Adams v Minister for Immigration and Multicultural Affairs

[2001] FCA 1138

FEDERAL COURT OF AUSTRALIA

Adams v Minister for Immigration & Multicultural Affairs [2001] FCA 1138

MIGRATION – interlocutory application to set aside or stay decision to cancel visa pending determination of appeal to Full Court – whether necessary to secure effectiveness of determination of appeal – interlocutory application for bail – where no challenge to lawfulness of detention – whether Court has power to grant order in nature of bail.

Migration Act 1958 (Cth): ss 475(1)(c), 482, 501

Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 250 referred to

STEPHEN JOHN ADAMS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 361 of 2001

MARSHALL, GOLDBERG & KENNY JJ
16 AUGUST 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 361 of 2001

BETWEEN:	STEPHEN JOHN ADAMS Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MARSHALL, GOLDBERG & KENNY JJ
DATE OF ORDER:	16 AUGUST 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appellant’s motion filed on 13 August 2001 be dismissed.

2.        The appellant pay the respondent’s costs of the motion.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 361 of 2001

BETWEEN:	STEPHEN JOHN ADAMS Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MARSHALL, GOLDBERG & KENNY JJ
DATE:	16 AUGUST 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1. On a date in December 2000, which cannot be identified precisely, the Minister for Immigration and Multicultural Affairs (“the Minister”) made a decision pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”) to cancel the appellant’s visa. As a result of the Minister’s decision, the appellant became an “unlawful non‑citizen” and was taken into immigration detention pending his removal from Australia. The decision of the Minister was a “judicially‑reviewable decision”: s 475(1)(c) of the Act. The appellant applied to the Court pursuant to Pt 8 of the Act to review the decision of the Minister. On 3 May 2001, Heerey J dismissed that application and ordered the appellant to pay the respondent’s costs of the application.

2. The following brief background leading up to the Minister’s decision is taken from his Honour’s reasons for judgment. The appellant was born in England on 18 December 1956 and came to Australia with his parents in about 1960. He has lived in Australia ever since. A substantial part of his life since the age of 13 has been spent in gaol, mainly for drug related offences. On 4 October 2000, the Department of Immigration and Multicultural Affairs notified the appellant of its intention to consider cancellation of his visa under s 501(2) of the Act but noted that the decision would be made personally by the Minister. His Honour’s reasons for judgment analysed in some detail the decision document upon which the Minister’s decision was based and noted that the decision that:

   “Stephen John Adams does not pass the character test, has been unable to satisfy me that he does pass the character test, and in the exercise of my discretion, I cancel the visa”,

   had been signed by the Minister on a date in December 2000 which was not indicated.

3. On 21 May 2001, the appellant filed a notice of appeal in the Court.  The ground of appeal set out in the notice of appeal as amended was:

   “That the Honourable Justice Heerey erred in his decision that the respondent did observe procedures that were required by the Migration Act 1958.”

   The appeal was called over before the Chief Justice on 31 July 2001 and fixed for hearing at the November 2001 Full Court sittings. 

4. On 13 August 2001, the appellant filed a notice of motion in which he sought the following orders:

   “1.The decision to cancel my Permanent Residents Visa made by the Honourable Phillip Ruddock, Minister for Immigration and Multicultural Affairs dated December 2000, be set aside or otherwise stayed pending the hearing of my appeal to the Full Court of this Honourable Court.

   2.That I be granted bail or such other order that the Court deems fit to secure my attendance at the hearing of my appeal to the Full Court of this Honourable Court.”

5. Section 482 of the Act provides:

   “(1)Subject to this section, the making of an application under section 476 to the Federal Court in relation to a judicially‑reviewable decision does not:

   (a)       affect the operation of the decision; or
   (b)       prevent the taking of action to implement the decision; or

   (c)prevent the taking of action in reliance on the making of the decision.

   (2)If an application is made to the Federal Court under section 476 or 477 in relation to a judicially‑reviewable decision, the Federal Court or a Judge of the Federal Court may make such orders of the kind referred to in subsection (3) as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.

   (3)The orders that may be made under subsection (2) are orders staying, or otherwise affecting the operation or implementation of the judicially‑reviewable decision, or a part of that decision.

   (4)The Federal Court or a Judge of that Court may, by order, vary or revoke an order in force under subsection (2) (including an order that has previously been varied under this subsection).

   (5)An order in force under subsection (2):

   (a)     is subject to such conditions as are specified in the order; and

   (b)     has effect until:

   (i)     if a period for the operation of the order is specified in the order – the end of that period or, if a decision is given on the appeal before the end of that period, the giving of the decision; or

   (ii)     if no period is so specified – the giving of a decision on the appeal.”

   As the Full Court observed in Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 250 at [9], the reference to “the appeal” in s 482(2) must be a reference to a relevant application for review made under s 476.

6. We are prepared to assume for the purposes of argument (without deciding the issue) that on an appeal from a single judge, a Full Court can exercise the power given to the Federal Court in s 482(2). However, to the extent to which the appellant’s motion is based upon s 482(2), we do not consider that an order staying the Minister’s decision is necessary to secure the effectiveness of any relevant hearing and determination. The Minister has indicated through his counsel that no action to remove the appellant from Australia will be taken whilst the appeal from the decision at first instance is pending before the Court.

7. Although the appellant complained about conditions under which he is detained in immigration detention at the Maribyrnong Immigration Detention Centre and his separation from his mother, we do not consider that the matters to which he has referred are such as to impinge upon the effectiveness of the appellant to prepare for the hearing of his appeal and to conduct it.

8. Until recently, the appellant intended to represent himself at the hearing of the appeal and said that he had made repeated requests of the Department of Immigration and Multicultural Affairs and Australasian Corrections Management, which manages the detention facilities in which he is detained, for access to the Internet and to a legal library so that he may conduct research and access the cases put forward by the Australian Government Solicitor.  These requests have been denied.  The appellant informed the Court today that he had been successful in obtaining legal assistance.  The difficulty which may remain in respect of the preparation of his case will be met by the undertaking given by the Minister that he will give the appellant, by 1 October 2001 or as soon as possible thereafter, a copy of the outline of argument he intends to present on the appeal, together with copies of all cases and legislative provisions referred to in the outline or on which he intends to rely.

9. Although the Court has power under O 52 r17 of the Federal Court Rules to grant a stay of a judgment or orders appealed from, the appellant does not seek such an order, as staying the order of dismissal of his application would not touch the Minister’s decision to cancel the appellant’s visa.  Rather, the appellant seeks the equivalent of the order which Heerey J declined to make, namely, setting aside the Minister’s decision.  The Court has no power under O 52 r17 to make such an order.

10. Although the appellant challenges the Minister’s decision to cancel his visa, he does not challenge the lawfulness of his detention pending the determination of his appeal. The Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth), in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. But this power does not extend in circumstances where there is no challenge to the lawfulness of the detention to an order for his release from immigration detention pending the hearing and determination of his appeal; that is to say, to an order in the nature of bail. There is no legislative provision which, in this circumstance, gives this Court power to grant an order in the nature of bail to the appellant pending the hearing and determination of the appeal.

11. The notice of motion will be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, Goldberg and Kenny.

Associate:

Dated:             16 August 2001

Counsel for the Appellant:	Appellant in person
Counsel for the Respondent:	W Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 August 2001
Date of Judgment:	16 August 2001