Shadbolt and Repatriation Commission

[2011] AATA 723

Administrative Appeals Tribunal

INTERLOCUTORY DECISION AND REASONS FOR DECISION [2011] AATA 722

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2011/3834

GENERAL ADMINISTRATIVE DIVISION		)
Re		MOSHE YAIR MORDECHAI

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date19 October 2011

PlaceSydney

Decision The Tribunal has no jurisdiction to review this application.

...................[sgd]...........................

Ms G Ettinger
  Senior Member

CATCHWORDS

MIGRATION – detention – jurisdiction – whether Tribunal has jurisdiction to review client placement assessment outcome – no jurisdiction

Administrative Appeals Tribunal Act 1975 s 25

Mordechai v Minister for Immigration and Citizenship [2011] FCA 986

Re Mostafa and Minister for Immigration and Citizenship [2011] AATA 49

REASONS FOR DECISION

19 October 2011 Ms G Ettinger, Senior Member

1.      Mr Moshe Yair Mordechai (also known as Jimmy Martin Mostafa) has appealed to this Tribunal in regard to complaints he has about his transfer to and from different parts of the Villawood Immigration Detention Facility, particularly since about the middle of August 2011. His main complaint is that the ‘Annexe’, where he is now housed, is high security, and that it is reserved, he says, for punishment, and for housing persons who are a security risk, or a threat. He does not consider himself in that category of persons.

2.      Mr Mordechai comes to be in Villawood because following a decision of this Tribunal, Re Mostafa and Minister for Immigration and Citizenship [2011] AATA 49, dated 2 February 2011, which affirmed a decision of the Respondent to refuse his application for a spouse visa, the Federal Court, in Mordechai v Minister for Immigration and Citizenship [2011] FCA 986, on 30 August 2011, dismissed Mr Mordechai’s appeal from the Tribunal’s decision. He is thus awaiting deportation to the USA, of which he is a citizen.

3.      The matter before me is to decide whether this Tribunal has jurisdiction to hear Mr Mordechai’s complaints about his accommodation at Villawood. He was represented at the Tribunal by Mr Kamal Boutros, solicitor, of Boutros Lawyers. The Respondent Minister for Immigration and Citizenship was represented by Mr Tigiilagi Eteuati of Clayton Utz Lawyers.  On 19 September 2011, a few days before the hearing listed on 22 September 2011, Mr Mordechai sent a fax message asking the Tribunal to amend his application by adding as Respondents, various officers of DIAC, Serco and International Health and Medical Services Pty Limited. I have declined to make that amendment, and the Respondent, nominally, (since there is no jurisdiction), in this application remains, as initially noted, the Minister for Immigration and Citizenship.

4.      At the hearing Mr Mordechai gave evidence about his accommodation situation. He was upset when telling me about the conditions under which he is required to live, saying that he had no access to the internet in order to prepare his legal proceedings, that legal documents he requested were provided with delays, and that he was given no reasons for his moves to ‘Blaxland’, one of the other units, and then to the ‘Annexe’, which is even more restrictive. He says he is very stressed by his conditions and says that his mental and physical health have suffered. He considers it is a human rights issue, and has instructed Mr Boutros to commence civil proceedings.

5.      Mr Mordechai tendered a bundle of correspondence in support of his case. That is Exhibit A1.

6.      I can understand Mr Mordechai’s concerns. I explained to Mr Mordechai that my task is to first consider whether this Tribunal has jurisdiction to hear his complaints about his accommodation in Villawood. In so doing, I have considered the relevant legislation which is the Administrative Appeals Tribunals Act 1975 (AAT Act), and the Migration Act 1958.  In that regard I preferred the submissions of the Respondent. I find that I have no jurisdiction in this matter. My reasons follow.

THE RELEVANT LEGISLATION

7. The relevant legislation in this matter is the AAT Act, in particular section 25.

8.      The Migration Act 1958 is also relevant as Mr Mordechai is detained under this Act, and if there is any right of review it would be expected such right would be conferred under this Act.

SUBMISSIONS AND CONCLUSIONS

9.      Mr Boutros submitted that Mr Mordechai was subjected to an abuse of power by the State. He submitted that the ‘Annexe’ has very restrictive rules, access to the legal documents the Applicant requested was slow, and that Mr Mordechai’s mental and physical health was compromised by the way in which he was treated at Villawood. Mr Boutros submitted that decisions about accommodation were not like decisions about changing sheets, and that the decision not to house Mr Mordechai in more favourable surroundings was not reasonable, and therefore reviewable. His accommodation was the core of his existence, Mr Boutros said. He indicated that medical and psychological reports were in preparation to support Mr Mordechai’s case, and that civil proceedings were being lodged against Serco and the Minister for Immigration and Citizenship.

10. Mr Eteuati, both in his written and oral submissions, stated that in the Respondent’s view, the Tribunal has no jurisdiction to review Mr Mordechai's application to it, and that the application should be dismissed. He referred to section 25(1) of the AAT Act which states that an enactment may provide for an application to be made to the Tribunal for review of decisions made in the exercise of powers conferred by the enactment. Further that section 25(4) provides that the Tribunal has power to review any decision in respect of which application is made to it under any enactment.

11.     Mr Eteuati referred to the decision dated 31 August 2011 by an officer of the Department of Immigration and Citizenship which refused to grant Mr Mordechai’s request that he be placed in a different accommodation block at Villawood Detention Centre.

12.     Mr Eteuati referred to a client placement model used to make decisions relating to the placement of clients in detention centres in Australia. He submitted that the Department of Immigration and Citizenship and the Villawood Detention Centre client placement model is described in Departmental documents as follows:

The Client Placement Model provides departmental officers with a nationally consistent framework and accompanying assessment tools for placing people in the most appropriate detention accommodation.  The process begins with a preliminary assessment conducted as soon as border control or compliance staff make a decision to detain a person, followed by a 48/72 hour review of the initial placement and monthly reviews thereafter (or soon where triggered).  These reviews take into account a range of factors including health and wellbeing, with survivors of torture and trauma explicitly recognised as a vulnerable group requiring special attention.

A related process of three monthly detention review assessments is conducted by the Detention Review Unit. The Detention Review Unit undertakes additional reviews in support of the Ombudsman’s six month and biannual reviews of a person’s immigration detention.  Detention reviews assess, among other things, the reasonableness and appropriateness of detention in light of the new detention policy settings.

13.     Mr Eteuati submitted that the decision dated 31 August 2011 made by the Villawood Detention Centre management, in conjunction with the Client Placement Committee, was a decision that was made in accordance with policy guidelines developed by the Department of Immigration and Citizenship to assist in the management of detainees held in immigration detention, and was not reviewable by the Tribunal.

14.     I have considered Mr Mordechai’s evidence, and the documents and submissions before me. I acknowledge that Mr Mordechai is unhappy with being housed in the ‘Annexe’ because he feels that he has insufficient freedom there. However, he acknowledged receipt of his legal documents, albeit with some delays, and the letters he has written are typed, so I am assuming he has access to a computer.

15. However, that is not what I must consider in making the decision today. As stated above, my decision concerns the jurisdiction of the Tribunal to hear and determine Mr Mordechai’s complaint about his accommodation. As I told Mr Mordechai, the Tribunal does not have inherent jurisdiction to review any and all decisions of Government bodies. It derives its jurisdiction from the legislation under which it may review certain decisions made pursuant to certain Acts of Parliament. That is precisely why the Minister of Immigration and Citizenship’s refusal of Mr Mordechai’s application for a spouse visa was able to be, and was indeed, appealed to this Tribunal. The Tribunal is empowered to hear such applications pursuant to section 500 of the Migration Act 1958.

16. I am satisfied that section 25(1) of AAT Act states that an enactment may provide for an application to be made to the Tribunal for review of decisions made in the exercise of powers conferred by the enactment. I note further that section 25(4) provides that the Tribunal has power to review any decision in respect of which application is made to it under any enactment.

17.     I did not discern Mr Mordechai or his solicitor to refer to any enactment which would confer such power on the Tribunal. I prefer the submissions of the Respondent that this Tribunal does not have power to review decisions made with regard to Mr Mordechai’s accommodation. I find that I do not have jurisdiction to deal with his complaint.

DECISION

18.     The Tribunal has no jurisdiction in regard to this application.

I certify that 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:         ..............[sgd]..................................................................
  Associate

Date of Hearing  22 September 2011
Date of Decision  19 October 2011
Solicitor for the Applicant          Mr K Boutros, Boutros Lawyers
Solicitor for the Respondent     Mr T Eteuati, Clayton Utz