Minister for Immigration and Citizenship v Haneef

[2007] FCAFC 209

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Citizenship v Haneef [2007] FCAFC 209

MINISTER FOR IMMIGRATION AND CITIZENSHIP v DR MOHAMED HANEEF
QUD284 OF 2007

BLACK CJ, FRENCH & WEINBERG JJ
21 DECEMBER 2007

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD284 OF 2007

BETWEEN:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant
AND:	DR MOHAMED HANEEF Respondent

JUDGES:	BLACK CJ, FRENCH & WEINBERG JJ
DATE OF ORDER:	21 DECEMBER 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

The applications to stay the orders made by the Full Court on 21 December 2007 or alternatively the orders made by Spender J on 21 August 2007, be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY		QUD284 OF 2007
BETWEEN:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant
AND:	DR MOHAMED HANEEF Respondent

JUDGES:	BLACK CJ, FRENCH & WEINBERG JJ
DATE:	21 DECEMBER 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

(Ex tempore)

THE COURT (delivered by Black CJ):

1. The Minister moves for a stay of the Court’s decision dismissing the appeal.

2. It is questionable whether any such order can be made in relation to the dismissal of an appeal.

3. New Zealand v Moloney [2006] FCA 1363, upon which the Minister relies, was quite a different case; there the Full Court allowed an appeal with the consequence that orders for extradition came into force. We note, however, that Branson J refused the application for a stay in that case.

4. We are asked, in the alternative, to stay the operation of the orders made by Spender J on 21 August 2007. Whether we even have the power to make such an order may be debatable, but on the merits we do not consider that there is any prejudice to the Minister or the public interest such as would warrant the granting of a stay of the kind now sought. Nor do we think it appropriate to delay the entry of the Court’s orders.

5. The effect of Spender J’s orders is that the Minister must now reconsider the earlier decision according to law, and that in practice means according to the law as the Full Court has explained it.

6. It is for the Minister to decide whether or not, applying the law, the visa should be cancelled and it is of course open to the Minister to make his decision expeditiously.

7. Nothing that the Court has said denies the Minister his power to reconsider the decision in the light of all relevant information, including any matters affecting the national interest.

8. The applications are therefore dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: 

Dated:        21 December 2007

Counsel for the Appellant:	Mr R Derrington SC and Mr P Bickford
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the Respondent:	Mr SJ Keim SC, Mr D Rangiah and Ms N Kidson
Solicitor for the Respondent:	Ryan & Bosscher Lawyers
Date of Hearing:	21 December 2007
Date of Judgment:	21 December 2007