FEDERAL COURT OF AUSTRALIA

Durani v Minister for Immigration and Border Protection [2013] FCA 1264

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application for an interim injunction compelling the respondent to release the applicant from immigration detention pending the determination of his substantive application, and for a referral to mediation, is dismissed.

2.    The applicant pay the respondent’s costs, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    The applicant (Dr Durani) applies to be released from immigration detention pending determination of his application for judicial review of a decision of the respondent (the Minister). The Minister cancelled his visa on character grounds.

2    The specific interlocutory orders sought are in the following terms:

4.    An order pursuant to s 53A(1)(b) of the Federal Court of Australia Act 1976 [(Cth)] and reg 28.02 of the Federal Court Rules 2011 [(Cth)] referring the proceedings to a mediator for mediation of the dispute between the [Dr Durani] and the [Minister] about the implementation of a further decision of the [Minister] made subsequently to the Migration Decision, namely a decision to detain [Dr Durani], which further decision may be judicially reviewed by this Court in exercise of the original jurisdiction conferred:

(a)    by s 476A(1)(c) of the Migration Act 1958 [(Cth)], being jurisdiction in relation to the Migration Decision; and

(b)    by s 39B(1) and (1A)(c) of the Judiciary Act 1903 [(Cth)], being jurisdiction with respect to the matter:

(i)    in which an injunction is sought by [Dr Durani] against an officer of the Commonwealth, namely the [Minister]; and

(ii)    arising under a law made by the Commonwealth Parliament, namely s 476A(1)(c) of the Migration Act 1958 [(Cth)].

5.    An interim injunction:

(a)    compelling the [Minister] to release [Dr Durani] from detention pending the determination of the application for final relief, thereby restoring the status quo in a manner compatible with [Dr Durani] retaining his liberty;

(b)    restraining the [Minister] from further detaining [Dr Durani] pending the determination of the application for final relief.

3    Argument was not addressed to the mediation relief and in light of my determination on the injunctive relief and the imminence of the substantive hearing the question of the relief under [4] of the interlocutory application falls away for present purposes.

BACKGROUND

4    Dr Durani is a 38 year old Indian national. He first came to Australia in December 2006 as the holder of a Class VE Subclass 422 (Medical Practitioner) Visa. This allowed him to remain in Australia on a temporary basis. On 13 July 2009, he was granted a permanent visa in the form of a Class VE (Skilled Migrant) Subclass 175 (Skilled-Independent) Visa. It is that visa that is the subject of the cancellation decision of 3 September 2013.

5    Dr Durani has a wife and young child in Australia. They are both Australian citizens.

6    In February 2010, Dr Durani was employed as a resident medical officer at the Royal Perth Hospital (RPH). Following a trial by a judge alone, he was convicted of the offences of unlawful and indecent assault (three counts) and sexual penetration without consent (two counts) against a 19 year old female patient of the RPH. Those offences were found to have occurred on 20 February 2010. District Court Judge Fenbury convicted him of those offences on 10 June 2011. He was sentenced to a total effective period of imprisonment of two years and four months. Various periods of imprisonment for each of the sentences were served on a concurrent basis. Dr Durani appealed from the convictions but his appeals were dismissed by the Court of Appeal of the Supreme Court of Western Australia on 30 August 2012.

7    On 13 July 2011, Dr Durani was imprisoned and was released on parole on 6 February 2013. Following his release on parole he was taken into immigration detention.

8    There have been two cancellations of his visa. Dr Durani’s visa was first cancelled on 5 February 2013. That cancellation decision was made under s 501(2) of Migration Act 1958 (Cth) (the Act) by a delegate of the Minister. Section 501(2) permits the Minister or his or her delegate to cancel a visa in circumstances where the person is suspected of not passing the ‘character test’ and does not satisfy the decision-maker that he or she passes the character test. It is common ground that Dr Durant fails the character test because of a ‘substantial criminal record’ arising from sentences of imprisonment for the two counts of sexual penetration without consent. That ‘substantial criminal record’ is also relevant to the cancellation power under s 501A(2) of the Act as a precondition to the exercise of the Minister’s power as a failure on the part of the person to satisfy the Minister that he or she passes the character test.

9    The Administrative Appeals Tribunal (the AAT) heard a review of the cancellation decision and on 6 May 2013 set aside that decision and substituted for that decision a decision that the visa not be cancelled: Durani v Minister for Immigration and Citizenship [2013] AATA 273. Following the AAT decision, Dr Durani was released from immigration detention.

10    His freedom was short lived. On 4 June 2013 the Minister’s Department wrote to Dr Durani giving notice that the Minister intended to consider whether to set aside the AAT decision and cancel his visa under s 501A(2) of the Act. Dr Durani’s solicitors responded on 15 June 2013 to that notification providing an acknowledgment of receipt of the notice and submissions regarding the possible exercise of the power under s 501A(2).

11    Notwithstanding these submissions, the Minister exercised his power to cancel Dr Durani’s visa on 3 September 2013 (the Migration Decision). As a consequence, Dr Durani was detained on 6 September 2013 and, as indicated, has remained in immigration detention at the Perth Airport since that time.

12    On 11 September 2013, Dr Durani’s solicitor wrote to the Minister’s solicitors requesting consideration be given by the Minister to exercise powers under s 195A and s 197AB of the Act with the consequence that Dr Durani would not be detained and thus separated from his family pending determination of his application for judicial review.

13    By letter dated 10 October 2013, the Minister’s solicitors advised Dr Durani’s solicitor that the Department had declined to refer Dr Durani’s request to the Minister to consider exercising his intervention powers because the request was said not to ‘fall within the criteria in the guidelines for referral to the Minister’.

14    On 23 October 2013, Dr Durani through his solicitor renewed his request to the Department through the Minister’s solicitors to refer to the Minister his application for consideration of a Residence Determination or, alternatively, for a Bridging Visa. The Minister had not at the time of the hearing acceded to that request.

15    As indicated, the Migration Decision to cancel Dr Durani’s visa was made under s 501A(2) of the Act. The Minister personally decided to set aside the decision of the AAT to not cancel a visa under s 501(2) of the Act and to substitute a fresh cancellation decision. The Minister was satisfied that it was in the ‘national interest’ to do so.

16    The Minister opposes the granting of the interlocutory orders effectively seeking Dr Durani’s release from detention for the reason that subs 196(3) and subs 196(4) of the Act prevent the Court from ordering his release.

17    For the purposes of the interlocutory application alone, while the Minister does not concede any errors as claimed by Dr Durani, he has nevertheless proceeded on the basis that there is a serious issue to be tried. However, the Minister submits that not only is there no power to make the interlocutory orders sought, but also that the balance of convenience lies in favour of Dr Durani’s continued detention. The Minister submits that it is not appropriate that Dr Durani should be released from detention in circumstances where the Minister has personally determined on grounds of national interest that Dr Durani’s visa should be cancelled and that he should not be permitted to remain a member of the Australian community.

STATUTORY CONSIDERATIONS

18    The key statutory considerations arise under ss 189, 196, 501 and 501A of the Act which relevantly provide as follows:

189    Detention of unlawful non-citizens

(1)    If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

…    (emphasis added)

196    Duration of detention

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)    an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

(2)    To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

(3)    To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa.

(4)    Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.

(4A)    Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.

(5)    To avoid doubt, subsection (4) or (4A) applies:

(a)    whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and

(b)    whether or not a visa decision relating to the person detained is, or may be, unlawful.

(5A)    Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.

(6)    This section has effect despite any other law.

(7)    In this section:

visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).

(emphasis added)

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

Note:    Character test is defined by subsection (6).

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

Decision of Minister—natural justice does not apply

(3)    The Minister may:

(a)    refuse to grant a visa to a person; or

(b)    cancel a visa that has been granted to a person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test; and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

(4)    The power under subsection (3) may only be exercised by the Minister personally.

(5)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

501A    Refusal or cancellation of visa - setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision (the original decision):

(c)    not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or

(d)    not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;

whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test.

Action by Minister—natural justice applies

(2)    The Minister may set aside the original decision and:

(a)    refuse to grant a visa to the person; or

(b)    cancel a visa that has been granted to the person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the person does not satisfy the Minister that the person passes the character test; and

(e)    the Minister is satisfied that the refusal or cancellation is in the national interest.

Action by Minister—natural justice does not apply

(3)    The Minister may set aside the original decision and:

(a)    refuse to grant a visa to the person; or

(b)    cancel a visa that has been granted to the person;

if:

(c)    the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

(4)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).

(4A)    Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.

Minister’s exercise of power

(5)    The power under subsection (2) or (3) may only be exercised by the Minister personally.

(6)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.

Decision not reviewable under Part 5 or 7

(7)    A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.

…

(emphasis added)

SERIOUS TO QUESTION TO BE TRIED

19    Given that the Minister has accepted, for the purpose of this application only, that there is a serious question to be tried, it is unnecessary to spend a great deal of time on this aspect of the matter because I am firmly satisfied that the Court has no power to grant the interlocutory relief sought by Dr Durani.

20    As I will also assume an arguable case, this further background forms no part of the reasoning in this decision. Broadly speaking, the grounds of the primary application are that the Minister committed jurisdictional error in reaching a state of satisfaction that it was in the national interest to cancel Dr Durani’s visa in circumstances where he failed to accord procedural fairness by informing Dr Durani of the considerations which he regarded as being relevant to that process and in failing to have regard to a relevant consideration (that is, whether it was in the national interest for a child of the age of Dr Durani’s son to be separated indefinitely from his father). Secondly, it is said that in the exercise of discretion, the Minister failed to give proper, genuine and realistic consideration to critical considerations advanced on behalf of Dr Durani, namely, the finding of the AAT that the risk of reoffending was minimal and the content sourcing the AAT’s conclusion that it had no doubt that cancellation of Dr Durani’s visa was not in the best interests of the child. The substantive application also contends that the Minister impermissibly fettered the exercise of his discretion or, alternatively, inflexibly applied a policy in proceeding on a premise that any risk at all of reoffending was unacceptable and therefore necessarily prevailed over all countervailing considerations irrespective of their degree of relevance and the factual material supporting their cogency.

21    It is argued that the Minister had regard to only three distinct dimensions in reaching a view that it was necessary in the national interest to cancel the visa. Those being:

1.    The seriousness of the offences of which Dr Durani was convicted and the circumstances of aggravation of their commission;

2.    The fact that Dr Durani’s offending occurred while performing his professional duties therefore brought Australia’s skilled migration programme into disrepute and undermined public confidence in its integrity; and

3.    The arguments against a determination of ‘national interest’ adverse to Dr  Durani included evidence of Dr Durani’s competence as a doctor and the possibility that he may be able to practice medicine and an acceptance that a cancellation would cause harm to Dr Durani’s wife and son.

THE COURT’S POWER

22    Dr Durani says that he effectively requires a mandatory injunction to compel his release from detention and a further prohibitory injunction to restrain any subsequent proposed detention pending the determination of his substantive application. It is contended that no higher standard applies to the extent that a mandatory as opposed to a prohibitory injunction is sought: Racecourse Totalizators Pty Ltd v Totalisator Administration Board of Queensland (1995) 58 FCR 119. It is unnecessary to resolve this question at this stage.

23    The real question is the effect of the prohibition contained in subs 196(3) and subs 196(4) of the Act which have been cited above.

24    Dr Durani argues that any reliance by the Minister on a proposition that detention is ‘mandatory’ must be viewed in light of two critical qualifications. The first is the status of Dr Durani as an unlawful non-citizen presupposes that the primary decision was itself lawfully made. There are real questions, it is said, as to whether the Migration Decision is affected by one or more jurisdictional errors and hence at law no decision at all. Secondly, the statutory framework of the Act said to compel mandatory detention is itself qualified and ameliorated by dispensing provisions such as s 195A and s 197AB of the Act. Those provisions are in these terms:

195A    Minister may grant detainee visa (whether or not on application)

Persons to whom section applies

(1)    This section applies to a person who is in detention under section 189.

Minister may grant visa

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

(3)    In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.

Minister not under duty to consider whether to exercise power

(4)    The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

Minister to exercise power personally

(5)    The power under subsection (2) may only be exercised by the Minister personally.

…

197AB    Minister may determine that person is to reside at a specified place rather than being held in detention centre etc.

(1)    If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

(2)    A residence determination must:

(a)    specify the person or persons covered by the determination by name, not by description of a class of persons; and

(b)    specify the conditions to be complied with by the person or persons covered by the determination.

(3)    A residence determination must be made by notice in writing to the person or persons covered by the determination.

25    Dr Durani relies heavily on the Full Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249. In VFAD the respondent was an Afghan citizen who arrived in Australia without a visa and was, therefore, an ‘unlawful non-citizen’. He applied for a protection visa. His application was considered by a delegate and some months later the protection visa was refused. The respondent lodged an application for review of the decision with the Refugee Review Tribunal which affirmed the decision. The respondent then instituted proceedings in this Court seeking a declaration that he had been granted a protection visa. By way of interlocutory relief, he sought an order that he be released from immigration detention until the hearing and determination of his application. That order was granted by the primary judge but appealed by the Minister.

26    On appeal the central issue in that case was whether the power conferred by s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA) to make interlocutory orders could be exercised to order the release, on a temporary basis, of persons in immigration detention or whether that general power was confined since the introduction of s 196(3) of the Act.

27    Dr Durani relies upon the passages in VFAD where the Full Court (Black CJ, Sundberg and Weinberg JJ) held (at [104]-[120]) that absent clear statutory statement, s 23 FCA still empowers the Court to protect fundamental freedoms and entitlements such as liberty, in an appropriate case.

28    In VFAD (at [144]-[157]) the Court also discussed two other cases where similar conclusions were reached for slightly different reasons, VHAF v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 122 FCR 270 and VJAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1253 respectively.

29    In addition to VFAD, to a lesser extent, Dr Durani also relies upon High Court decisions which are not directly in point but which emphasise the importance of unmistakable and unambiguous language by statute to abrogate or curtail basic rights: see, for example, Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 (at [30]-[32]) and Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 (at [29]-[33]).

30    Following VFAD, the Migration Amendment (Duration of Detention) Bill 2003 introduced subs (4) and subs (4A) which were designed, as the second reading speech explained, ‘to provide an immediate response to the worrying trend for courts to release persons of character concern before the final resolution of the court case’ (emphasis added).

31    Although the Minister confirmed that there is no present intention to remove Mr Durani pending the determination of the review of his cancellation decision, the Minister relies upon the decision of Al-Kateb v Godwin (2004) 219 CLR 562 which makes it quite clear that the Court has no power to release Dr Durani. Al-Kateb involved a stateless person who arrived in Australia without a visa and who was taken into immigration detention. His application for a protection visa was refused. He wrote to the Minister asking to be removed from Australia. Removal did not take place because the attempts to obtain the necessary international cooperation were unsuccessful. The Federal Court concluded that there was no real likelihood or prospect of removal in the reasonably foreseeable future but that the Act nevertheless required that he remain in detention. The appeal was transferred from the Full Federal Court to the High Court of Australia following an application by the Attorney-General for the Commonwealth under s 40 of the Judiciary Act 1903 (Cth). It was argued that the Act did not authorise his detention and that if the Act purported to do so, indefinite detention was beyond the legislative power of the Commonwealth. The majority of the High Court approached the interpretation question by reference to the plain language of the Act. Section 196 of the Act headed ‘Duration of detention’ provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is removed, deported or granted a visa.

32    In that case, Callinan J held (at [300]) that the decision and reasoning in Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1037 should be rejected as well as the reasoning in other cases in which Al Masri has been adopted or affirmed by the Federal Court, including (with specific reference by footnote) VFAD.

33    The Minister relies on the following paragraphs from McHugh J’s reasons in Al-Kateb, where his Honour said (at [33]-[35]):

33    For the reasons given by Hayne J, ss 189, 196 and 198 of the Act require Mr Al-Kateb to be kept in immigration detention until he is removed from Australia. The words of ss 196 and 198 are unambiguous. They require the indefinite detention of Mr Al-Kateb, notwithstanding that it is unlikely that any country in the reasonably foreseeable future will give him entry to that country. The words of the three sections are too clear to read them as being subject to a purposive limitation or an intention not to affect fundamental rights.

34    Detention under s 196 for the purpose of removal under s 198 will cease to be detention for that purpose only when the detention extends beyond the time when the removal of the non-citizen has become “reasonably practicable”. As long as removal of an unlawful non-citizen is not reasonably practicable, ss 196 and 198 require that person's detention to continue until it is reasonably practicable or that person is given a visa. Minimising the time that an unlawful non-citizen must spend in detention was undoubtedly the reason for providing a time limit for removal or deportation. But that does not mean that the detention of an unlawful non-citizen is limited to a maximum period expiring when it is impracticable to remove or deport the person.

35    The unambiguous language of s 196 - particularly sub-s (3) - indicates that Parliament intends detention to continue until one of the conditions expressly identified therein - removal, deportation or granting of a visa - is satisfied.

34    Similarly, see Hayne J (at [221]-[233]) with whom Heyden J agreed (at [303]).

35    Justice Callinan in Al-Kateb said (at [297] to [300]) (footnotes omitted):

297    The appellant also submits that the intent of Parliament should be interpreted by this Court in a manner that is consistent with Australia's "international obligations": that is, Parliament should be assumed to have intended that any provisions for detention in the Migration Act comply with Art 9 of the International Covenant on Civil and Political Rights which admonishes against "arbitrary detention".

298    These submissions cannot be accepted. The statutory language is clear and unambiguous. It leaves no room for any implications of the kind found by the House of Lords and the Privy Council. It requires the detention of aliens until such time as they are granted a visa or removed from Australia. There is certainly no basis, in my view, for an implication to the effect that the ability to detain aliens in accordance with the Migration Act is limited to detention for a “reasonable” period. Nor is a presumption, assuming it should be made, against legislation that is contrary to an international obligation, sufficient to displace the clear and unambiguous words of Parliament. It is a matter for the Australian Parliament to determine the basis on which illegal entrants are to be detained. So long as the purpose of detention has not been abandoned, a statutory purpose it may be observed that is clearly within a constitutional head of power, it is the obligation of the courts to ensure that any detention for that purpose is neither obstructed nor frustrated.

299    The test is not whether the Minister harbours a hope, but whether she continues to have the intention of removing the appellant from the country. General experience may well be, it is not clear whether it is so from the evidence here, that a very great deal of time can elapse before, not only stateless persons, but also others can be removed to another country. But that does not mean that a court is entitled to hold that a person who has no right to enter and reside in the community must be released into it. Nor is it open to a court to hold, in respect of a matter of this kind, that because removal is currently unachievable, it should be treated for all practical purposes as permanently unachievable.

300    The decision and reasoning of Merkel J in Al Masri should be rejected. Similarly, the reasoning in the other cases in which Al Masri has been adopted or affirmed by the Federal Court is also flawed and should be rejected.

(emphasis added)

36    As the Minister submits, s 189 of the Act contains a statutory command to immigration officers to detain a person known or reasonably suspected of being an ‘unlawful non-citizen’: see Ruddock v Taylor (2005) 222 CLR 612. It was this statutory command on which immigration officers necessarily acted in detaining Dr Durani on 6 September 2013.

37    The status of unlawful non-citizen or a person reasonably suspected of being an unlawful non-citizen is to be contrasted with a person who is a ‘lawful non-citizen’, being a person in the migration zone who holds a visa that is in effect: s 13(1) of the Act. Section 14(1) of the Act provides that a non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. Dr Durani necessarily became an unlawful non-citizen or was reasonably suspected of being an unlawful non-citizen and therefore subject to detention under s 189 of the Act upon the cancellation of his visa. There is a further statutory command under s 196 of the Act that influences the duration of Dr Durani’s detention and, again, turns on his status as an unlawful non-citizen or upon the reasonable suspicion that he is an unlawful non-citizen. Section 196(1) of the Act requires that an unlawful non-citizen detained under s 189 of the Act be kept in immigration detention until one of the events there described, none of which has yet occurred.

38    It is clear that subs 196(3) and subs 196(4) of the Act prevent the release of Dr Durani. It is not sufficient that there are broad powers available under s 22 and s 23 FCA. Those powers must be exercised consistently with subs 196(3) and subs 196(4) of the Act. Those subsections limit and implicitly revoke the Court’s power to make orders that touch on Mr Durani’s detention. In particular, I cannot make orders that would have the effect of requiring Dr Durani’s release from detention. I accept the submission for the Minister that the scope of the orders that may be made under s 22 and s 23 FCA are required to take into account the clear language used in s 189 and s 196 of the Act concerning the mandatory detention of a person who has the status of an unlawful non-citizen or is reasonably suspected of being an unlawful non-citizen. To ignore those provisions would be directly inconsistent with Al-Kateb where it was made clear, for example by McHugh J (at [33]), that:

the words of [ss 189, 196 and 198 of the Act] are too clear to read them as being subject to a purposive limitation or an intention to affect fundamental rights.

39    In relation to s 196, his Honour noted (at [35]) that:

The unambiguous language of s 196 particularly subsection (3) – indicates that Parliament intends detention to continue until one of the conditions expressly identified therein – removal, deportation or granting of a visa – is satisfied.

40    This issue has also been considered in Re Woolley and Another; Ex parte Applicants M276/2003 (2004) 225 CLR 1 where Kirby J noted (at [193] and [198]) (footnotes omitted):

193    Unless the parens patriae powers, propounded for the applicants, could be rooted in the Constitution itself, the answer to the invocation of such powers in these proceedings (like the answer to the invocation of the child welfare provisions of the Family Law Act 1975 (Cth), in a case of children in immigration detention) is that such powers are excluded by the express provisions, and comprehensive scheme, of the Act. That Act is specific, particular and clear so far as its requirement for universal mandatory detention is concerned, including in relation to children. Such requirements prevail over any otherwise existing general powers enjoyed by federal courts, including this Court, whether under jurisdiction of the parens patriae kind or welfare jurisdiction under the Family Law Act.

…

198    In the light of this history and on the face of the public record of the Parliament, the suggestion that there has been some oversight, mistake or a failure to consider the immigration detention of children in Australia is fanciful. Detention is the deliberate policy of the Australian Parliament, repeatedly affirmed. In default of a constitutional basis for invalidating it, it is the duty of this Court to give effect to the Act, whatever views might be urged about the wisdom, humanity and justice of that policy.

(emphasis added)

41    In light of that analysis, it must be accepted (and indeed was expressly stated) in Al-Kateb by Callinan J in the footnote contained in [300] that the cases relied upon Dr Durani such as VFAD, decided prior to Al-Kateb and Re Woolley, are no longer good authority with respect to the granting of interlocutory relief concerning persons held in immigration detention.

42    Further, a number of the cases including VFAD were decided under a different statutory regime that existed at the time concerning the provisions of s 196 of the Act. Section 196 then concluded at subs (3).

Does s 196(4) of the Act capture a s 501A decision as well as s 501?

43    Finally, it should be noted that albeit in the context of s 501(2) of the Act this Full Court has had no doubt in immediately accepting that by the addition of subs (4) to s 196, the Court has no power to grant an order for the release of an unlawful non-citizen from detention pending the hearing of his or her substantive application: see Ongel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 239 (per Spender, Hely and Bennett JJ), which concerned an appeal to the Full Court.

44    Section 196(4) of the Act is in the following terms:

(4)    Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.

45    Although s 196(4) of the Act refers to a cancellation decision under s 501, it is, in my view, intended also to capture a decision made as a result of s 501A. Detention under s 189 occurs if the visa cancellation arises under s 501 or subsequently under s 501A. The latter can only come into being once s 501 has been triggered. The chain of events leading to Dr Durani’s detention includes the original visa cancellation decision under s 501 by the Minister’s delegate which in turn led to the review undertaken by the AAT, the AAT’s decision to set aside the delegate’s decision and substitute it, and the Minister’s subsequent decision under s 501A to set aside the AAT decision and substitute a fresh cancellation decision. I accept the Minister’s submission that the decisions under s 501 and s 501A are at two ends of a continuum in a decision-making process. Section 501 is a preliminary step prior to the exercise of the Minister’s cancellation power under s 501A and thus a precondition to s 501A.

46    Parliament’s intention in this regard is tolerably clear from the Supplementary Explanatory Memorandum to the Migration Amendment (Duration of Detention) Bill 2003 regarding the purpose of s 196(4), in which the then Minister for Immigration and Multicultural and Indigenous Affairs indicated the following:

3.    Subsection 196(1) of the Act currently provides that an unlawful non-citizen, who is detained under section 189, must be kept in immigration detention until he or she is either removed from Australia, deported or granted a visa.

4.    Subsection 196(3) of the Act makes it clear that subsection 196(1) prevents a court from releasing an unlawful non-citizen from immigration detention unless the non-citizen has been granted a visa.

5.    Despite the current provisions relating to immigration detention, there has been a series of cases in which the Federal Court has ordered the interlocutory release of immigration detainees, prior to the resolution of their substantive court proceedings. In many of these instances, the person had been detained because they had had their visa cancelled on character grounds. Specifically, the records of such persons indicate a history of prior criminal convictions sufficiently serious to cause them to be considered as persons of character concern. The Government’s major concern is that the release of persons of character concern does not occur, where that release may place members of the Australian community at risk.

6.    Therefore, these amendments to the Bill are designed to ensure that persons of character concern who are in immigration detention are not released into the Australian community prior to the resolution of their substantive court proceedings.

(emphasis added)

47    It would be artificial to suggest that the concern expressed by the Minister was intended to relate only to non-citizens who were of ‘character concern’ by reason of s 501 and not by reason of 501A as well. Given that the latter has the added element of national interest, this would not be a sensible reading of Parliament’s intention.

48    For those reasons I do not have the power to make the interlocutory orders sought by Dr Durani.

THE BALANCE OF CONVENIENCE

49    It is unnecessary therefore to consider the question of balance of convenience but for completeness I will touch upon it briefly.

50    The substantive application is listed for hearing within less than four weeks, having been listed urgently. The substantive application is to be heard by another judge.

51    In the meantime, Dr Durani argues that the balance of convenience is obviously in his favour. He says that the factors supporting an interlocutory remedy which has the effect of causing his release from detention are numerous and cogent. He argues that particular consequences would be:

(a)    Dr Durani would be reunited with his family pending, at least, the hearing and determination of the application;

(b)    all of the detriment to, particularly, Dr Durani’s infant son will be, as far as can reasonably be achieved, minimised;

(c)    the punitive effect of such detention will be removed, even though punishment is not understood by Dr Durani to be the Minister’s asserted purpose behind the detention;

(d)    Dr Durani can more effectively facilitate instructions to his solicitors for the purposes of the hearing of his substantive application; and

(e)    on no tenable view will damages be a satisfactory or appropriate remedy were he successful in obtaining final relief on the substantive application.

52    As against those matters, Dr Durani submits that there is little that can be pointed to by way of detriment to the Minister if orders are fashioned so as to achieve Dr Durani’s release from detention. In particular:

(a)    there is no suggestion, at least insofar as Dr Durani is aware, that he is regarded by the Minister as being a flight risk. Counsel for the Minister has accepted that this is so;

(b)    all of the relevant materials consistently illustrate that the risk of reoffending taken at its highest is low, particularly if he is not working in the medical profession as was the case before his visa was cancelled. More accurately, it is submitted, compatibly with the findings of the AAT, Dr Durani’s risk of reoffending is ‘minimal’; and

(c)    any reliance by the Minister on the proposition that detention is ‘mandatory’ on a proper construction of ss 189, 196 and 198 of the Act ought be viewed in light of the qualifications that this assumes the decision was made lawfully.

53    The Minister points to the proposition that in public law cases the ‘public interest’ is a factor in determining where the balance of convenience lies. Thus, in Castlemaine Tooheys Limited v The State of South Australia (1986) 161 CLR 148 in which the applicant sought declarations of invalidity of statutory provisions and an interlocutory injunction restraining the enforcement of those provisions, Mason ACJ said (at 154-155):

… the Court has indicated its willingness to protect a plaintiff’s alleged constitutional right by restraining the enforcement of a statute where the plaintiff would suffer irreparable injury without any countervailing detriment to the public interest …

It is a different matter where it is suggested that the proposed restraint on enforcement of the statute would occasion a significant detriment to the public interest by preventing the defendant from enforcing a legislated scheme which is designed to protect the environment from pollution by litter.

54    His Honour observed (at [155]) that:

… In arriving at a balance of convenience the Court will take into account the seriousness of the conduct enjoined by the statute and the damage to the public interest that may be caused by restraining its enforcement. …

(emphasis added)

55    Interlocutory relief was refused. See also the observations of Griffiths J in Harbour Radio Pty Limited v Australian Communications and Media Authority [2012] FCA 439 (at [15]) and Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 3) [2011] FCA 1019 per Foster J (at [22]). In all those cases, interlocutory relief was refused.

56    The two sources for the assessment of public interest in the present circumstances include the terms of the legislation itself and, secondly, the fact that the Migration Decision concerns ‘the national interest’.

57    As Dr Durani observes, decisions following the exercise of the powers under s 501 and s 501A of the Act concerning character concerns are ‘extraordinary’. Particularly so is the extraordinary power to set aside a decision of another decision-maker.

58    The authorities tend to focus on ‘public interest’ rather than the ‘national interest’. It cannot be doubted, however, that the latter embraces the former. A Minister’s determination of national interest grounds commands considerable respect by the Court regardless of what personal views one might have as to whether there is any national interest at stake. The Minister’s determination in the exercise of the extraordinary power under s 501A of the Act that the national interest calls for cancellation of the visa is expressed in the following terms under the heading ‘NATIONAL INTEREST’:

9.    Dr DURANI has been convicted of two counts of sexual penetration without consent and three counts of unlawful and indecent assault. I consider these offences to be very serious sexual offences. While committing these offences Dr DURANI abused his position of authority and trust in relation to a vulnerable patient under this care. I consider that these circumstances aggravate the seriousness of Dr DURANI (sic) offences. l also consider that these sexual offences are repugnant to the Australian community and offend the values of Australian society.

10.    Dr DURANI was granted a visa under the skilled migration program to allow him to provide medical services to the Australian community. I consider that his offending committed while performing his professional duties brings the skilled migration program into disrepute and therefore undermines public confidence in the program and therefore its integrity.

11.    Furthermore, I have had regard to Dr DURANI’s conduct and the need to preserve public confidence in the nation's health care system.

12.    I have considered the claims made by Mr Shakur, that it would be in the national interest for Dr DURANI to remain in Australia as he is a competent doctor with the support of his colleagues and there is a possibility that he may again be able to practice medicine.

13.    While, I accept that the cancellation of Dr DURANI’s visa will cause harm to his wife and son I do not agree with Mr Shakur's argument that this harm is so severe that it outweighs the benefits to the national interest achieved by the cancellation of his visa .

14.    Having regard to all of the above material, I am satisfied that the cancellation of Dr DURANI’s visa is in the national interest. His sexual offending was very serious and his conducted undermined the integrity of the skilled migration program as well as reducing public confidence in the nation's health care system.

DISCRETION

15.    Having found that Dr DURANI does not pass the character test and that it would be in the national interest to cancel his visa, I carefully assessed all of the information set out in the Issues Paper and considered whether to exercise my discretion to set aside the [AAT]'s decision and to cancel Dr DURANI’s visa. In doing so I was mindful of the commitment of the Australian government to protect the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens.

59    In relation to the protection of the Australian community, the Minister expressed the following views:

Protection of Australian Community

Criminal conduct

16.    Dr DURANI has been convicted of sexual offences. I consider that these offences are very serious.

17.    Dr DURANI's victim was vulnerable, which further adds to the seriousness of his behaviour.

18.    The prison sentences imposed as a result of Dr DURANI’s offending further reflect the seriousness and gravity of his crimes.

19.    In making its finding that the risk of reoffending was minimal, the [AAT] considered a number of references and professional testimonials which speak of Dr DURANI’s prior good character and suggest that he will not reoffend. The [AAT] also had regard to Dr DURANI’s own guarantees. I have had regard to this material.

20.    Balanced against this, I note that Dr DURANI has not undertaken any sexual offender treatment programs. The Adult Community Services reports have categorised his risk of reoffending as low. Dr DURANI continues to deny the offences occurred and the [AAT] decision indicates that he has not expressed remorse or apologised to the victim. Also, I am concerned by Dr DURANI’s description of his victim. I consider that these circumstances indicate that Dr DURANI has not taken any responsibility for his actions and that his progress to rehabilitation is limited.

21.    In light of the professional opinions as expressed in the Adult Community Services reports, combined with Dr DURANI's ongoing lack of insight into his offending and the absence of therapeutic intervention, I find that there is a risk that Dr DURANI will reoffend and that if he does reoffend serious harm could result.

22.    I have considered that while Dr DURANI remains de-registered as a medical practitioner he will not be exposed to the circumstances that led to his offending. Nevertheless, the prospect remains that he may offend in other circumstances and it cannot be said with certainty that he will not commit further sexual offences. While the prospects of him being re-registered as a medical practitioner and placed in a similar position may be slight, he has expressed his desire to again practise medicine in Australia. Given the nature and seriousness of Dr DURANI offences, even a low risk that he will repeat his crimes is unacceptable.

60    The Minister’s conclusions were in these terms:

36.    I have considered all relevant matters including (1) an assessment against the character test as defined by s 501(6) of the [Act], (2) whether cancelling Mr DURANI’s visa was in the national interest and (3) all other evidence available to me, including evidence provided by, or on behalf of Dr DURANI. In reaching my decisions I concluded that it was in the national interest to cancel Dr DURANI’s visa.

37.    A non-citizen who has committed a serious crime of a sexual nature, particularly against vulnerable members of the community should generally expect to forfeit the privilege of staying in Australia. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling a visa.

38.    While the risk of Dr DURANI reoffending may be low, the nature of his offending and the harm should it be repeated means that any level of risk is unacceptable, and prevails over all countervailing considerations, including the best interests of Dr DURANI’s minor biological son …, the strength of his ties to Australia, his period of residence, the effect of cancellation on his wife and any impediments that he may face in establishing himself in India.

39.    Having given a full consideration to all of these matters, I decided to exercise my discretion to set aside the [AAT]’s decision of 6 May 2013 and to cancel Dr DURANI’s Class VE Skilled (Migrant) Subclass 175 Skilled – Independent visa under subsection 501A(2).

61    It is not for me, especially at this juncture of consideration of an interlocutory application, to form or express views as to whether the Minister’s reasoning or perception was correct. The fact that the Minister has exercised his extraordinary power under s 501A of the Act in the national interest is a factor which requires due deference from the Court in considering the balance of convenience on an interlocutory application for an injunction. Indeed, previous decisions of this Court have recognised that what is or is not in the national interest is an evaluative one for the Minister alone to determine. In Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 the Full Court (French, O'Loughlin and Whitlam JJ) said (at [89]):

... The question of what is or is not in the national interest is an evaluative one and is entrusted by the legislature to the Minister to determine according to his satisfaction which must nevertheless be obtained “reasonably” — Re Patterson; Ex parte Taylor at 447; 698 (Gummow and Hayne JJ, Gleeson CJ agreeing). Callinan J agreed with Kirby J that the constitutional writs do not entitle the judges to substitute for the satisfaction of the Minister the satisfaction of the judges (at 519; 755).

(emphasis added)

62    The impact to Dr Durani’s son of his father’s previous imprisonment and current immigration detention, even if not self-evident, has been made abundantly clear from the supportive affidavit material. However, not only do I not have power to order Dr Durani’s release but the balance of convenience must take into account the Minister’s national interest determination as well as the interests of the family. As hard as that may be on Dr Durani’s son and his wife, other factors concerning the Australian community have also been taken into account by the Minister in exercise of the Migration Decision, to displace the analysis conducted by the AAT. The factors underlying that decision-making process and, in particular, the fact that the Minister has determined that it is in the national interest for the visa to be cancelled are sufficiently important, especially in the remaining short period of time before the substantive application is heard, to displace the balance of convenience factors argued for Dr Durani.

CONCLUSION

63    In those circumstances, the interlocutory application must be dismissed with costs. The following orders are made:

1.    The applicant's interlocutory application for an interim injunction compelling the respondent to release the applicant from immigration detention pending the determination of his substantive application, and for a referral to mediation, is dismissed.

2.    The applicant pay the respondent's costs, to be taxed if not agreed.

Associate:

Dated:    27 November 2013