SGNB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 886

FEDERAL COURT OF AUSTRALIA

SGNB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 886

SGNB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 596 of 2003

SELWAY J
22 AUGUST 2003

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 596 OF 2003

BETWEEN:	SGNB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	22 AUGUST 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The proceedings be dismissed.

2.The applicant to pay the respondents costs to be taxed in the absence of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 596 OF 2003

BETWEEN:	SGNB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	22 AUGUST 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. In this matter the applicant has instituted proceedings seeking certiorari, prohibition, mandamus and declarations against the respondent in relation to what is claimed to be unlawful detention.  The applicant also seeks interlocutory injunctions so as to effect his release from detention pending the determination of the final proceedings.

2. The basis of the claimed unlawful detention is an argument that the applicant was, in fact, granted a visa by a delegate of the Minister in December, 2001 and, if not then, by the same delegate in April, 2002. It is clear that if the applicant had been granted a visa then the applicant would be a ‘lawful non-citizen’ (contrast: an ‘unlawful non-citizen’: see ss 13 and 14 of the Migration Act 1958 (Cth) (‘the Act’)). If the applicant is a ‘lawful non-citizen’ then the applicant should be released from detention: see s 196 of the Act.

3. The applicant has already argued that he was granted a visa in December, 2001 and/or in April, 2002 in separate judicial review proceedings brought from the decision of the Refugee Review Tribunal. Those proceedings were initially heard by a Federal Magistrate who held that a visa had not been granted to the appellant (see [2003] FMCA 38). The applicant appealed from the decision of the Federal Magistrate. I heard and dismissed that appeal: see SGNB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 885. I also formed the view that a visa had not been granted to the applicant.

4. The finding in those proceedings that a visa had not been granted to the applicant has the necessary consequence that the applicant is and remains an ‘unlawful non-citizen’. No other basis for suggesting otherwise being identified, his detention is lawful.

5. The proceedings are dismissed with costs. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             22 August 2003

Counsel for the Applicant:	P Charman (Pro Bono)
Solicitor for the Applicant:	Refugee Advocacy Service of South Australia
Counsel for the Respondent:	K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	19 August 2003
Date of Judgment:	22 August 2003