Baia, Suhardi v Minister for Immigration and Multicultural Affairs

[1997] FCA 1497

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 151 of 1997

GENERAL DIVISION

BETWEEN:	SUHARDI BAIA & ORS Applicants
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Respondents

JUDGE:	CARR J
DATE:	5 DECEMBER 1997
PLACE:	PERTH

EX TEMPORE REASONS FOR JUDGMENT

The Court has before it an application for an interim injunction, which is sought on an extremely urgent basis.  The substance of the interim injunction is that the applicants seek to restrain the Minister for Immigration and Multicultural Affairs (“the Minister”) from deporting them in a particular way.  The applicants have no objection to being deported but, as I have just said, it is the particular manner of the proposed deportation which very much concerns them.  I should give some background details of the matter, so that their concerns can be better understood.

The applicants comprise the captains and crew of four vessels.  All of the applicants are Indonesians and their vessels are, so I have been told from the bar table, small fishing vessels.  On the somewhat scant information available at this stage, it appears that the applicants’ vessels were apprehended by the second respondent and charged by that respondent with certain offences.  The evidence shows that on 27 November 1997 the applicants pleaded guilty to those fisheries offences in the Broome Court of Petty Sessions.  The learned magistrate was asked by the prosecution to make an order for forfeiture of the applicants’ vessels.  The magistrate made other orders but refused to make the order for forfeiture of those vessels.  I was told from the bar table that another Indonesian fisherman successfully defended similar charges and his deportation (and presumably that of his crew) was achieved by towing his vessel out to a certain point at sea whereupon the authorities no longer took any interest in their whereabouts.  That vessel is presumably now back in Indonesia.  From those facts I infer that the first respondent is not particularly concerned as to the manner by which the applicants are to be deported.  I infer that so long as the applicants are deported fairly promptly, the first respondent has no particular concerns.  For present purposes I am assuming that the first respondent, in seeking to deport the applicants, is acting under a provision of the Migration Act which places an obligation upon the first respondent’s officers to remove such persons as the applicant “as soon as reasonably practicable” as found in s.198 of that Act and in other like provisions.  I think that is of some relevance in this matter because there may well be a serious question to be tried as to whether deportation in the manner referred to immediately above (i.e. in the case of the Indonesian fisherman who successfully defended the charges) is, in the present circumstances, “reasonably practicable” when compared to what is foreshadowed tomorrow, namely taking the applicants to an airport and then flying them to Indonesia.  The applicants contend that taking such a course will separate them from their means of livelihood and thereby cause them considerable damage.

The tests to be applied in relation to the grant of an interim injunction are well-settled.  I turn first to the matter of whether there is a serious question to be tried. 

I raised with counsel for the applicants the question of jurisdiction. I was referred to s.23 of the Federal Court of Australia Act, but I am, at this stage, not persuaded that that can be seen as a source of any jurisdiction - rather a source of power.  It seems to me that a serious question to be tried arises out of the fact that the second respondent is, on the materials before me to date, apparently refusing to release the applicants’ vessels, despite the magistrate’s refusal to make an order forfeiting those vessels.  I think a serious question to be tried arises when one ceases to regard the first respondent and the second respondent as separate entities but instead regards them as part of the Commonwealth Crown on an indivisible basis.  That step itself might be the subject of debate and thus a serious question to be tried.  In those circumstances it might be said that the Crown in right of the Commonwealth is reserving to itself some kind of de facto stay of the magistrate’s orders.  I should add that it may well turn out that the facts are quite to the contrary i.e. that the second respondent is not seeking to do anything of the sort.  All I can do is assess the matter on the materials available this evening. 

If the matters are as set out in Mr Vincent’s affidavit (and by making that reference I should not be taken as making any adverse implication) and if the facts are as I have been told from the bar table, then it is reasonably arguable that the applicants are being denied access to their boats which in turn would render unnecessary and (on an arguable basis) not “reasonably practicable” to deport the applicants by air.  I am satisfied that there is a serious question or questions to be tried, although I must acknowledge that as presently advised, I cannot say that the case is a particularly strong one.  As it turns out, I do not think that that matters because I consider that the balance of convenience points overwhelmingly in favour of the applicants.

On the evidence before the Court to date, the prejudice to the applicants if the deportation were to take place tomorrow by air would be very considerable indeed.  They would be moved to a foreign country.  The evidence is that they come from various parts of that country.  They may well have considerable difficulty in ever retrieving their vessels.  In the meantime they would be deprived of their livelihood.  On the facts before me they have been successful in resisting a Court order that their boats be forfeited.  They are entitled to possession of their boats and they are entitled to sail them to their home in Indonesia.  Against that, I look to see whether there is any evidence of prejudice to the respondents.  I acknowledge that there may be some costs involved in cancelling flights at short notice, re-arrangements and the like.  However, in my view, the balance of convenience, as I have said, lies most clearly in favour of the applicants.  I do not think that there will be any substantial prejudice to the respondents if an interim injunction is granted for a strictly limited period, so that the facts of this matter and the legal principles applicable to those facts may be considered more fully and properly.  I think an interim injunction is in the interests of justice to preserve the status quo.  If an interim injunction were not granted, then I consider the evidence points to potentially very substantial, possibly irreparable harm.  For those reasons I propose to grant an interim injunction to restrain the first respondent from deporting the applicants until further order.  It is not intended by that order that the injunction will be anything other than for a few days i.e. until early next week. 

There will be orders accordingly

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of Justice Carr

A/g Associate:

Dated:            16 December 1997

Counsel for the Applicant:	Mr P J Vincent with Mr D Moen
Counsel for the Respondent:	Mr P Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 December 1997
Date of Judgment:	5 December 1997