FEDERAL COURT OF AUSTRALIA
Chamoun v Commonwealth of Australia [2021] FCA 740
File number(s): NSD 394 of 2021 Judgment of: KATZMANN J Date of judgment: 2 July 2021 Catchwords: MIGRATION – objection to competency of proceeding – application by non-citizen in detention for writ of mandamus under s 39B of the Judiciary Act 1903 (Cth) to compel Commonwealth to remove him from Australia to his country of citizenship – where s 476A(1) of the Migration Act 1958 (Cth) limits the Court’s original jurisdiction in relation to migration decisions despite any other law, including s 39B of the Judiciary Act, and where none of the circumstances listed in s 476A(1) applies, whether application is “in relation to a migration decision” Legislation: Federal Circuit Court of Australia Act 1999 (Cth) s 39
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 5, 5E, 13, 14, 198, 474, 476, 476A, 477, 486A, 486B
Migration Litigation Reform Act 2005 (Cth)
Federal Court Rules 2011 (Cth) r 31.24
Explanatory Memorandum to the Migration Litigation Reform Bill 2005 (Cth)
Cases cited: AFX17 v Minister for Home Affairs [2020] FCA 807
Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651
DBE17 v The Commonwealth of Australia (2019) 266 CLR 156
Fernando v Minister for Immigration and Citizenship (2007) 165 FCR 471
M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 385 ALR 405
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Mokhlis v Minister for Home Affairs [2020] HCA 30; 382 ALR 1; 94 ALJR 843
Okwume v Commonwealth of Australia [2016] FCA 1252
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Sebastian v State of Western Australia [2008] FCA 926
Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 72 Date of last submission: 11 June 2021 Date of hearing: Determined on the papers Counsel for the Applicant: Dr J Donnelly Solicitor for the Applicant: Scott Calnan Lawyer Solicitor for the Respondent: Australian Government Solicitor ORDERS
NSD 394 of 2021 BETWEEN: DORI CHAMOUN
Applicant
AND: COMMONWEALTH OF AUSTRALIA
Respondent
ORDER MADE BY:
KATZMANN J
DATE OF ORDER:
2 JULY 2021
THE COURT ORDERS THAT:
1.The application be dismissed as not competent.
2.The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of…
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- Case
- [2021] FCA 740
- Decision Date
CaseChat Overview and Summary
The Court found that Chamoun's application was indeed "in relation to a migration decision" because it sought the removal of an unlawful non-citizen, which is a decision that falls within the scope of s 476A(1) of the Migration Act. The Court held that, in the absence of any of the circumstances listed in s 476A(1) that would allow the Court to exercise jurisdiction, it did not have the authority to hear and determine the application. The Court noted that Chamoun had previously sought judicial review of the decision to cancel his visa, which was dismissed, and that he had not established that he is a citizen of Lebanon or Syria, or that he has a right to reside in either country. The Court concluded that Chamoun's application was not competent and, accordingly, dismissed it.
The Court ordered that Chamoun's application be dismissed as not competent and that Chamoun pay the respondent's costs. The Court held that Chamoun had the burden of establishing the competency of his application, and that if the Court decides that an application is not competent, the application is dismissed. The Court further noted that Chamoun's application was not supported by any evidence that he was a citizen of Lebanon or Syria or that he had a right to reside in either country. The Court concluded that Chamoun's application was not competent and, accordingly, dismissed it.
Orders
Orders of the court
1. The application be dismissed as not competent.
2. The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Dori Chamoun is an “unlawful non-citizen” within the meaning of that term in the Migration Act 1958 (Cth), who has been held in immigration detention for over two years and who has repeatedly asked to be removed from Australia. On 1 May 2021 he filed in this Court an originating application under s 39B of the Judiciary Act 1903 (Cth) seeking a writ of mandamus directing the Commonwealth to remove him from Australia to his country of citizenship. Apart from costs, no other relief is sought. The application is based on s 198 of the Migration Act, which relevantly provides:Removal on request(1)An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed. “Remove” means “remove from Australia”: Migration Act, s 5(1). An unlawful non-citizen is a non-citizen in the migration zone who does not hold a visa that is in effect: see Migration Act, ss 13 and 14. In substance, the “migration zone” is defined in s 5(1) of the Act to mean Australia and Australian resource and sea installations. Mr Chamoun also relied on s 198(6), but that subsection has no bearing on his case. It is concerned with unlawful non-citizens who have applied for visas while in the migration zone but have been refused and whose applications have been finally determined. Mr Chamoun is not such a person. Rather, he is an unlawful non-citizen who held a visa but whose visa was cancelled. The Commonwealth filed a notice of objection to the competency of the application. The question raised by the objection is whether the application is “in relation to a migration decision”. If it is, the effect of s 476A of the Migration Act is that this Court lacks jurisdiction to hear and determine it. Mr Chamoun carries the burden of establishing the competency of his application: Federal Court Rules 2011 (Cth) (FCR), r 31.24(2). If the Court decides that an application is not competent, the application is dismissed: r 31.24(5). The application was supported by an affidavit affirmed by Mr Chamoun’s solicitor, Ziaullah Zarifi. The affidavit discloses that Mr Chamoun was a permanent visa holder who was refused Australian citizenship and whose permanent visa was subsequently cancelled by the Minister on character grounds. Mr Chamoun sought judicial review of the cancellation decision but his application was dismissed: Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2019] FCA 1520. An appeal from that judgment was unsuccessful (Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75), and the High Court refused special leave to appeal (Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCASL 200). The affidavit also discloses that Mr Chamoun has made a number of written requests (both directly and through his legal representatives) that he be removed from Australia, first nominating Lebanon as his preferred destination and, after the Lebanese Embassy declined to issue him with a Lebanese travel document, Syria. Thus far, it appears from the affidavit, neither he nor Departmental authorities have been able to establish that he is a citizen of either Lebanon or Syria or, for that matter, any other country, or that he has a right to reside in either country or anywhere else.