FEDERAL COURT OF AUSTRALIA

NBMO v Minister for Immigration and Citizenship [2007] FCA 241

MIGRATION – application for interim injunction restraining Minister from removing the applicant from Australia – order sought under s 46PP of the Human Rights and Equal Opportunity Act 1986 (Cth) – where applicant in immigration detention - where ongoing conciliation of a complaint made to Human Rights and Equal Opportunity Commission against Department of Immigration and Citizenship

HUMAN RIGHTS – application for interim injunction under s 46PP of the Human Rights and Equal Opportunity Act 1986 (Cth) to restrain respondent from removing applicant from Australia – where applicant in immigration detention at time of acts complained of and since – whether interim injunction sought would maintain the status quo or the rights of the applicant, in accordance with s 46PP of the Act – whether granting of interim injunction appropriate

Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PP

NBMO v MINISTER FOR IMMIGRATION AND CITIZENSHIP

NSD 283 OF 2007

MOORE J

27 FEBRUARY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent's costs.

3.                  The name of the respondent be amended to the 'Minister for Immigration and Citizenship'.

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

REASONS FOR JUDGMENT

1                     This is an application for an injunction under s 46PP of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the Act").  It arises in circumstances where there is presently before the Human Rights and Equal Opportunity Commission a complaint which is being conciliated under s 11 of the Act.  The complaint concerns interviews conducted in May 2005 by officials from the Ministry of Public Security, People's Republic of China ("PRC"), with a number of immigration detainees who were or were thought to be nationals of the PRC, of which the applicant was one.  As I understand it, the complaint also raises an allegation that the applicant and other interviewees were subsequently housed separately from other detainees.  The applicant received a notice of removal from Australia this morning.  The notice advised that he had been booked on a flight departing tomorrow.  The applicant now seeks an order that the respondent be restrained from taking any further steps towards removing him from Australia pending further order of this Court.

2                     Section 46PP of the Act relevantly provides that this Court may grant an interim injunction to maintain "the status quo, as it existed immediately before the complaint was lodged" or "the rights of any complainant".  The case has been advanced on the basis that an injunction should issue to maintain the status quo and, as I understand it, additionally or alternatively to maintain the rights of the applicant, being a complainant.  On what has been put, I do not consider that the status quo as identified by the applicant, namely his remaining in Australia, is the status quo of the type referred to in s 46PP of the Act.  As I apprehend the section, it is directed to preserving a position that may have existed or did exist before the conduct which is the subject of the complaint.  In this case, the status quo ante was that the applicant was in detention awaiting removal from Australia.

3                     As to whether the complainant has the "rights" referred to in s 46PP(1)(b), I am prepared to proceed on the basis that the rights comprehended by the provision would include the right to enjoy the benefit of conciliation under the Act.  Given the scope and purposes of the Act, it ought be construed beneficially, and consistent with that approach, the expression “rights” should not be narrowly construed.  However it is necessary to consider whether there is any real prospect of the complainant securing through the process of conciliation the outcome identified, namely a protection visa. 

4                     The legal representatives of the applicant have drawn attention to the fact that some of the individuals who were interviewed by the PRC officials were later given protection visas, and it is submitted that the circumstances of the applicant (that he was one of the group who were interviewed) are such that he might secure a similar outcome from conciliation.  However, it is not apparent to me from the material to which I was taken that the circumstances of the applicant approximate the circumstances of the people who have enjoyed a favourable decision by the Minister.  Indeed, the fact that the Minister has very recently considered the circumstances of the applicant (including the fact that he was interviewed) and has rejected submissions on his behalf made by his solicitor directed to obtaining a protection visa fortify my view, having regard to the material to which I was taken, the applicant is not likely to secure through the process of conciliation the result identified.  The Minister is under a statutory duty to remove the applicant from Australia: see s 198 of the Migration Act 1958 (Cth), and also more generally, Li v Minister for Immigration and Multicultural Affairs [2001] FCA 1414 and Li v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 667.

5                     In those circumstances it appears to me that as a matter of discretion, it would be inappropriate to grant an interim injunction under s 46PP and accordingly I dismiss the application.

Associate:

Dated:         1 March 2007