Se, Ex parte- Re Min for Immig - [1998] HCATrans 403

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M99 of 1998

In the matter of -
An application for a Writ of Prohibition against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
BRENDAN KISSANE, in his capacity as a member of THE REFUGEE REVIEW TRIBUNAL
Second Respondent

Ex parte -
“SE”
Prosecutor/Applicant

For Judgment

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 16 NOVEMBER 1998, AT 9.35 AM

(Continued from 9/11/98)

HIS HONOUR: The applicant seeks orders nisi for prohibition and certiorari and an interlocutory injunction restraining the first respondent from removing him from Australia until the hearing and determination of the proceedings.

The applicant arrived in Australia on 2 October 1997 on a British Airways flight. He did not produce proper documents and he was refused immigration clearance. On the next day, 3 October 1997, a delegate of the Secretary of the Department of Immigration and Multicultural Affairs gave notice to British Airways pursuant to s 217(1) of the Migration Act 1958 (Cth) ("the Act") requiring British Airways to transport the applicant from Australia.

On 8 October 1997, the applicant applied for a protection visa as a refugee. In later documents the applicant provided to the Department he said that "If I am to return to Somalia, given that I am from the Chikal tribe, I will be probably killed by the rival more powerful tribes who now control Somalia". After an interview with officers of the Department, the application for a protection visa was refused. On 30 March 1998, the applicant applied to the Refugee Review Tribunal for review of the decision. He sought, and obtained, an oral hearing of his claim. Written submissions were provided by solicitors on his behalf but he was not represented at the oral hearing. On 21 May 1998, the Tribunal affirmed the decision not to grant a protection visa.

On 29 October 1998, the applicant was taken to Melbourne airport to board an aircraft bound for Perth where it was intended he should board an international flight bound for Johannesburg. The applicant refused to board the aircraft in Melbourne and he was eventually returned to the Immigration detention centre. On 30 October, the applicant was given a further notice of intention to remove him from Australia. Application was then made to this Court for an injunction temporarily restraining his removal and an order was made to that effect. That order has been extended from time to time.

The applicant contended that an order nisi should be granted which would give four grounds:

The proposed removal by the Minister, his servant and agents of the prosecutor from Australia pursuant to s 198 of the Migration Act is unlawful in that:

(a)It involves the detention in custody of a non‑citizen by a private contractor, where the detention is for the purpose of removing the non‑citizen from Australia and delivering him or her to his or her country…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Se, Ex parte- Re Min for Immig

Details

AGLC: Se, Ex parte- Re Min for Immig [1998] HCATrans 403
Case: [1998] HCATrans 403
Decision Date

CaseChat Overview and Summary

The applicant, Se, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant the applicant a visa. The matter came before Hayne J, sitting in chambers.

The central legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. This required the Court to consider whether the Minister had failed to exercise a power conferred upon them by statute, or had exercised a power in a manner not permitted by law.

Hayne J found that the Minister's decision was not vitiated by jurisdictional error. His Honour's reasoning focused on the proper construction of the relevant legislative provisions governing visa applications and the Minister's powers thereunder. The Court applied established principles of administrative law concerning the scope of ministerial discretion and the grounds upon which such decisions can be challenged. The application was dismissed.

Orders