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

The application be dismissed.
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

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

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.
The applicant relied on the Affidavit of Sebastian De Brennan sworn on 10 December 2014 (the “De Brennan Affidavit”) in support of his application.
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.
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.
The De Brennan Affidavit stated that the applicant’s lawyer only found out about the proposed transfer of…

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.

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Details

Case: [2015] FCCA 1554
Decision Date: 12 June 2015

CaseChat Overview and Summary

The applicant, a person in immigration detention, sought an injunction to prevent his transfer from the Melbourne Immigration Transit Accommodation (VIDC) to the Yongah Hill Immigration Detention Centre (YHIDC). The respondent was the Minister for Immigration. The matter came before Lloyd-Jones J of the Federal Court of Australia.

The central legal issue was whether the Federal Court had jurisdiction to entertain the applicant's application for an injunction. The applicant contended that the decision to transfer him was reviewable under the Migration Act and that the court possessed the necessary jurisdiction, including under s.75(v) of the Constitution, to grant the relief sought. The respondent argued that the transfer was an operational decision, not a reviewable decision under the Migration Act, and that the court lacked jurisdiction.

Lloyd-Jones J found that the decision to transfer the applicant was an operational decision and not one amenable to challenge under the Migration Act. The court considered s.256 of the Migration Act, which outlines rights for persons in immigration detention, and noted that the case of *Stretton v Minister for Immigration and Border Protection* [2015] FCA 249, relied upon by the applicant, concerned a different jurisdictional context. The judge agreed with the Minister's submission that no decision of the nature that could be challenged in the Federal Court had been made. Furthermore, by the time of the hearing, the applicant had already been transferred, rendering the sought relief futile. The court also considered the jurisdictional limitations of the Federal Circuit Court under s.10 of the *Federal Circuit Court of Australia Act 1999* (Cth), concluding that no relevant jurisdiction had been identified for the current matter.

Consequently, the application was dismissed. The applicant was ordered to pay the Minister's costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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). 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. 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). 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. 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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