Vieru v Minister for Immigration and Multicultural Affairs

[1999] FCA 1313

FEDERAL COURT OF AUSTRALIA

Vieru v Minister for Immigration & Multicultural Affairs [1999] FCA 1313

MARIN VIERU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 997 of 1999

KATZ J
SYDNEY
9 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 997 of 1999

BETWEEN:	MARIN VIERU Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	KATZ J
DATE OF ORDER:	9 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application for interlocutory relief be dismissed with costs.

2.   The application be dismissed with costs. 

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 997 of 1999

BETWEEN:	MARIN VIERU Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	KATZ J
DATE:	9 SEPTEMBER 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. Mr Marin Vieru has commenced two proceedings in this Court.

2. The first proceeding, commenced yesterday, is an appeal to this Court from a decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 26 November 1997. That decision affirmed an order which had been made by a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) that Mr Vieru be deported from Australia by reason of crime.

3. The second proceeding, commenced today, has, by agreement between the parties, been treated as an application under subs 39B(1) of the Judiciary Act 1903 (Cth). It seeks (I will assume) injunctive relief against the Minister.

4. In connection with the first of the two proceedings, it will be plain from the date upon which the Tribunal made its decision that an extension of time is required before the appeal can proceed and Mr Vieru has filed today an application for such an extension of time.

5. In both proceedings, interlocutory relief is now sought from me, which, if granted, will have the effect of preventing Mr Vieru’s deportation from Australia. Mr Vieru’s deportation is presently scheduled to take place at 3.15 pm this afternoon.

6. So far as the first proceeding is concerned, I have in substance heard submissions from Mr McIlwraith, on behalf of Mr Vieru, as to the reasons why Mr Vieru should be granted an extension of time within which to appeal. Those submissions have focused on what, it was agreed between the parties, were the crucial issues so far as an extension of time was concerned: first, an explanation for the lengthy delay in Mr Vieru’s seeking to appeal; and, secondly, the question of the merits of any appeal, were an extension of time to appeal to be granted. It was implicit in those submissions that if Mr Vieru had an arguable case for an extension of time, then he had an arguable case for interlocutory relief.

7. I do not propose to say anything about the matter of Mr Vieru’s explanation for his lengthy delay in seeking to appeal from the Tribunal’s decision, because I am comfortably satisfied that the errors of law which Mr McIlwraith submitted were to be found in the decision of the Tribunal simply did not rise to the necessary level of arguability to justify the grant of an extension of time within which to appeal or, it follows, of interlocutory relief.  The matters to which Mr McIlwraith referred were each, in my view, matters purely of fact, rather than matters of law.  They amounted merely to submissions by him that insufficient weight had been given to certain evidentiary matters in the Tribunal’s decision-making process.

8. It is true that Mr McIlwraith sought to pigeonhole each of those factual matters within one or more of the grounds of review which are available under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (for the purpose of showing that they raised questions of law within the meaning of subs 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth)), but I must say that I regard his attempt in that respect to have failed utterly. I can find no arguable error of law on the part of the Tribunal whatsoever.

9. So far as the second proceeding is concerned, the originating application was necessarily and plainly prepared under conditions of extreme urgency and, for that reason, I am by no means critical of Mr McIlwraith for the form which it takes. However, oral argument has made plain that, in truth, the matter which Mr Vieru seeks to raise under that application was not apparent from its terms. That matter is the giving of a certain undertaking by the Minister to Mr Vieru and a resiling from that undertaking by the Minister without Mr Vieru’s being accorded procedural fairness beforehand.

10. It is necessary to say something more about the facts regarding Mr Vieru in order to make explicable the legal basis which I have just described of the Judiciary Act proceeding.

11. It would appear that Mr Vieru, having failed on 26 November 1997 in his review before the Tribunal of the Ministerial delegate’s deportation order, nevertheless was permitted to remain at large in the community until 20 November 1998, when he was finally taken into custody.  It appears further that, while in custody, he was injured on 22 December 1998. I have before me material referring to the extent of his injuries.

12. On 14 July 1999, an officer of the Minister’s Department saw Mr Vieru in custody and informed him that his deportation from Australia to Romania was imminent. (The delay in his deportation was, I infer, related to the necessity to have the Romanian authorities agree to accept his return, he being a citizen of that country (at least according to something which he said to the Commonwealth Ombudsman in relatively recent times).) On Mr Vieru’s being made aware of his imminent deportation, Mr McIlwraith was then in communication on Mr Vieru’s behalf with the office of the Australian Government Solicitor (“the AGS”) on the Minister’s behalf. That communication provoked a facsimile from the AGS to Mr McIlwraith on 15 July 1999. The text of the operative part of that facsimile read,

    “I refer to our telephone conversation today regarding Mr Vieru’s deportation from Australia.  I confirm that I have received instructions from the Criminal Deportation Section of the Department of Immigration and Multicultural Affairs.  This section is responsible for arranging Mr Vieru’s deportation.
    I note your statement that Mr Vieru does not oppose his deportation from Australia but that he has suffered an injury to his back and wishes the deportation to be delayed until he has recovered from that injury.  I confirm my instructions that my client does not intend to deport Mr Vieru until it [“it” should have been “he”] has received and considered a medical report from the Corrections Health Service as to whether Mr Vieru is fit to travel.  As discussed, my client undertakes not to deport Mr Vieru without providing Mr Vieru at least 48 hours notice of the intention to deport him.  
    I note your statement that this undertaking obviates the need for Mr Vieru to seek an injunction from the Federal Court this afternoon and that you will notify the duty judge of the developments so the matter can be removed from the list.”

13. It was Mr McIlwraith’s submission that there existed an arguable case that the sentence which I have just read beginning, “I confirm my instructions…”, amounted to a representation on behalf of the Minister that he would not execute the deportation order against Mr Vieru until he, the Minister, had received and considered a medical report from the Corrections Health Service as to whether Mr Vieru was fit to travel. Mr McIlwraith further submitted that there existed an arguable case that that representation gave rise to a legitimate expectation in Mr Vieru which had not been satisfied by the Minister and that Mr Vieru had been given no notice or opportunity to be heard on the question whether or not that representation should be departed from by the Minister. 

14. Among the things said in reply on behalf of the Minister was that I should (I do not think I put this unfairly) construe the facsimile from the AGS rather minutely, as though it were a statute, and should read the sentence beginning, “I confirm my instructions…”, as being something other than an undertaking on the part of the Minister. Particular reliance was placed in that respect upon the fact that the succeeding sentence in the facsimile explicitly gave an undertaking.

15. I must say that I have serious doubts as to the correctness of that submission.  Certainly for the purpose of this application it is sufficient for me to take the view that there is an arguable case that the sentence beginning, “I confirm my instructions…”, should be read as amounting to an undertaking.  (I note incidentally that there is before the Court a minute by the officer of the Minister’s Department who gave the instructions to the officer of the AGS who wrote the facsimile. Those instructions seem quite plainly to have been instructions that there should be an undertaking given as to the receipt by the Minister of a medical report, as well as an undertaking given about giving Mr Vieru 48 hours notice.)  

16. However, it is not that aspect of the matter which seems to me to be crucial to the outcome of the present application for interlocutory relief.  The question is instead whether or not there is an arguable case that that undertaking, if I may provisionally describe it in that way, was not fulfilled by the Minister.

17. I have before me a document signed by a Dr Melman and dated the same day as the facsimile to which I have been referring, in which Dr Melman certified that Mr Vieru had been examined that day and in which Dr Melman expressed the opinion that Mr Vieru was fit to travel on an aeroplane for the 20 hours it would take for the trip to Bucharest from Sydney. Dr Melman also said, “Nor do I feel that a medical escort will be required for the trip”.

18. The evidence really appears unanswerable that that document was brought into existence in compliance with the, as I think at least provisionally, undertaking given by the AGS to Mr McIlwraith.  I say that particularly because the document to which I referred not long ago which constituted the instructions from a Departmental officer to the AGS specifically referred to the fact that:

    “About a month ago the Corrections Health Service gave a clearance to travel.  We now wish to get it updated.  We have no intention of deporting pending the receipt of the clearance.”

19. So I am quite satisfied that the report of 15 July 1999 by Dr Melman to which I have referred was not in existence at the time of the giving of the undertaking by the AGS and was in truth brought into existence specifically for the purpose of satisfying the undertaking which was given by the AGS.

20. Mr McIlwraith has sought to elevate what I provisionally call the undertaking about the receipt and consideration of the medical report into an undertaking that the medical report obtained would be one of a certain character and he says that the document signed by Dr Melman did not have the required character.

21. Recognising that what I am concerned with here is not any statutory obligation on the part of the Minister, but a promise, if indeed it be a promise, which in terms refers to the receipt of a medical report as to whether Mr Vieru is fit to travel, I am unable to see how it would be arguable that that undertaking could be elevated into an obligation to provide a medical report that does more than is specifically referred to in the AGS facsimile.

22. In those circumstances I do not consider that there is an arguable case for relief in the Judiciary Act proceeding. For that reason, I refuse to grant the interlocutory relief which was sought, not only in connection with the appeal from the Tribunal, but also in connection with the Judiciary Act proceeding. Mr Vieru must pay the Minister’s costs of the applications for interlocutory relief. Further, Mr McIlwraith agreed during submissions that, if I were to refuse Mr Vieru any interlocutory relief, then I should also dismiss both his proceedings in

    their entirety. I therefore do so, with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate:

Dated:             20 September 1999

Solicitor for the Applicant:

David McIlwraith

Solicitor for the Respondent:

Australian Government Solicitor

Date of Hearing:

8 and 9 September 1999

Date of Judgment:

Date of Publication:

9 September 1999

20 September 1999