Applicant S453 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant commenced these proceedings in the original jurisdiction of the High Court on 12 August 2003. He seeks orders that constitutional writs be directed to the respondent ('Minister'), pursuant to s 75(v) of the Constitution. Section 75(v) provides that the High Court shall have original jurisdiction in all matters: '[I]n which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.' 2 The draft order nisi filed on behalf of the applicant identifies the orders sought by him as follows: '2. Order that quashes the decision of the Minister; a decision that prohibited me from working paid job and from studying for nearly four years. 3. Order that compel [sic] the Minister to give me access to Medicare. 4. Order that compel [sic] the Minister to compensate me for the moral, physical, mental and professional damage I received and still receiving as a result of the unreasonable decision of the Minister.' 3 The grounds identified by the applicant in the draft order nisi are as follows: '5. The law that is adopted by the Minister or by the Parliament to prohibit a lawful person/asylum seeker who is in this country from engaging in work or from getting reliable and adequate support for nearly four years is unreasonable, unrealistic and illogical. This law also does not indicate or gives other alternatives how a lawful person/asylum seeker could sustain himself or herself without working or getting reliable and adequate support. This law only serves as a punitive measure. 6. This law that prohibit [sic] a lawful person/asylum seeker who is staying in this country from working paid job or from getting reliable and adequate support for nearly four years is against Article 1(2) of the United Nations INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS which Australia is a party.' 4 On 16 February 2004, Heydon J ordered that further proceedings in the application, including any application for enlargement of time, be remitted to this Court. The remittal is subject to the right of either party to have the matter reconsidered by a Justice of the High Court in the event that any steps desired to be taken cannot be taken in the Federal Court. 5 The Federal Court Rules ('FCR'), O 51A r 5, provide as follows: '(1) Subject to subrule (2) and to any Act to the contrary, when the Court or a Judge hears an application remitted by the High Court for an order nisi for a constitutional writ, the Court or Judge: (a) will at the same time hear the parties on whether, if the order nisi were for made, it should be made absolute; and (b) if satisfied that an order absolute should be made, will not make the order nisi, but will proceed directly to make the order absolute. (2) In a particular case, the Court or Judge may order that subrule (1), or any part of it, does not apply.' 6 The remitted matter came before me for directions on 29 July 2004. I made an order pursuant to FCR, O 51A r 5(2) that subrule (1) was not to apply to this case. I also directed that the hearing set down for 25 August 2004 should consider only the application for an order nisi. It is open to the Court to make such an order: Applicants S61 of 2003 v Refugee Review Tribunal (2004) 206 ALR 461, at 466-467 [27], per Branson J, with whom Moore and Emmett JJ agreed; see also Applicant M171/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 220. 7 To obtain an order nisi for a writ of prohibition or certiorari, a party must show that he or she has an arguable case that would justify the grant of final relief by way of an order absolute. In the present circumstances, this requires the applicant to show that he has an arguable case that the decisions he challenges were affected by jurisdictional error: Re Australian Nursing Federation; Ex parte State of Victoria (1993) 112 ALR 177, at 183, per McHugh J. 8 The applicant has also filed a motion seeking to join the Commonwealth as a respondent to the proceedings. Mr Markus, who appeared for the respondent (the 'Minister') said at the hearing that although the Australian Government Solicitor had been served with the motion, he dot not have instructions to act on behalf of the Commonwealth. I indicated that I would hear the applicant's case and then determine what orders should be made in respect of the motion.

SUBMISSIONS 30 The applicant has filed written submissions. While they are discursive in form, it appears that he may have been assisted by someone who has some acquaintance with legal matters. A reading of the submissions suggests that the applicant is, in substance, making the following contentions: (i) Migration Regulations, Sch 2 cl 050.612A is beyond the powers conferred by the Migration Act. (ii) The relevant provisions of the Migration Regulations have not been enacted by the Minister but by some 'unrepresentative officials'. Presumably it is said that, for this reason, the relevant provisions are invalid. (iii) The Migration Regulations, insofar as they prevent the applicant from taking paid employment, violate an implied constitutional guarantee of 'fundamental human rights'. Alternatively, it is said that the prohibition infringes international instruments, such as the International Covenant on Civil and Political Rights. (iv) The Minister (or possibly the Commonwealth) has failed in her (or its) duty of care to the applicant, thereby causing him physical and mental suffering. 31 The application filed in this Court does not seek a declaration or any other order specifically referable to the claim now made that cl 050.612A of Sch 2 is beyond the powers conferred by the Migration Act. The first order sought by the applicant is one quashing a decision by the Minister which is said to have prohibited him from working in paid employment. That decision is not identified in the application. However, I assume that the applicant intends to challenge the imposition of conditions 8101 and 8207 on the grant of his current bridging visa. 32 Clause 050.612A(2) of Sch 2 to the Migration Regulations requires condition 8101 to be imposed upon a subclass 050 Bridging (General) visa. Given this requirement, it is by no means clear that there has been any 'decision' made to impose condition 8101 upon the applicant's bridging visa. Leaving that difficulty to one side, I do not think that the applicant has made out an arguable case that cl 050.612A is beyond the powers conferred by the Migration Act, insofar as the clause requires the imposition of condition 8101 on a bridging visa. Section 41(1) of the Migration Act states that the Migration Regulations may provide that visas, or visas of a specified class, are subject to specified conditions. Section 41(2) states that, without limiting s 41(1), the Migration Regulations may provide that visas of a specified class are subject to a condition imposing restrictions about the work that the holder can do in Australia including a restriction on doing any work: (s 41(2)(b)(i)). This language is clearly wide enough to authorise a regulation imposing a condition that the holder of a bridging visa must not engage in any work in Australia. Indeed the legislation appears to be designed to provide for precisely such a regulation. 33 The applicant, in his written and oral submissions, complains that the delegated legislation requiring the imposition of condition 8101 on a bridging visa is unreasonable, arbitrary and perverse. I can well understand that he feels aggrieved that he is not permitted to work or study notwithstanding that he has been in the country for seven years (albeit as a consequence of a series of legal proceedings initiated by him, all of which have thus far been unsuccessful). It is not for the Court to make a judgment on the wisdom or otherwise of the no-work condition imposed on holders of bridging visas. That is not a consideration that goes to the validity of cl 050.612A(2). 34 The applicant also challenges the decision of the Minister to impose condition 8207 on his bridging visa, thereby prohibiting him from engaging in any studies or training in Australia. Section 41(1) of the Migration Act, of itself, may not be wide enough to authorise regulations conferring upon the Minister (or her delegate) a discretionary power to impose conditions on a visa holder relating to studies or training. However, s 41(3) of the Migration Act provides that, in addition to any conditions specified under s 41(1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of the subsection. Regulation 2.05(2) provides that, for the purposes of s 41(3), the conditions that the Minister may impose on a visa are those specified in the relevant Part of Sch 2. Clause 050.612A(3) of Sch 2, read in conjunction with the visa conditions specified in Sch 8, is within the scope of the power conferred by s 41(3) of the Migration Act and authorises the imposition of condition 8207 on the applicant's bridging visa. 35 The applicant's written submissions refer to s 91R of the Migration Act. This section, however, is concerned with the definition of the concept of 'persecution' and does not bear on the validity of the provisions under challenge. 36 The applicant's written submissions also invoke the provisions of various international instruments, such as the International Covenant on Civil and Political Rights. But, unless the conventions or international treaties to which Australia is a party to have been validly incorporated into Australian municipal law, they do not form part of Australian law: Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273, at 286-287, per Mason CJ and Deane J; 298, per Toohey J; 304, per McHugh J. It is not clear whether the applicant intends to challenge any part of the Migration Act on the ground that it is inconsistent with Australia's treaty obligations. If so, the argument is manifestly unsound and, in my view, does not require the giving of a notice pursuant to s 78B of the Judiciary Act 1903 (Cth): Amrit Lal Narain v Parnell (1986) 9 FCR 479, at 489, per Burchett J; Applicant NAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 125 FCR 488, at 493 [31], per curiam. 37 The draft order nisi seeks an order compelling the Minister to grant the applicant 'access to Medicare'. Any entitlement to benefits under the Medicare system is governed by the Health Insurance Act 1973 (Cth). The applicant has not identified any basis upon which he might be entitled to Medicare benefits. 38 Nor has the applicant identified any relevant duty of care owed by him by the Minister or the Commonwealth. Any physical or mental harm the applicant alleges he has suffered appears to be the result of conditions validly imposed upon his bridging visa. Even if a duty of care could be formulated, there would be no breach simply by the Minister or the Commonwealth acting in conformity with the requirements of, or the authority granted by, the Migration Act and the Migration Regulations. 39 The applicant has failed to establish any arguable case for the relief he seeks. The application for an order nisi should be dismissed. The motion seeking to join the Commonwealth as a party should also be dismissed. The applicant must pay the Minister's costs of the proceeding. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

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