Applicants NADN and NADO v Minister for Immigration and Multicultural Affairs

[2001] FCA 1896

Applicants NADN & NADO v Minister for Immigration & Multicultural Affairs [2001] FCA 1896

FEDERAL COURT OF AUSTRALIA

Applicants NADN & NADO v Minister for Immigration &

Multicultural Affairs [2001] FCA 1896

APPLICANT NADN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1670 OF 2001

APPLICANT NADO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1671 OF 2001

LINDGREN J

21 DECEMBER 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1670 OF 2001

BETWEEN:	APPLICANT NADN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	21 DECEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.       Interlocutory relief be declined.

2.       The application be dismissed.

3.       The proceeding be stood over to 28 February 2001 at 9.30 am on the issue of 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 1671 OF 2001

BETWEEN:	APPLICANT NADO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	21 DECEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.       Interlocutory relief be declined.

2.       The proceeding be stood over to 28 February 2002 at 9.30 am with liberty to apply on 24 hours' notice.

3.       The costs of today be reserved.

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 1670 OF 2001

BETWEEN:	APPLICANT NADN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1671 OF 2001

BETWEEN:	APPLICANT NADO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	21 DECEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1       An application for interlocutory relief in each of these proceedings has been brought on late this afternoon on very short notice to the respondent ("the Minister").

2 The respective applicants are apparently husband and wife. In each matter, the final relief sought is a declaration that for the purposes of s 198 of the Migration Act 1958 (Cth) ("the Act") it is not reasonably practicable to remove the applicant from Australia, in the case of Applicant NADN as she is "no less than about 8 months pregnant", and, in the case of Applicant NADO, until "such time as [he] has a right of entry to the country to which he is purportedly removed".

3       In each case, the form of interlocutory relief sought is an order that the respondent Minister be restrained from removing the applicant from Australia without further order of the Court. Because the applications are brought on at such short notice, the evidence on both sides in each matter is sketchy.

4 In each case, the ground of relief argued is that a condition of the duty imposed by s 198 of the Act has not been satisfied. That section, it is common ground, imposes on an officer an obligation to remove an unlawful non-citizen "as soon as reasonably practicable". Mr Killalea of counsel for each applicant submits that the obligation to remove has not arisen because it is not "reasonably practicable" to remove his clients, who, it is not disputed, are unlawful non-citizens. The question raised by the interlocutory application is whether there is a serious issue to be tried as to this matter, and, if so, where the balance of convenience lies. I am of the view that there is not a serious issue to be tried. The following are my reasons.

REASONING

5       In the case of Applicant NADO the claim is that he is to be removed to India and that India has declined to accept him. Evidence was given that at one stage the Indian High Commission in Sydney was not prepared to accept that he was an Indian citizen. The evidence, however, is that the removal of Applicant NADO is not imminent, that there are communications with the Indian High Commission in relation to travel documentation, and that his travel documentation has not yet been finalised. Ms Nanson, solicitor for the Minister, has testified that she has been told that the travel documentation is in preparation. In all these circumstances it would be wrong to grant an interlocutory injunction.

6       In the case of Applicant NADN the argument is that it is not reasonably practicable to remove her because she suffers from depression for which she is being treated, that she is some 33 weeks pregnant, and that she fears for the health of herself and her baby if she is removed. However, the evidence shows that she has been medically examined on two occasions, once in the last few days.

7       There is in evidence a facsimile transmission from the Department of Immigration and Multicultural and Indigenous Affairs to Malaysian Airlines referring to the proposed removal of Applicant NADN from Sydney to Kuala Lumpur tomorrow departing at 4.00 pm on flight MH122. According to the memorandum, she is to be accompanied by an identified nurse and another escort. The memorandum states that Applicant NADN is approximately 33 weeks pregnant and has been declared medically fit for air travel by a qualified medical practitioner.

8       In addition to that typed memorandum there is a handwritten note, the precise significance of which is unclear, but this does not matter in view of the clear terms of the typed memorandum. It may well be that the effect of the handwritten memorandum is that Dr R Greenwood has certified that Applicant NADN is fit to travel until 2 January 2002.

9       In relation to the depression ground, no medical evidence was presented and I am not persuaded that the mere reference to depression and to treatment for it raises a serious question to be tried as to whether it is reasonably practicable for Applicant NADN to be removed.

10 In the course of argument, various other matters were referred to which have not been the subject of detailed submissions and which I need not decide in view of my clear opinion that interlocutory relief should not be granted in either case. For example, Mr Lloyd of counsel for the Minister submitted that even if it were the case that it is not presently reasonably practicable to remove either applicant, this would signify only that the statutory duty to remove imposed by s 198 had not arisen and would not signify that there is not, in any event, power in the Minister to remove an unlawful non-citizen.

11       In the course of my delivering reasons for judgment, Mr Lloyd raised yet a further point, namely, that the decision of the Minister to remove an unlawful non-citizen may be a "privative clause decision", a contention with which Mr Killalea of counsel for the applicants takes issue. I had formed the clear view that interlocutory relief should not be granted before that point was raised and do not think it appropriate to delay further my decision.

12       Accordingly, in each matter the Court orders that interlocutory relief is declined.

13       I note that counsel for Applicant NADN agrees that in the light of the dismissal of the interlocutory application it is appropriate that the substantive application be dismissed also. Accordingly, the Court will order that the application be dismissed. I will stand proceeding N 1670 of 2001 over to 28 February 2002 when I will have more time to deal with the question of costs.

14       I stand proceeding N 1671 of 2001 over to 28 February 2002 at 9.30 am with liberty to apply on 24 hours' notice. I also the reserve costs of the interlocutory application in that proceeding.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:        7 January 2002

#DATE 21:12:2001

In each proceeding:

Counsel for the Applicant:	Mr R W Killalea
Solicitors for the Applicant:	Ian D Graham & Associates
Counsel for the Respondent:	Mr S B Lloyd
Solicitors for the Respondent:	The Australian Government Solicitor
Date of Hearing:	21 December 2001
Date of Judgment:	21 December 2001