FEDERAL COURT OF AUSTRALIA

Asaad v Minister for Immigration and Citizenship [2008] FCA 836

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth) ss 5, 198(6), 474, 476A

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 cited

Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465 considered

Beyazkilinc v Manager Baxter Immigration Reception & Processing Centre [2006] FCA 16 considered

CHARIF ASAAD v MINISTER FOR IMMIGRATION AND CITIZENSHIP

NSD 660 of 2008

TAMBERLIN J

4 JUNE 2008

SYDNEY

THE COURT DIRECTS THAT:

1.         The parties approach my Associate in chambers to arrange for the listing of this matter for further directions.

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

REASONS FOR JUDGMENT

1                          On Friday 9 May 2008, as a matter of urgency, I made orders restraining the respondent (“the Minister”), his officers and his agents from removing the applicant (“Mr Asaad”) from Australia until further order and I stated I would give my reasons later.  These are my reasons.

2                          Section 198(6) of the Migration Act 1958 (Cth) (“the Act”) provides that an “officer”, as defined in s 5 of the Act, must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen is a detainee who has made a valid application for a substantive visa which has been finally refused or cannot be granted, and has not made another valid application for a substantive visa that can be granted while he or she is in the migration zone.  If those conditions are satisfied, an obligation arises for the officer to remove the unlawful non-citizen as soon as reasonably practicable.  This requires a determination as to the meaning of the words “as soon as reasonably practicable”.

3                          Counsel for Mr Asaad seeks a declaration that the above provision does not authorise Mr Asaad’s removal from Australia in circumstances where the removal would pose a serious threat to his safety or that of other persons.  Counsel says that because a substantial question of statutory construction is involved, there is a prima facie case to be tried and the status quo should not be disturbed: see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 82.  This, it is said, and the balance of convenience in this case, together weigh in favour of Mr Asaad and warranted the making of the interlocutory orders he seeks. 

4                          Mr Asaad has filed an affidavit affirmed by Ms Paula Farrugia, a psychologist, who has known Mr Asaad for about four months while visiting the Villawood Detention Centre in which he is detained.  Ms Farrugia has been informed by Mr Asaad that he suffers from acute epilepsy and has been informed by other detainees that they have observed him suffering from seizures.  Ms Farrugia understands that Mr Asaad has epileptic seizures on an almost daily basis and that he has regularly had two to three epileptic seizures per day.  She herself has observed his condition after a seizure, which lead to large bruises on his face and arms.

5                          In January 2008, Ms Farrugia discussed Mr Asaad’s condition with him and he indicated that he had previously been hospitalised at Canterbury-Bankstown Hospital, Liverpool Hospital and at a psychiatric unit at Bankstown Hospital.  Ms Farrugia states that Mr Asaad had been on a hunger strike for 14 days in January 2008, and during March and April he had been on a further hunger strike for 35 days as part of an effort to have his request for relocation granted.

6                          Ms Farrugia also states that Mr Asaad was hospitalised on 11 April 2008 for four days at Fairfield District Hospital.  Ms Farrugia visited him on 13 April 2008.  She was told by him that his hospitalisation was due to an epileptic episode during which he had allegedly struck an officer.  She is of the view that Mr Asaad suffers from clinical depression, anxiety disorder, and possibly also panic disorder.  Ms Farrugia expresses the opinion that she is not confident that a full psychological assessment of Mr Asaad has been conducted by the Department of Immigration and Citizenship and considers it likely that his condition will worsen exponentially by reason of the trauma caused by his removal from Australia.

7                          Notwithstanding that she has been informed that the Minister proposes to remove Mr Asaad from Australia to Syria in the company of a medical practitioner and a nurse, Ms Farrugia considers that there will be a real and unacceptable risk to Mr Asaad’s health and safety, and possibly also to the psychological health and safety of other passengers on the aircraft.  She notes that she has not been able to provide Mr Asaad with independent advice on the adequacy of the details of the proposed medical plan for his removal because they have not been provided to him.  Finally, Ms Farrugia considers that the ability of the medical team to assist Mr Asaad on the aircraft would be limited by the isolation of the team and Mr Asaad in the aircraft for long periods of time and by the unavailability of facilities which were previously available in the hospitals.

8                          Mr Asaad also relies on an affidavit affirmed by his solicitor, Ms Christina Grygiel.  That affidavit recounts information as to Mr Asaad’s epileptic seizures, depression and anxiety, and notes that he follows a medication regime.  Ms Grygiel also states that when Mr Asaad was visited by a doctor at Villawood Detention Centre, the doctor stated that the level of one of Mr Asaad’s medications was very low and had to be raised.  Despite this, says Ms Grygiel, Mr Asaad has not received a higher dosage of that medication.

9                          Counsel for the Minister provided the Court with a letter of 7 May 2008 from the Medical Director of the International Health and Medical Services, Dr Tony Falconer.  The substance of that letter is that Mr Asaad has received health care services from International Health and Medical Services while in immigration detention.  Those services related to epilepsy problems, problems arising from non-compliance with treatment, stomach upsets and voluntary starvation.  It also noted that Mr Asaad has periods when he has relevantly frequent seizures arising in situations of stress and as a result of his refusal to take medications.  Dr Falconer says that the nature of his seizures has remained unclear and that on some occasions he has been aggressive to other detainees or staff.

10                        International Health and Medical Services have recommended that Mr Asaad have a doctor escort him to Syria so that any seizure episodes that may occur could be properly managed, and that he receive additional dosages of his medication prior to departure.   In addition, as Mr Asaad had previously displayed passive protest behaviour (such as non-compliance with medication regimes and voluntary starvation), Dr Falconer stated that it would be advisable to inform Mr Asaad of his removal from Australia only 24 hours prior to departure.  He was not expected to be violent or aggressive.  Dr Falconer also notes that the intention is that Mr Asaad would be handed over to Syrian immigration officials at Damascus Airport and an appointment would be made for him to be reviewed by a doctor at the airport upon arrival.

11                        Counsel for Mr Asaad submits that the interpretation of s 198(6) of the Act as to whether it authorises deportation in the present case is a clear question of law.  Counsel says that there is a dispute as to the meaning of the expression “as soon as reasonably practicable”.  He also says that even if the case can be characterised, contrary to his submissions, as an application to challenge a decision, it is reasonably arguable that the decision can be challenged because the Court is not limited by any relevant privative clause.  Counsel submits that there is room for argument sufficient to establish a prima facie case justifying the preservation of the status quo.  He contends that a decision under s 198(6) is not a decision for the purposes of s 476A of the Act, which limits the jurisdiction of this Court in spite of the operation of any other law, including the Judiciary Act 1903 (Cth) or the Administrative Decisions (Judicial Review) Act 1977 (Cth).

12                        Counsel for the Minister submits that this Court does not have jurisdiction to deal with the application on the basis that the question of the reasonable practicability of removal is not a jurisdictional fact.  Counsel refers to the decision of Besanko J in Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465, which involved a decision under s 198(6) of the Act to remove from Australia an unlawful non-citizen in detention who suffered from mental illness.  His Honour held that the proposed removal of Mr Beyazkilinc from Australia pursuant to the subsection was a “privative clause decision”, as that term is defined in s 474 of the Act.  The question of the reasonable practicability of the removal was held by his Honour not to be a jurisdictional fact.  Counsel for the Minister says that, applying this ruling in the present case, the Court does not have jurisdiction and therefore the application to restrain the Minister must fail.

13                        In the course of his judgment in Beyazkilinc 155 FCR 465, Besanko J referred at 475-476 to four relevant factors to be taken into account in determining whether there was an arguable challenge to removal.  At 476-477, his Honour noted that, while two of the factors suggested that the question of reasonable practicability should be characterised as a jurisdictional fact, the other two factors spoke strongly against it and outweighed the first two factors.

14                        It is worth noting that in Beyazkilinc v Manager Baxter Immigration Reception & Processing Centre [2006] FCA 16,Mr Beyazkilinc sought interlocutory relief against his removal from Australia and Mansfield J made an order that the Commonwealth of Australia be restrained from removing him until further order.  His Honour’s judgment in that case was not appealed.

15                        Counsel for Mr Asaad contends that the relevant decision in this case is not a privative clause decision (see s 474 of the Act), and as a result would not be a decision for the purpose of s 476A.  This would in turn mean that there is room for argument that the reasoning of Besanko J is wrong.  Counsel also contends that once the jurisdiction of the Court is invoked, then it has jurisdiction to do whatever is necessary to ensure that it determines the matter and does justice on the application.

16                        In my view, it is reasonably arguable, at least sufficiently so for the purposes of granting interlocutory relief in the present case, that the reasoning and decision of Besanko J is wrong when his Honour weighed the various considerations leading to the conclusion concerning the jurisdictional fact.  I am also of the opinion that there is sufficient room for argument in this case on the question of the application of the privative clause.  Accordingly, in order to preserve the status quo and having regard to the balance of convenience (which, on the evidence, I am satisfied, clearly favours the non-removal of Mr Asaad from Australia), I grant the interlocutory relief sought by Mr Asaad.

17                        The foregoing are the reasons for my decision to make the orders on 9 May 2008.  I direct that the parties approach my Associate in chambers to arrange for the listing of this matter for further appropriate directions.

Associate:

Dated:         4 June 2008