FEDERAL COURT OF AUSTRALIA

Fernando v Minister for Immigration and Citizenship (No 3) [2008] FCA 1217

WANNAKUWATTEMITIWADUGE LLOYD NIRMALEEN FERNANDO v MINISTER FOR IMMIGRATION AND CITIZENSHIP

WAD 103 of 2007

SIOPIS J

13 AUGUST 2008

PERTH

THE COURT ORDERS THAT:

1.                  The appellant’s appeal filed on 23 May 2007 is dismissed.

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

REASONS FOR JUDGMENT

1                     On 3 October 2003, Mr Fernando’s permanent residency visa was cancelled under s 501 of the Migration Act 1958 (Cth) by the then Acting Minister for Immigration and Multicultural and Indigenous Affairs and he was taken into immigration detention.  Mr Fernando spent just over three years and three months in immigration detention before he was released on the basis that the then Acting Minister had acted unlawfully in cancelling his visa.  The circumstances of his release are described in more detail in my reasons for decision in Fernando v Minister for Immigration and Citizenship (2007) 165 FCR 471.

2                     On 19 March 2007, Mr Fernando commenced an application in the Federal Magistrates Court claiming compensation for what he referred to as his “unlawful detention” in immigration detention.  The respondent objected to the jurisdiction of the Federal Magistrates Court to hear and determine the application.  On 18 May 2007, the Federal Magistrate decided that there was no jurisdiction in the Federal Magistrates Court to hear Mr Fernando’s application and dismissed the application.

3                     On 23 May 2007, Mr Fernando filed in this Court a notice of appeal against the decision of the Federal Magistrate.

4                     Further, on 31 May 2007, Mr Fernando filed an application, No WAD 111 of 2007, in this Court claiming compensation for what he referred to as his “unlawful detention” in immigration detention.  The respondent objected to the competency of the Court to hear and determine the application on the basis that there was no jurisdiction in this Court.  However, on 10 August 2007, I dismissed that objection to competency and the proceeding, No WAD 111 of 2007, brought by Mr Fernando, is still on foot.

5                     The respondent has applied to have this appeal dismissed on the basis that it is an abuse of process because it is an appeal in respect of a claim for the same relief as is claimed in application No WAD 111 of 2007.

6                     On 18 December 2007, the Court appointed Mr John Robert Broderick Ley to act as a tutor to represent Mr Fernando in the conduct of this and the other proceedings brought by Mr Fernando relating to his immigration detention and immigration status, under the provisions of O 43 r 2(1) of the Federal Court Rules (the Rules).

7                     Counsel for Mr Fernando’s tutor accepts that there is no utility in prosecuting the appeal in light of the existence of application No WAD 111 of 2007 which claims the same relief as is claimed in the proceeding in respect of which this appeal is brought.  However, counsel for Mr Fernando’s tutor contends that the tutor is not in a position to consent to the discontinuance, or dismissal of the appeal because such conduct by Mr Fernando’s tutor would in effect amount to a compromise of the appeal, which would under O 43 r 9 of the Rules require the approval of the Court.

8                     In my view, as counsel correctly concedes, because of the existence of application No WAD 111 of 2007, there is no utility in continuing to prosecute the appeal.  In the circumstances, there is no justification for the appeal proceeding being stayed, as counsel for Mr Fernando’s tutor would have it, rather than being dismissed.  I, accordingly, dismiss the appeal.  I will hear the parties as to costs.

Associate:

Dated:              13 August 2008