Van Cuong Nguyen v Minister for Immigration and Multicultural Affairs
[1999] FCA 1833
•16 DECEMBER 1999
FEDERAL COURT OF AUSTRALIA
VAN CUONG NGUYEN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS [1999] FCA 1833
MIGRATION – interlocutory application – jurisdiction to order release from immigration detention – whether order sought appropriate by reason of available final relief
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Federal Court of Australia Act 1976 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)Jackson v Sterling Industries Ltd (1987) 162 CLR 612, followed
Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643, followed
Cardile v LED Builders Pty Ltd (1999) 162 ALR 294, cited
Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169, cited
Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1999) FCA 470, cited
Omar v Department of Immigration and Multicultural Affairs (1997) 48 ALD 607, distinguished
Pylka v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 483, distinguished
Brown v Repatriation Commission (1985) 7 FCR 302, cited
Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209, cited
Director of Social Services v Hales (1983) 78 FLR 373, cited
Collector of Customs v LNC (Wholesale) Pty Ltd (1988) 8 AAR 301, cited
Secretary, Department of Social Security v Hodgson (1992) 15 AAR 563, cited
McBay v Director-General of Social Security (1985) 3 AAR 327, cited
Repatriation Commission v Nation (1995) 57 FCR 25, cited
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176, followedVAN CUONG NGUYEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1003 of 1999BRANSON J
SYDNEY
16 DECEMBER 1999
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1003 of 1999
BETWEEN:
VAN CUONG NGUYEN
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RespondentJUDGE:
BRANSON J
DATE OF ORDER:
16 DECEMBER 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The motion be dismissed.
2. The applicant pay the respondent’s costs of the motion.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1003 of 1999
BETWEEN:
VAN CUONG NGUYEN
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
BRANSON J
DATE:
16 DECEMBER 1999
PLACE:
SYDNEY
REASONS FOR DECISION (EX TEMPORE)
INTRODUCTION
The substantive application before me is an “appeal” on a question of law from a decision of the Administrative Appeals Tribunal (“the Tribunal”) under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). By its decision the Tribunal affirmed a decision of a delegate of the respondent to deport the applicant. The orders sought on the “appeal” are:
“1. The decision under review be overturned;
2.Costs; and
3.Such other or further orders as the Court sees fit.”
Pursuant to a notice of motion filed on 10 December 1999 the applicant has moved the Court for orders that:
“1. The Minister cease to hold the applicant in detention.
2.The Minister direct the authorities, who are holding the applicant in detention, to cease to hold the applicant in detention.”
Statutory Provisions
Sections 200, 201 and 253 of the Migration Act 1958 (Cth) (“the Act”) provide, so far as is here relevant, as follows:
“200 The Minister may order the deportation of a non-citizen to whom this Division applies.
201Where:
(a)a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b)when the offence was committed the person was a non-citizen who:
(i)had been in Australia as a permanent resident:
(A) for a period of less than 10 years; or
(B)for periods that, when added together, total less than 10 years; or
(ii)was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:
(A)for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or
(B)for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and
(c)the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person.”
“253 (1)Where an order for the deportation of a person is in force, an officer may, without warrant, detain a person whom the officer reasonably supposes to be that person.
(2)A person detained under subsection (1) or (10) may, subject to this section, be kept in immigration detention or in detention as a deportee in accordance with subsection (8).
(3)Where an officer detains a person under subsection (1) or (10), the officer shall forthwith inform the person of the reason for the detention and shall, if that person so requests, furnish to him or her, as soon as practicable, particulars of the deportation order.
…
(9)In spite of anything else in this section, the Minister or the Secretary may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in detention under this section.
…”
Sections 19 and 23 of the Federal Court of Australia Act1976 (“the Federal Court Act”) provide:
“19(1)The Court has such original jurisdiction as is vested in it by laws made by the Parliament.
(2) The original jurisdiction of the Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.”
“23The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.”
Section 44 of the AAT Act, so far as is here relevant, provides as follows:
“44(1)A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
…
(4)The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.
(5)Without limiting by implication the generality of sub-section (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.
…”
FACTS
The applicant arrived in Australia on 30 July 1993 under the Indo-Chinese Refugee Program.
On 30 May 1997 the applicant was convicted of the offence of supplying a commercial quantity of a prohibited drug and sentenced to a minimum term of imprisonment of 3 years commencing on 14 June 1996 and an additional term of 2 years, to commence on the expiration of the minimum term. The offence for which the applicant was convicted was committed on 13 June 1996. It is not in dispute that the applicant’s conviction made him liable to deportation under the Act.
On 24 June 1998 the respondent, by a delegate, ordered the deportation of the applicant pursuant to s 200 of the Act. The deportation order was served on the applicant on 22 July 1998.
On 3 August 1998 the applicant sought review by the Tribunal of the deportation order.
On 7 June 1999 a decision was made by an officer of the Department of Immigration and Multicultural Affairs (“the Department”) that the applicant be detained pursuant to s 253 of the Act. An application to the Court for review of this decision was on 15 December 1999 dismissed by consent.
The Parole Board of New South Wales directed the applicant’s release on parole on 13 June 1999 and on that day he was taken into immigration detention.
On 13 August 1999 the Tribunal affirmed the decision to deport the applicant. It is this decision which founds the substantive application to the Court.
On 9 December 1999 the applicant by letter requested the Minister to order his release from detention pursuant to s 253(9) of the Act.
Issues of Jurisdiction and Power
The applicant contends that the Court has jurisdiction, derived from ss 19 and 23 of the Federal Court Act, to order the release of the applicant from immigration detention. The respondent challenges that contention.
The jurisdiction of the Court invoked on this proceeding is the jurisdiction vested in it by s 44 of the AAT Act. Section 23 of the Federal Court Act does not add to that jurisdiction. That section confers on the Court wide powers, but the powers may only be exercised “in relation to matters in which [the Court] has jurisdiction.” The “matter” in this proceeding is the “appeal” from the decision of the AAT.
In Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 620-625 Brennan J noted that s 23 confers on the Federal Court “such powers as are necessary or incidental to the exercise of [the] Court’s jurisdiction.” Brennan J then observed:
“But that is not to say that the Court’s discretion to mould relief is at large. The relief which the Court is authorised to give does not extend beyond the grant of remedies appropriate to the protection and enforcement of the right or subject-matter in issue.”
In Jackson v Sterling Industries Ltd at 622 Deane J said:
“Section 23 of the Federal Court of Australia Act 1976 (Cth) confers upon the Federal Court a broad power to make orders of such kinds, including interlocutory orders, as it “thinks appropriate.” Wide though that power is, it is subject to both jurisdictional and other limits. It exists only “in relation to matters” in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the “kinds” of order, whether final or interlocutory, which are capable of properly being seen as “appropriate” to be made by the Federal Court in the exercise of its jurisdiction.”
In Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643 at 658-659 Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ referred to the above observations of Deane J in Jackson v Sterling Industries Ltd and then said:
“One limitation on the powers of the Federal Court to grant interlocutory injunctions is that those powers must be exercised for the purpose for which they are conferred.
…
The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked.”
See also Cardile v LED Builders Pty Ltd (1999) 162 ALR 294 per Gaudron, McHugh, Gummow and Callinan JJ at 308.
The leading authority on the power of the Court to release a person held in detention under s 253 of the Act is the decision of the Full Court of this Court in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169. Mr Msilanga initiated a proceeding seeking judicial review of a decision of a delegate of the Minister that “the continued detention in custody of [Mr Msilanga] was proper.” By his application Mr Msilanga claimed, by way of final relief, an order directing the Minister to revoke the deportation order and an order directing the Minister to release Mr Msilanga from custody. By way of interlocutory relief, Mr Msilanga claimed an order directing his release from custody pending, in effect, the hearing and determination of the judicial review proceeding. After a contested interlocutory hearing the primary judge ordered that Mr Msilanga be released “on bail.”
It was argued before the Full Court that the primary judge did not have jurisdiction to order Mr Msilanga’s release. Beaumont J, with whom the Chief Justice agreed, accepted that an interim order under s 23 of the Federal Court Act could not travel beyond the jurisdiction or powers of the Court by way of final relief. However, his Honour considered it to be plain in that case, a case in which both the decision to detain in custody and the decision to continue the detention were challenged, that s 23 gave the primary judge power to order by way of final relief the release of the applicant. Burchett J based his conclusion that the primary judge had jurisdiction by way of final relief to order the release of the applicant upon the wide terms of s 16(1) of the Administrative Decisions (Judicial Review) Act 1977 (the “ADJR Act”), and in particular upon the terms of s 16(1)(d) of the Act which confers on the Court a discretion to make -
“an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties.”
In Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1999) FCA 470, Weinberg J rejected a submission that this Court lacks jurisdiction to make an interlocutory order for the release from detention of a deportee merely because the proceeding in which the relief is sought does not directly involve a challenge to the decision to deport him or the decision to detain him consequential upon the decision that he be deported. In that case the applicant sought judicial review of a decision of the Minister not to exercise the power conferred on him by s 253(9) of the Act. Other decisions of the Court in which it has been recognised that the Court has jurisdiction to make interlocutory orders for the release of a deportee include Omar v Department of Immigration and Multicultural Affairs (1997) 48 ALD 607 (Sundberg J) and Pylka v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 483 (North J). I note, however, that in Omar and Pylka the substantive proceedings involved a direct challenge to the deportation order or the detention of the applicant.
I do not accept the submission of the respondent that the Court lacks jurisdiction to order the release of the applicant. The Court has jurisdiction to hear and determine the matter before it, namely the “appeal” under s 44 of the AAT Act. Section 44(4) of the AAT Act makes it plain that the Court has a wide discretion as to the orders by way of final relief which it may make on such an appeal. Section 23 of the Federal Court Act gives the Court a similarly wide discretion as to the interlocutory orders that it may make. The real question raised by this motion, it seems to me, is the proper limits of, and the appropriate exercise of, the Court’s power within its jurisdiction, rather than the extent of that jurisdiction.
CONSIDERATION
The matter before me is an “appeal” on a question of law from a decision of the Tribunal. The Tribunal by its decision affirmed a decision of the respondent to deport the applicant. There is no application presently before the Court for judicial review of the decision of the respondent to detain the applicant under s 253.
Before the Tribunal on the application for review of the decision of the respondent to deport the applicant, it was not contended that the applicant was not liable to be deported. It was acknowledged on his behalf that he was liable to be deported. The Tribunal was, in effect, invited to consider whether the decision of the Minister was the correct or preferable decision on the merits. Nor has the legality of the decision to deport been challenged under either the AAT Act or the ADJR Act.
By his “appeal” to this Court, the applicant asserts that the Tribunal made errors of law in its review of the respondent’s decision to deport the applicant. The subject matter and scope of the “appeal” is limited to the questions of law raised on the “appeal” and does not extend to the rehearing of the whole matter (Brown v Repatriation Commission (1985) 7 FCR 302 at 305). Despite the wide terms of s 44(4) of the AAT Act, the subsection is not to be interpreted as giving the Court power to make any order that the Tribunal could have made. The order which this Court may make on an “appeal” under s 44 is an order which is appropriate by reason of its decision (Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 at 220; Director of Social Services v Hales (1983) 78 FLR 373; Collector of Customs v LNC (Wholesale) Pty Ltd (1988) 8 AAR 301 at 307; Secretary, Department of Social Security v Hodgson (1992) 15 AAR 563 at 575). Where only one conclusion is open to the Tribunal on the evidence, and where this is a conclusion of law, the Court may itself make the order which the Tribunal was bound to make (McBay v Director-General of Social Security (1985) 3 AAR 327; Repatriation Commission v Nation (1995) 57 FCR 25 at 35). However, where, as here, the evidence does not compel a particular conclusion, the appropriate order for the Court to make, should it be disposed to allow “the appeal”, is for the matter to be remitted to the Tribunal for rehearing (Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 at 183-184).
CONCLUSION
On the basis of the material presently before the Court, I conclude that the relief to which the applicant will be entitled in this proceeding, should he be successful, is an order setting aside the decision of the Tribunal and remitting the matter to the Tribunal for consideration according to law. I find that the applicant has not established that there is a serious question to be tried in this proceeding as to whether the deportation order made against him should be set aside.
I prefer to express no opinion as to whether the applicant has established that there is a serious question to be tried as to his entitlement to an order setting aside the decision of the Tribunal. Even if it be assumed that he has, I do not consider that it would be an appropriate exercise of power by this Court in the circumstances of this case to make an interlocutory order for his release from detention. Such an order would give the applicant more than he has established that he would be entitled to in the event that his “appeal” succeeds. I would myself prefer not to characterise this conclusion as one based on the balance of convenience, but rather as one based on a consideration of the appropriate exercise of the Court’s power to make interlocutory orders in this proceeding. However, to the extent that the balance of convenience is an appropriate consideration, I record that I do not consider that it favours the grant of the interlocutory order sought.
Additional factors which, in my view, tell against the making by the Court of an interlocutory order for the release of the applicant are as follows:
(a)the applicant has not sought an expedited hearing of his “appeal” from the decision of the Tribunal - indeed examination of the Court’s file suggests that the conduct of the applicant or his legal representatives has delayed the bringing of this matter to a state of readiness for hearing;
(b)the applicant has by letter dated 9 December 1999 (ie at a relatively late stage in the history of this matter) sought the exercise by the Minister of his power to release the applicant from detention pursuant to s 253(9) of the Act. That application is apparently under active consideration by a delegate of the Minister. Any decision made by the Minister under s 253(9) of the Act will be subject to review including judicial review.
(c)the applicant did not seek review in a timely way of the decision to detain him and the proceeding in which such review was sought has now been dismissed by consent; and
(d)an interlocutory order for the release of the applicant would, if made, co-exist with a decision of the Minister to deport the applicant, the legality of which is not challenged, and an unchallenged decision of an officer of the Department that the applicant be detained pursuant to s 253 of the Act.
The motion for orders that -
“1. The Minister cease to hold the applicant in detention; and
2.The Minister direct the authorities, who are holding the applicant in detention, to cease to hold the applicant in detention.”
is dismissed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate:
Dated: 22 December 1999
Counsel for the Applicant: Mr R. Killalea Solicitor for the Applicant: Chau & Co Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 December 1999 Date of Judgment: 16 December 1999
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