Ghomrawi v Minister for Immigration and Multicultural Affairs

[1999] FCA 906

FEDERAL COURT OF AUSTRALIA

Ghomrawi v Minister for Immigration & Multicultural Affairs [1999] FCA 906

HASSAN GHOMRAWI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N398 OF 1999

EMMETT J
28 SEPTEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N398 OF 1999

BETWEEN:	HASSAN GHOMRAWI Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	28 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave is refused to the applicant to re-open to adduce further evidence as to the circumstances of the applicant’s transfer to court today.

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	N398 OF 1999

BETWEEN:	HASSAN GHOMRAWI Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	28 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT (NO. 1)

1. This matter came on for further hearing this morning.  I indicated on 24 September 1999 that I would give leave to the applicant to adduce further evidence concerning the provenance of the document which has now been admitted as exhibit AL1.  When the matter was called on this morning, counsel for the applicant indicated that he wished to adduce further evidence concerning the circumstances in which the applicant was brought to court this morning from the facility in which he is presently detained.

2. The nature of the evidence was that the applicant was brought up to the level on which the court is situated in handcuffs and that he was under considerable distress as a consequence of the manner in which he was brought to court.  After a brief adjournment, counsel for the applicant indicated that his instructions were that, on previous occasions when the applicant has been brought to court, he has been brought to court in handcuffs.  However, on those occasions, the handcuffs had been taken off in the court car park and the applicant had been brought up in the lift free of handcuffs.  That was changed today, in circumstances which, counsel for the applicant alleged, caused considerable distress to the applicant.

3. I am not disposed to permit further evidence on that question to be adduced today.  It was said to be relevant to Part III of the amended application.  Part III of the amended application relevantly claims as follows:

   “Pursuant to the jurisdiction pleaded above, the applicant seeks habeas corpus upon the grounds that he has been and/or is being unlawfully deprived of his liberty.”

4. Particulars are then given as follows:

   “The decision of the Department […] and the conduct of the Department […] leading to the decision not to accept the applicant's substantive visa application on or about 18 November 1996 […] was unlawful. 

   The decision of the Department and the conduct of the Department leading to the decision to transfer or move the applicant from immigration detention at Villawood to Silverwater Correctional Centre on or about 8 September1998 as particularised in the applicant's Statement of Facts and Issues […] was unlawful. 

   The conditions of the applicant's detention and the procedures utilised by the Department during the applicant's detention as particularised in the applicant's Statement of Facts and Issues […] rendered such detention unlawful.”

   Naturally enough, the circumstances of today's transfer to the court are not particularised there.  Accordingly, the evidence is simply not relevant to any issue that I have to decide.

5. I do not understand counsel to say that the circumstances of today rendered unlawful any detention that might previously have been lawful.  The applicant's case is that the detention has always been unlawful, although there are several fall-back positions taken by the applicant.  If it were alleged that the circumstances of today rendered unlawful something that was previously lawful, that is something which may be the subject of review.  The appropriate course would be for the applicant, if need be, to move ex parte for abridgment of time for service of a fresh claim dealing with any decision that affected the lawfulness of the detention today.  As I have said, I do not understand such a case to be made out.  In the circumstances, I do not propose to permit the applicant to re-open to adduce further evidence on the circumstances of today's transfer to Court. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             8 October 1999

Counsel for the Applicant:	J.M. Gersten
Solicitor for the Applicant:	Alex Lee
Counsel for the Respondent:	A.F. Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 September 1999
Date of Judgment:	28 September 1999