factors in the particular circumstances which may lead an officer to conclude that, at the time removal is contemplated, removal would not be reasonably practicable in the circumstances of the case.

34                  Indeed, the Courts have apparently exercised such a power where, notwithstanding that the visa application had been ‘finally determined’, there has been an ongoing challenge to the validity of the administrative decision that the particular visa be refused.  See e.g. per Kirby J in Ex parte Abebe [1998] HCA 10; NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 185 at [28]; WACM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1534; MZUAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1390; SRFB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1021, Khan v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 432.  Those decisions span the repeal of s 482 in a relevant form by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).  Senior counsel for the first and third respondents also acknowledged that officers of the Department have, on occasions, determined not to proceed with removal even after the ‘final determination’ of certain visa applications because there are ongoing Court proceedings challenging the validity of the determination refusing the visa sought.  Presumably, the view is taken that, in such circumstances, it is not reasonably practicable to remove the visa applicant until the court proceedings are resolved.  The present proceeding provides an illustration of that attitude.  There were no steps taken to remove the applicant from Australia while his application to the High Court for special leave to appeal was extant.  I should note also that senior counsel for the first and third respondents also accepted that, in some circumstances, removal of an applicant in the face of pending court proceedings could constitute contempt:  see Tchoylak v Minister for Immigration & Multicultural Affairs (2001) 111 FCR 302.

35                  I have also come to the conclusion that, in the exercise of my discretion, the first and third respondents should be restrained from removing the applicant from Australia at least until his evidence in this matter can be heard.  In my judgment, it is essential to the Court’s capacity properly to determine the claims that he give evidence in person as evidence given by him in any other way is likely to frustrate the just determination of the claims.  The claims the applicant makes involve serious allegations about dealings with officers at Baxter and how he was treated at Baxter.  They are contested.  He will have to give evidence about them.  There are likely to be significant issues of credit.  The video tapes of the conditions of his detention by the second respondent have apparently been destroyed.  Where credit is likely to be such a crucial element in the success or failure of the claims, I think that evidence given in person is the best and fairest way for the court to be in a position to make a just decision.  The giving of evidence by telephone would deprive the Court (and the parties) of the opportunity to see the applicant giving his evidence.  I do not assume or accept, at present, that giving his evidence by video from Iran (if that is where the applicant is removed to) would be available, but in any event, the giving of such evidence in that manner where the use of an interpreter would be involved would be unsatisfactory.

36                  There is no suggestion the applicant’s claims are made to prolong his presence in Australia.  On the contrary, they were made before any steps were taken to cause his removal from Australia.  The proceedings were commenced in August 2003.  It is not suggested by the first and third respondents that the proceedings are not brought in good faith.  The Court has moreover already determined that the applicant has an arguable case – at least on certain aspects of his allegations – by reason of the interlocutory order referred to above.

37                  The present matter is factually different from the authorities referred to above.  Unlike Kopiev, the applicant is still in the country.  Unlike Yan Li, the applicant has not given all the evidence he could give – he has not as yet given any evidence.  Unlike Liang Wei Li there have been no provisions made for the applicant to appear by video-link.  In that case there was evidence, including cost estimates, before the Court that the applicant would be able to attend the hearing from China by video-link.  I have not accepted that the applicant could give evidence by video-link, but the need for an interpreter either remote from the Court (in Iran) or remote from the applicant (in Australia) with the attendant difficulties would in any event be a most unsatisfactory method of resolving contentious and critical issues of fact.   Unless there were further evidence on that aspect, even the availability of a video-link for his evidence would not alter my conclusion.  Liang Wei Li also did not involve such serious issues and nor were there significant issues about which his (Mr Li’s) evidence was crucial.  In Lewai, the applicant was held not to have an arguable case.  Finally, in P1 the applicant’s case was factually less difficult, so his evidence was less crucial and the applicant was to be removed to a detention centre in Nauru where he would still be, in practical terms, under the control of the Australian government. 

38                  I accordingly order that the first and third respondents not remove the applicant from Australia until the hearing and determination of the proceedings or until the Court or a judge may sooner order.  I will give the parties, in particular the first and third respondents, the opportunity to seek an early hearing of the proceeding or alternatively an order that the applicant’s evidence be heard first and before the hearing of the proceeding generally.  It may be that, after his evidence has been given, the reason for the order – the likely frustration of the Court’s processes – will no longer exist, even though the applicant’s solicitors may have difficulties in getting instructions from him to test the evidence of other witnesses.  The Court has indicated that it could hear the proceedings, or the applicant’s evidence only, early in 2005.

Associate:

Dated:              2 December 2004