Amarasekera v Minister for Immigration

[2015] FCCA 2434

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMARASEKERA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2434

Catchwords:
MIGRATION – Application for injunction to prevent removal from Australia and for judicial review of Minister’s decision – whether jurisdiction to grant final relief sought – whether injunction able to be granted.

Legislation:

Migration Act 1958 (Cth), ss.351, 474, 476

Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; (1982) 46 ALR 398
Plaintiff S10/2011 v Minister for Immigration & Citizenship [2012] HCA 31; (2012) 246 CLR 636; (2012) 86 ALJR 1019; (2012) 290 ALR 616; (2012) 130 ALD 1
Singh & Anor v Minister for Immigration & Anor [2015] FCCA 831
Singh & Anor v Minister for Immigration & Border Protection [2015] FCA 905

Applicant: IRAWANA KEERTHI AMARASEKERA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: CHRISTINA SANTOS

File Number: PEG 364 of 2015

Judgment of: Judge Antoni Lucev

Hearing dates: 6 and11 August 2015

Date of Last Submission: 11 August 2015

Delivered at: Perth

Delivered on: 7 September 2015

REPRESENTATION

For the Applicant: No appearance

Counsel for the First Respondent: Mr A Gerrard

Solicitors for the First Respondent: Australian Government Solicitor

For the Second Respondent: No appearance

ORDERS (made at hearing on 11 August 2015 and entered on 11 August 2015)

1. The application be dismissed.

2. The applicant pay the first respondent costs in the sum of $650.

3. Reasons for judgment be published from Chambers.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 364 of 2015

IRAWANA KEERTHI AMARASEKERA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

CHRISTINA SANTOS

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. When this matter was before the Court on 11 August 2015 the Court made the following orders:

   1. The application be dismissed.

   2. The applicant pay the first respondent costs in the sum of $650.

   3. Reasons for judgment be published from Chambers.

2. These are the Reasons for Judgment for making those orders.

Application

1. The application sought interlocutory orders restraining the “Respondent” (which one was not specified, but presumably it was the first respondent) from taking steps to remove the applicant from Australia. By way of final orders a writ of mandamus was sought directed to the “tribunal, Immigration Assessment Authority or Minister”, requiring them to determine the applicant’s application according to law, and the following further orders:

   1. The First Respondent be restrained from removing the Applicant pursuant to s198 of the Migration Act.

   2. Certiorari to quash the decision of the Second Respondent not to refer the Applicants case to the First Respondent and also the recommendations or decisions made by officers of the Victorian Ministerial Intervention Unit.

   3. Certiorari quashing the decision of the First Respondent not to intervene as a result of the First MI request.

   4. Mandamus directing the First Respondent to consider and determine the applicant's MI request(s) according to law.

2. The grounds of the application are as follows:

   1.In refusing to refer the matter to the First Respondent, the Second Respondent failed to properly consider the Applicant's submissions for his second request for intervention by the First Respondent pursuant to S35l of the Migration Act.

   2. The First Respondent and/or the Second Respondent has failed to properly consider the Ministerial Intervention requests made by the Applicant pursuant to s351 of the Migration Act.

   3. In coming to a decision not to intervene after the First request the First Respondent has denied the Applicant procedural fairness.

3. The applicant filed an affidavit sworn 17 July 2015 (“Applicant’s Affidavit”) in support of his application.

4. The application was filed on 3 August 2015 and listed urgently because of the application for injunctive relief.

5. When the matter was called on 6 August 2015 there was no appearance by the applicant. The Court proceeded to hear from Counsel for the first respondent in the absence of the applicant. The Court pronounced the orders set out at [1] above. Before they were entered the applicant contacted the Court Registry, to explain his non-appearance, and as a consequence the orders pronounced were not entered, and the matter was re-listed for 11 August 2015. Once again, the applicant did not appear. The orders pronounced on 6 August 2015 were again pronounced. This time, there was no subsequent contact with the Court Registry by the applicant. The orders were entered on 11 August 2015.

Jurisdictional objection

1. The first respondent submitted that the Court had no jurisdiction to deal with the matter because the application sought to review to a decision of the first respondent exercising power under s.351 of the Migration Act 1958 (Cth) (“Migration Act”).

2. The final relief sought in this matter does seek to challenge a decision made by the Minister under s.351 of the Migration Act. A decision under s.351 of the Migration Act is a “privative clause decision” as defined in s.474(2) and (7) of the Migration Act, which is made final and conclusive by s.474(1) of the Migration Act, and is not able to be challenged in this Court. Specifically, s.476(2)(c) of the Migration Act provides that this Court has no jurisdiction in relation to a privative clause decision of this kind. In the circumstances, the Court has no jurisdiction to grant the final relief sought: see Singh & Anor v Minister for Immigration & Anor [2015] FCCA 831, upheld on appeal in Singh & Anor v Minister for Immigration & Border Protection [2015] FCA 905. See also Plaintiff S10/2011 v Minister for Immigration & Citizenship [2012] HCA 31; (2012) 246 CLR 636; (2012) 86 ALJR 1019; (2012) 290 ALR 616; (2012) 130 ALD 1 at [50] per French CJ and Kiefel J and [99]-[100] per Gummow, Hayne, Crennan and Bell JJ.

3. It follows from the foregoing that the application for injunctive relief must also fail because the Court is without jurisdiction in relation to the final orders sought, and in those circumstances there is not a serious question to be tried, and nor can the balance of convenience favour the granting of an injunction where the Court lacks jurisdiction in respect of the final orders sought. There is therefore no basis on which to grant an injunction on the usual grounds as outlined by the High Court in Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; (1982) 46 ALR 398.

4. It follows that the application must be dismissed.

5. It was for the above reasons that the Court made the orders set out at [1] above.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date: 7 September 2015