S1149 of 2003 v Minister for Immigration

[2006] FMCA 307

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1149 of 2003 v MINISTER FOR IMMIGRATION [2006] FMCA 307

MIGRATION – Review of a purported decision of the Minister’s Department – application for interlocutory relief to restrain detention and deportation – summary and final dismissal of both the interlocutory and principal applications – no “decision” for the Court to review.

Federal Court Rules
Migration Act 1958 (Cth), ss.5, 13, 14, 48B, 189, 417

Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618

Applicant: APPLICANT S1149 OF 2003

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number: SYG276 of 2006

Judgment of: Driver FM

Hearing date: 7 March 2006

Delivered at: Sydney

Delivered on: 7 March 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms D Watson
Australian Government Solicitor

ORDERS

1. The applications for interlocutory and final relief are dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG276 of 2006

APPLICANT S1149 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application under the Migration Act 1958 (Cth) (“the Migration Act”) filed on 27 January 2006. A registrar of the Court gave directions in relation to the application on 28 February 2006. At that time a motion by the respondent Minister was foreshadowed seeking the summary dismissal of the application and the motion was indeed filed on 6 March 2006. The motion is returnable on 6 July 2006. Last week it was brought to my attention as the duty Federal Magistrate that the applicant was seeking an expedited hearing of his application insofar as it sought interlocutory relief.

   
   

   I arranged for the matter to be dealt with before me today.

2. The application is supported by two affidavits, the first filed on 27 January 2006 and the second filed on 6 February 2006.  The second I received only as written submissions.  As to the first I received as evidence paragraph 1 and the documents annexed to the affidavit.  The balance I received as submissions.

3. In the course of oral argument this morning the applicant handed up to me a bundle of documents which became exhibit A1.  Those documents explain in some detail the applicant’s concerns about returning to his country of origin, which is Ethiopia, and his efforts to obtain various decisions from the Minister or her Department.

4. The Minister's motion for summary dismissal is supported by the affidavit of Dale Jennifer Watson made on 24 February 2006 and filed on 27 February 2006.  I received that affidavit as evidence for the purposes of today's hearing.  Relevant background information is contained in paragraphs 3-16 of Ms Watson's affidavit and I adopt those paragraphs, without the annexures, as background for the purposes of this judgment:

   The applicant arrived in Australia on 6 July 1997.  On 15 August 1997 he applied for a protection visa. This application was refused on 21 May 1998 and he then applied for review of that decision to the Refugee Review Tribunal (“the RRT”). The RRT affirmed the decision under review on 12 May 1999.

   The applicant applied for judicial review in relation to the decision of the RRT by commencing Federal Court proceedings N508 of 1999 on 1 June 1999.  On 13 August 1999, Justice Tamberlin made orders by consent that these proceedings be dismissed.  

   On 28 October 1999, he applicant filed a notice of motion seeking to set aside the consent orders referred to above. The Deputy District Registrar made an application under Order 46 rule 7A of the Federal Court Rules and on 10 November 1999, a judge of the Federal Court made such an order in relation to the notice of motion.

   On 10 December 1999, the applicant lodged a notice of appeal in relation to this decision as well as an extension of time to file and serve a notice of appeal in proceedings N1427 of 1999. On 17 February 2000, the Full Court ordered that the appeal be dismissed.

   On 21 December 1999, the applicant commenced proceedings in the Federal Court, N1465 of 1999, in which he sought orders to be either discharged from Villawood Detention Centre or transferred from that Centre to another place of custody.  The application was dismissed on 7 February 2000.

   On 31 December 1999, the applicant commenced proceedings in the Federal Court, N1517 of 1999, in which he sought to challenge a decision relating to a bridging visa. On 6 January 2000, Justice Lindgren dismissed the application.  

   On 9 October 2002 and 16 October 2002, a judge of the Federal Court made directions under Order 46 rule 7A(b) to the Registrar to refuse to accept applications and affidavits sought to be lodged by the applicant. The applicant commenced proceedings N1113 of 2002 in relation to the later direction.  The Full Court dismissed his application on 13 March 2003.

   The applicant sought special leave to appeal from the decision of the Full Court in proceedings S96 of 2003.  This was refused on 8 August 2003.

   On 29 May 2003, the applicant commenced order nisi proceedings in the High Court of Australia in relation to the RRT decision after having been a member of the Muin and Lie class action, being proceedings S1149 of 2003. The application was remitted instanter to the Federal Court by virtue of an order made by Justice Gaudron on 25 November 2002.  The proceeding was then ascribed the number N1170 of 2003. Justice Emmett dismissed the application for an order nisi on 20 February 2004.

   The applicant sought leave to appeal the judgment of Justice Emmett by application filed 11 March 2004.  Justice Jacobson refused leave to appeal on 4 May 2004. The applicant sought special leave to appeal this judgment in proceedings S175 of 2004 and the application was dismissed on 5 August 2005.  

   The applicant commenced other proceedings in the High Court of Australia on 12 August 2003 by way of order nisi in proceedings S453 of 2003.  The proceeding was remitted to the Federal Court by order of Justice Heydon on 16 April 2004.

   In proceedings NSD 588 of 2004, being the remitted High Court proceedings, Justice Sackville dismissed the application on 30 August 2004.

   The applicant sought leave to appeal from Justice Sackville’s judgment in proceedings N1302 of 2004.  The application for leave to appeal was dismissed by Justice Hill on 27 October 2004.

   The applicant also commenced proceedings NSD 762 of 2004 in the Federal Court on 14 May 2004. This application related to an issue arising from the application of a bridging visa. The application was discontinued on 28 June 2004.

5. The applicant is seeking interlocutory relief in the form of a writ of prohibition restraining the first respondent and her delegates and agents and the second respondent, who is an officer of the Minister's Department, from detaining and deporting him until at least there is a government change in Ethiopia. The applicant sought an expedited hearing of that application upon the basis that he currently holds a bridging visa which is due to expire on 10 March 2006. The applicant is concerned that upon the expiry of his bridging visa, if he is not granted any other form of visa, he will be taken into detention and may be deported from Australia. The applicant's concern, at least in relation to detention, appears to have a basis both in fact and law. By a rather circuitous route it is apparent from ss.189, 5, 14 and 13 of the Migration Act that the applicant, if he comes to hold no form of visa, will be an unlawful non-citizen liable to detention.

6. The immediate difficulty with the applicant’s application for interlocutory relief, however, is that he is in substance seeking an injunction against the operation of the Migration Act. It is trite law that an injunction cannot be granted against the operation of legislation. If the applicant seeks and is refused a bridging visa he has a remedy. He can seek to have the decision reviewed by the Migration Review Tribunal and he if remains dissatisfied he can seek judicial review of that decision. His present application for interlocutory relief is premature. It is even more premature in relation to the risk of deportation. The applicant is not currently under notice of deportation. The Court would have jurisdiction to deal with an application to restrain deportation if, for example, there was a question that was justiciable of whether the removal of the applicant was in particular circumstances reasonably practicable. The Court would also have jurisdiction to restrain a contempt of the Court which may be an issue where there are extant judicial review proceedings. No such situation currently exists because the applicant is not under any imminent threat of deportation.

7. The basic principles to be applied in determining whether the Court should make an interlocutory injunction order are set out in Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 at 622 to 623. The Court must address itself in all cases to two main inquiries. The first is whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action the applicant will be entitled to relief.  How strong the probability needs to be depends upon the nature of the rights asserted and the practical consequences likely to flow from the order sought.

8. The second inquiry is the determination of the balance of convenience.  It follows that the application for an interlocutory injunction cannot be dealt with divorced from an examination of the merits of the application for principal relief.  It is normally not appropriate on an interlocutory application to conduct a detailed examination of the merits of a principal application.  There may be exceptions.  I think this is one of them.

9. The application before the Court purports to seek review of a decision made by an official of the Minister's Department on 20 January 2006 and notified to the applicant on 23 January 2006.  On examination this turns out to be no more than a letter from an official of the Minister's Department requesting the applicant to attend the Department to discuss his departure from Australia.  It is apparent from the procedural history I have already referred to and the material submitted by the applicant that there have been very extensive dealings between the applicant and the Minister's Department.  He has previously unsuccessfully sought a protection visa and appears to have exhausted his rights of review in relation to that decision.

10. There appear to have been several requests for ministerial intervention under ss.48B and 417 of the Migration Act. It appears that two such requests are currently outstanding. There have been numerous other litigation and dealings between the applicant and the Minister over various issues including detention and bridging visas.

11. At the present time, however, it does not appear to me that there is any decision which the Court can properly review.  The request contained in the Minister's Department's letter of 20 January 2006 does not reflect any decision.  It is simply an invitation to attend and discuss the applicant's departure from Australia.  In the absence of any decision that the Court can review, the application must fail.

12. I find that the application before the Court is irremediably bad in that it fails to engage the jurisdiction of the Court it is doomed to fail.  There is no prospect of the applicant obtaining any final relief in relation to the purported decision that he seeks to review which is in fact no decision at all.  It follows that the application for interlocutory relief must fail.

13. In the ordinary course the principal application could be left to a final hearing at the time appointed for that hearing.  In this case, in my view, the final outcome is so clear that it would be inappropriate and an embarrassment to allow the application to remain before the Court in any capacity.  I will therefore order that the applications for final and interlocutory relief be dismissed.

14. Costs should follow the event.  The Minister seeks an order for costs and Ms Watson has indicated that the Minister would be content with the prescribed amount for an interlocutory hearing in migration proceedings, which is $2,500.  The applicant refers to his impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

15. This matter is somewhat unusual in that, although the hearing is an interlocutory one the dismissal order that I have made is a final order.  In order to avoid any doubt I will fix costs.  I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,500.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date:  17 March 2006