Fernando v Minister for Immigration
[2007] FMCA 724
•18 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FERNANDO v MINISTER FOR IMMIGRATION | [2007] FMCA 724 |
| MIGRATION – Alleged unlawful arrest and detention – application for compensation for unlawful detention. JURISDICTION – Whether Federal Magistrates Court can determine whether a matter falls within its jurisdiction – Court has jurisdiction to determine challenge to its jurisdiction – jurisdiction to hear application for compensation for unlawful detention – no jurisdiction to hear application. |
| Acts Interpretation Act, 1901 (Cth), s.15C Constitution, ss.75, 76, 77 Federal Magistrates Act, 1999 (Cth), ss.10, 18 Federal Magistrates Court Rules, 2001 (Cth), rr.12.03, 44.15(1), sch 1, part 2, cl.1(b). Judiciary Act, 1903 (Cth), s.39B(1A)(c) Migration Act, 1958 (Cth), ss.189, 476, 501 |
| FEDFA v BHP Co Ltd (1911) 12 CLR 398 Fernando v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 975 |
Fernando v The Queen [2000] WASCA 289
Goldie v Commonwealth of Australia & Ors (2000) 180 ALR 609; [2000] FCA 1873
Goldie v Commonwealth of Australia & Ors (2002) 188 ALR 708; [2002] FCA 433
Goldie v Commonwealth of Australia & Ors (No.2) [2004] FCA 156
Khatri v Price (1999) 95 FCR 287
Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68
Re Boulton; Ex parte Construction, Forestry, Mining & Engineering Union (1998) 73 ALJR 129.
Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48
Taylor v CGU Insurance Limited [2005] FMCA 1073
| Applicant: | WANNAKUWATTEMITIWADUGE LLOYD NIRMALEEN FERNANDO |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number | PEG 43 OF 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 15 May 2007 |
| Date of Last Submission: | 15 May 2007 |
| Delivered at: | Perth |
| Delivered on: | 18 May 2007 |
REPRESENTATION
| Applicant: | Wannakuwattemitiwaduge Lloyd Nirmaleen Fernando in person |
| Counsel for the Respondent: | Mr A Gerrard |
| Solicitor for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed for want of jurisdiction.
The Applicant to pay the Respondent costs in the sum of $2500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 43 of 2007
| WANNAKUWATTEMITIWADUGE LLOYD NIRMALEEN FERNANDO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Essential background facts
The Applicant is a citizen of Sri Lanka.
The Applicant came to Australia in 1989. At that time he had a student visa. He has remained in Australia since 1989. The Applicant applied for various visas, including a protection visa, without success, during the period from 1989 to 1995. In 1995 the Applicant was granted a BF-154 visa.
On 31 July 1998 the Applicant was convicted after a trial in the District Court of Western Australia on three charges of sexual penetration of a female without her consent: Fernando v The Queen [2000] WASCA 289 at para 2 per Murray J (“Fernando Criminal Appeal”). The Applicant was sentenced to eight years imprisonment with eligibility for parole: Fernando Criminal Appeal at para 64 per Murray J. Applications for leave to appeal against conviction and sentence were refused: Fernando Criminal Appeal at para 70 per Murray J, para 71 per Parker J, para 72 per Heenan J.
On 29 November 2001 the then Minister for Immigration and Multicultural Affairs exercised his discretion under s.501(2) of the Migration Act, 1958 (Cth) (“Migration Act”) to cancel the Applicant’s visa on the basis that the Minister reasonably suspected that the Applicant did not pass the character test and had not satisfied the Minister that he passed the character test: Fernando v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 975 at para 9 per Carr J (“Fernando Visa Review”). The Federal Court held that the decision to cancel the Applicant’s visa in November 2001 was infected by jurisdictional error in that there had been a breach of procedural fairness by reason of a failure to bring to the Applicant’s attention the substance of information contained in a document described as Annexure L, a document admitted into evidence in the Federal Court proceedings but ordered to remain sealed and not to be unsealed other than by a judge of the Federal Court: Fernando Visa Review at paras 40, 44 and 60-61 per Carr J. Accordingly, the then Minister’s decision to cancel the Applicant’s visa was quashed: Fernando Visa Review at para 63 per Carr J.
A second decision to cancel the Applicant’s visa on similar grounds was subsequently made by the then Acting Minister on 3 October 2003. As a consequence of that decision the Applicant was in immigration detention from 5 October 2003 to 18 January 2007.
On 18 January 2007 the Assistant Secretary Character Assessments & War Crimes Screening Branch, Department of Immigration and Multicultural Affairs (“the Department”) wrote to the Applicant in the following terms:
“We are releasing you from immigration detention on the basis that you may not have been afforded procedural fairness in relation to the decision to cancel your Transitional (Permanent) visa on 3 October 2003 under section 501 of the Migration Act 1958 (the Act).
We have identified your case as one which is similar to the case which was the subject of the decision of the Federal Court in Sales v Minister for Immigration and Multicultural affairs [2006] FCA 1807. According to that decision, you may not have been afforded procedural fairness if you:
(a) were in criminal detention at the time that you were required to respond to the Notice of Intention to Consider Cancellation (NOICC) of your visa under section 501; and
(b) did not use a lawyer or migration agent in providing that response; and
(c) were only granted 14 days to respond to the NOICC (that is, you were not granted an extension of time beyond the 14 days, regardless of whether you requested an extension or not); and
(d) were not afforded any other opportunity to respond to the NOICC (whether this opportunity was in the context of commenting on further adverse information or not).
As a result of your release you are permitted to work and have the same entitlements as other permanent residents. As you are now being treated as the holder of a permanent visa, we have enclosed a Certificate of Evidence of Residence Status for you to present to Medicare and any other agency who may require evidence of your lawful status. The certificate only remains valid for the time you are being treated as the holder of a permanent visa.”
On 14 March 2007 an officer of the Department sent a letter to the Applicant in the following terms:
“On 18 January 2007 you were advised that your case was considered to be similar to the case which was the subject of the Federal Court decision in Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807. As a result of this decision you were released from immigration detention and are being treated as the holder of a transitional (permanent) visa.
This letter is to advise you that the Department is giving fresh consideration as to whether your transitional (permanent) visa should be cancelled under section 501 of the Migration Act 1958 (the Act). You may be sent a Notice of Intention to Consider Cancellation (NOICC) in due course. If you are sent a NOICC, you should read the contents carefully and you may wish to discuss it with a lawyer.
The decision to cancel a visa under section 501 of the Act is discretionary, and all information relevant to a case is taken into account. For this reason, you are encouraged to provide the Department with all information that you wish the Minister (or a delegate) to consider in making their decision.
In preparing your response to the NOICC, you should carefully consider the contents of “Direction No. 21 – Visa Refusal and Cancellation under Section 501 of the Migration Act 1958” (the Direction”) and address each and every topic that applies to you or is relevant to your circumstances. I have attached a copy of the Direction for your information. You should also provide the Department with any other information that you feel the Minister or delegate ought to be aware of and take into account in making their decision.”
On 24 January 2007 consent orders were made in the Federal Court to set aside the 3 October 2003 decision by the then Acting Minister to cancel the Applicant’s visa.
Application and response objecting to jurisdiction
This application (“the Application”) was made on 19 March 2007, five days after the Applicant was advised by the Department that it was giving fresh consideration as to whether the Applicant’s transitional (permanent) visa should be cancelled under s.501 of the Migration Act.
In the Application the Applicant seeks the following orders:
“1. Application for compensation against unlawful immigration detention; I had been unlawfully detained by the Immigration Department since 05/10/2003 to 18/01/2007.
2. Application for a pro bono lawyer for the above issue. …
3. My Application is to claim 20 million dollars in compensation from Immigration Department for the damages it has done against me.”
The Applicant indicates on the Application that it is made under the Migration Act.
The Application was supported by a short affidavit from the Applicant affirmed on 19 March 2007, alleging that:
a)he was unlawfully detained by the Department from 5 October 2003 to 18 January 2007;
b)he was totally innocent and the subject of departmental and judicial corruption of which he had black and white evidence.
On 19 April 2007 the Respondent filed a response objecting to jurisdiction (“Response”). The Response provides as follows:
“1. On 19 March 2007 the applicant filed an application in the Federal Magistrates Court, purportedly under the Migration Act 1958 (“the Act”), together with a supporting affidavit. The application seeks compensation for the applicant’s alleged unlawful detention between 5 October 2003 and 18 January 2007.
2. The Act confers jurisdiction on the Federal Magistrates Court to judicially review certain decisions made under the Act. None of the sections that confer such jurisdiction expressly or by implication authorise a civil proceeding for damages to be instituted in the Federal Magistrates Court.
3. The Act does not confer jurisdiction on the Federal Court to hear claims for compensation for unlawful immigration detention.”
The Respondent submits that the Federal Magistrates Court (“the Court”) does not have jurisdiction to hear the Application, and seeks that the Application be dismissed.
Directions Hearing
The Court held a directions hearing on 23 April 2007, at which the Respondent’s objection to jurisdiction was set down for hearing on
15 May 2007.
The Applicant was also referred to the Registrar under r.12.03 of the Federal Magistrates Court Rules, 2001 (Cth) for referral to a lawyer on the pro bono panel for legal assistance. Regrettably, no assistance was forthcoming from any lawyer on the pro bono panel.
Orders were made for the Respondent and Applicant to file and serve an outline of submissions in relation to the objection to jurisdiction by 4.00 pm on 30 April 2007 and 4.00 pm on 7 May 2007 respectively.
On the day of the directions hearing the Applicant filed a further affidavit.
Respondent’s submissions
The Respondent’s submissions are to the effect that:
a)the primary jurisdiction of the Court is to be found in s.10 of the Federal Magistrates Act, 1999 (Cth) (“FM Act”) which provides for the Court to have such original jurisdiction as is vested in it by laws made by Parliament by express provision, or by the application of s.15C of the ActsInterpretation Act, 1901 (Cth) to a statutory provision which authorises, expressly or by implication, a civil proceeding to be instituted in the Court in relation to a matter: s.10(1), FM Act. The jurisdiction of the Court under the Migration Act is found in s.476 of the Migration Act. Section 476 allows this Court to judicially review certain decisions made under the Migration Act. Section 476(1) provides that this Court has the same original jurisdiction in relation to migration decisions as the High Court has under s.75(v) of the Constitution: subject to the other provisions of s.476 containing certain specific exclusions in relation to that original jurisdiction; and
b)the Constitution provides in s.75(v) that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The Respondent says that the Applicant is not seeking an order for a writ of mandamus or prohibition or an injunction, and therefore s.476 of the Migration Act does not confer jurisdiction on this Court to hear a claim in tort for allegedly unlawful detention.
The Respondent also says that no jurisdiction accrues under s.18 of the FM Act in respect of this Application. Put shortly, the submission is that because there is no application with respect to a matter within the primary jurisdiction of the Court, there can be no matter within the associated jurisdiction of the Court.
Applicant’s submissions
The Applicant did not file submissions as such. Instead, on 7 May 2007, he filed a further affidavit. That affidavit, together with another affidavit filed by the Applicant on 23 April 2007, are dealt with below in more detail.
On the hearing of the Respondent’s objection the Applicant made brief oral submissions. They were to this effect:
a)the Court had jurisdiction to deal with the Application;
b)there were various breaches of visa requirements that the Court should deal with (but which remained unparticularised);
c)he had been unlawfully detained;
d)when asked whether there was any precedent in relation to his case and the Court having jurisdiction the Applicant referred to “Goldie’s Case”; and
e)otherwise relied upon his various affidavits.
The Applicant has filed two substantial affidavits in this matter:
23 April 2007 and 7 May 2007. Both affidavits have annexures, and in particular annexures contained within a CDRom attached to each affidavit. The contents of the two CDRoms (which if printed out would run to several hundred pages) are not identical, but there is significant duplication of material within the annexures on the two CDRoms. A significant portion of the material on both CDRoms relates to the Applicant’s criminal convictions in 1998, which he continues to assert, notwithstanding the Fernando Criminal Appeal judgment, are wrong, and suggests that he intends taking his alleged wrongful convictions to the High Court. In an annexure to his 7 May 2007 affidavit the Applicant refers to the well known case of Andrew Mallard whose conviction for murder was quashed by the High Court: Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 (“Mallard”) and seeks to draw parallels with the Mallard case, essentially asserting that he has been “stitched … up” on the basis of “fraudulent sexual allegations” which “corrupted the entire legal process”. The Applicant also makes certain irrelevant and scandalous observations about the conduct of the Department: see para 4(a), Applicant’s Affidavit, 7 May 2007.
The gist of what the Applicant wants the Court to consider is however set out in paragraphs 5, 6 and part of paragraph 9 of his affidavit of
7 May 2007, as follows:
“5. That the application, “PEG. 43 of 2007”, is an application by me(the applicant) to the Federal Magistrate [sic] Court for compensation against unlawful detention that resulted due to violation of the migration act(s) with malicious intent: there were several breaches that could be evident from my final affidavit to the Federal Courts [sic] in relation to its decision that was passed on 24th January 2007(Please note: the affidavit and its enclosures are given in “Annexure-F”).
6. That the application, “PEG. 43 of 2007”, is an application that involves matters in relation to the migration act(s); therefore, I the applicant strongly believe that the application, “PEG. 43 of 2007”, ought to be fully within the jurisdiction of the Federal Magistrate [sic] Courts.
…
9. … This is a clear indication that only some of the matters that I had addresses [sic] in the affidavit in relation that appeal were (or might have) looked [sic] at by the Federal Court. Therefore, the matters addressed in that affidavit (a copy is given in “Annexure-F”) ought to be looked at first (or be given priority).”
The Court has examined Annexure F referred to in paragraph 5 of the Applicant’s affidavit of 7 May 2007. Annexure F was an affidavit seemingly filed in support of the Applicant’s application to the Federal Court to quash the then Acting Minister’s decision of 3 October 2003 to cancel the Applicant’s visa. Pages 7-52 (of the 80 page Annexure F) deal with the facts and circumstances of the Applicant’s trial in the District Court of Western Australia and appeal to the Western Australian Court of Criminal Appeal. The bulk of the remaining material deals with facts and circumstances surrounding and leading up to the Federal Court judgment in Fernando Visa Review.
The hearing of the Respondent’s objection to jurisdiction was completed in this Court on the morning of 15 May 2007. Late in the afternoon of 15 May 2007 the Applicant filed (seemingly by facsimile) a further affidavit. There was no order of the Court requiring that it be done, and no leave of the Court sought to do it. The Court’s view is that no regard ought to be had to the Applicant’s affidavit of 25 May 2007, but, lest that view be wrong, the content of the affidavit is set out below, and the thrust of the argument contained therein (for what was filed as an affidavit is really a submission) is dealt with below.
The Applicant’s affidavit of 15 May 2007 in paragraph 2 says:
“the respondent approached the matter, challenging the jurisdiction of the Federal Magistrate [sic] Court, despite the nature of the case (information, and arguments put forward by the applicant), was inappropriate (please refer the annexure “Annexure”).”
The Annexure referred to says as follows:
“The respondent approach to the matter, challenging the jurisdiction of the Federal Magistrate [sic] Court, despite the nature of the case (information, and arguments put forward by the applicant), was not appropriate for the following reasons:
(A.)It is not appropriate to put either Federal Court or Federal Magistrate [sic] Court in a position, where they pass judgement on their own jurisdiction.
(B.)It is not appropriate for the respondent to obstruct the case (File:PEG43 of 2007) is being heard in the current court of law; when the respondent has the opportunity use High Court Form: 17 to remove a case from lower court to a High Court, if the respondent thinks that he got the right arguments and facts to convince the High Court.
For the foregoing reasons; and or the reasons given by me in today’s hearing at Federal Magistrate [sic] Court, I request the Federal Magistrate [sic] Court to quash the application of the respondent; and case(File:PEG.43 of 2007) be begin hearing.”
The Respondent wrote to the Court (on being served with the Applicant’s affidavit of 15 May 2007 on 16 May 2007) indicating that it did not wish to add anything further to the submissions already made.
Determination by the Court of challenges to its jurisdiction
This Court has jurisdiction, and at the very least limited jurisdiction, to determine an application that it has no jurisdiction: Fisher v Minister for Immigration & Citizenship [2007] FCA 591 at para 13 per Stone J (“Fisher”), citing Khatri v Price (1999) 95 FCR 287 at 290 per Katz J. That has been the law for a long time in Australia. In the High Court in FEDFA v BHP Co Ltd (1911) 12 CLR 398 Griffith CJ said at 415:
“But the first duty of every judicial officer is to satisfy himself that he has jurisdiction.”
and Barton J said at 428:
“Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the Court of first instance, just as it may become the duty of the superior Court.”
(See also at 454 per Isaacs J.)
More recently the matter was dealt with by the High Court in Re Boulton; Ex parte CFMEU (1998) 73 ALJR 129 where Kirby J at 133 said:
“Every court or tribunal in this country must, where objection is taken to its jurisdiction determine that objection as a preliminary question.”
There can be no doubt that this Court has jurisdiction to determine a challenge to its jurisdiction.
Jurisdiction
Sections 75 – 77 of the Constitution provide as follows:
75 Original jurisdiction of High Court
In all matters:
(i) arising under any treaty;
(ii) affecting consuls or other representatives of other countries;
(iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
(iv) between States, or between residents of different States, or between a State and a resident of another State;
(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction.
76 Additional original jurisdiction
The Parliament may make laws conferring original jurisdiction on the High Court in any matter:
(i) arising under this Constitution, or involving its interpretation;
(ii) arising under any laws made by the Parliament;
(iii) of Admiralty and maritime jurisdiction;
(iv) relating to the same subject-matter claimed under the laws of different States.
77 Power to define jurisdiction
With respect to any of the matters mentioned in the last two sections the Parliament may make laws:
(i) defining the jurisdiction of any federal court other than the HighCourt;
(ii) defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;
(iii) investing any court of a State with federal jurisdiction.
Under s.77 (1) the Parliament has made laws defining the jurisdiction of this Court generally, and in relation to migration matters.
Section 10 of the FM Act provides as follows:
(1) The Federal Magistrates Court has such original jurisdiction as is vested in it by laws made by the Parliament:
(a) by express provision; or
(b) by the application of section 15C of the Acts Interpretation Act 1901 to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Magistrates Court in relation to a matter.
(2) The original jurisdiction of the Federal Magistrates Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.
(3) The process of the Federal Magistrates Court runs, and the judgments of the Federal Magistrates Court have effect and may be executed, throughout Australia.
Section 15C of the Acts Interpretation Act 1901 (Cth) provides as follows:
Where a provision of an Act, whether expressly or by implication, authorizes a civil or criminal proceeding to be instituted in a particular court in relation to a matter:
(a) that provision shall be deemed to vest that court with jurisdiction in that matter;
(b) except so far as the contrary intention appears, the jurisdiction so vested is not limited by any limits to which any other jurisdiction of the court may be subject; and
(c) in the case of a court of a Territory, that provision shall be construed as providing that the jurisdiction is vested so far only as the Constitution permits.
Section 476(1) of the Migration Act confers jurisdiction on this Court to judicially review certain decisions made under the Migration Act, and relevantly provides as follows:
(1) Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
Section 75(v) of the Constitution is set out above.
Essentially, s.476(1) of the Migration Act provides for this Court to grant prerogative relief in the same manner as the High Court under s.75(v) of the Constitution in respect of reviewable migration decisions.
The Applicant submits that because his Application involves matters in relation to the Migration Act it is within jurisdiction: Applicant’s affidavit, 7 May 2007, paragraph 6. This however puts the position too broadly. In any event, the Court needs to look at the facts of this case. Any future decision, as foreshadowed by the Department’s 14 March 2007 letter is not yet reviewable. Prior decisions cancelling the Applicant’s visa have already been reviewed, and are the subject of Federal Court orders quashing those decisions. There is nothing for this Court to do in relation to those decisions. There are no other relevant outstanding migration decisions which this Court can review. Further, and in any event, there is no application for a writ or injunction which might be granted: s.476(1), Migration Act; s.75(v), Constitution.
This Court cannot hear a claim in tort for false imprisonment arising out of immigration detention in the absence of an application within the Court’s primary jurisdiction, arising in these cases by reason of s.10 of the FM Act and s.476(1) of the Migration Act. If there is no matter within the primary jurisdiction associated jurisdiction under s.18 of the FM Act cannot be invoked: Taylor v CGU Insurance Limited [2005] FMCA 1073.
The Applicant refers to “Goldie’s Case”. There were three relevant cases. In Goldie v Commonwealth of Australia & Ors (2000) 180 ALR 609; [2000] FCA 1873 the Federal Court dismissed an application alleging unlawful detention of a non-citizen where there was a suspicion that the relevant visa had expired. On appeal to the Full Court of the Federal Court, and by majority, it was held that the detention of the appellant was unlawful, it not being based on knowledge or a reasonable suspicion that the appellant was an unlawful non-citizen under s.189(1) of the Migration Act: Goldie v Commonwealth of Australia & Ors (2002) 188 ALR 708; [2002] FCA 433. In Goldie v Commonwealth of Australia & Ors (No.2) [2004] FCA 156 (“Goldie (No.2)”) the applicant was awarded damages of $22,000 for false imprisonment being wrongful arrest and detention under the Migration Act. In that series of cases the Federal Court presumably had jurisdiction by reason of s.39B(1A)(c) of the Judiciary Act, 1903 (Cth) which provides that the original jurisdiction of the Federal Court includes jurisdiction in any matter arising under any laws made by the Parliament. As set out above this Court’s jurisdiction is more restricted.
The Applicant makes it clear by reason of the Application, and para 5 of his affidavit of 7 May 2007, that this is a claim with respect to his alleged unlawful detention. It is a claim in tort for false imprisonment of a type for which damages were awarded in Goldie (No.2), and later considered by the High Court in Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48. There is nothing in Annexure F to his 7 May 2007 affidavit to the contrary. In the circumstances, the Application is in respect of a matter, and seeks relief, beyond the jurisdiction of this Court to award. Put simply, the Applicant has filed the Application in the wrong court.
Conclusions
There being no jurisdiction of the Court invoked by the Application, the objection to jurisdiction must be upheld, and the Application dismissed. The Applicant must pay the Respondent’s costs, in the sum of $2,500: FMC Rules, r. 44.15(1), sch 1, part 2, cl.1(b).
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: Maryna Hewitt
Date: 18 May 2007
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