NAFC v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1637

FEDERAL COURT OF AUSTRALIA

NAFC v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1637

MIGRATION – application for injunction restraining respondent Minister from removing applicant in detention from Villawood to Woomera pending final hearing and determination of applicant’s application for review by Refugee Review Tribunal of decision cancelling his protection visa – application dismissed – appeal from that decision pending – present application for injunction that applicant be not removed pending hearing and determination of appeal – interlocutory injunction granted but reserving right for Minister to apply for dissolution or variation of injunction.

Migration Act 1958 (Cth) s 256

Federal Commissioner of Taxation v MyerEmporium Ltd (1986) 160 CLR 220 cited
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 cited
Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1037 cited

NAFC v MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

N 1293 OF 2002

LINDGREN J
24 DECEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1293 OF 2002

BETWEEN:	NAFC APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	24 DECEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pending the determination of the applicant’s appeal in proceeding N 1409 of 2002 or further order of the Court, the respondent not remove the applicant from the Villawood Immigration Detention Centre to the Woomera Immigration Reception and Processing Centre.

2.The respondent have liberty to apply for a dissolution or variation of the injunction contained in Order (1) on 48 hours’ notice, not before 1 January 2003.

3.The costs of the applicant’s motion brought by notice of motion filed on 19 December 2002 be reserved.

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	N 1293 OF 2002

BETWEEN:	NAFC APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	24 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. By the application by which this proceeding was commenced the applicant sought in order 1 the following orders:

   “(a)An order that the Respondent be restrained from removing the Applicant from Sydney pending the final determination of his application for review of a decision to cancel his protection visa.

   (b)Further or alternatively, an order that the Respondent be restrained from removing the Applicant from Sydney pending the final determination of his application to the Respondent for a subclass 050 bridging visa.”

2. The form of application also sought an interlocutory injunction restraining the respondent (“the Minister”) from removing the applicant from Sydney pending the hearing and determination of the proceeding.  The applicant is in immigration detention at the Immigration Detention Centre at Villawood in Sydney.

   BACKGROUND FACTS

3. The applicant arrived in Australia in October 1999. On 3 August 2000 he was granted a protection (class XA) subclass 785 (Protection) visa, valid until 3 August 2003. On or about 12 April 2002, he received a notice of intention to cancel his visa under s 109 of the Migration Act 1958 (Cth) (“the Act”). This was based on an allegation that the applicant had furnished false or misleading information in connection with his application for the visa. In particular, it was based on an allegation that, contrary to what he had said, he was not from Afghanistan but was from Pakistan. The applicant maintains the correctness of what he originally stated.

4. At 8.30 am on 5 December 2002 the applicant received a notice that his visa had been cancelled.  He was immediately taken into custody with a view to his being transported to the Immigration Reception and Processing Centre at Woomera later that day.

5. At about 11.00 am on 5 December 2002, the applicant’s solicitor filed in the Refugee Review Tribunal (“RRT”) an application under s 411(1)(d) of the Act, for review of the decision to cancel the applicant’s visa. At about 11.50 am, the applicant’s solicitor lodged at the offices of the Department of Immigration & Multicultural & Indigenous Affairs an application for a bridging visa subclass 050. That application was subsequently refused and the applicant applied to the Migration Review Tribunal (“MRT”) for review of that decision.

6. The application to the RRT, however, is still pending.  Apparently that application will be strongly contested.  Expert “voice analysis” and “facial mapping” evidence will be led.

7. Later on 5 December 2002 the applicant applied to the Court for, and was granted by Beaumont J, an interim order restraining the Minister from removing him to Woomera.  That interim order was in force when the application came on for hearing before his Honour on 10 December 2002.  His Honour heard the application on a final basis, reserving his decision but continuing the interim injunction until further order.

8. At the heart of the proceedings before his Honour was s 256 of the Act. That section is as follows:

   “Where a person is in immigration detention under this Act, the person responsible for his ... immigration detention shall, at the request of the [detainee], ... afford to him ... all reasonable facilities ... for obtaining legal advice or taking legal proceedings in relation to his ... immigration detention.”

9. Briefly, the case for an injunction restraining the Minister from removing the applicant from Villawood to Woomera was that to do so would necessarily deprive the applicant of reasonable facilities for obtaining legal advice or taking legal proceedings in relation to the applicant’s detention, because there would not be afforded to him at Woomera reasonable facilities, in particular, effective access to his legal advisers who are in Sydney, with which to pursue his application before the RRT for review of the decision to cancel his protection visa.

10. On 18 December 2002 his Honour refused the application for an injunction.  I will not summarise his Honour’s reasons for decision.  Paragraphs 52, 53 and 54 of those reasons are as follows:

    “[52]  As has been noted, on behalf of the applicant, it is said, in essence, that the present case is special because of the complexity of the issues likely to arise in his challenge to the cancellation of his visa.

    [53]     In my opinion, whilst this contention appears to have some force, it is impossible for the Court to form a considered view of the degree of that complexity without inviting the Court to delve into the professionally privileged areas of the preparation of collateral litigation.  In any event, the ‘reasonableness’, or otherwise, of the facilities to be provided for the purposes specified in s 256 is, as has been said, a question to be determined by the making of a value judgment in the light of all the facts at the material time.  The applicant’s case is, as the Minister submitted, one of the apprehended breach at Woomera of the guarantee provided by s 256.  For the reasons given by Jacobson J [in NAKG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 997], no breach has, in my view, yet occurred, given the evidence of Ms McPaul, which I accept as evidence of an intention to provide ‘reasonable facilities’ within s 256.  To my mind, the claim of such an apprehended breach cannot derogate from the Minister’s transfer power if that power is otherwise regularly exercised, and no such other challenge is propounded here.  At the same time, as has been said, s 256 is a free-standing guarantee, which must be given its own effect, wherever the detainee is held.

    [54]     In the result, whilst I am of the view that the challenge to the proposed transfer to Woomera cannot be maintained, the operation of s 256 must be allowed its own free-standing operation at Woomera. This can be appropriately achieved by the Minister giving a suitable undertaking, or, if necessary, by a declaratory order.

11. Beaumont J made the following orders: 

    “1.Unless within seven days the Minister files and serves an undertaking to the Court that reasonable facilities within the meaning of s 256 of the Act will be provided for the applicant at Woomera-

    Declare that the Minister is bound to provide such facilities.

    2.        Application otherwise dismissed.

    3.        Make no order as to costs.”

12. The parties first came before me on 18 December 2002 at which time it was expected that the MRT would be giving a decision later that day on the applicant’s application for review of the decision refusing to issue a bridging visa.  It was agreed that if the MRT decision was adverse to the applicant, the parties would return the following day.  Late on 18 December 2002 the MRT affirmed that decision and so the parties returned before me on 19 December 2002.

13. On 19 December 2002 the applicant filed a notice of appeal against the decision of Beaumont J, which commenced a new proceeding N 1409 of 2002.  The grounds of appeal set out in par 2 of the notice of appeal are as follows:

    “(a)That the learned Judge erred in failing to make findings of fact as to whether the facilities proposed to be made available by the Respondent to the Appellant for obtaining legal advice or taking legal proceedings in relation to his immigration detention complied with the Appellant’s rights under s 256 of the Migration Act 1958 (Cth).

    (b)That the learned Judge erred in failing to consider the grant of an injunction quia timet notwithstanding that no breach of s 256 has yet occurred.”

    The notice of appeal also claimed interlocutory relief, being “an interim interlocutory injunction restraining the Respondent from removing the Applicant from Sydney pending the final determination of this appeal”.

14. Also on 19 December, the applicant filed in this present proceeding a notice of motion seeking, relevantly, the following orders:

    “1.An order that the decision of the Court made on 18 December 2002 in these proceedings be stayed until further order.

    2.An injunction restraining the Respondent or his officers, agents or delegates from removing the applicant from Sydney until further order.”

    This is the motion which is before me.

15. A mere stay of his Honour’s orders would not prevent the Minister from removing the applicant from Villawood to Woomera.  A stay would signify that the application would no longer stand dismissed and would remain on foot.  The application before me is proceeding on the footing that what is truly desired is the injunction referred to in par 2 of the notice of motion.  I made an order, similar to that made by Beaumont J, that pending my decision on the motion the applicant not be relocated from Villawood to Woomera.

    REASONING

16. There has been no dispute that I have jurisdiction to make the interlocutory order sought.  The nature of the jurisdiction may be expressed in various ways, but the most pertinent way for present purposes is that an injunction may be justified, even though it would deprive the Minister of the benefit of the determination in his favour by Beaumont J, if it is necessary to prevent an appeal, if successful, from being nugatory.  In Federal Commissioner of Taxation v Myer Emporium (1986) 160 CLR 220 at 222-223, Dawson J said such circumstances constituted the “special circumstances” necessary to justify a “stay” pending the hearing of an appeal. I see no relevant difference for present purposes between the “stay pending appeal” to which Dawson J was referring and the “injunction pending appeal” sought by the applicant here. Other authorities in support of the Court’s jurisdiction to which reference may be made include Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 and Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1037.

17. On the hearing, Mr Williams SC, who appeared for the Minister, submitted that there was no serious question to be tried as to whether the appeal would succeed. As I understood his submission, it was that by his notice of appeal the applicant seeks to rely on matters which were not relied on before the primary Judge. Mr Williams submitted that the applicant now appears to be seeking an injunction in relation to the actual facilities to be provided at Woomera, whereas before his Honour the only question was whether the transfer from Villawood to Woomera would itself amount to a breach of s 256 of the Act.

18. I do not accept the submission.  The two grounds of appeal, which are interrelated, are to the effect that it was not open to the primary Judge to resolve the application related, as it was, only to the question of transfer, in the way in which he did.  The grounds of appeal assert that it was incumbent on his Honour to consider and decide whether a transfer from Villawood to Woomera would necessarily give rise to a contravention of the section and that it was therefore not permissible to treat the making of findings as to the facilities which would be available at Woomera as premature.

19. Implicit in the grounds of appeal are that if a relocation of the applicant from Villawood to Woomera would necessarily give rise to a situation in which the Minister would not be in a position to comply with s 256, then the relocation itself would necessarily contravene that section. Therefore, the grounds of appeal assert that relocation cannot be considered discretely from the question of the facilities which would in fact be able to be afforded to the applicant at Woomera.

20. Of course, I say nothing about the correctness of these propositions; I am concerned only to give my reason for not accepting Mr Williams’ submission that the grounds of appeal raise considerations different from those that were involved in the application before his Honour.

21. Mr Williams did not, as I understood him, make any other submission in support of the proposition that there was not an arguable appeal point.  Therefore, I proceed to consider the balance of convenience. 

22. At first it seemed to me that if a final hearing of the appeal can take place at an earlier date, that is, with expedition, the appropriate solution might be to allow the Minister to retain the benefit of the decision in his favour given by Beaumont J.  If the appeal could be heard in the next Full Court sittings in February 2003, it would be open to the Minister to remove the applicant to Woomera now, and, if the appeal succeeded, the Minister could bring him back from Woomera to Villawood, where he would remain pending the determination of his application to the RRT.  However, there is a problem with this solution.

23. The order sought in this proceeding was an order restraining the Minister from removing the applicant from Sydney pending, relevantly, final determination of his application to the RRT.  It would simply be no longer possible for the applicant to succeed in obtaining that order once he was removed.  I suppose it would be possible for the Minister to proffer an undertaking to the Court that on the hearing of the appeal he would not take the point that removal has already occurred, that he would return the applicant to Villawood if he lost the appeal and that in all respects the appeal was to be heard and determined just as if the applicant had not in fact been removed to Woomera.  However, this possibility was not canvassed on the hearing, and no undertaking by the Minister was proffered.  Accordingly, no occasion has arisen for me to consider such an alternative approach.  I do not necessarily imply that it would be acceptable.

24. If the existing injunction is not continued and the Minister removes the applicant to Woomera, as he would be entitled to do, the appeal would be nugatory and would, in effect, have to be abandoned.  In these circumstances the balance of convenience favours of a continuation of the injunction.

25. On the hearing there was debate as to the inconvenience which may be caused to the applicant.  The Minister submitted that there has already been ample opportunity for his solicitors to take instructions from him.  The Minister also referred to legitimate considerations of proper administrative arrangements.  But, however I regard the matter, the fact that the applicant’s undoubted right of appeal would be rendered nugatory if the injunction is not continued persuades me to continue it.

26. I hesitate to interfere with the effect of the primary Judge’s decision: prima facie the Minister is entitled to the benefit of his Honour’s decision.  It may be that the Minister will wish to seek a dissolution or variation of the injunction.  For that reason I will reserve liberty for him to apply.

27. The appeal should be expedited.  Inquiries show that it can be heard on 13 February 2003 and I propose to make an order in the appeal proceeding fixing the appeal for hearing then.  But that fixture will be subject to the availability of counsel.

    CONCLUSION

28. For the above reasons, in this proceeding the Court orders that:

    1.Pending the determination of the applicant’s appeal in proceeding N 1409 of 2002 or further order of the Court, the respondent not remove the applicant from the Villawood Immigration Detention Centre to the Woomera Immigration Reception and Processing Centre.

    2.The respondent have liberty to apply for a dissolution or variation of the injunction contained in Order (1) on 48 hours’ notice, not before 1 January 2003.

    3.The costs of the applicant’s motion brought by notice of motion filed on 19 December 2002 be reserved.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:            6 January 2003

Counsel for the Applicant:	N C Poynder
Solicitor for the Applicant:	Craddock, Murray & Neumann
Counsel for the Respondent:	N J Williams SC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 December 2002
Date of Judgment:	24 December 2002