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Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre

Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre

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FEDERAL COURT OF AUSTRALIA
Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368
IMMIGRATION – unlawful non-citizens – detention pending removal from Australia – where applicant alleges it is not reasonably practicable to remove – objection to jurisdiction – whether removal from Australia a privative clause decision within the meaning of Migration Act 1958 (Cth) – whether Migration Act 1958 (Cth) s 476A prevents Federal Court from entertaining claim for relief founded on jurisdictional error or tort – where concurrent claim in tort against officer of the Commonwealth within the meaning of s 39B of the Judiciary Act 1903 (Cth) – whether s 476A of the Migration Act 1958 (Cth) overcome by Federal Court’s accrued jurisdiction.
ADMINISTRATIVE LAW - whether ‘reasonable practicability’ of removal a jurisdictional fact – factors to be considered in assessing whether a factual reference is a jurisdictional fact to be finally determined by a court.
Held – reasonable practicability of removal not a jurisdictional fact – decision privative clause decision or purported privative clause decision within the meaning of Migration Act 1958 (Cth) – Federal Court lacks original jurisdiction in relation to claim founded on jurisdictional error or tort by reason of s 476A – claim not within Federal Court’s accrued jurisdiction.
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 48B, 198, 417, 476, 476A
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 8
Migration Litigation Reform Act 2005 (Cth)
Federal Court Rules O 20 r 2, O54B
Al-Kateb v Godwin (2004) 219 CLR 562 referred to
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 referred to
Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 referred to
Buck v Comcare (1996) 66 FCR 359 referred to
Cabal v Attorney-General of the Commonwealth (2001) 113 FCR 154 referred to
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 referred to
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 referred to
M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 referred to
Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 referred to
NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 referred to
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 referred to
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 referred to
PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 referred to
Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 206 ALR 83 referred to
WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655 referred to
Aronson, Dyer and Groves, Judicial Review of Administrative Action (3^rd ed, 2000)
ALI BEYAZKILINC v MANAGER, BAXTER IMMIGRATION RECEPTION AND PROCESSING CENTRE AND COMMONWEALTH OF AUSTRALIA
SAD 10 OF 2006
BESANKO J
20 OCTOBER 2006
ADELAIDE

IN THE FEDERAL COURT…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FCA 1368
Decision Date: 20 OCTOBER 2006

CaseChat Overview and Summary

The applicant, a citizen of Turkey, brought a claim against the manager of the Baxter Immigration Reception and Processing Centre, seeking to challenge his removal from Australia. The applicant, who had been detained since 14 September 2004, alleged that his removal would be unlawful as it would be beyond power and a breach of the duty of care owed to him. The court needed to decide whether the statutory provisions, including the privative clause, precluded the court from entertaining the applicant’s claims. Specifically, the court had to consider if the applicant's claims were effectively barred by the privative clause in section 474 of the Migration Act, which stipulates that decisions made under the Act are final and not subject to judicial review.

The court found that the statutory provisions, particularly the privative clause in section 474, precluded the court from entertaining the applicant's claims. The court held that the privative clause effectively barred the applicant from seeking judicial review of the decision to remove him from Australia. The court determined that the obligations imposed by section 198(6) of the Act, which require the removal of an unlawful non-citizen under certain conditions, were administrative in nature and subject to the privative clause. The court concluded that the applicant's claims were not justiciable due to the operation of the privative clause, which prevented any challenge to the decision to remove him.

The court ordered that certain paragraphs of the applicant's statement of claim be struck out. The court also granted the parties leave to make further submissions as to any other orders that should be made in light of the court's reasons. The court’s decision effectively dismissed the applicant's claims, affirming that the statutory framework precluded any judicial intervention in the decision to remove the applicant from Australia.

Orders

Orders of the court

1. Paragraphs 21, 22, 23 and 24 of the third amended statement of claim dated 28 March 2006 be struck out.

2. The parties have leave, if so advised, to make further submissions as to any other orders which should be made in light of these reasons.

Background

Background to the litigation

I say ‘arguably’ because the applicant has not issued his application under O 54B. At all events, the notice was not issued within the time prescribed and the second application before me is an application for an extension of time within which to file and serve the notice of objection to competency and, if appropriate, the determinations of the issues raised by the notice.Background facts A number of background facts are not in dispute. On 2 January 2002 the applicant arrived in Australia as the holder of a subclass 676 Tourist visa. He is a citizen of Turkey. On 14 February 2002 the applicant applied for a subclass 866 Protection visa. He was granted a subclass 010 Bridging A visa. On 11 April 2002 the applicant’s application for a protection visa was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs. On 18 April 2002 the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of the delegate’s decision. On 20 June 2003 the Tribunal affirmed the delegate’s decision. The applicant’s Bridging Visa A expired on 18 July 2003 and the applicant then became an unlawful non-citizen within the meaning of the Migration Act. On 14 September 2004 the applicant voluntarily approached the Department of Immigration and Multicultural and Indigenous Affairs and he was detained on that date and accommodated at the Villawood Immigration Detention Facility. On 8 October 2004 the applicant sought judicial review of the Tribunal’s decision by the Federal Magistrates Court. That Court dismissed the application on 16 February 2005. On 18 November 2004 the applicant was transferred to the Baxter Immigration Detention Facility. On 22 November 2004 the applicant applied for a subclass 050 Bridging (General) visa (Bridging Visa E) but this application was refused by a delegate of the Minister. On 9 March 2005 the applicant appealed to the Full Court of this Court against the decision of the Federal Magistrates Court. That appeal was dismissed on 16 May 2005. On 8 August 2005 the applicant sought ministerial intervention pursuant to ss 417 and 48B of the Migration Act. On 19 December 2005 the Minister decided not to intervene. On 16 or 17 January 2006 the applicant was informed by officers of the second respondent that he would be removed from Australia to Turkey on 19 January 2006. It is common ground that the applicant suffers from a mental illness.The allegations in the statement of claim For present purposes it is sufficient to identify the allegations in the statement of claim in general terms. There are two claims made by the applicant: one is a claim in tort for a breach of a duty of care, and the other is a claim that the proposed removal of the applicant from Australia is beyond power and would be ultra vires and unlawful. Although the allegations in the statement of claim relating to the allegation that the act of removing the applicant from Australia would be beyond power refer on occasion to the ‘respondents’, it is clear that the act of removing the applicant from Australia would be carried out by the second respondent, the Commonwealth of Australia.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BESANKO J

Section 474 relevantly provides:‘(1) A privative clause decision:(a) is final and conclusive; and(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.(2) In this section:privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).(3)A reference in this section to a decision includes a reference to the following:(a)granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination; (b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);(c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;(d)imposing, or refusing to remove, a condition or restriction;(e)making or revoking, or refusing to make or revoke, a declaration, demand or requirement;(f) retaining, or refusing to deliver up, an article;(g) doing or refusing to do any other act or thing;(h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;(i)a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act; (j) a failure or refusal to make a decision.’It is not necessary to set out the terms of subsections (4), (5), (6) and (7). Section 198(6) provides:‘(6)An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:(a) the non‑citizen is a detainee; and(b)the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and(c) one of the following applies:(i)the grant of the visa has been refused and the application has been finally determined;(iii)the visa cannot be granted; and(d)the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.’Once the conditions in paragraphs (a)-(d) inclusive are satisfied, there is an obligation on an officer to remove an unlawful non-citizen ‘as soon as reasonably practicable’. The officer will be required to make a judgment as to when is ‘as soon as reasonably practicable’ and it might be thought as a matter of ordinary language, a decision as to that matter. An officer has a duty to remove an unlawful non-citizen once that person falls within the terms of (a)-(d) inclusive and the only possible decision he or she is then required to make is when such removal is ‘as soon as reasonably practicable’. I will not set out the definition of officer in s 5 of the Act. The definition includes a wide category of persons.

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

Full text does not contain this section.