HK/NABR v GSL (Australia) Pty Ltd

[2008] FCA 1390

FEDERAL COURT OF AUSTRALIA

HK/NABR v GSL (Australia) Pty Ltd [2008] FCA 1390

HK/NABR v GSL (AUSTRALIA) PTY LTD, CENTRE EXECUTIVE OF DIAC FOR VILLAWOOD IMMIGRATION DETENTION CENTRE, SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND CITIZENSHIP and COMMONWEALTH OF AUSTRALIA

NSD 676 OF 2008

GRAHAM J
21 AUGUST 2008
MELBOURNE BY VIDEO LINK TO SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 676 OF 2008

BETWEEN:

HK/NABR
Applicant

AND:

GSL (AUSTRALIA) PTY LTD
First Respondent

CENTRE EXECUTIVE OF DIAC FOR VILLAWOOD IMMIGRATION DETENTION CENTRE
Second Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Third Respondent

COMMONWEALTH OF AUSTRALIA
Fourth Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	21 AUGUST 2008
WHERE MADE:	MELBOURNE BY VIDEO LINK TO SYDNEY

THE COURT:

1.Notes that the third and fourth respondents undertake to secure the return to the applicant of the notebook computer claimed by the applicant to have been confiscated and referred to in the Application, upon the removal of the applicant from the Villawood Detention Centre in Sydney on Friday, 22 August 2008.

2.Orders that the Notice of Motion filed 21 August 2008 be dismissed.

3.Orders that the applicant pay the third and fourth respondents’ costs.

4.Orders that in the published reasons for judgment on the applicant’s Notice of Motion filed 21 August 2008 the applicant shall be described by the pseudonym ‘HK/NABR’.

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	NSD 676 OF 2008

BETWEEN:

HK/NABR
Applicant

AND:

GSL (AUSTRALIA) PTY LTD
First Respondent

CENTRE EXECUTIVE OF DIAC FOR VILLAWOOD IMMIGRATION DETENTION CENTRE
Second Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND CITIZENSHIP
Third Respondent

COMMONWEALTH OF AUSTRALIA
Fourth Respondent

JUDGE:	GRAHAM J
DATE:	21 AUGUST 2008
PLACE:	MELBOURNE BY VIDEO LINK TO SYDNEY

REASONS FOR JUDGMENT

1. The matter presently before the Court is a Notice of Motion filed on 21 August 2008 in proceedings NSD676 of 2008, which were commenced in the New South Wales District Registry of this Court on 13 May 2008. 

2. The applicant is HK/NABR, an illegal non-citizen in Australia who is a national of India.  He is the person identified as ‘HK’ in HK v Minister for Immigration and Multicultural Affairs [2001] FCA 1581, a decision of Dowsett J of 25 October 2001. He is also the person identified as ‘NABR’ in NABR v Minister for Immigration and Multicultural Affairs [2002] FCAFC 174, a judgment of Lindgren, Finkelstein and Allsop JJ of 7 June 2002. In addition, he is the person identified as ‘NABR’ in an application for special leave to appeal to the High Court of Australia from the judgment of Lindgren, Finkelstein and Allsop JJ to which I have referred. That special leave application was filed in proceedings S238 of 2002 in the High Court, and was determined, adversely to the applicant, by Gleeson CJ and Heydon J on 20 June 2003.

3. A short summary of the applicant’s circumstances is as follows.  He arrived in Australia on or about 26 March 1998.  On 22 April 1998 he applied for a protection visa.  On 13 May 1998 a delegate of the Minister refused the application for the grant of a protection visa.  The applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of the Minister’s delegate’s decision.  On 14 February 2001 the applicant attended a hearing before the Tribunal with a view to presenting his evidence and argument in support of his application for a protection visa.  On 19 June 2001 the Tribunal handed down its decision which was to affirm the decision of the Minister’s delegate refusing the applicant a protection visa. 

4. On 16 July 2001 the applicant applied for judicial review of the Tribunal’s decision in the proceedings which were the subject of Dowsett J’s judgment of 25 October 2001 to which I have referred.  From that decision the applicant appealed to the Full Court of the Federal Court of Australia which led to the decision of Lindgren, Finkelstein and Allsop JJ of 7 June 2002.  In relation to the application for special leave to appeal to the High Court from that judgment, the High Court said:

   ‘… The Full Court of the Federal Court upheld a decision of Justice Dowsett of the Federal Court of Australia.  Justice Dowsett upheld a decision of the Refugee Review Tribunal, which upheld a decision of the Delegate of the Minister.  No reason has been shown to doubt the correctness of the decision of the Full Court of the Federal Court of Australia and the application for special leave is refused with costs.’

5. The judgment of Lindgren, Finkelstein and Allsop JJ reveals that Dowsett J rejected submissions made by the appellant:

   ·that the Tribunal had placed upon him a substantial onus to prove his case;

   ·that the Tribunal had not understood or dealt with his case based on his position as a member of a particular social group;

   ·that the Tribunal had not brought sufficient scepticism to its assessment of the evidence coming from the Department of Foreign Affairs and Trade (“DFAT”);

   ·that the Tribunal had erred by failing to accept as true certain allegations made in letters produced to it by the appellant;

   ·that the appellant had misunderstood the Tribunal; and

   ·that the Tribunal had given undue weight to the fact that he had not mentioned particular aspects of his case at an earlier stage.

6. When the appeal to the Full Court was heard, the appellant made lengthy written submissions on which he elaborated orally.  He made numerous criticisms of the Tribunal’s reasons for decision, many of them of a pedantic kind.  His approach was described by the Full Bench:

   ‘as one of construing each paragraph and sentence of the Tribunal’s reasons for decision “minutely and finely with an eye keenly attuned to the perception of error” …’

   The Full Court said at [32]:

   ‘32.     … In our opinion, the appellant has not, however, demonstrated that the numerous shortcomings, real or imagined, he was able to discern in the Tribunal’s reasons established the existence of any of the grounds of review.’

7. The applicant is presently in detention at the Villawood Immigration Detention Centre.  On Monday, 18 August 2008 he was served with a Notice of Removal from Australia, under which it was indicated that he would be removed from Australia at 10.00 am on 22 August 2008; that is to say, tomorrow. 

8. In support of the Motion which is presently before the Court, the applicant has sworn that his removal would deny any possibility for this Court to hear the case which is presently before it, and which was instituted on 13 May 2008.  He has said that the case concerns serious matters regarding the rights of people in immigration detention and could also affect the possibility of his remaining in Australia. 

9. The applicant says that he made an application under s 417 of the Migration Act 1958 (Cth) (‘the Act’) for the substitution by the Minister of a decision more favourable to him than that of the Tribunal. That application apparently was not acceded to.

10. He says that he is in the process of filing a fresh application in the Federal Magistrates Court of Australia against the Tribunal’s decision and he also says that he has proceedings pending in the Administrative Appeals Tribunal concerning a Freedom of Information application which he has apparently made against the Department of Immigration and Citizenship in respect of documents that he would like to see and which he says might be helpful in strengthening his case with respect to his right to stay in Australia.

11. The proceedings, which were instituted on 13 May 2008, concern a notebook computer.  The complaint of the applicant is that the first respondent, GSL (Australia) Pty Ltd, confiscated his notebook computer and he says that he has been denied the opportunity to access the internet and other modes of communication, such as mobile phones, causing him hardship and denying, interrupting, delaying, suspending, interfering, disturbing, or restricting his activities such as gaining or giving legal information, conducting legal research, etc. 

12. The proceedings were brought by the applicant against GSL (Australia) Pty Ltd, the Centre Executive of DIAC for Villawood Immigration Detention Centre, the Secretary of the Department of Immigration and Citizenship and, as I would understand it, the Commonwealth of Australia, which has been added as a fourth respondent.  At this stage the second respondent has not appeared.  I do not know whether the first respondent has appeared, but when the matter was called outside the Court in Sydney today, neither the first nor the second respondent appeared.  Mr Markus, a solicitor from the Australian Government Solicitor’s office, appeared for the third and fourth respondents. 

13. In this factual context the Notice of Motion seeks orders as follows:

    ‘1.To stay the removal of [HK/NABR] from Australia pending the outcome of the matter (NSD 676 of 2008) presently before Justice Moore.

    2.To allow the time to file and pursue the decision of the RRT in the Federal Magistrates Court of Australia.’

14. From the submissions of the applicant it is obvious that no application has been filed in the Federal Magistrates Court of Australia, although he has made reference to such an application which he apparently signed and dated 21 August 2008, and he has also referred to an affidavit said to have been ‘sworn/affirmed’ on 21 August 2008. 

15. It would seem to me that the applicant is unwilling to accept that he has had his day in court in respect of his status as a non-citizen in Australia, and simply wants to remain here and to pursue further applications rather than accept that he has no right to be here and should be removed.

16. His submissions in relation to the present application included a submission that the basic reason for the current proceedings in relation to the computer was to allow the applicant to, at some later stage, challenge the Tribunal decision on the basis that it had committed jurisdictional error.  He informed the Court that the purpose of the litigation was to enable him to get the capacity to file a case in the Federal Magistrates Court or in the High Court. 

17. In support of his application he has tendered a medical certificate which has been admitted into evidence as Exhibit A over the objection of the third and fourth respondents.  The medical certificate is one bearing date 20 August 2008, and is that of Dr Justin Bowra who has not personally seen the applicant and formed any view as to his medical condition.  Dr Bowra’s report proceeds on the basis that he had been asked to comment on a letter emailed to him by a Dr L J Day, a cardiologist.  Dr Bowra describes himself as ‘Emergency physician at Sydney Adventist and St Vincent’s Hospitals’.

18. At its highest, the medical certificate of Dr Bowra suggests that the applicant may have a medical condition which may have some effect on his future health.  It describes the applicant as being 40 years old, obese, and with borderline impaired glucose tolerance, who has apparently experienced two episodes this year of rapid regular heart rate, which lasted for approximately 10 minutes each.  The applicant has apparently had an ECG performed on him, and a provisional diagnosis of a medical condition of paroxysmal atrial tachycardia has been made.  Apparently Dr Day advised that no specific treatment was warranted at that stage.  It was suggested that he should have an echocardiogram to enable the assessment of the applicant to be completed. 

19. There is nothing, in my opinion, in the medical report which would work in the applicant’s favour in respect of the contemplated removal of him from Australia tomorrow. 

20. The privative clause provisions of the Act preclude the applicant from seeking any relevant relief in this Court in relation to any migration decisions (see ss 474 and 476A of the Act).

21. Section 198(6) of the Act provides as follows:

    198(6)An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

    (a)       the non-citizen is a detainee; and

    (b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

    (c)       one of the following applies:

    (i)the grant of the visa has been refused and the application has been finally determined;

    (iii)      the visa cannot be granted; and

    (d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.’

22. It seems clear to me on the evidence that the applicant is a person who falls within the reach of s 198(6) of the Act. Whilst the Notice of Motion seeks an order staying the removal of the applicant from Australia pending the outcome of what I might call the ‘computer case’, the applicant, in the course of his submissions, wished to expand his claim for non-removal relief by saying that his removal should be stayed pending the determination of the foreshadowed further case in which he would wish to assert jurisdictional error on the part of the Tribunal.

23. The third and fourth respondents, by their solicitor, Mr Markus, of the Australian Government Solicitor’s office, have undertaken to secure the return to the applicant of his notebook computer, which he claimed to have been confiscated and which was referred to in the application in this matter, upon the removal of the applicant from the Villawood Detention Centre in Sydney on Friday, 22 August 2008.

24. The applicant, who has advanced, if I may so say, submissions which demonstrate an extensive knowledge of the migration law referable to non-citizens who have sought protection visas, submits that the Constitution of the Commonwealth of Australia implies a right to allow him to present cases in which he is an applicant to courts in Australia, and that he should be permitted to stay in Australia until those cases have been determined. As has previously been observed, there is only one case presently before the Court in which he is an applicant, and that is the case concerning the computer which will effectively be resolved by the return of the computer upon his removal from Australia.

25. In the circumstances, I am unable to discern any basis on which the Court could properly interfere with the obligation cast upon officers of the Department under s 198(6) to remove a person such as the applicant from Australia. The applicant has failed to satisfy the Tribunal within the meaning of s 65 of the Act that he has satisfied the criteria for a protection visa prescribed in s 36(2)(a) of the Act. In the circumstances his only available challenge was to assert jurisdictional error on the part of the Tribunal, which he did, and his claims in that regard failed before the Federal Court at first instance and on appeal, and the High Court could see no error in those decisions warranting a grant of special leave.

26. In my opinion, there is no merit whatsoever in the application presently before the Court, and it would seem that any attempt to institute proceedings in the Federal Magistrates Court, or indeed in the High Court, attacking the Tribunal’s decision at this stage would constitute an abuse of process. 

27. In my opinion, the Notice of Motion should be dismissed with costs. 

27

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        11 September 2008

The Applicant appeared in person.
Solicitor for the Respondents:	A Markus of the Australian Government Solicitor

Date of Hearing:	21 August 2008
Date of Judgment:	21 August 2008