Brehoi v Minister for Immigration and Multicultural Affairs

[2001] FCA 932

FEDERAL COURT OF AUSTRALIA

Brehoi v Minister for Immigration & Multicultural Affairs [2001] FCA 932

IMMIGRATION – challenge to issue of deportation order – where deportation order made by a delegate of the Minister – where applicant already had proceedings on foot in AAT seeking review of deportation order – whether claim for judicial review must therefore fail on discretionary grounds.

Migration Act 1958 (Cth) s 253, 254, 475, 499
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 8, 16(1)(d)
Judiciary Act 1903 (Cth) s 39B
Administrative Appeals Tribunal Act 1975

Whittaker v Child Support Registrar & Anor [2000] FCA 1733

NICHOLAS BREHOI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO. N 880 OF 2001

JUDGE:         BEAUMONT J

DATE:           10 JULY 2001

PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 880 OF 2001

BETWEEN:	NICHOLAS BREHOI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	10 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application be dismissed, with 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 880 OF 2001

BETWEEN:	NICHOLAS BREHOI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE:	10 JULY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT (NO. 2)

BEAUMONT J:

1. Before the Court is an application for judicial review.  The proceeding was commenced by the applicant, who is unrepresented, on 28 May 2001.  The matter was returnable before a Registrar of the Court on 31 May 2001 when the matter was fixed for hearing before myself on 10 July 2001.

2. By letter dated 28 June 2001 (MF1 2), directed to the Registry, the applicant asked that the proceedings be adjourned to 21 August 2001 so that he could obtain legal advice and some documents under freedom of information legislation.  By letter dated 3 July 2001 (MFI 3), the applicant was informed that his application for adjournment would be considered by the Court on the hearing day, namely 10 July 2001.  For reasons which will appear, in my opinion, no useful purpose would have been be served by the grant of the adjournment.  I refuse the adjournment application.

3. I have today heard from the respondent at some length, but I am satisfied that the present proceedings are, as a matter of substance, doomed to failure for at least one reason which I will mention below.  However before explaining the position, I will outline the chronology of events.

4. The applicant was born in Romania on 21 August 1958.  He arrived in Australian on 8 March 1980, under an eastern European refugee program.  On 6 January 1988, the applicant was convicted on his first deportable offence, namely, two counts of supply of heroin.  He was sentenced to two years imprisonment.  The Local Court magistrate referred the papers to the Department of Immigration with a request that deportation be considered.

5. In 1990 the applicant commenced a de facto relationship.  In 1992 the applicant was considered for deportation.  On 11 May 1992, he was issued with a warning that a further conviction would lead to deportation being reconsidered. On 12 September 1993, the applicant’s daughter was born.  On 2 December 1993, the applicant was taken into custody in relation to further criminal offences.  On 4 August 1995, the applicant was convicted in the District Court at Sydney of various offences relating to the supply of heroin.  He was sentenced to imprisonment, to commence on 2 December 1993, with a minimum sentence to expire on 1 December 1997, and an additional term to expire on 1 January 2000.

6. On 16 December 1996, the Court of Criminal Appeal of the Supreme Court of New South Wales refused the applicant leave to appeal against sentence.  On 20 May 1997, the applicant was interviewed at the Silverwater Correctional Centre by a departmental case officer and, on 21 July 1997, a departmental submission was prepared on the question of whether a deportation order should be made.  On 20 August 1997, a deportation order was made.

7. On 9 September 1997, the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the deportation order. On 3 February 1998, there was a directions hearing in the Tribunal. On 19 February 1998, the applicant was found to have absconded from the Villawood Detention Centre. On 2 March 1998, a direction was made by the Tribunal dismissing the application under s 42A(2) of the Administrative Appeals Tribunal Act 1975.  On 11 April 1998, the applicant was arrested by the police in breach of parole and detained at the Bathurst Correction Centre.

8. On 20 October 1998, O’Connor J refused an application by the applicant to extend time for appealing against the Tribunal’s decision.  On 11 May 1999, the Court of Criminal Appeal, Supreme Court of New South Wales, refused an application by the applicant for leave to appeal out of time against his conviction on 4 August 1995. 

9. On 16 June 1999, the Full Federal Court dismissed an application seeking to appeal from the decision of O’Connor J. However, on 7 September 1999, the Tribunal heard the applicant’s application for reinstatement of his application. On that date, his application to the Tribunal was reinstated and was listed for hearing in October 1999. But those October dates were later vacated, at the request of the applicant. Instead of pursuing his application to the Tribunal, the applicant then commenced other proceedings for judicial review in this Court. On 24 December 1999, the applicant filed in this Court an application for review of the decision of the Minister, dated 29 August 1997, that a notice under s 254 of the Migration Act 1958 (Cth) (“the Act”) be issued.

10. On 14 December 2000, Madgwick J dismissed that application.  The applicant appealed from that decision but on 11 May 2001, a Full Court (Ryan, Conti and Allsop JJ) dismissed the appeal. 

11. The present application, as has been mentioned, is drawn by an unrepresented party, and for that reason, it is not easy to understand its true legal context. It purports to be an application under several statutory provisions, that is to say, ss 8 and 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), s 39B of the Judiciary Act 1903 (Cth) and ss 253, 254, 475 and 499 of the Act.

12. The grounds relied upon in the claim for final relief are set out in par A of the application in the following terms:

    “1.The applicant seeks leave to make this application out of time pursuant to s 11(1)(c) or s 11(4) of the Act.

    2.That the Minister for Immigration and Multicultural Affairs failed to make any decision in relation to the purported cancellation of the applicant’s permanent residences nor in relation to the consideration of the proposal to deport the applicant.

    3.That the decision of the Deputy Secretary of the Minister for Immigration and Multicultural Affairs was ultra vires ([ie] the decision to deport the applicant) – the Deputy Secretary being a matter solely within the jurisdiction of the Minister.

    4.The deportation order purported to be made against the [applicant] was not properly made and is a nullity.

    5.The served notice was not authorised by the proper Authority at the time … [of the] decision in relation to the applicants detention.”

13. In support of the application, the applicant relies upon an affidavit containing eleven paragraphs.  Three of those paragraphs, namely pars 4, 5 and 6, were objected to on behalf of the Minister, and I have already upheld that objection in separate reasons given today.  In the remaining paragraphs of the affidavit, there are made a number of statements which are purely argumentative in character and need not be mentioned.  The applicant also annexes to the affidavit a certificate from the Romanian Embassy stating that he was no longer a citizen of Romania and explaining other matters in that connection to which I need not refer for present purposes.

14. On behalf of the Minister, reliance is placed upon the affidavit of Dale Jennifer Watson sworn 14 June 2001. I have already, in separate reasons, dealt with and rejected an objection to some of this evidence, being the evidence given in pars 4 and 5 of that affidavit. In essence, that affidavit establishes, in my opinion, that the deportation order was made by Mark Anthony Sullivan as delegate of the Minister pursuant to s 200 of the Act. I am satisfied that the delegation was properly authorised pursuant to the provisions of s 496 of the Act. I am further satisfied that the delegation was effective to authorise the making of the deportation order.

15. As has been seen, the applicant claims initially in these proceedings an order to extend time for applying for the making of an order under the Administrative Decisions (Judicial Review) Act 1977. 

16. For his part, the Minister opposes the grant of any of the relief claimed in the application on a number of grounds which are explained in the respondents written submissions dated 9 July 2001 (which are MFI 1 in the proceeding).  For present purposes, however, I need mention only one of the several arguments advanced on behalf of the Minister, and that is the matter of a discretion.  It is submitted on behalf of the Minister that, by virtue of the circumstances that the applicant has on foot proceedings in the Tribunal seeking review of the deportation order, even if this matter were to proceed to a hearing, it would necessarily fail on discretionary grounds.

17. I am prepared to make, in favour of the applicant, the assumption that this is a proper case for the granting of an extension of time, without deciding that point.  Even if I make that assumption, I agree with the submission put on behalf of the Minister that any claim for judicial review in the present matter must fail, for discretionary reasons.  That is to say, there is no need for the grant of judicial review or any form of prerogative relief in the present matter, given the circumstances that the proceedings before the Tribunal have been reinstated, and are on foot, and there is no suggestion that the applicant is precluded from pursuing those Tribunal proceedings which, of course, provide a wider scope of review of the deportation order than would be available in this Court in any event (cf. Whittaker v Child Support Registrar & Anor [2000] FCA 1733 at par 39). For those reasons alone, I am of the view that the present proceedings are futile and must accordingly be dismissed.

    ORDERS

18. I dismiss the application with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:             24 July 2001

Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Ms Dale Watson, Australian Government Solicitor
Date of Hearing:	10 July 2001
Date of Judgment:	10 July 2001