Bridges v MIMIA

[2004] HCATrans 408

[2004] HCATrans 408

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Perth  No P48 of 2004

B e t w e e n -

RONALD HENRY BRIDGES

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Summons

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 25 OCTOBER 2004, AT 4.30 PM

Copyright in the High Court of Australia

MR R.H. BRIDGES appeared in person. 

MR M.T. RITTER:   May it please the Court, I appear for the respondent.   (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Bridges. 

MR BRIDGES:   May it please your Honour, I would like Mr De Alwis to speak on my behalf.

HIS HONOUR:   On what basis?

MR BRIDGES:   Because I do not understand the law myself and ‑ ‑ ‑

HIS HONOUR:   He is not on the roll, is he?  He has been suspended from practice.

MR BRIDGES:   I wish to use amicus curiae.

HIS HONOUR:   Well, we usually only allow a friend of the Court to give assistance to the Court when the Court will obtain some advantage from the arguments.  Having read what has been prepared by the gentleman in question, I cannot see that I am going to get any assistance from him.

MR BRIDGES:   Well, I cannot speak for myself.

HIS HONOUR:   Mr Bridges, this application borders on hopeless.  You have a decision of the Full Court of this Court in which I dissented and in which the Court held that a person such as yourself can be deported.  Now, no single judge sitting here can act otherwise than in accordance with that decision.  It is the law of the land.  Now, you may be successful in getting leave to appeal and if you do then an application for bail or to be released can be made, but sitting as a single judge I am bound by the decision in Shaw’s Case.  I was one of the dissenters in Shaw’s Case, but I am bound by it and this application seems to me hopeless.

Your prospects of getting leave to appeal against the judgment of Justice Heydon are practically non‑existent, but even if you had a good chance of getting leave to appeal against his Honour’s decision, I would not have the power or I should not exercise any power I have to release you, because the law is clear that you can be deported as it stands.

Now, I have read the submissions that have been written on your behalf and there is just nothing that can be done to have you released from custody.  Is there anything further you want to say in the matter?

MR BRIDGES:   I do not know how to answer that, your Honour.  I have never spoken in a court for myself before.

HIS HONOUR:   I appreciate that, but the point is that you are imprisoned, in detention under a power conferred by an Act of Parliament, and you have to say that that Act cannot constitutionally apply to you.  The decision of this Court in Shaw’s Case says that it does.  That being so, it would be an abuse of power by me to order your release even if I thought that the balance of convenience favoured your release from custody.  Add to that the fact that the prospect of overruling Shaw, a recent decision of this Court, is miniscule. 

I am afraid you have been in custody a long time; you would be better advised, it seems to me, to get used to the fact that you are going to be deported.  You have outlived your legal remedies, and the sooner you go or allow yourself back to England or be sent back to England, the sooner you will get out of custody.  It must be terrible for you to be in custody as you have been for over a very long period of time, and you have now reached the stage where, it seems to me, your litigation is futile.  It is a matter for you.  You can pursue your leave application, but the result seems to me to be quite inevitable.

MR BRIDGES:   It was on health grounds that I was being ‑ ‑ ‑

HIS HONOUR:   Well, I understand that it is on health reasons, but health reasons is not a ground for releasing you from custody.  You are being detained under an Act of Parliament, under a power exercised in accordance with an Act of Parliament, and that power says that you are to be detained until you are deported.  Unless that Act cannot constitutionally apply to you, that is the end of the matter.

MR BRIDGES:   Now, I have been trying to get release for a long time.  I appealed in 1998 and the lawyer made a mistake and ‑ ‑ ‑

HIS HONOUR:   I know, but the fact is that the Minister has chosen to deport you.  That seems to me to be the beginning and end of the matter.  Your deportation order was affirmed by the Administrative Appeals Tribunal as long ago as August 2000.  So what does that mean?  You have been in custody for four years, is that right?

MR BRIDGES:   Five and a half, yes.

HIS HONOUR:   Yes.

MR BRIDGES:   In immigration detention, altogether.

HIS HONOUR:   In immigration detention.  An order was made against you in October 1999, so that is just five years you have been in.  You have pursued your rights through the courts and the tribunals, they have held against you and you have had two special leave applications that have been deemed abandoned.  Well, as I say, it is a matter for you but your leave application will not come on, I would imagine, for some time.  In the meantime, you will be in custody.  You act on the advice of those who seek to advise you, but it does not seem to me that you have any real prospects of getting leave to appeal against he judgment of Justice Heydon.  If that is the case, then your application will be dismissed and there will be no further proceedings that you can take.

MR BRIDGES:   What I was trying to say to you was, I have been trying to get released from prison detention for a long time so that I can be allowed to earn the money to challenge my convictions, appeal against my original convictions.  But I have been locked up and I do not earn any money, so it makes it very difficult.

HIS HONOUR:   I understand that, Mr Bridges, but the fact is that you were convicted, you have served a long gaol sentence and the Minister has now elected to deport you.  You have been in custody, as you say, in immigration detention for five years.  I have read the submissions that have been filed on your behalf and I have taken them into account, but, in my view, there is nothing that can be done that would allow you to be released.  Since you do not seem to be able to advance any further argument other than those that have been advanced on your behalf in writing, I am going to give a short judgment in this matter.  You might take your seat, please.

MR BRIDGES:   If the Court pleases.

HIS HONOUR:   I need not hear you, Mr Ritter.

MR RITTER:   Thank you, your Honour.

HIS HONOUR:   The applicant, Mr Bridges, seeks orders that he be released from immigration detention and that he not be deported until further notice, pending the outcome of his application for leave to appeal against an order made by Justice Heydon on 19 May 2004.  Mr Bridges had unsuccessfully applied for prerogative writs against the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, seeking orders that he be released from immigration detention and that he not be deported until further notice.

Mr Bridges migrated to Australia in 1982 with his wife and two adopted children.  In 1996, he was convicted on six counts of sexual abuse of his adopted daughter on dates between January 1985 and September 1994.  He was sentenced to 10 years imprisonment.

On 15 October 1999, a delegate of the Minister, acting under section 201 of the Migration Act, ordered that Mr Bridges be deported.  He challenged the deportation order.  The Administrative Appeals Tribunal affirmed the deportation order in August 2000.  An appeal was heard by Justice Marshall in the Federal Court, who dismissed the application by Mr Bridges in April 2001.  The Full Court of the Federal Court also dismissed Mr Bridges’ appeal later that year.

Mr Bridges has filed two applications for special leave to appeal in this Court.  Each of those applications was deemed abandoned.  In December 2002, Mr Bridges applied for writs of prohibition and certiorari against the Minister.  He also sought an injunction restraining the Minister and the Minister’s delegates from holding him in detention and from giving effect to the deportation order.  He contended that neither the Minister nor the Minister’s delegates had the power to issue a deportation order against him. 

He contended in that application that sections 200 and 201 of the Migration Act are constitutionally invalid in their application to him on the grounds that he was a British subject who had been a resident in Australia since 1982 and that it was beyond the power of the Federal Parliament to legislate for his deportation or removal from Australia.

He argued that the majority decision of this Court in Shaw v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 203 was wrongly decided, that the meaning of “alien” in section 51(xix) of the Constitution had changed so that it did not apply to him and that there had been a miscarriage of justice because he did not receive legal advice after being notified of the deportation order made by the Minister’s delegate.

There was a very considerable delay before the application for an order nisi in respect of those prerogative writs was heard in this Court, but they came before Justice Heydon in May of this year.  His Honour applied the decision of the Full Court of this Court in Shaw and dismissed the application on the ground that Mr Bridges was an alien to whom sections 200 and 201 validly applied.  Justice Heydon said that Shaw was a clear and recent decision of this Court.  There was no prospect, if an order nisi were granted, that the Court would overrule Shaw.  As a result, his Honour rejected Mr Bridges’ submissions to the extent that they were inconsistent with Shaw.

His Honour also dismissed other submissions by Mr Bridges relating to the risk of a vigilante attack he claimed that he would face if deported to the United Kingdom, and to matters concerning his health and his remorse, on the grounds, his Honour held, that they had no bearing on the constitutionality of sections 200 and 201.  In his judgment, his Honour also observed that Mr Bridges feared death if returned to the United Kingdom because of the nature of his convictions, but that was not a matter that the Court could take into account in the context of the applications for prerogative relief as they were framed.

Mr Bridges also sought to challenge various aspects of the judgment of the Full Court of the Federal Court, but Justice Heydon held that the appropriate forum to do that was a special leave application to this Court, and that, in any event, the aspects upon which Mr Bridges sought to challenge the Full Court’s decision could not justify the relief sought in the order nisi.  Justice Heydon also refused an application for extra time to advance written submissions to the effect that Shaw was wrongly decided and for an adjournment in order to advance further arguments.  His Honour dismissed the application for an order nisi with costs.

By a summons filed in this Court on 9 July, with a supporting affidavit which was filed on the same day, Mr Bridges seeks orders that he be released from immigration detention on reasonable terms and conditions, pending the outcome of his application for leave to appeal against the decision of Justice Heydon.  In the summons, Mr Bridges also seeks an order that he not be deported until further notice.

It is unnecessary to set out the grounds upon which he relies in support of the summons.  Basically, they track the arguments that were put before Justice Heydon.  I can deal with the matter fairly summarily by saying that as to the first point, that he cannot be deported because he is a British subject and resident in Australia since 1982, the evidence shows that Mr Bridges was born of British parents in 1943 in the United Kingdom and that he arrived in Australia in 1982.  In accordance with the decision of Shaw, it is plainly within the constitutional power of the federal government to detain Mr Bridges, pending his deportation.  I would regard the prospects of getting leave to appeal to challenge the decision of Shaw, a recent decision of this Court, as small indeed. 

Mr Bridges, in the documents that have been filed on his behalf, also seems to submit that his continued detention may be unlawful even if it is not unconstitutional.  However, he is being detained under section 253 of the Migration Act, which permits the detention of a non‑citizen, pending deportation, until that person is placed on board for deportation.

None of the grounds upon which he relies for the argument that the detention is unlawful support a case of illegality of detention.  For example, he stresses his ill health, but that is not a matter that would render his continued detention unlawful.  In my view, this application is entirely without merit.  The applicant does not raise any arguments that have not been raised and dismissed before.  None of his submissions suggest that his continued detention is unlawful or unconstitutional.  The application does not raise any serious question to be tried.

There is also a procedural matter that might be noted, although, given my reasons, it does not arise, and that is that the application for release is directed to the Minister.  The officer in charge of the Perth Immigration Detention Centre is not a party to the proceedings.  One would have thought that an order for release would have to be directed to and served upon that particular person.  However, in my view, this application must be dismissed. 

Accordingly, the application is dismissed.  The Court will now adjourn.

MR RITTER:   Your Honour, we did seek an order for costs and a certificate for counsel.

HIS HONOUR:   Yes, well there is nothing you can say about that.  I do not know what use it will be to you, but the application is dismissed with costs.  You also want me to certify for counsel?

MR RITTER:   Yes, please, your Honour.

HIS HONOUR:   Yes, I also certify for counsel.

MR RITTER:   Thank you, your Honour. 

HIS HONOUR:   Adjourn the Court. 

AT 4.51 PM THE MATTER WAS CONCLUDED