Lee v Minister for Immigration - [2008] FMCA 1734

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEE v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1734

MIGRATION – Detention – interim application for release from detention – habeas corpus – applicant detained for the purpose of deportation – detention of applicant not affected by jurisdictional error – s.196(3) Migration Act 1958 applies – application refused.

Migration Act 1958, ss.5, 13, 14, 116, 189, 196, 198, 474

Beyazkilinc v Manager, Baxter Immigration Reception Processing Centre (2006) 155 FCR 465
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Al-Kateb v Godwin (2004) 219 CLR 562
Minister for Immigration & Multicultural & Indigenous Affairs v Cisinski [2004] FCAFC 302

Applicant:

HYUK KYU LEE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2360 of 2008

Judgment of:

Cameron FM

Hearing date:

9 December 2008

Date of Last Submission:

9 December 2008

Delivered at:

Sydney

Delivered on:

9 December 2008

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The applicant’s application in a case filed on 2 December 2008 be refused.
The applicant pay the first respondent’s costs of the application in a case fixed in the amount of $1,500.
The costs ordered in order 2 are not payable earlier than the date when final judgment is delivered on the substantive application in these proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2360 of 2008

HYUK KYU LEE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant has resided in Australia since 1996, partly pursuant to a series of student visas and bridging visas and partly as an illegal non-citizen. He no longer has a substantive visa and his most recent applications for bridging visas have been unsuccessful.
Following the cancellation of the applicant’s most recent bridging visa on 24 June 2008, he was taken into detention at the Villawood Immigration Detention Centre (“Villawood”). After having been taken into detention, the applicant made a further application for a bridging visa on 2 July 2008, which was refused by a delegate of the first respondent (“Minister”). The applicant’s applications to the Migration Review Tribunal (“Tribunal”) for review of those departmental decisions cancelling his bridging visa and refusing to grant another one were unsuccessful and it appears that he has applied to this Court for judicial review of those two Tribunal decisions. That application has been listed for hearing on 4 February 2009.
On 2 December 2008 the applicant filed an application in a case seeking his release from immigration detention. He wishes to be released in order that he can better prepare his case for the hearing in two months’ time and because of the treatment he says he is suffering in Villawood. These reasons deal with that application.

Background facts

The circumstances surrounding the applicant’s detention may be found in the decision records of the Tribunal which reviewed the 24 June 2008 decision to cancel his last bridging visa and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FMCA 1734
Decision Date: 9 December 2008

CaseChat Overview and Summary

The case of Lee v Minister for Immigration involved an applicant detained under Australian immigration law who sought habeas corpus to challenge the lawfulness of their detention. The Federal Court of Australia was tasked with determining whether the continued detention of the applicant was authorised by law and whether the court had jurisdiction to review the matter.

The central legal issues revolved around the interpretation of the privative clause in the Migration Act 1958 (Cth) and whether the continued detention of the applicant amounted to a jurisdictional error. Specifically, the court needed to ascertain whether the detention was for the purpose of removal from Australia, as required by the Act, and whether the court had the authority to issue a writ of habeas corpus in such circumstances.

The court held that the continued detention of the applicant was a privative clause decision, meaning it was final and conclusive unless there was a jurisdictional error. The court found that as long as the purpose of the detention was for the removal of the non-citizen from Australia, the detention was authorised by the Act. The court cited Al-Kateb v Godwin to support the proposition that detention for removal purposes is lawful even if removal is not reasonably practicable in the foreseeable future. Therefore, the court concluded that there was no jurisdictional error in the continued detention of the applicant.

Consequently, the court dismissed the applicant's application for habeas corpus, refusing the application and ordering the applicant to pay the costs of the proceedings. The costs were to be paid upon the delivery of the final judgment in the substantive application.

Orders

Orders of the court

The applicant’s application in a case filed on 2 December 2008 be refused.

The applicant pay the first respondent’s costs of the application in a case fixed in the amount of $1,500.

The costs ordered in order 2 are not payable earlier than the date when final judgment is delivered on the substantive application in these proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The continued detention of the applicant for the purposes of removal from Australia falls within s.474(3)(g) of the Act. Relevantly, s.474 provides:Decisions under Act are final (1) A privative clause decision: (a)is final and conclusive; and (b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: “privative clause decision” means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). (3)A reference in this section to a decision includes a reference to the following: (a)granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination; (b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; (d)imposing, or refusing to remove, a condition or restriction; (e)making or revoking, or refusing to make or revoke, a declaration, demand or requirement; (f)retaining, or refusing to deliver up, an article; (g)doing or refusing to do any other act or thing; In the circumstances the continued detention of the applicant is thus a privative clause decision over which this court has jurisdiction: Beyazkilinc v Manager, Baxter Immigration Reception Processing Centre (2006) 155 FCR 465. A privative clause decision can only be set aside in circumstances of jurisdictional error: s.474(1) of the Act and Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476. On this approach to the matter the Court must therefore determine whether the applicant’s continued detention amounts to conduct affected by jurisdictional error and is thus subject to a finding that it is unlawful, which would ground the issue of a writ of habeas corpus, notwithstanding s.196. In Al-Kateb v Godwin (2004) 219 CLR 562 it was held that as long as the purpose of a person’s detention is for the removal from Australia, it is authorised by the Act and that such detention pursuant to ss.189, 196 and 198 of the Act does not contravene Chapter III of the Constitution even if the removal of the non-citizen from Australia is not reasonably practicable in the foreseeable future. As Hayne J said:… unless it has been practicable to remove the non-citizen it cannot be said that the time for performance of the duty imposed by s 198 has arrived. All this being so, it cannot be said that the purpose of detention (the purpose of removal) is shown to be spent by showing that efforts made to achieve removal have not so far been successful. And even if, as in this case, it is found that "there is no real likelihood or prospect of [the non-citizen's] removal in the reasonably foreseeable future", that does not mean that continued detention is not for the purpose of subsequent removal. (at 640 [231])

Ratio Decidendi

Legal Principle Established

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