Papachristopoulos, Georgios v Minister for Immigration and Multicultural Affairs

[1997] FCA 988

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - Appeal - Minister intending to remove appellant from jurisdiction prior to disposal of appeal - whether injunction preventing Minister from so doing should be granted.

Wilson & Anor v Hollywood Toys (Australia) Pty Limited (1996) 68 FCR 84

GEORGIOS PAPACHRISTOPOULOS -V- MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 719 of 1997

FOSTER J

11 SEPTEMBER 1997

SYDNEY

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

BETWEEN:	GEORGIOS PAPACHRISTOPOULOS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		FOSTER J
DATE OF ORDER:		11 SEPTEMBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The respondent, his servants or officers be prevented from removing the appellant from Australia pending disposal of his appeal or further order of the Court.

1. There be no order as to costs.

1. Liberty be granted to approach the Court for directions relating to the appeal.

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:	GEORGIOS PAPACHRISTOPOULOS APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FOSTER J
DATE:	11 SEPTEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Extempore)

Two decisions of this Court were given in relation to this appellant on 19 August 1997 by Lockhart J.  By those decisions his Honour dismissed appeals brought within the confines of the Migration Act 1958 (Cth) in respect of decisions given by the Immigration Review Tribunal and the Refugee Review Tribunal. The matters (NG 117 of 1997 and NG 176 of 1997) were heard consecutively by his Honour. Two days after those decisions were given, by way of notice of motion in an irregular form but sufficiently identifying the procedures, the present appellant sought, amongst other things, that the Commonwealth be stopped from removing him from Australia. Shortly thereafter he filed a notice of appeal in respect of both proceedings. Again, that notice is in a most irregular form. However, it is a document filed in this Court which has the effect of invoking this Court's jurisdiction in respect of the decisions that had been made against the appellant on 19 August. The immigration authorities have, in fact, arranged for his departure from Australia, this departure to take place on Monday next, 15 September.

I have come to the conclusion, perhaps with some reluctance having regard to the content of the notice of appeal and to what I have been able to glean about the case from my reading of the relevant papers as duty judge, that it would be better for the immigration authorities to invoke the jurisdiction of this Court by some appropriate step in relation to the appeal rather than taking the step which they have taken, the effect of which would be to render the appeal nugatory.  I think in these circumstances, although I have seen much force in submissions that have been made to me as to the likely futility of the appeal, it is proper to take the step of issuing what is in fact an injunction, there being no deportation order in existence, directed to the Minister for Immigration and Multicultural Affairs, his servants and officers restraining them from taking any steps to remove the appellant from Australia pending the disposal of his appeal or pending the further order of this Court.  I make the latter qualification to this order on the basis that it may enable proceedings to be brought by the Minister, if so advised, to seek a summary dismissal of the appeal along the lines of the procedure taken in the case of Wilson & Anor v Hollywood Toys (Australia) Pty Limited (1996) 68 FCR 84. I would also indicate that in the circumstances of this case it may well be possible for special arrangements to be made for the hearing of a relevant notice of motion in relation to the notice of appeal if such hearing is unlikely to be lengthy. Representations to that effect can always be made. Beyond that, however, I can say no more. I do not think it is appropriate that I make an order for costs in this matter.

I grant liberty to approach the Court for directions relating to the appeal.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:             11 September 1997

The applicant appeared in person.
Mr A Markus, solicitor, instructed by the Australian Government Solicitor appeared on behalf of the respondent.
Date of Hearing:	11 September 1997
Date of Judgment:	11 September 1997