FEDERAL CIRCUIT COURT OF AUSTRALIA
| SPURR v MINISTER FOR IMMIGRATION | [2018] FCCA 1090 |
| Catchwords: MIGRATION – Injunction sought to prevent removal from Australia – whether Court has jurisdiction – whether migration decision – whether jurisdictional error – usual principles for issuing injunctions. |
| Legislation: Constitution, s.75(v), Ch.III Migration Act 1958 (Cth), ss.5, 5E, 198, 338(4), 474, 476 Migration Regulations 1994 (Cth), reg.2.12 ,050.212, 050.411 |
| Applicant: | MARK EDWARD GALL SPURR |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 158 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 16 April 2018 |
| Date of Last Submission: | 16 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 4 May 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms S Oliver |
| Solicitors for the Respondent: | Spark Helmore Lawyers |
ORDERS
The application be dismissed.
Order 1 of the Court’s orders of 16 April 2018 be set aside.
| FEDERAL… |
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Details
- Case
- [2018] FCCA 1090
- Decision Date
CaseChat Overview and Summary
In *Spurr v Minister for Immigration*, Judge Kendall of the Federal Court considered whether the Minister's decision to remove Mr Spurr from Australia constituted a "primary decision" for the purposes of the *Migration Act 1958* (Cth). The Minister argued that the decision to remove Mr Spurr was not a "privative clause decision" because it was a consequence of the operation of law under section 198(5) of the Act, rather than a decision of an administrative character. Mr Spurr contended that the decision was reviewable.
The central legal issue before the Court was whether the Minister's decision that it was reasonably practicable to remove Mr Spurr from Australia, made pursuant to section 198(5) of the Act, was a "privative clause decision" as defined by section 476(4) of the Act. This determination was crucial for establishing the Court's jurisdiction to hear Mr Spurr's application.
The Court rejected the Minister's submission, finding that the decision to remove Mr Spurr was indeed a decision of an administrative character. The Court relied on a line of authority, including *M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs* and *Li v Minister for Immigration & Multicultural Affairs*, which held that decisions to remove or refuse to remove unlawful non-citizens under section 198 of the Act constitute "privative clause decisions". The Court noted that the definition of "decision" in section 474(3) of the Act includes the doing or refusing to do an act, and that case law has consistently treated decisions under section 198, including those under section 198(5), as administrative in character and therefore capable of being privative clause decisions. The Court concluded that it had jurisdiction to hear Mr Spurr's application.
The central legal issue before the Court was whether the Minister's decision that it was reasonably practicable to remove Mr Spurr from Australia, made pursuant to section 198(5) of the Act, was a "privative clause decision" as defined by section 476(4) of the Act. This determination was crucial for establishing the Court's jurisdiction to hear Mr Spurr's application.
The Court rejected the Minister's submission, finding that the decision to remove Mr Spurr was indeed a decision of an administrative character. The Court relied on a line of authority, including *M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs* and *Li v Minister for Immigration & Multicultural Affairs*, which held that decisions to remove or refuse to remove unlawful non-citizens under section 198 of the Act constitute "privative clause decisions". The Court noted that the definition of "decision" in section 474(3) of the Act includes the doing or refusing to do an act, and that case law has consistently treated decisions under section 198, including those under section 198(5), as administrative in character and therefore capable of being privative clause decisions. The Court concluded that it had jurisdiction to hear Mr Spurr's application.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Section 476(4) of the Act defines “primary decision” as follows:(4) In this section: “primary decision” means a privative clause decision or purported privative clause decision: (a)that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or (b)that would have been so reviewable if an application for such review had been made within a specified period; or (c)that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed). It was submitted on the Minister’s behalf (see paragraph 43 above) that, because the Minister is compelled by s.198(5) of the Act to remove Mr Spurr from Australia, then the decision to remove him is not a “privative clause decision” because it is not a decision of “an administrative character”. The Minister relied on the case of Lewai v Minister for Immigration & Multicultural Affairs [2001] FCA 1309 at [14] in support of the submission that the removal of a person from Australia under s.198(5) of the Act occurs as a result of operation of law, rather than as a result of decision of an “administrative character”. The Court does not accept that the decision of the Minister (i.e., that it was reasonably practicable to remove Mr Spurr from Australia) was not a decision of an administrative character. In coming to this conclusion the Court has considered the jurisprudence relating to s.198 of the Act and notes that much of the case law involves removals pursuant to s.198(6). Despite this, both s.198(5) and s.198(6) of the Act impose an obligation to remove a person from Australia ‘as soon as reasonably practicable’ once that individual satisfies the relevant criteria of the respective section. On this basis, the case law relating to s.198(6) of the Act has a strong bearing on the matter currently before this Court. As it relates to the jurisdiction of this Court to hear Mr Spurr’s application, the Court notes the comments made by the Full Court in M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131. In that case their Honours noted (at [88]) that removing or refusing to remove an unlawful non-citizen under s.198(6) of the Act constitutes a “privative clause decision” for the purposes of the Act. Their Honours noted that there is no reference to s.198 in s.474(4) or s.474(5) of the Act. These sections expressly set out what types of decision are not privative clause decisions. Section 474(3)(g) provides that a reference in s.474 to a “decision” includes a reference to “doing or refusing to do any ... act or thing”. Removing or refusing to remove an unlawful non-citizen under s.198(6) is, by virtue of s.474(3)(g), a “decision” and, as such, a “privative clause decision” within the meaning of s 474(2). The Court also notes as follows:a)In WAJZ, WAKA, WAGF, WAKB, WAKE and WADX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 1332 (WAJZ) French J (as he then was) stated (at [70]):The definition of ‘privative clause decision’ includes proposing to do an act under the Act. So proposing to remove a person from Australia under s 198(6) is a privative clause decision, albeit it involves the discharge of a non-discretionary statutory duty.b)In Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368[1] Besanko J stated (at [38]):[1]The Court notes that Beyazkilinc was not followed by Bromberg J in Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483. At [436] his Honour was of the opinion that the conclusion made in Beyazkilinc that an injunction may not issue in respect of a claim against the Minister in tort was wrong. Despite this, the Court notes that Bromberg J did not impugn the finding in Beyazkilinc that the proposed removal of the applicant from Australia was a privative clause decision.In my opinion, the proposed removal of the applicant from Australia pursuant to s 198(6) of the Migration Act is a privative clause decision within s 474 of the Act.c)In relation to the removal of a person from Australia under s.198(5) of the Act, the Full Court said in Li v Minister for Immigration & Multicultural Affairs [2002] FCAFC 181 (at [1]):However, I would prefer to base refusal of leave on the ground that the decision to remove the applicant was a privative clause decision within the meaning of subs474(2) of the Migration Act 1958 (Cth) and is therefore, by virtue of sub-s 474(1), not subject to challenge, appeal, review or being quashed or called in question in this court. The same result follows if the relevant decision was the act of preparation for actual removal (sub-s 474(3)(g)).d)In Lui v Minister for Immigration and Anor [2007] FMCA 867 (Lui), Wilson FM observed (at [19]) that it was strongly arguable that the decision of an officer of the Department pursuant to s.198(5) of the Act was a privative clause decision.e)In AKR15 v Minister For Immigration and Ors [2015] FCCA 1734, Judge Smith said (at [58]):Further, it is not beyond argument that any decision whether to remove a detainee under s 198 will require consideration of whether or not the Minister is considering the exercise of his powers. This says nothing about the strength of such arguments; however, it is sufficient in my view to raise the jurisdiction of this court…f)In Asaad v Minister for Immigration and Citizenship [2008] FCA 1039 the Federal Court determined that the decision that it was reasonably practicable to remove the applicant from Australia was a decision of an administrative character. Tamberlin J concluded (at [17]) that:…s 5E of the Act provides that a purported privative clause decision is a decision purportedly made, proposed to be made, or required to be made under the Act, which would be a privative clause decision except for the fact that there was a failure to exercise jurisdiction or an excess of jurisdiction when the decision was made. The word “decision”, as it is defined in s 474(3), includes a determination as to whether it is reasonably practicable to remove a person pursuant to s 198(6). Moreover, in light of s 5E of the Act, if the decision under s 198(6) is affected by error (whether by not determining a jurisdictional fact or by some other means), it still “purports” to be a decision and thus is properly described as a “purported privative clause decision”. In other words, a decision of administrative character for the purposes of s 474(2) of the Act will have been made, or at least purportedly made. In this case, the decision of an administrative character is the decision that it is reasonably practicable to remove Mr Asaad from Australia.g)In SZSSJ v Minister for Immigration & Border Protection [2014] FCAFC 143 Perram, Jagot and Griffiths JJ of the Full Court of the Federal Court concluded (at [38]) that, having regard to the extended definition of “decision” in s.474(3)(h) of the Act and the definition of a “privative clause decision” in s.474(2) of the Act, this Court had jurisdiction in respect of the proceedings because the Department’s conduct in respect of the International Treaties Obligations Assessment process, and its earlier conduct from at least 12 March 2014, were properly viewed as conduct preparatory to the making of the decision which was required under s.198(6) of the Act. This bears out the ultimate conclusion that the privative clause decision was the decision required under s.198(6) of the Act.
Ratio Decidendi
Legal Principle Established
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