Chamoun v Commonwealth of Australia

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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

Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2019] FCA 1520

Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75

Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCASL 200

DBE17 v The Commonwealth of Australia (2019) 266 CLR 156

Dunn v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 488

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

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 394

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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Details
Case
[2021] FCA 740
Decision Date

CaseChat Overview and Summary

Dori Chamoun, an unlawful non-citizen held in immigration detention, filed an originating application seeking a writ of mandamus to compel the Commonwealth to remove him from Australia to his country of citizenship. Chamoun based his application on s 198 of the Migration Act 1958, which requires the removal of an unlawful non-citizen who requests it in writing. The Commonwealth objected to the competency of the proceeding on the basis that the application was "in relation to a migration decision", which would render it outside the Court's jurisdiction under s 476A(1) of the Migration Act. The Court was required to determine whether Chamoun's application was "in relation to a migration decision" and, if so, whether the Court had jurisdiction to hear it.

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.