Li v Minister for Immigration & Multicultural Affairs - [2002] FCAFC 181

FEDERAL COURT OF AUSTRALIA
Li v Minister for Immigration & Multicultural Affairs [2002] FCAFC 181
MIGRATION – interlocutory injunction sought to restrain removal from Australia – knee injury in detention and legal action arising out of that injury – whether removal reasonably practicable in circumstances – whether applicant afforded natural justice
Migration Act 1958 (Cth) ss 198(5) and 474
The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 - cited
LIANG WEI LI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N428 OF 2002
JUDGES:      HEEREY, MERKEL AND CONTI JJ
DATE:           29 MAY 2002
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY

N428 OF 2002

BETWEEN:

LIANG WEI LI
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

HEEREY, MERKEL AND CONTI JJ

DATE OF ORDER:

29 MAY 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT the application for leave to appeal be dismissed with costs.
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 WALESDISTRICT REGISTRY

N428 OF 2002

BETWEEN:

LIANG WEI LI
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

HEEREY, MERKEL AND CONTI JJ

DATE:

29 MAY 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT
HEEREY J:

I agree with what Merkel J has said as to the arguments advanced before us and I agree with his Honour that leave to appeal should be refused with costs. However, I would prefer to base refusal of leave on the ground that the decision to remove the applicant was a privative clause decision within the meaning of sub-s 474(2) of the Migration Act 1958 (Cth) and is therefore, by virtue of sub-s 474(1), not subject to challenge, appeal, review or being quashed or called in question in this court. The same result follows if the relevant decision was the act of preparation for actual removal (sub-s 474(3)(g)).
It was not argued on behalf of the applicant and there is no basis for holding that the elements of validity for such a decision identified in The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615, were not satisfied. The bona fides of the decision maker are not attacked. The decision to remove relates to the subject matter of the legislation, namely the removal of unlawful non citizens who are detainees and have not made the
applications referred to in sub-s 198(5). The decision is reasonably capable of reference to the power conferred, indeed it is mandatory.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.
Associate:
Dated:

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY

N428 OF 2002

BETWEEN:

LIANG WEI LI
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

HEEREY, MERKEL AND CONTI JJ

DATE:

29 MAY 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT
MERKEL J:

This is an application for leave…

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: [2002] FCAFC 181
Decision Date: 29 MAY 2002

CaseChat Overview and Summary

In the case of Li v Minister for Immigration & Multicultural Affairs, the applicant, Liang Wei Li, sought leave to appeal against a decision of the Federal Court which refused to grant him an interlocutory injunction to prevent his removal from Australia. The applicant's application was grounded on his knee injury and the ongoing legal proceedings and complaint related to that injury. The legal issues before the court included whether the removal of the applicant was reasonably practicable, whether the applicant was denied natural justice, and whether the court had jurisdiction to grant the relief sought by the applicant. The court found that the applicant's knee injury had sufficiently healed to allow for travel, and his removal did not impede the proceedings or the complaint to HREOC. The court also found no denial of natural justice in the refusal to cross-examine the doctors who reported that the applicant was fit to travel. The court concluded that the applicant had not provided sufficient evidence to demonstrate a real or serious risk to his health if removed, and therefore, it was not unjust to refuse leave to appeal. The Full Court dismissed the application for leave to appeal with costs.

Orders