Applicant S453 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1442

FEDERAL COURT OF AUSTRALIA

Applicant S453 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1442

MIGRATION – application for leave to appeal – applicant sought to challenge conditions of bridging visa preventing him from working or studying – no arguable case – application dismissed

Federal Court of Australia Act 1976, s 25
Constitution of the Commonwealth, s 75(v)
Migration Act1958(Cth)

Decor Pty Limited v Dart Industries Inc [1991] 33 FCR 397
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Mabo v Queensland (No.2) (1992) 175 CLR 1

APPLICANT S453 of 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 1302 of 2004

HILL J
27 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1302 OF 2004

BETWEEN:	APPLICANT S453 of 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	27 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applicant’s application for leave to appeal be dismissed.
2. The applicant pay the respondent Minister’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1302 OF 2004

BETWEEN:	APPLICANT S453 of 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	27 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HILL J:

1. The applicant applies to the court for leave to appeal against a decision of Sackville J given on 30 August 2004 dismissing the applicant's application for an order nisi and other relief. The application, although heard by me as a single judge, is an exercise of the Court's appellate jurisdiction (see s 25 of the Federal Court of Australia Act 1976).

2. The proceedings were commenced in the original jurisdiction of the High Court by the applicant on 12 August 2003 and in reliance on s 75(v) of the Constitution.  The applicant identified in the draft order nisi he filed the orders he sought as follows:

   2.Order that quashes the decision of the Minister; a decision that prohibited me from working paid job and from studying for nearly four years.

   3.Order that compel [sic] the Minister give me access to Medicare.

   4.Order that compel [sic] the Minister to compensate me for the moral, physical, mental and professional damage I received and still receiving as a result of the unreasonable decision of the Minister.

3. The applicant in the application for an order nisi made it clear that he was challenging, if not a decision directly of the Minister, at least a regulation made under the Migration Act1958(Cth) (the Migration Act), and ultimately incorporated in the bridging visa he presently holds, that he not be entitled to work, at least during the time the bridging visa is current.

4. Ultimately, the application was remitted by the High Court to this Court subject to the right of either the applicant or the respondent Minister to have the matter reconsidered by the Justice of the High Court if this Court could not take any step in the matter.  The history of the litigation in which the applicant has been involved against the Minister is set out in some detail in his Honour's decision.  I do not need to repeat it here.  In one sense that history is not relevant to the matters that I have to decide today. 

5. The matter came before Sackville J on 29 July 2004 at 9.30 am.  The applicant had apparently filed a motion seeking various orders, inter alia, that the proceedings be expedited, that the Commonwealth be joined as a party and interlocutory relief that would entitle him to work, as well as an interim order for exemplary damages.  The applicant also sought an order that as a litigant in person he would be referred to a legal practitioner.

6. Sackville J, it is said, made no mention on 29 July 2004 of the notice of motion but treated what was before him that day as a directions hearing.  His Honour made orders listing the matter for hearing on 25 August 2004 and requiring submissions to be filed.  I make mention of the motion because in the written submissions filed before me the applicant claims that his Honour, by treating the motion as being a directions hearing, afforded the applicant substantial injustice and denial of procedural fairness and was biased or prejudiced.

7. With respect, it is difficult to see that that is a matter relevant at the moment to the application for leave to appeal. However, if it is, I should say that essentially his Honour dealt with substantially all of the matters in the motion ultimately in the hearing in August which obviously was expedited and which ultimately refused relief to the applicant.  There is nothing I have read in his Honour's judgment that suggests that his Honour was biased or prejudiced, nor is it suggested that his Honour in any way refused the applicant the right to put whatever submissions he wished to put in the hearing in August 2004.

8. The applicant has prepared and filed a lengthy outline of submissions in support of the application for leave to appeal.  In addition, he has put before me and I have read affidavits which the applicant has filed, including affidavits of 13 October 2004, 6 September 2004, 5 July 2004, 12 August 2003, as well as a submission dated 16 August 2004 which was before Sackville J and a reply to the respondent's outline of submissions which was handed to me this morning.

9. In deciding whether leave to appeal the decision of Sackville J should be granted it is relevant whether, in refusing the order nisi, his Honour made some error of principle.  This can be perhaps put more favourably from the point of view of the applicant by the proposition that where a matter of importance is involved, leave should be granted at least if there is an arguable case which the applicant can advance.  The test put by the applicant in his submission is said to be, first, whether the decision was attended by sufficient doubt to warrant reconsideration and second, whether substantial injustice would result if leave were refused, not just to the applicant it is said but "to all mankind". Certainly the relevant test in a case such as the present is not that discussed in Decor Pty Limited v Dart Industries Inc [1991] 33 FCR 397, as pressed by the applicant, where leave to appeal was being sought in respect of a judgment concerned with matters of practice and procedure.

10. The case considered by Sackville J can effectively be divided into two parts.  The first was the validity of the conditions attaching to the applicant's visa, essentially that the applicant not work; the second was a claim that the applicant is entitled to damages because there is some duty of care owed to him by the Minister that is breached by virtue of the fact that he is not permitted to work, that he is not permitted to study, that he is not permitted to earn a living or obtain free medical care.  He is also, to the extent that it is relevant, subject to other conditions such as a requirement that he reside at a particular address and notify a change of that address.

11. Sackville J rejected the first argument on the basis that the conditions that the applicant not work were authorised by the provisions of s 41(1) and (2) of the Migration Act (see clause 050.612(a)(2) of schedule 2 to the Migration Regulations) which operates to impose condition 8101 on the applicant's bridging visa.

12. The applicant's case before Sackville J and his submissions before me relied heavily upon international treaties as supporting invalidity of the regulation or the conditions.  He also submitted that the conditions were unreasonable and indeed punishment, presumably not only to him but also to all other persons in the same position.  Sackville J, in my view correctly, points out in his Honour's judgment that international treaties form no part of Australian law unless validly incorporated into Australian law by an act of the Australian Parliament (see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-7 per Mason CJ and Deane J; at 298 per Toohey J; at 304 per McHugh J).

13. The applicant's response is to point to the many decisions of the High Court, or indeed of this court, which support both the proposition that the common law may be guided in its development by norms of international law and that in construing Australian statutes, or for that matter delegated legislation, regard could be had, certainly in the event of ambiguity, to international norms and treaties.

14. I have no difficulty in accepting these submissions but they provide no assistance to the applicant where Parliament has specifically authorised a “no work” condition to be the subject of a regulation, where there is such a regulation duly authorised and where that has translated into a condition attached to the applicant's bridging visa.

15. The applicant in his written submissions criticises Sackville J, among other things, for not dealing, presumably in some detail, with a number of cases of courts in this country and overseas to which the applicant refers in his submissions.  It is certainly true that Sackville J does not deal in any detail with these cases or, indeed, most of them at all.  The cases include, by way of example, the decision of the High Court in Mabo v Queensland (No.2) (1992) 175 CLR 1.

16. There are two answers one can make to the submission: the first is that it is difficult to see the relevance of most of the cases in any event; the second is that it is not an obligation imposed upon a judge to deal with every case that may be mentioned by an applicant in submissions where the relevance of the case to the particular subject matter of the proceedings is far from apparent.

17. The second matter dealt with in his Honour's judgment was the issue of duty of care.  His Honour dealt with this matter quite briefly.  Having pointed out that the applicant had not identified any basis on which he would be entitled to Medicare benefits, his Honour continued by pointing out that the applicant had not identified any relevant duty of care owed to him by the Minister or the Commonwealth.  His Honour says and, with respect, it is difficult to see how the opposite could be maintained, that there could be no breach of any duty of care in circumstances where a Minister of the Commonwealth acted in conformity with the requirements of or the authority granted by the Migration Act and the Migration Regulations.  It was for this reason that his Honour formed the view that the applicant had no arguable case on the second matter any more than that an arguable case existed on the first of the matters to which I have made reference.

18. I have not in these reasons dealt in detail with the various international obligations to which the applicant has made reference in his very detailed and, if I may say so, intelligent submissions.  Reference can be had, for example, to the United Nations Convention related to the Status of Stateless Persons 1954, the United Nations Convention on the Reduction of Statelessness 1961 as well as international treaties to which Australia is a party such as the International Covenant on Civil and Political Rights 1966 and United Nations Universal Declaration on Human Rights 1948.

19. One may easily understand why an applicant in the position of the present applicant would be not merely disadvantaged but also indignant at provisions being imposed which leave a person on a bridging visa without any real chance of maintaining themselves but for such charity as may be given to them.  However, the issue that I have to decide is not one that I can decide by reference to such views as I might have on the appropriateness of the treatment which the applicant has now endured for some years.  Rather, because I am of the view that an appeal from Sackville J’s judgment in the circumstances would have no reasonable chance of success, I have no alternative but to dismiss the application for leave to appeal.

20. Before concluding this judgment I should say it was urged by the applicant that although refusal of leave to appeal would create injustice to him, the grant of leave to appeal would not create any hardship, disadvantage or prejudice to the respondent.  With respect, while I understand that refusal to grant leave to appeal would, subject to any other remedy that may be available, be the end of the applicant's case, to allow proceedings to continue before a Full Court when there is no substantial case to be answered produces injustice and hardship to the respondent Minister.  It is not a matter which this court is entitled to ignore.

21. I would accordingly refuse to the applicant leave to appeal.

22. I would order the applicant to pay the respondent Minister's costs of the application for leave.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:            8 November 2004

Applicant appeared in person
Counsel for the Respondent:	A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 October 2004
Date of Judgment:	27 October 2004