SZVVD v Minister for Immigration

[2015] FCCA 1554

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVVD v MINISTER FOR IMMIGRATION [2015] FCCA 1554

Catchwords:
MIGRATION – Application seeking interlocutory orders restraining Minister for Immigration and Border Protection from relocating applicant – whether the Federal Circuit Court of Australia has jurisdiction when no substantive proceedings before Court – whether there is utility in granting an injunction against something that has already occurred – no jurisdiction – no utility in granting injunction.  

Legislation:

Administrative Decisions Judicial Review Act 1977 (Cth)
Commonwealth of Australia Constitution Act 1990 (Cth), s.75(v)

Federal Circuit Court of Australia Act 1999 (Cth), ss.10, 15

Migration Act 1958 (Cth), ss.5, 5E, 256, 474, 476

NAFC v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 126 FCR 99
Stretton v Minister for Immigration and Border Protection [2015] FCA 249

Applicant: SZVVD

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 3445 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 11 December 2014

Delivered at: Sydney

Delivered on: 12 June 2015

REPRESENTATION

Solicitors for the Applicant: Mr De Brennan of De Brennan Tomlinson Pearce Lawyers

Solicitors for the Respondent: Mr Markus of Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3445 of 2014

SZVVD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application filed under the Migration Act 1958 (Cth) (the “Migration Act”) seeking interlocutory orders restraining the respondent, the Minister for Immigration and Border Protection (the “Minister”), from relocating the applicant, SZVVD, from Villawood Immigration Detention Centre in Sydney, NSW (“VIDC”) to Yongah Hill Immigration Detention Centre in Perth, Western Australia (“YHIDC”).

Hearing 11 December 2014

1. The application was filed on an urgent basis on 11 December 2014 and came before me on that day as Duty Judge.  The application seeks the following order:

   1.  An injunction to stop the respondent, by himself or by his Department, officers, delegates or agents, from relocating Mr [SZVVD] from Villawood Immigration Detention Centre in Sydney, New South Wales, to Yongah Hill Immigration Detention Centre in Perth, Western Australia, tomorrow morning by way of flight at approximately 10:20am.

2. The applicant relied on the Affidavit of Sebastian De Brennan sworn on 10 December 2014 (the “De Brennan Affidavit”) in support of his application.

3. The applicant has lodged a Protection (Class XA) visa application which, at the time of the hearing, was before a delegate of the Minister.  He has legal representation in respect of his Protection visa application from the same firm of solicitors who are acting for him in the application currently before the Court.

4. At the time of the hearing on 11 December 2014, the applicant, who had been in immigration detention at VIDC, was either in the process of being transferred or had already been transferred to YHIDC.

5. The De Brennan Affidavit stated that the applicant’s lawyer only found out about the proposed transfer of the applicant to YHIDC on the afternoon of 10 December 2014 when a friend of the applicant informed him.

6. Mr De Brennan stated he contacted the applicant’s case manager from the Department of Immigration and Border Protection on the afternoon of 10 December 2014 by telephone.  The case manager indicated the applicant was to be transferred to YHIDC the following morning.  The case manager also stated there was no possibility of the applicant being allowed to remain at VIDC so that his submissions in relation to his Protection visa application could be completed with the assistance of his lawyer.

7. At the hearing, Mr De Brennan indicated he was in the process of preparing submissions with the applicant, however, getting instructions from him has been difficult due to the need to communicate through an interpreter.  These difficulties would only be exacerbated if the applicant was transferred to YHIDC, as the technology available is no substitute for being able to meet with an applicant in person to discuss important issues.

Whether the Court has jurisdiction

1. Mr Markus, appearing for the Minister, submitted that the application before the Court was not competent. The application seeks interlocutory orders in the form of an injunction, however, there is no relevant decision made under the Migration Act that the application seeks to challenge.

2. Mr Markus contends decisions in relation to the transfer of people in immigration detention are operational decisions. They involve the exercise of executive power, but there is not a specific provision under the Migration Act which deals with these issues.

3. Section 476 of the Migration Act states:

   Jurisdiction of the Federal Circuit Court

   (1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

   (2)  The Federal Circuit Court has no jurisdiction in relation to the following decisions:

   (a)  a primary decision;

   (b)  a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;

   (c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;

   (d)  a privative clause decision or purported privative clause decision mentioned in subsection 474(7).

   (3)  Nothing in this section affects any jurisdiction the Federal Circuit Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975 .

   (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.

4. Section 5 of the Migration Act defines a “migration decision” as:

   (a)  a privative clause decision; or

   (b)  a purported privative clause decision; or

   (c)  a non-privative clause decision.

5. Section 474 of the Migration Act defines a “privative clause decision” as:

   a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

6. Section 5E of the Migration Act defines a “purported privative clause decision” as:

   (1)  In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:

   (a)  a failure to exercise jurisdiction; or

   (b)  an excess of jurisdiction;

   in the making of the decision.

   (2)  In this section, decision includes anything listed in subsection 474(3).

7. Mr Markus’ contention is that there simply is no substantive application before the Court at all, just an application for interlocutory orders. The Court does not have the jurisdiction under s.476 of the Migration Act in respect of the orders being sought by the applicant.

8. Further, Mr Markus contends there is no other jurisdiction that has been identified by the applicant under which the current relief being sought could possibly be. Section 10 of the Federal Circuit Court of Australia Act 1999 (Cth) (the “FCCA Act”) states:

   Original jurisdiction--general

   (1)  The Federal Circuit Court of Australia has such original jurisdiction as is vested in it by laws made by the Parliament:

   (a)  by express provision; or

   (b) by the application of section 15C of the Acts Interpretation Act 1901 to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Circuit Court of Australia in relation to a matter.

   …

   No relevant law has been identified that this Court has jurisdiction over.  This also applies in respect of the Administrative Decisions Judicial Review Act 1977 (Cth).

9. Mr Markus submits that the Court does have interlocutory powers (s.15 of the FCCA Act), however, that power is only available in relation to matters over which the Court has jurisdiction. No such jurisdiction is evident in the current matter.

10. In reply, Mr De Brennan referred the Court to s.75(v) of the Commonwealth of Australia Constitution Act (Cth) (“Constitution”), which states:

    In all matters:

    …

    (v)  in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

    the High Court shall have original jurisdiction.

    Relevantly, this Court has the same original jurisdiction as the High Court in relation to migration matters.

11. Mr De Brennan contends that the above power contemplates the granting of injunctions and, in respect of the current matter, contemplates the Minister’s delegate acting as an officer of the Commonwealth.  Mr De Brennan argues a relevant decision has been made, in that the applicant was put on a plane and transferred to YHIDC. 

12. Mr De Brennan contends s.476 of the Migration Act does grant the Court extensive powers, and ties in with the original jurisdiction of the High Court under s.75(v) of the Constitution. This provides the Court with more than adequate power to grant the relief sought by the applicant.

13. In reply, Mr Markus contends that the only jurisdiction this Court has under s.75(v) of the Constitution is that available under s.476 in relation to migration decisions. Any such migration decision has to be a decision made under the Migration Act. The transfer of the applicant from VIDC to YHIDC is not a decision made under the Migration Act. What is contended by the applicant is that a delegate of the Minister made the decision to transfer the applicant to YHIDC. However, there cannot be a delegation unless there is a statutory power and there is no statutory power dealing with this issue.

14. In respect of the applicant’s submissions that s.75(v) jurisdiction is available in circumstances where an injunction is sought against an officer of the Commonwealth, this type of relief does not assist the applicant, as such an injunction would be a permanent injunction. What is being sought in the current matter is a temporary injunction.

Consideration

1. What must be established by the applicant, in seeking orders in the nature of the temporary injunction being sought, as correctly submitted by Mr Markus, is that there has been a migration decision made of the nature that the Court has jurisdiction to review, being a decision made under the Migration Act.

2. The question before the Court is whether the decision to transfer the applicant from VIDC to YHIDC is a decision of the nature of which this Court has jurisdiction over.  In my view, as correctly submitted by the Minister, the applicant has failed to identify any provision in the migration legislation under which the decision was made. 

3. In NAFC v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 126 FCR 99 his Honour Beaumont J stated at [14]-[22]:

   [14] “Immigration detention” under the Act is provided for by s 189(1), which imposes an unqualified obligation upon an “officer” to detain an unlawful non-citizen within Australia:

   If an officer knows or reasonably suspects that a person in the migration zone … is an unlawful non-citizen, the officer must detain the person. [Emphasis added]

   [15] This provision both requires than an officer detain an unlawful non-citizen, and authorises that detention, as a “specific control mechanism”: Ruddock v Vadarlis (2001) 110 FCR 491 at 544 ; 66 ALD 25 at 75 ; 183 ALR 1 at 54 per French J. The term “detain” is defined in s 5 to mean:

   (a) take into immigration detention; or

   (b) keep, or cause to be kept, in immigration detention;

   and includes taking such action and using such force as are reasonably necessary to do so.

   [16] Consistently with this, in its ordinary meaning, “detain” means “to keep under restraint or in custody”. “Restrain” in turn, means to “keep in check or under control … to deprive of liberty, as a person”: The Macquarie Dictionary, 3rd ed.

   [17] An “officer” is defined in s 5 to mean persons holding the offices designated in s 5 (including officers of the department and police officers), and:

   (f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or

   (g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of the Act, including a person who becomes a member of the class after the authorisation is given.

   [18] Section 196 is also, material, providing:

   (1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:

   (a) removed from Australia under section 198 or 199; or

   (b) deported under section 200; or

   (c) granted a visa. [Emphasis added]

   [19] The circumstances in which a person is to be released from “immigration detention” are defined exhaustively by ss 191 and 196(1) and (2). “Immigration detention” is defined in s 5 to mean:

   (a) being in the company of, and restrained by:

   (i) an officer; or

   (ii) in relation to a particular detainee — another person directed by the Secretary to accompany and restrain the detainee; or

   (b) being held by, or on behalf of, an officer:

   (i) in a detention centre established under this Act; or

   (ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or

   (iii) in a police station or watch house; or

   (iv) in relation to a non-citizen who is prevented under section 249, from leaving a vessel — on that vessel; or

   (v) in another place approved by the Minister in writing;

   but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).

   [20] It is not suggested that ss 191 or 196(1) or (2) apply here.

   [21] In short, as is common ground, this statutory regime shows that immigration detention under the Act involves both the deprivation of liberty of the person and the assumption of control over the person, particularly in respect of residency: cf Howard v Jarvis (1958) 98 CLR 177 at 183 per Dixon CJ, Fullagar and Taylor JJ.

   [22] The statutory scheme effected by ss 189 and 196 has thus left it to the minister and officers to determine the places at which, the persons by whom, and the manner in which, a person in immigration detention is to be detained; and this is apparent, in particular, from the definition of immigration detention: s 5. This is also common ground.

4. The matter before Beaumont J, however, differs from the current application for a number of reasons. In that application, the applicant was already before the Federal Court in relation to the decision by the Minister to cancel his visa and the application was made under the provisions of s.256 of the Migration Act. In the matter before this Court, the applicant, at the time of the hearing, was before a delegate of the Minister in respect of an extant application for a Protection visa and no claim has been expressly made to this Court under s.256 of the Migration Act.

5. Section 256 of the Migration Act relevantly states:

   Person in immigration detention may have access to certain advice, facilities etc.

   Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.

6. The applicant also relies on the decision of Logan J in Stretton v Minister for Immigration and Border Protection [2015] FCA 249, however, this decision was also in relation to an application under the original jurisdiction of the Federal Court relating to a visa cancellation under s.501(2) of the Migration Act, where a temporary injunction was being sought by the applicant to prevent his transfer to Christmas Island under s.256 of the Migration Act. Accordingly, as the Minister correctly submits, there was no issue in that case in respect of the jurisdiction of the Court to entertain the application for review.

7. Having regard to the authorities, I agree with the Minister’s submission that the decision to transfer the applicant from VIDC to YHIDC was an operational decision and that no decision was made of the nature that can be challenged in this Court pursuant to its jurisdiction under the Migration Act. Accordingly, the Court cannot grant the relief as sought by the applicant in his application.

8. I note in any case, by the time of the hearing on 12 December 2014, the applicant had already been transferred to YHIDC.  The relief sought by the applicant is in the form of an injunction preventing the Minister or any of his officers or agents from transferring the applicant from VIDC to YHIDC.  Given the action has already taken place, any such relief would be futile in nature.

9. On the basis of the above findings, it is not necessary to consider the merits of granting the applicant such relief, though this was addressed at the hearing.

10. I note the frustration expressed by the applicant’s lawyer in respect of the manner in which the applicant’s transfer occurred, however, I do also note Mr Markus’ evidence in relation to the facilities at YHIDC.  A significant period of time has passed since the hearing and, noting that the last task to be done in relation to the applicant’s Protection was the preparation of written submissions, that task should have been completed by this stage.

11. Consequently, the application should be dismissed with the applicant ordered to pay the Minister’s costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 12 June 2015