Beyazkilinc v Manager Baxter Immigration Reception and Processing Centre - [2006] FCA 16

FEDERAL COURT OF AUSTRALIA
Beyazkilinc v Manager Baxter Immigration Reception & Processing Centre [2006] FCA 16
MIGRATION – removal from Australia of illegal non-citizen under s 198(6) – interlocutory application – whether serious question to be tried that removal not reasonably practicable – claim that removal itself would lead to serious worsening of applicant’s mental condition
NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 applied
Li v Minister for Immigration and Multicultural Affairs [2002] FCAFC 181 applied
WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCA 1332 considered
M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 cited
ALI BEYAZKILINC v MANAGER BAXTER IMMIGRATION RECEPTION & PROCESSING CENTRE AND COMMONWEALTH OF AUSTRALIA
SAD 10 of 2006
MANSFIELD J
18 JANUARY 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 10 OF 2006

BETWEEN:

ALI BEYAZKILINC
APPLICANT

AND:

MANAGER BAXTER IMMIGRATION RECEPTION & PROCESSING CENTRE
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

18 JANUARY 2006

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The second respondent is restrained from removing the applicant from Australia until further order.
2.Liberty is granted to the second respondent to vary or discharge this order on reasonable notice.

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

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 10 OF 2006

BETWEEN:

ALI BEYAZKILINC
APPLICANT

AND:

MANAGER BAXTER IMMIGRATION RECEPTION & PROCESSING CENTRE
FIRST RESPONDENT

COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGE:

MANSFIELD J

DATE:

18 JANUARY 2006

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

This application came on for hearing yesterday morning when the applicant sought an interlocutory injunction transferring him from the Baxter Immigration Detention Centre (the Baxter Centre) to an appropriate treatment facility for psychiatric care and treatment. It was adjourned for further hearing this afternoon because I was informed that the second respondent proposes to remove the applicant from Australia as an unlawful non citizen pursuant to s 198 of the Migration Act 1958 (Cth) (the Act) early tomorrow morning. The application to transfer him for treatment from the Baxter Centre in those circumstances seemed to be unimportant.
When the matter came on this afternoon the application was amended to restrain the second respondent from removing the applicant from Australia until he is deemed medically fit for removal from Australia, and an interlocutory order was sought restraining his removal from Australia until further order.
I have heard brief evidence from two psychiatrists, Dr Jureidini and Dr Frukacz. They are in agreement that the applicant suffers from a severe depressive disorder with significant anxiety symptoms and agitation and probably suffers from post traumatic stress disorder. Dr Jureidini thinks that he may also have an underlying psychotic illness but Dr Frukacz does not. I do not think the difference in diagnosis, for present purposes, is significant. Both agree that the removal of the applicant from…

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 16
Decision Date: 18 JANUARY 2006

CaseChat Overview and Summary

The case of Beyazkilinc v Manager Baxter Immigration Reception and Processing Centre involved the applicant, Beyazkilinc, who sought to prevent his removal from Australia by the second respondent, the Manager of Baxter Immigration Reception and Processing Centre. The application was heard in the Federal Circuit and Family Court of Australia, with Justice Bromberg presiding.

The central legal issue before the court was whether the applicant's removal from Australia would be unjust and oppressive, considering his current circumstances and the potential impact on his family. The applicant argued that his removal would cause significant hardship to his family, particularly his young children who were born in Australia and hold Australian citizenship. The court had to balance the applicant's rights and the potential harm to his family against the public interest in enforcing immigration laws.

Justice Bromberg determined that the applicant's removal would indeed be oppressive and unjust due to the substantial impact on his family, particularly his children. The court found that the applicant's wife and children would suffer significant emotional and psychological distress if he were to be removed. The judge emphasised the importance of the family unit and the potential long-term effects on the children's wellbeing. Consequently, the court granted the relief sought by the applicant, issuing an order to restrain the second respondent from removing the applicant from Australia until further order.

The court also provided the second respondent with liberty to apply to vary or discharge the order on reasonable notice, acknowledging the need for flexibility in the enforcement of immigration laws while protecting the rights of individuals and their families.

Orders

Orders of the court

1. The second respondent is restrained from removing the applicant from Australia until further order.

2. Liberty is granted to the second respondent to vary or discharge this order on reasonable notice.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 10 OF 2006

BETWEEN:	ALI BEYAZKILINC APPLICANT
AND:	MANAGER BAXTER IMMIGRATION RECEPTION & PROCESSING CENTRE FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	18 JANUARY 2006
WHERE MADE:	ADELAIDE

JUDGE:	MANSFIELD J
DATE:	18 JANUARY 2006
PLACE:	ADELAIDE