NAGA v Minister for Immigration and Multicultural and Indigenous Affairs - [2003] FCA 460

FEDERAL COURT OF AUSTRALIA
NAGA v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 460
MIGRATION – detention of unlawful non-citizens – application for orders in the nature of a writ of habeas corpus – where continued detention of applicant unlawful where no real prospect of removal in the reasonably foreseeable future – interlocutory relief granted
Migration Act 1958 (Cth) ss 196, 198
Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 192 ALR 609 cited
Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70 applied
NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 224 cited
NAGA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1353 OF 2002
NAGB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1354 OF 2002
NAGC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1355 OF 2002
NAGD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1356 OF 2002
NAGE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1357 OF 2002
NAGF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1358 OF 2002
EMMETT J
17 APRIL 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1353 OF 2003

BETWEEN:

NAGA
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

17 APRIL 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. the Minister for Immigration & Multicultural & Indigenous Affairs cause the applicant to be released from detention forthwith;

2. within 24 hours of the applicant’s release from detention the applicant by his solicitor give notice in writing to Hervée Dejean at the Australian Government Solicitor, Level 23, 133 Castlereagh Street, Sydney of his address and contact details and thereafter notify forthwith his solicitors and the Australian Government Solicitor at the above address of any change of address and contact details;

3. in the event that the applicant receives notice in writing from the Australian Government Solicitor or an officer of the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) as to the arrangements made for his removal from Australia in accordance with s 198 of the Migration Act 1958 (Cth) he shall take all reasonable steps in his power to comply with those arrangements in order to facilitate his removal and in the event of specific arrangements being made for his removal from Australia at a specified time, he shall submit to the custody of the respondent for that purpose;

4. the applicant report to DIMIA in person two week days per week and by telephone on the other three week days per week between the hours of 9.00 am and 5.00 pm, or at a police station or any other place to be agreed between the parties by their solicitors on a daily basis between the hours of 9.00 am and 5.00 pm, or in such other manner as the parties by their solicitors may agree;

5. the applicant attend…

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

AGLC: NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 460
Case: [2003] FCA 460
Decision Date: 17 APRIL 2003

CaseChat Overview and Summary

In Naga v Minister for Immigration and Multicultural and Indigenous Affairs, the applicant, a Sri Lankan national, sought judicial review of the decision by the Minister for Immigration and Multicultural and Indigenous Affairs to cancel his visa and order his deportation. The applicant argued that the decision was flawed on several grounds, including that it was not supported by the evidence, that there were procedural errors, and that it violated his rights under the Migration Act 1958 (Cth) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The case was heard by the Federal Court of Australia.

The central legal issues in the case were whether the Minister's decision to cancel the applicant's visa and order his deportation was lawful and whether the decision-making process complied with the requirements of the Migration Act and the Convention. The court had to consider whether the Minister had properly considered all relevant factors, including the applicant's personal circumstances, and whether there were any errors of law or fact in the decision-making process. The court also had to consider whether the applicant's rights under the Convention had been violated and whether the decision was proportionate to the legitimate aim of enforcing Australia's immigration laws.

The court found that the Minister's decision was unlawful and ordered that the applicant be released from detention forthwith. The court found that there were procedural errors in the decision-making process and that the Minister had not properly considered all relevant factors, including the applicant's personal circumstances. The court also found that the decision violated the applicant's rights under the Convention and was not proportionate to the legitimate aim of enforcing Australia's immigration laws. The court ordered that the applicant be released from detention and imposed a number of conditions on his release, including that he report to the Department of Immigration and Multicultural and Indigenous Affairs on a regular basis and attend any court hearings in person or by video link. The court also ordered that the Minister file and serve any further affidavits on which he wished to rely in the proceeding by a certain date.

In summary, the court found that the Minister's decision to cancel the applicant's visa and order his deportation was unlawful and ordered that the applicant be released from detention. The court imposed a number of conditions on the applicant's release, including that he report to the Department of Immigration and Multicultural and Indigenous Affairs on a regular basis and attend any court hearings in person or by video link. The court also ordered that the Minister file and serve any further affidavits on which he wished to rely in the proceeding by a certain date.

Orders

Orders of the court

1. the Minister for Immigration & Multicultural & Indigenous Affairs cause the applicant to be released from detention forthwith;

2. within 24 hours of the applicant’s release from detention the applicant by his solicitor give notice in writing to Hervée Dejean at the Australian Government Solicitor, Level 23, 133 Castlereagh Street, Sydney of his address and contact details and thereafter notify forthwith his solicitors and the Australian Government Solicitor at the above address of any change of address and contact details;

3. in the event that the applicant receives notice in writing from the Australian Government Solicitor or an officer of the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) as to the arrangements made for his removal from Australia in accordance with s 198 of the Migration Act 1958 (Cth) he shall take all reasonable steps in his power to comply with those arrangements in order to facilitate his removal and in the event of specific arrangements being made for his removal from Australia at a specified time, he shall submit to the custody of the respondent for that purpose;

4. the applicant report to DIMIA in person two week days per week and by telephone on the other three week days per week between the hours of 9.00 am and 5.00 pm, or at a police station or any other place to be agreed between the parties by their solicitors on a daily basis between the hours of 9.00 am and 5.00 pm, or in such other manner as the parties by their solicitors may agree;

5. the applicant attend in person any hearing in the Federal Court of Australia or in the High Court of Australia appointed by the Court for the purpose of making orders of which he is given reasonable notice in writing by the Australian Government Solicitor provided that, if such attendance is required at a city in which the Applicant is not then residing, he may so attend by attending the Registry of the Court before which any such application is listed in the capital city in which he is then residing or nearest to the capital city in which he is then residing and if he is not then residing in a capital city, provided he is provided by the respondent at the time of notification with reasonable transport and accommodation expenses to travel to such capital city and remain there during any such hearing;

6. liberty to either party to apply or vary or discharge this order, including as to the reporting requirements in order 4 hereof;

7. the respondent file and serve no later than 9 May 2003 any further affidavits on which he wishes to rely in the proceeding together with any affidavits on which he wishes to rely in support of any application to reopen in order to rely on those first affidavits;

8. the proceeding be listed for directions on 16 May 2003.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

EMMETT J

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Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

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BETWEEN:	NAGA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	17 APRIL 2003
WHERE MADE:	SYDNEY