Ratugolea v Minister for Home Affairs & Anor

[2021] HCATrans 176

[2021] HCATrans 176

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P11 of 2021

B e t w e e n -

ESAVA RATUGOLEA

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY

ON THURSDAY, 28 OCTOBER 2021, AT 9.31 AM

Copyright in the High Court of Australia

HIS HONOUR:   I dismiss with costs the application for a constitutional or other writ.  I publish my reasons and I direct that those reasons be incorporated into the transcript.

Before me is an application for a constitutional or other writ filed in the original jurisdiction of the High Court on 29 March 2021 which I am satisfied discloses no arguable basis for the relief sought and which I will for that reason dismiss under r 25.09.1 of the High Court Rules 2004 (Cth).

The plaintiff is a citizen of Fiji who has lived permanently in Australia since 1987.  In 2018, he was convicted of several offences for which he was sentenced by the District Court of New South Wales to a total of three years and three months imprisonment with a non‑parole period of one year and nine months, expiring on 24 November 2019.

In 2019, the plaintiff’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) (“the cancellation decision”). In 2020, a decision was made under s 501CA(4) of the Act not to revoke the cancellation decision (“the non‑revocation decision”) and the Administrative Appeals Tribunal affirmed the non‑revocation decision. In the meantime, the plaintiff was taken into immigration detention under s 189(1) of the Act. There he remains.

There is no material before me to suggest that the plaintiff has sought judicial review of the Tribunal’s decision in the Federal Court of Australia.

By the application, to which the Minister for Home Affairs and the Commonwealth of Australia are defendants, the plaintiff seeks writs of prohibition and habeas corpus, a declaration that his immigration detention was and is unlawful and damages for false imprisonment on an aggravated and exemplary basis.  The application relies on four grounds.  Though the relief is framed only to challenge the lawfulness of his immigration detention, some of the contentions advanced in support of those grounds more directly impugn the cancellation decision and the non‑revocation decision.

The first ground is to the effect that his immigration detention “abrogated and curtailed” his rights to “apply for and to be released on parole” in accordance with the sentence imposed on him by the District Court “in violation of the principle of legality”.  The second is to the effect that his detention “abrogated and curtailed the independence and authority of the [District Court], in violation of the separation of powers doctrine” in Chapter III of the Constitution. The third is to the effect that his detention “abrogated and curtailed the independence and authority of the [District Court], in violation of the principle of state immunity” said to be referable to ss 106 and 107 of the Constitution.  Each of those three grounds is legal nonsense for the reasons sufficiently set out in Isley v Minister for Home Affairs [2021] HCATrans 121 and in Raibevu v Minister for Home Affairs [2021] HCATrans 120.

The fourth ground, to the extent that it can be distinguished from the other three, is to the effect that, because of the COVID-19 pandemic and the closure of Australia’s and Fiji’s borders, “the Minister is either unwilling or unable to remove the plaintiff to [Fiji] within the foreseeable future and the detention is therefore unlawful”.  The application, however, is not supported by evidence of inability, or unwillingness, to remove the plaintiff from Australia or to Fiji in the foreseeable future.  As I said in Raibevu, 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.  Moreover, The Commonwealth v AJL20 (2021) 95 ALJR 567; 391 ALR 562 establishes that mere unwillingness to remove the plaintiff from Australia, even if it were able to be inferred from the evidence, would not be enough to establish the unlawfulness of his immigration detention.

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

AT 9.31 AM THE MATTER WAS CONCLUDED