Papachristopoulos, George v Minister for Immigration and Multicultural Affairs

[1997] FCA 1529

FEDERAL COURT OF AUSTRALIA

INJUNCTION - application for extension of injunction restraining the respondent from removing the applicant from Australia - application sought for the purpose of allowing the applicant to seek legal advice on the question of an application to the High Court for special leave to appeal - power of single judge to make orders of the kind sought - whether applicant has reasonable prospect of obtaining special leave to appeal - balance of convenience considered.

Federal Court of Australia Act 1976 (Cth), s 20

Sheahan v Joye (No 2) (Branson J, 23 April 1996, unreported), cited

GEORGE PAPACHRISTOPOULOS v
MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 719 of 1997

BRANSON J
SYDNEY
19 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 719  of   1997

BETWEEN:	GEORGE PAPACHRISTOPOULOS APPLICANT
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):		BRANSON J
DATE OF ORDER:		19 DECEMBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application 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
NEW SOUTH WALES DISTRICT REGISTRY	NG 719 of 1997

BETWEEN:	GEORGE PAPACHRISTOPOULOS APPLICANT
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE(S):	BRANSON J
DATE:	19 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR DECISION

Mr Papachristopoulos seeks an order extending an injunction made by Foster J on 11 September 1997 by which the Minister for Immigration and Multicultural Affairs was restrained from removing Mr Papachristopoulos from Australia pending disposal of Mr Papachristopoulos’ appeal to the Full Court of this Court or until further order of the Court. 

On 17 December 1997, the Full Court, in a unanimous judgment, dismissed Mr Papachristopoulos’ appeal with costs.  The extension of the injunction earlier made by Foster J is sought for the purpose of allowing Mr Papachristopoulos to seek legal advice on the question of whether an application should be made to the High Court of Australia for special leave to appeal from the decision of the Full Court.    In the first instance, an extension of 21 days is sought.  Of course, if an application for special leave to appeal is made, it is acknowledged that a further extension of the injunction will be sought to allow Mr Papachristopoulos to remain in Australia until such application is heard and determined.  In Sheahan v Joye (No 2) (Branson J, 23 April 1996, unreported) I considered the power of a single judge to make an order of the kind here sought, following a decision of the Full Court. I concluded in that case that a single judge has the power to grant an application of the kind here sought and that the power is derived from s 20 of the Federal Court of Australia Act 1976 (Cth).

It is appropriate, in my view, for consideration to be given to the following matters on this application.  First, whether there is a substantial prospect of the applicant being advised that an application to the High Court for special leave to appeal would be appropriate in the circumstances, and as a related issue, whether any such application for special leave to appeal would be attended by any reasonable prospect of success.  Secondly, whether the grant of the extension of the injunction would cause loss to the respondent, or would otherwise  be adverse to the public interest for which the Minister is responsible.  Thirdly, where does the balance of convenience lie?

It is urged on me on behalf of the Minister that there is no reasonable prospect of the applicant obtaining special leave to appeal to the High Court.  I note that the applicant has failed to satisfy both the Minister and the Refugee Review Tribunal that he is a refugee.  He has failed to satisfy either a single judge of this Court or the Full Court that the Refugee Review Tribunal made any legal error in reaching its determination.  Serious factual difficulties lie in the way of the applicant making out his claim to be a refugee.  No point of legal principle was identified by the Full Court when it dismissed the applicant's appeal.

I am not satisfied that the applicant has any reasonable prospect of obtaining special leave to appeal to the High Court. 

The applicant is presently in custody as he has been for some time.  It may thus be said that there is no real risk of his evading officers of the Minister and seeking to disappear into the Australian community so as to avoid deportation should any application that he might make to the High Court be unsuccessful.  It is appropriate to note, however, that the maintenance of any person in custody is an expensive exercise, the cost of which is borne by the Australian community. 

In weighing the balance of convenience, it is appropriate for very considerable weight to be given to the right of all persons in Australia to approach the Australian courts and to have their legal rights and obligations determined according to law.  If I do not make the orders sought by the applicant, not only is it likely that his right to approach the High Court to seek leave to appeal against the decision of the Full Court will be effectively lost, he may also lose the opportunity to obtain proper, considered legal advice as to whether there are any grounds upon which the judgment of the Full Court might appropriately be challenged. 

I have anxiously considered all of the above matters.  However, having done so, I have concluded that the prospect of the applicant obtaining special leave to appeal to the High Court is so remote that an extension of the injunction earlier made by Foster J ought not to be granted.  The application for such extension is refused.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson

Associate:

Dated:             

Counsel for the Applicant:	Mr P. King
Counsel for the Respondent:	Mr A. Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 December 1997
Date of Judgment:	19 December 1997