Raibevu v Minister for Home Affairs & Anor

[2021] HCATrans 120

[2021] HCATrans 120

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S30 of 2021

B e t w e e n -

SEREMAIA TUWAI RAIBEVU

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 4 AUGUST 2021, AT 11.00 AM

Copyright in the High Court of Australia

HIS HONOUR:   The orders I make in this matter are as follows:

1.The application is dismissed.

2.The plaintiff is to pay the defendants’ costs.

I publish my reasons and I direct that those reasons be incorporated into the transcript.

This is an application for a constitutional or other writ filed in the original jurisdiction of the High Court. For the following reasons, the application will be dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

The plaintiff is a citizen of Fiji who arrived in Australia in 1995, aged 15 years.  In 2012, he was convicted in the District Court of New South Wales on four counts of “aggravated sexual assault - break and enter with intent”.  He was sentenced to two terms of imprisonment of nine years (with a non-parole period of five years and six months) and two terms of imprisonment of six years (with a non-parole period of three years and six months) to be served concurrently.

Shortly before the plaintiff became eligible for parole in 2017, a delegate of the Minister for Home Affairs cancelled his visa under s 501(3A) of the Migration Act 1958 (Cth). He was subsequently taken into immigration detention under s 189(1) of the Migration Act.  There he remains.

In 2018, the Assistant Minister for Home Affairs decided not to revoke the cancellation under s 501CA of the Migration Act.  An application to the Federal Court of Australia for judicial review was dismissed by Flick J at first instance in Raibevu v Minister for Home Affairs [2018] FCA 2052. His Honour’s decision was upheld on appeal to the Full Court of the Federal Court in Raibevu v Minister for Home Affairs [2020] FCAFC 35.

The plaintiff sought special leave to appeal from the decision of the Full Court of the Federal Court raising grounds which had not been raised in the Federal Court.  That application was dismissed on the papers:  Raibevu v Minister for Home Affairs [2021] HCASL 83.

By his application for a constitutional or other writ, the plaintiff seeks writs of prohibition and habeas corpus, a declaration that his detention and continuing detention purportedly under s 189(1) of the Migration Act was and is invalid, and damages for false imprisonment on an aggravated and exemplary basis.

The application relies on four grounds for that relief.  The grounds overlap with each other.  They overlap with those sought to be raised in the unsuccessful application for special leave to appeal.  They substantially mirror those relied on by the plaintiff in Isley v Minister for Home Affairs and Candemir v Minister for Home Affairs.

First, the plaintiff claims that his detention and continuing detention under s 189(1) of the Migration Act amounts to a “violation” of the “principle of legality”. He does so on the basis that his detention under the section “abrogated and curtailed the legal rights of the plaintiff to apply for and to be released on parole”. After reciting facts, including the Minister’s decisions under s 501(3A) and s 501CA, the plaintiff particularises this ground by alleging that “the relevant statutory provisions, in particular [s] 5013A and [s] 189(1) ... do not provide express words empowering the Minister and/or his officers to abrogate or curtail the sentencing and parole orders of the [District Court]”. This is said to have the consequence that “the exercise of power by the Minister and/or officers of the Commonwealth abrogated and curtailed the [plaintiff’s legal rights] to apply for and to be granted conditional release on parole”.

Second, the plaintiff claims that his detention and continuing detention under s 189(1) of the Migration Act “abrogated and curtailed the independence and authority of the [District Court], in violation of the separation of powers doctrine as enshrined by [Ch III of the Constitution]”. He points out in that respect that an offender is taken by s 132 of the Crimes (Administration of Sentences) Act1999 (NSW) to continue to serve a sentence while released on parole.

Third, the plaintiff claims that his detention under s 189(1) of the Migration Act “abrogated and curtailed the independence and authority of the [District Court], in violation of the principle of [State] immunity pursuant to [ss] 106 and 107 of the [Constitution]”.

Fourth, the plaintiff claims that his detention and continuing detention under s 189(1) of the Migration Act is unlawful on the same bases and particulars articulated in the first three grounds and, in addition, because of the “constitutional limits on the plaintiff’s detention for the purposes of his removal”.  He particularises in this additional respect that “the Minister is either unwilling or unable to remove the plaintiff [from Australia to Fiji] within the foreseeable future” in circumstances of “the [outbreak] of COVID 19 and the closure of Australia’s and Fiji’s borders”".

To the extent that the grounds could have been raised in the unsuccessful application for judicial review in the Federal Court, the application is an abuse of process.  The original jurisdiction of the High Court is not appropriately invoked to overcome a perceived deficiency in the manner in which an application for judicial review has been pursued in another court.  Without an acceptable explanation, a party who has been unsuccessful in an application for special leave to appeal from a decision of the Full Court of the Federal Court cannot invoke the original jurisdiction of the High Court to raise grounds of judicial review that the party unsuccessfully sought to raise by way of appeal:  Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678 [9]‑[14]; 297 ALR 560 at 562-563.

Quite apart from the abuse of process, none of the first three grounds otherwise provides an arguable basis for challenging the plaintiff’s detention and continuing detention under s 189(1) or an arguable basis for challenging the cancellation decision under s 501(3A) or the non‑revocation decision under s 501CA. Each is based on the mistaken premise that cancellation of the plaintiff’s visa and consequent immigration detention of the plaintiff interfered either with the exercise of State judicial power involved in the imposition of his criminal sentence of imprisonment or with the exercise of State executive power involved in his grant of parole. Once he was sentenced in the exercise of State judicial power, responsibility for the plaintiff as a prisoner under sentence passed to the executive government of New South Wales: Crump v New South Wales (2012) 247 CLR 1 at 16-17 [28], 20-21 [41]-[42], 26 [58]. Any subsequent exercise of executive power to grant him parole during the term of his sentence would not purport to confer on him immunity from any other law which might operate to restrict his liberty.

To the extent the fourth ground relies on circumstances related to the COVID 19 pandemic, the application is supported by no evidence of inability, or unwillingness, to remove the plaintiff from Australia or to Fiji in the foreseeable future.  To the extent that judicial notice is appropriate to be taken of the existence of limitations on international travel from Australia and to Fiji during the COVID 19 pandemic, judicial notice is also appropriate to be taken of those limitations evolving and being kept under constant revision.  The Commonwealth v AJL20 (2021) 95 ALJR 567 establishes that mere unwillingness to remove the plaintiff from Australia would not provide a basis for the relief sought.

The application will be dismissed.  There being no reason why costs should not follow the event, the plaintiff must pay the costs of the defendants.

AT 11.00 AM THE MATTER WAS CONCLUDED