Johnson v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1247

FEDERAL COURT OF AUSTRALIA

Johnson v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1247

Migration Act 1958 (Cth) s 196, 501(2), 501(6)
Migration Amendment (Duration of Detention) Act 2003 (Cth)

Federal Court Rules O 52 r 10

SILAS TIMOTHY JOHNSON v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W215 of 2003

RD NICHOLSON J
24 OCTOBER 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W215 OF 2003

BETWEEN:	SILAS TIMOTHY JOHNSON APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	24 OCTOBER 2003
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The applicant’s notice of motion dated 17 October 2003 for leave to appeal and extension of time to appeal be dismissed.

2.The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W215 OF 2003

BETWEEN:	SILAS TIMOTHY JOHNSON APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	24 OCTOBER 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On behalf of the intending appellant a notice of motion is brought seeking orders, first, that the appellant have leave to appeal orders of the Court made on 25 September 2003 in terms of a notice of appeal filed with the motion.  Secondly, seeking also that the time for the issue of the notice of appeal be extended until the hearing of the notice of motion or such other time as is ordered.

2. The notice of appeal dated 17 October 2003 seeks to appeal from the interlocutory judgment of the Court given on 25 September 2003.  That judgment is described in the notice as one refusing an adjournment of the respondent's notice of motion dated 16 September 2003 and as one which ordered that the orders made on 22 July 2003 releasing the appellant from immigration detention on certain conditions be discharged.  The notice indicates two grounds.  The first is that the Court erred in refusing the appellant's request for an adjournment in circumstances where the appellant's parents were unable to appear or give evidence in response to the notice of motion and where there was no direct evidence before the Court as to the status of the charges laid against the appellant or as to whether the appellant was entitled to bail and as to the terms of that bail if it should be granted.  Secondly, the notice identifies as a ground the fact that the Court exercised its discretion to discharge the interlocutory injunction made without giving the appellant an adequate opportunity to respond in circumstances where the interlocutory injunction was discharged, it could not be reinstated.  That is said to have been an error.

3. The reference in ground 2 to the inability of the interlocutory injunction to be reinstated is a reference to the impact of the Migration Amendment (Duration of Detention) Act 2003 (Cth) which amended s 196 of the Migration Act 1958 (Cth) so as to have the effect of precluding the grant by this Court of an injunction having the effect of releasing the appellant in particular from immigration detention. It is common ground that is the case and that if the present orders of the Judge made on 25 September 2003 stood, it will not be open to the intending appellant to obtain a further order to the same effect as that which he obtained on 22 July 2003.

4. The interlocutory judgment was given by French J on 25 September 2003 and was transcribed and published bearing the date 10 October 2003.  It sets out the orders made by his Honour and his reasons for judgment.  In those reasons he states that the applicant is a citizen of New Zealand who at the age of six in 1981 was brought to Australia where he has since lived.

5. The reasons also describe that the applicant accrued a substantial criminal record with the consequence that on 19 January 2002 the respondent cancelled his visa under s 501(2) of the Act. This was done on the basis that the respondent reasonably suspected that the applicant did not pass the character test as defined by s 501(6) of the Act. The consequence of the cancellation was that the applicant became an unlawful non‑citizen and was taken into immigration custody. On 17 February 2003 he lodged an application for review of that decision by the respondent.

6. In particular, the application as substituted raises, as the principal ground, that he is neither an immigrant, having been absorbed into the community, nor an alien and therefore falls outside the constitutional limits of the Act insofar as it relates to the cancellation of visas and the removal of persons from Australia.  That issue is presently before the High Court but has not yet been decided.

7. By way of a motion filed on 11 July 2003 and heard on 18 July 2003, the applicant succeeded on 22 July 2003 in having the motion for his interlocutory release accepted by his Honour.  The release was upon terms.  These involved the lodgement of a bond, and that was subsequently complied with.  In particular, it contained conditions governing the way the applicant should lead his life.  He was required to reside with his parents; to not live elsewhere without the prior written consent of an officer of the respondent; to travel with his parents if and when they travelled between their homes in South Hedland and Perth.  If he was residing in South Hedland, certain reporting conditions were imposed upon him; similar reporting conditions were imposed upon him if residing in Perth.  There was liberty provided to apply to vary any of the terms of the orders.  That liberty, of course, did not entitle variation of the orders but simply opened up a mechanism by which such variation might be sought.

8. His Honour recited in his reasons that on 16 September 2003 the respondent filed a motion seeking an order that the orders made on 22 July 2003 be discharged.  The basis of the motion was an affidavit of a police constable setting out the circumstances of a disturbance involving the applicant and his mother.  The applicant's mother gave a written statement to the police which was set out in his Honour's reasons.  It is sufficient to say that it involved reference to conduct by the applicant in assaulting her.  The result was that the applicant was charged with assault occasioning bodily harm and deprivation of liberty.  He appeared in the Perth Court of Petty Sessions on 11 September 2003 and bail was fixed in the sum of $5000 with a surety of $5000.  However, he had not been before his Honour and has not until this date been able to obtain such a surety so that he remains on remand at Hakea Remand Centre.

9. The reasons of his Honour also record that counsel for the applicant filed an affidavit in which he deposed as to what he had been informed by the applicant's father, Mr Peter Johnson.  As recounted in the reasons, the applicant's parents now considered that the assault by the applicant on his mother was out of character and would not be repeated; additionally, they had provided a statutory declaration to the Western Australian police asking that the prosecution be withdrawn.  Further, the applicant's parents considered that the period of detention earlier in the year emotionally affected the applicant and that a further period in detention would only exacerbate his stresses which they believe led to the assault.  They wanted the applicant to continue to reside with them and intended that the applicant's brother would also reside with them to provide further support for the applicant.  Additionally, the applicant's father wished the applicant to obtain counselling or stress management advice as a matter of priority.  Finally, it was stated that the applicant's mother was at the time of the hearing before his Honour on a bus from Hedland to Perth and that the applicant's father could only fly to Perth the following day as neither of them could obtain a suitable flight from Hedland to Perth.  Accordingly, neither of them, it was said, was available to attend the hearing or to provide an affidavit themselves.  In his reasons his Honour then continued as follows:

   ‘I have also been informed, and it appears not to be in contention, that despite the request from the applicant's mother that the prosecution be withdrawn, the state is presently proceeding with the prosecution.  Mr Christie – ’

   who was then and is today counsel for the applicant -

   ‘has requested an adjournment of the motion.  However, in my opinion, there is no point in not proceeding to deal with it now.  It is, in my opinion, clear that because of his arrest and the terms and conditions of his bail, the applicant is not capable of complying with the conditions upon which the original injunction was granted, which involved residing with his parents and travelling with them if and when they travel between their homes in South Hedland and in Perth.  Even if the applicant were not in custody and even if the condition imposed upon his release on bail relating to absence of contact with his mother did not exist, it would be my opinion that, having regard to the nature and seriousness of the charge and the content of the statement taken from the mother by Constable Sloan, it would be inappropriate to maintain his interlocutory release upon conditions requiring his residence and travel with his parents.
   I say that having regard and with due respect to their support for him evidenced in Mr Christie's affidavit.’

10. His Honour then made reference to the effect of the amendment to s 196. He expressed no opinion as to the legal effect of that amendment and whether it was as contended for by counsel for the applicant. In any event, he said, that was not a factor which it was appropriate for him to take into account in determining the merits of the motion before him.

11. His Honour then concluded by attending to issues relating to the bond monies and the costs and made appropriate orders.

12. The applicant seeks to file a notice of appeal out of the 7-day period provided for in O 52 r 10(2).  The explanation given by counsel for the applicant was that this had been affected by the publication of the reasons on 10 October.  That is a matter referred to in the affidavit of the applicant's father made available for this hearing.  In par 8 of that affidavit sworn on 22 October 2003 he stated that he had only recently received a copy of the detailed reasons which had been posted to his solicitors after the publication date and he says that until those reasons were received and considered, he did not have sufficient information to consider and discuss and agree with the applicant whether an appeal should be pursued.

13. As against those circumstances, it is submitted for the respondent that counsel, having attended the hearing before his Honour on 25 September 2003, would have been aware of the reasons for decision and then able to advise his client in relation to the bringing of an appeal.  This, I accept, makes the reliance on the date of publication of the written reasons an insufficient excuse or ground upon which to base the application for extension of time.  I accept that the nature of the grounds of the intended appeal are such that they could have been brought by way of an appeal without reference to the written formulation which followed his Honour's oral statement on 25 September 2003.

14. The application for the extension of time in those circumstances arises pursuant to O 52 r 10 of the Federal Court Rules.  As counsel for the respondent has pointed out, unlike O 52 r 15 which specifies a criterion of special reasons, there is no such criterion applicable to the application of this order.  What the Court must consider, therefore, is whether there are any sufficient reasons why there was a delay in the filing of the notice of appeal.  In my opinion the case for the applicant as stated today does not provide those sufficient reasons.

15. But, in any event, I turn to the question as to whether leave to appeal should be granted.  The test for the granting of leave to appeal from an interlocutory judgment involves the Court considering whether the reasons for judgment of the judge making the interlocutory decision are attended with sufficient doubt to warrant a Full Court reconsidering the question.  That involves the Court examining the strength of the case which it is proposed to bring on the appeal and whether it has sufficient prospects of success.  It is certainly not the role of the Court here today to decide the issues, but to see whether there is such strength of arguability that leave should be granted to warrant reconsideration by a Full Court.

16. The first ground which it is proposed to argue relates to the refusal of the adjournment in circumstances where the appellant's parents were unable to appear or to give evidence and there was no direct evidence before the Court.  I have already referred to his Honour's recitation of the affidavit by counsel stating the position of the applicant's parents before him.  That is a view which is confirmed by the affidavit of Mr Johnson before me today and to which I have previously referred.  In that Mr Johnson states that neither his wife nor he wishes prosecution of the applicant to proceed and they both wish him to continue to live with them.  The views, therefore, that were before the primary judge by way of the affidavit of counsel were indeed the views of the applicants.

17. The reason that his Honour declined the adjournment having had due regard and given due respect to the views of the applicant's parents as evidenced in the affidavit of the counsel for the applicant, was that there was a complete inability by the applicant to comply further with the conditions upon which the original injunction had been granted.  That was a factor that was simply unaffected by any evidence which the applicant's parents might have given.  As his Honour pointed out, having regard to the nature and seriousness of the charge and the content of the statement taken from the mother by the constable it would be inappropriate to maintain his interlocutory release upon the conditions which required residence and travel with his parents. 

18. In my opinion it cannot be argued that his Honour erred in proceeding to exercise his discretion in circumstances where the conditions were such that the actions of the applicant had made them no longer able to be maintained.  It is not contended before me today that the parents of the applicant, had they attended at an adjourned hearing, would have given any evidence different to that which was set out by his Honour as conveyed by counsel and that which is confirmed in the affidavit of Mr Johnson before me.

19. I now turn to the second proposed ground of appeal which refers to, first, the appellant lacking an adequate opportunity to respond.  I take that to be a shorthand reference to the first ground to which I have referred.  I do not accept that it is arguable that the appellant lacked an adequate opportunity to respond.  He was represented by counsel and counsel conveyed the views of the parents and due regard was given to them. 

20. The second limb of the second proposed ground of appeal is that the matters have to be judged in circumstances where if the interlocutory injunction was discharged it could not be reinstated. On that particular matter, his Honour took the view that it was not a factor appropriate for him to take into account in determining the merits of the motion.  Impossibility of reinstatement of interlocutory injunction, to which his Honour was referring, was merely a consequence flowing from the operation of law and it was incumbent on him to determine the motion on its merits.  In my view, the second proposed ground of appeal is not able to be reasonably argued. 

21. It should also be noted that the motion before his Honour for the discharge of the orders made on 22 July 2003 was filed on 16 September 2003 so that both the applicant and his parents would have in all probability had due notification of the hearing date.  I have no evidence to make any finding on that but I have nothing before me to say that they did not have notice of the hearing prior to the dates on which they set out to travel.

22. In those circumstances, I am not able to conclude that the proposed grounds are sufficiently arguable to make it proper for me to reach the view that the decision of his Honour was attended with sufficient doubt to warrant a Full Court reconsidering the decision which he reached.  I reach that view in full cognisance of the fact that the interlocutory injunction having been dissolved, it cannot be reinstated.  Like French J, however, I consider that is an effect of the law and cannot be something which I can take into account in reaching the views which I have expressed.

23. For those reasons I consider that the motion should be refused with the consequence that there will not be a grant of leave to appeal nor an extension of time for the issue of the notice of appeal.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated:             5 November 2003

Counsel for the Applicant:	Mr HNH Christie
Solicitor for the Applicant:	Christie & Strbac
Counsel for the Respondent:	Mr JD Allanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 October 2003
Date of Judgment:	24 October 2003