FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v WAKX

(No 2) [2005] FCA 948

PRACTICE AND PROCEDURE – interlocutory decision – leave to appeal – substantive application relating to continuing detention under Migration Act 1958 (Cth) – challenge to mode and conditions of detention – interlocutory release order on conditions – motion to discharge order following decisions of High Court in Al-Kateb  and Al Khafaji – docket judge refusing listing date for motion pending hearing of substantive application and further administrative application to Minister – application for leave to appeal against refusal to list motion – application for leave to appeal dismissed

Migration Act 1958 (Cth)

Al-Kateb v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 124 cited

Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 208 ALR 201 cited

Minister for Immigration & Multicultural & Indigenous Affairs v WAKX [2005] FCA 227 cited

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v WAKX

WAD 33 OF 2005

FRENCH J

8 JULY 2005

PERTH

THE COURT ORDERS THAT:

1.         The application for leave to appeal is dismissed.

2.         The applicant is to pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

ON MOTION FOR LEAVE TO APPEAL

Introduction

1                     WAKX says he is a national of India.  He came to Australia by boat in September 1998.  He is an unlawful non-citizen.  He was taken into immigration detention upon his arrival in Australia. 

2                     On 16 October 2002, WAKX commenced proceedings in this Court.  By an amended application he sought his release from immigration detention on the basis that there was no reasonably foreseeable possibility that he would be returned to his country of origin within a reasonable time.  Lee J made an interlocutory order on 6 August 2003 releasing him from immigration detention pending the hearing and determination of the substantive application.  The release was made on various conditions.  The substantive application was not then listed as there were proceedings pending in the High Court relating to the constitutional validity of the indefinite detention of unlawful non-citizens unable to be returned to another country. 

3                     On 6 August 2004, the High Court held the indefinite detention of unlawful non-citizens to be valid in such circumstances – Al-Kateb v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 124  and Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 208 ALR 201.  Notwithstanding those judgments WAKX still seeks either a mandatory order requiring the Minister to return him to India or an injunctive order requiring his release from detention.  The substantive application has been listed for hearing on 20 July 2005 albeit there is a question about counsel’s availability which may require a variation of that date.

4                     On 17 September 2004, a motion was filed, returnable before Lee J, by the Minister seeking a discharge of the interlocutory order of 6 August 2003 releasing WAKX from detention.  His Honour declined to list that motion in advance of the hearing of the substantive application.  The Minister sought leave to appeal against that decision.  The Minister sought to have the application for leave to appeal heard and determined by a Full Court.  On 10 March 2005 I made an order that the motion for leave to appeal be heard and determined by a single judge – Minister for Immigration & Multicultural & Indigenous Affairs v WAKX [2005] FCA 227.  I directed that written submissions be filed and that I would hear and determine the motion for leave to appeal on the papers.  For the reasons that follow the motion is dismissed.

5                     I will begin by setting out the factual and procedural history of the matter as it was set out in the earlier judgment as that provides a convenient overview of what has happened up to date in these proceedings.

Factual and procedural history

6                     WAKX claims to be an Indian national.  He arrived in Australia by boat without lawful authority on 9 September 1998.  He was taken into immigration detention at that time.  He lodged an application for a protection visa on 24 September 1998.  That application was refused by a delegate of the Minister on 20 October 1998.  An application to the Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision led to the delegate’s decision being affirmed by the Tribunal on 11 January 1999. 

7                     WAKX did not seek judicial review of the Tribunal decision.  He did on various occasions ask the Minister to exercise the powers conferred by ss 417 and 48B of the Migration Act 1958 (Cth) and either substitute a more favourable decision or allow him to make a further application for a protection visa. 

8                     On 16 October 2002, WAKX commenced proceedings in this Court with an application filed on his own behalf.  He was still, at that time, in immigration detention.  In the application he claimed to have been denied access to legal facilities while in immigration detention.  He also claimed to have been denied educational facilities.  He said he was suffering great injustice and prejudice.  He intended to raise several questions of public importance at the trial.  The application, on the face of it, did not disclose either the nature of final or interlocutory relief sought or a legal basis for any relief. 

9                     The matter came before Lee J on 1 November 2002.  His Honour made directions including a direction that the parties attend the Registrar for a conference to be conducted as a mediation proceeding.  He also made a direction under O 80 of the Federal Court Rules that the Registrar endeavour to secure ‘pro bono’ representation for WAKX.  Subsequently Dr Cameron agreed to represent WAKX on a pro bono basis.  A number of adjourned directions hearings followed.

10                  On 6 June 2003, Lee J directed that WAKX have leave to file and serve an amended application on or before 27 June 2003.  His Honour also gave directions for the filing and service of affidavits and for the fixing of a hearing date.  An amended application was filed on 26 June 2003 in which WAKX claimed an order in the nature of mandamus requiring the Minister to remove him from Australia to India within a time to be specified.  In the alternative, an order was sought in the nature of habeas corpus that he be released from immigration detention.

11                  In the grounds of the amended application it was alleged that the Minister has detained WAKX since his arrival in Australia and has continued to hold him in detention notwithstanding his request to be returned to India.  Reliance was also placed on the Tribunal’s finding that WAKX was a low level member of the Jammu Kashmir Liberation Front, which membership would not prevent him from travelling throughout India allowing him reasonably to relocate within that country and that Australia accordingly did not owe him protection obligations.  WAKX alleges that he requested removal from Australia on 21 September 2002.  The Minister’s officers had been endeavouring to obtain travel documents for him since January 1999 which would enable his removal to India.  These efforts had proved fruitless and were unlikely to prove successful in the reasonably foreseeable future. 

12                  WAKX claimed by way of interlocutory relief an order that pending the hearing and determination of the application he be released from immigration detention.  A motion seeking such interlocutory relief was also filed on 26 June 2003.  His Honour listed the motion for hearing on 16 July 2003 and directed that the parties file minutes of proposed conditions of release if an interim order were to be made as sought.  He also directed that WAKX file an undertaking to abide by whatever conditions the Court might impose if the order were to be made.  On 16 July 2003, the matter came on and directions were made for further affidavits to be filed.  The motion was stood over to 6 August 2003. 

13                  On 6 August 2003, his Honour made an interlocutory order for the release of WAKX pending the hearing and determination of the substantive application. There was attached to the order a Minute of Conditions of Release.

14                  WAKX was released from immigration detention in accordance with the order made on 6 August 2003.  The matter was not listed for hearing, no doubt because of the pendency of appeals in the High Court relevant to the validity of the continuing detention of unlawful non-citizens who were unable to be returned to another country. 

15                  On 4 June 2004, the undertaking of WAKX and the conditions upon which he was released from detention were varied.  On 9 July 2004, orders were made for the filing of affidavits and for the application to be listed for hearing on a date to be fixed by the District Registrar after 1 October 2004.  Directions were also made for the filing of outlines of submissions. 

16                  On 17 September 2004, a motion was filed on behalf of the Minister seeking discharge of the order made by Lee J on 6 August 2003.  In a supporting affidavit reference was made to the decisions delivered by the High Court on 6 August 2004 in the matters of Al-Kateb  and Al Khafaji.  The Minister contended in the supporting affidavit that, in the light of those judgments, the application was bound to fail and should be dismissed.  The Minister had written to WAKX’s solicitors requesting that he consent to an order dismissing the application or, in the alternative, discharging the interlocutory order made by Lee J.  His counsel, Dr Cameron, had responded that he would not consent to an order dismissing the application or to the discharge of the order effecting his interlocutory release. 

17                  On 19 November 2004, the proceedings were listed for a directions hearing before Lee J.  At that directions hearing his Honour declined to list the Minister’s motion for hearing but made further directions preparing for the hearing of the substantive application.  These required any amended application to be filed by 3 December 2004 and included further programming orders in relation to the filing of affidavits.  The matter was adjourned for directions in respect of listing for hearing on 11 February 2005.

18                  On 6 December 2004, a minute of a proposed further amended application was filed.  The primary relief claimed was an order in the nature of mandamus requiring the Minister to remove WAKX to India.  Injunctive relief was also sought restraining the Minister from detaining him in an immigration detention centre.  The grounds of the application set out the matters referred to in its earlier version.  They include, additionally, an allegation that on 17 July 2003 an officer of the Minister had deposed to her firm belief that the prospect of WAKX’s removal in the reasonably foreseeable future was very good if he were to cooperate with the department by divulging his true identity or providing more information that could possibly identify him as an Indian citizen.  She further deposed that in the absence of cooperation there was still a reasonable likelihood that WAKX could be removed in the reasonably foreseeable future.  The grounds of the proposed application alleged that notwithstanding these ‘assurances’ it has not proved possible to remove WAKX to India and there is little likelihood that this will prove possible in the reasonably foreseeable future.  WAKX alleged that he had demonstrated since his release from the centre that immigration detention on conditions similar to those to which he is presently subject would be sufficient to ensure that he will not abscond and would remain ready for removal should this prove possible. 

19                  It is further asserted in the proposed further amended application that on 10 November 2004 WAKX married an Australian citizen, originally a Somali refugee, whom he met in 1998 in the Port Hedland Immigration Detention Centre.  He has applied for a spouse visa which would allow him to remain in Australia with his wife and her three children.  The grounds then state:

‘The decision that the Applicant again be placed in immigration detention centre is disproportionate to the purpose requiring that the Applicant be available for removal from Australia, and excessive and unreasonable insofar as it fails to have regard to his personal circumstances, and to the unlikelihood that his removal from Australia will be possible in the reasonably foreseeable future.’

20                  At the directions hearing on 11 February 2005, Lee J made orders that the application be amended in terms of the minute of the proposed further amended application.  He extended the time for the parties to file affidavits and directed that the matter be listed for a directions hearing on 1 April 2005.  He gave liberty to apply.  His Honour expressly declined at that directions hearing to set down the Minister’s motion for hearing in advance of the hearing of the substantive application.  His Honour expressed the view that the sensible approach was to hear both the Minister’s motion and the substantive application together.  In the meantime, there was an application pending before the Minister for the grant of a visa under the provisions of s 417 of the Migration Act including, it appears, an application for permission for WAKX to make a formal application for a spouse visa while still within Australia.  Ordinarily such an application must be made offshore. 

21                  By a motion filed on 18 February 2005, the Minister sought leave to appeal from the refusal by Lee J to list for hearing his notice of motion seeking discharge of the interlocutory release order.  The matter came before me for directions on 9 March 2005.  Counsel for the Minister requested that the motion be heard by a Full Court.  He submitted that he was entitled to elect to have the matter dealt with by a Full Court rather than by a single judge.  Some discussion ensued on the question whether such an election was available.  I adjourned the matter for twenty-four hours in order to consider that question and to enable counsel to make any supplementary submissions on it.  The solicitors for the Minister subsequently sent a letter to the Court referring to the relevant authorities.

22                  On 10 March 2005, I made orders that the Minister’s motion for leave to appeal be heard and determined by a single judge and that it be heard and determined on the papers.  Directions were given for the filing and service of submissions. 

The release order

23                  The interlocutory release order made by Lee J on 6 August 2003 was in the following terms:

‘1.        On the undertaking of the applicant filed on 15 July 2003 and to be read as referring to the Minute of Conditions attached, and subject to the performance of the conditions in that Minute of Conditions, the applicant is to be released from detention under further order.

2.         The costs of the motion to be reserved.’

24                  The attached minute of conditions of release required WAKX to reside at a specified address and not live elsewhere without the prior written consent of an officer of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA).  In the event that he were to receive notice in writing from the Australian Government Solicitor (AGS) or DIMIA as to arrangements made for his removal from Australia, he was to take all reasonable steps within his power to comply with those arrangements in order to facilitate his removal.  In the event of specific arrangements being made for his removal from Australia at a specified time he was to submit to the custody of DIMIA officers for that purpose.  He was also required to take all reasonable steps in his power to comply with any request in writing from AGS or an officer of DIMIA for the provision of any information or documents which the minister reasonably considered might facilitate his removal from Australia.  There was a reporting condition requiring him to report in person to the office of DIMIA during ordinary working hours on Tuesdays and Thursdays of each week.  He was also to report by telephone during ordinary working hours on Monday, Wednesday and Friday of each week.  A requirement was made for the deposit of a bond by way of a bank cheque in the sum of $3,000.  He was to attend Court in person on the occasion of delivery of judgment in the substantive application unless so excused from doing by an order of the Court. 

25                  In his reasons for decision in relation to the order, his Honour said, inter alia:

‘Having regard to the totality of evidence before the Court, including the number of years that have passed since the applicant was placed in detention and the lack of imminence, or prospect of, any arrangements being made for the removal of the applicant from Australia, I am satisfied that an interlocutory order should be made that the applicant be released from detention subject to appropriate conditions.  On the material before the Court there is an arguable case that continued detention of the applicant does not meet the purposes of the Act and accordingly it is appropriate for the Court to consider exercising its jurisdiction to make an interlocutory order pending determination of the substantive issues of the application.  The starting point must be that a person is entitled to be at liberty where there is a real argument that continued deprivation of liberty would be unlawful.’

26                  The reporting conditions were varied by consent on 9 June 2004.

27                  At the directions hearing on 11 February 2005 his Honour observed, in the course of argument, that the orders sought in the Minister’s motion for discharge of the interlocutory release order rested on the contention that WAKX should be back in detentin.  This was a contention being challenged in the substantive application.  He also noted that the substantive application was, in effect, seeking an order that the detention continue in the form of the restraints imposed by the interlocutory order itself. 

The proposed grounds of appeal

28                  The grounds of appeal proposed by the Minister are as follows:

‘3.        The learned primary judge was in error in failing to list for hearing the applicant’s notice of motion filed on 17 September 2004, given:

            (a)        the importance of the issue raised by the motion, being the discharge of an order made on 6 August 2003, to release the respondent from detention (the release order);

            (b)        the decision of the High Court in Al-Kateb v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 124, delivered subsequently to the release order, fundamentally changed the law which underpinned that order;

            (c)        the strength of the argument of the applicant in support of the orders sought in the motion;

            (d)        that by his proposed amended application, the respondent did not appear to challenge that he was required to be detained under the Migration Act 1958 (Cth) if he could not be removed from Australia; and

            (e)        the applicant was entitled to have the notice of motion listed for hearing given that it was unobjectionable in form, content or procedure.’

The grounds of the amended application

29                  By the amended application, WAKX seeks an order in the nature of mandamus requiring the Minister to remove him to India within a time to be specified by the Court.  He seeks an injunction restraining the Minister, whether by herself, her agents or officers from detaining him in an immigration detention centre established under the provisions of s 5 of the Migration Act 1958 (Cth) (the Act).  One of the grounds set out in the application was that WAKX has demonstrated since his release from the Perth Immigration Detention Centre, that immigration detention on conditions similar to those which he is presently subject are sufficient to ensure that he will not abscond and will remain ready for removal should this prove possible.

Whether leave should be granted

30                  The Minister contends that although the Rules are silent on the issue of the Court hearing a notice of motion, it is implicit that a party who files a notice of motion which accords with the Rules has an entitlement to have it heard.  It was submitted that this entitlement might be defeated where there were particular facts and circumstances warranting the Court exercising a discretion not to hear the notice of motion.  It was submitted that there were no such facts and circumstances justifying the learned primary judge taking that course on 11 February 2005. 

31                  It was further submitted that although his Honour did not give formal or detailed reasons for failing to list the notice of motion for hearing on 11 February 2005 it appears from what his Honour said that the main reason was the assertion on behalf of WAKX that there was a ‘substantive application’ under s 417 of the Act before the Minister’s office.  Counsel for the Minister advised the learned trial judge on 11 February 2005 that the consideration of the s 417 request might take three months.  It was submitted that the reasons his Honour gave did not justify the non-listing of the notice of motion. 

32                  It was submitted that the issue raised by the notice of motion was an issue of importance, namely the discharge of an order which had been made to conditionally release WAKX from immigration detention.  It was the Minister’s argument that following the High Court decisions referred to the Court had no jurisdiction to make an order of the type made by the primary judge on 6 August 2003.  It was therefore appropriate for the Court to discharge the order that had been made.  The submissions then referred to the decision of the High Court in Al-Kateb. 

33                  In my respectful opinion it must be a rare case in which a court will decline to entertain a motion bona fide filed by a party to litigation in respect of the continuing operation of an interlocutory order.  However that consideration does not warrant the grant of leave to appeal against the refusal to list the motion.  The primary factors militating against the grant of leave are practical.  The substantive application is ready for hearing and, I am informed by the Registry, has been listed for hearing on 20 July 2005 although it appears that date may be considered for variation because of the unavailability of WAKX’s counsel.  In any event the substantive hearing is likely to take place in the next few weeks.  The outcome of the substantive hearing will determine, subject to any appeal, the substantive issues between the parties.  Moreover I observe that the amount of time that has now passed should have allowed the Minister to have considered and determined any further application under s 417 of the Act having regard to the time estimate which was offered by the Minister’s legal representatives.  In the event the application for leave to appeal against his Honour’s refusal to list the Minister’s motion will be dismissed.

Associate:

Dated:              8 July 2005