FEDERAL COURT OF AUSTRALIA

Matete v Minister for Immigration & Citizenship [2009] FCA 187

TEINA MATETE v MINISTER FOR IMMIGRATION & CITIZENSHIP, MIGRATION REVIEW TRIBUNAL and SECRETARY FOR IMMIGRATION AND CITIZENSHIP

NSD 5 of 2009

STONE J

24 FEBRUARY 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The notice of objection to competency filed by the first and third respondents be upheld.

2.                  The application be dismissed.

3.                  The applicant pay the first and third respondents’ costs of the notice and of the proceeding.

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

1                              On 24 February 2009 I made orders dismissing the application in this proceeding and undertook to provide reasons at a later date.  These are my reasons.

2                              On 7 August 2000 the applicant arrived in Australia from New Zealand on a New Zealand passport.  On arrival he was granted a subclass 444 (special category) visa which is customarily granted to New Zealand citizens entering Australia; it entitles the holder to permanent residency in Australia with a right to travel in and out of Australia. 

3                     Pursuant to s 109 of the Migration Act 1958 (Cth) the applicant's visa was cancelled on 29 May 2007 by a delegate of the first respondent.  The delegate found that the New Zealand passport which identified the applicant as Teina Antonio Tereia Matete had been fraudulently obtained, that his real name was Takave Pokoati and that he had been born on 13 November 1968, not 11 March 1969 as he had claimed in his visa application.  In addition the applicant had failed to declare his criminal convictions in New Zealand.  At the time of the cancellation of his visa the applicant had also been convicted of a number of criminal offences in Australia.

4                     The applicant appealed against the cancellation of his visa to the Migration Review Tribunal, the Federal Magistrates Court and to this Court.  He was unsuccessful at each stage.  In his reasons for dismissing the applicant's appeal Buchanan J in Matete v Minister for Immigration and Citizenship [2008] FCA 1876 said at [24]-[25]:

No basis has been established upon which it would be open to conclude that the [Migration Review Tribunal] acted beyond its jurisdiction in making the factual findings that it did or in the manner it assessed the appellant's claims to remain in Australia against those factual findings.

I am satisfied that no error in the decision of the [Federal Magistrates Court of Australia] has been established, nor any jurisdictional error in the decision or processes of the [Migration Review Tribunal].

5                              The present application, which was filed on 5 January 2009 together with an affidavit in support, lists the following details of claim:

1.         That the findings of both first and second respondent were made in breach of the jurisdictional pre-requisite to the grant of power under s 109 of the Migration Act 1958.  As a result and in both cases, no decision to cancel the applicant's visa was ever made or authorised to be made.

2.         That the applicant's detention is punitive and neither sanctioned by the provisions of Migration Act 1958 nor by the Australian Constitution.

3.         In the alternative, the applicant is still a lawful Australian resident notwithstanding a purported cancellation on the part of either respondent.

6                              The first and third respondents have filed a notice of objection to competency and a notice of motion seeking that the proceeding be dismissed as an abuse of the process of the Court.  The objection to the competency of the present application to invoke the jurisdiction of this Court is based on the limitation of the Court's original jurisdiction imposed by s 476A(1) of the Migration Act.  This limitation is discussed further below.

7                              In the first paragraph of his details of claim the applicant seeks to challenge the decisions made by the delegate of the first respondent and by the second respondent, the Migration Review Tribunal.  The first point to be made is that the decision of the delegate is a spent force.  In reviewing the delegate's decision the Tribunal may exercise all the powers and discretions that the Act confers on the delegate; s 349.  Its decision is substituted for that of the delegate and therefore it is the challenge to the Tribunal's decision which is the substance of the first claim and of this proceeding.  The claims made in paragraphs 2 and 3 of the details of claim are ancillary to and consequential upon the Tribunal's decision referred to in paragraph 1.  They challenge the legality of the applicant's detention and the cancellation of his visa.

8                              A non-citizen who is in the migration zone and does not hold a visa is an unlawful non-citizen; Migration Act ss 13 and 14.  Subject to exceptions not presently relevant, s 189 of the Act requires an officer to detain a person in the migration zone if he or she knows or suspects the person to be an unlawful non-citizen.  In other words, claims 2 and 3 do not raise any issue not raised in claim 1.

9                              A similar point may be made about the following orders which are sought by the applicant:

(a)           An order in the nature of habeas corpus directed to the first and third respondents ordering the release the [sic] applicant from immigration detention;

(b)           Alternatively, an order in the nature of mandamus directing the first and third respondents to cause the applicant to be released from immigration detention;

(c)           In the alternative, an injunction directed against the first and third respondent [sic] prohibiting either from further detaining the applicant or pursuing his removal or deportation under any section of the Migration Act 1958.

(d)           A declaration from the court that the applicant has at all times since a purported cancellation by either respondent, been a lawful non-citizen resident who holds a valid permanent residence visa allowing him to travel in and out of Australia and live permanently in Australia.

(e)           In the alternative, prohibition and or an injunction preventing any of the respondents from giving effect to any purported decision to cancel the applicant's visa or affirm the cancellation of the applicant's visa or detain him on the basis of any purported decision to cancel the applicant's visa or affirm the cancellation of the applicant's visa.

(f)            An order of costs against all three respondents.

10                           It is not uncommon for this Court to be asked to grant a writ of habeas corpus or more commonly, as in this case, an order “in the nature of habeas corpus".  There has been considerable discussion in previous cases concerning the Court’s jurisdiction to grant such relief and the jurisprudential basis for any such jurisdiction: see generally Ruddock v Vardarlis (2001) 110 FCR 491; Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54; Alsalih v Manager, Baxter Immigration Detention Facility [2004] 136 FCR 291 and Al-Kateb v Godwin (2004) 219 CLR 562 at [24]-[28] per Gleeson CJ (dissenting).  It unnecessary for me to discuss the issue except to say that, in so far as the remedy of habeas corpus is directed to relief from unlawful imprisonment, this Court has jurisdiction in relation to an officer of the Commonwealth both to determine if detention is lawful and to order a person's release when it is not lawful; Judiciary Act 1903 (Cth) s 39B; Federal Court of Australia Act 1976 (Cth) s 22; Alsalih at [41]-[42], Sargeson v Chief of Army (2005) 225 ALR 249 at [37]-[39].  The critical issue is, however, that the detention be unlawful.  The availability of the remedies sought in paragraphs (b), (c) and (d) also depends upon a successful challenge to the decision to cancel the applicant's visa.  Consequently, the only substantive issue before me is whether this Court has jurisdiction to review that decision in any way and, if so, whether the present application is an abuse of process.

11                           It can be seen from the above discussion that the present application can only be an application under s 39B of the Judiciary Act.  It is at this point necessary to consider s 476A of the Migration Act which specifies the circumstances in which the Federal Court has original jurisdiction in relation to a migration decision.  It is not in contention that the decision of the Tribunal affirming the delegate's decision to cancel the applicant's visa is a "migration decision"; s 5.  Section 476A(1) provides that the Court has original jurisdiction "in relation to a migration decision" only in the circumstances described in subsections (a)-(d), none of which applies here.  In its opening words the subsection expressly provides that this limitation operates:

Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977 …

12                           In my view, the words of s 476A are clear and leave room for no conclusion other than that the respondents' objection to the competency of the present application is sound and the application must be dismissed.

13                           For the sake of completeness, Mr Markus, who appeared for the first and third respondents, made oral submissions as to other difficulties that would confront the application even if the Court had jurisdiction to consider it.  These include the time limitations imposed by the Act, Anshun estoppel and abuse of process.  While I accept his submissions it is not necessary for me to discuss them as they refer to a purely hypothetical situation.  It is not necessary for me to make any order in relation to the first and third respondents' notice of motion. 

14                           This Court cannot consider the present application.  The respondents’ objection to competency is upheld and the application is dismissed with costs. 

Associate:

Dated:         24 February 2009