Asaad v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 These reasons relate to a motion filed by the respondent ("the Minister") on 13 June 2008 seeking an order that the proceeding in this Court be dismissed for want of jurisdiction. 2 The applicant, Mr Asaad, has been in immigration detention since August 2005. His application for a protection visa was refused, and the Minister subsequently declined to exercise his power under s 417 of the Act. On 9 May 2008, Mr Asaad was notified that he would be removed from Australia on the following Monday, 12 May 2008. He was also informed of the details of the flights by which he would travel to his country of origin, Syria. 3 Later in the day on 9 May 2008, Mr Asaad made an urgent application to the Court seeking two declaratory orders pursuant to s 198(6) of the Migration Act 1958 (Cth) ("the Act") and an order restraining the Minister in the following terms: '1. A declaration that s 198(6) of the Act does not authorize the removal of a person from Australia in circumstances where the removal would pose a serious threat to the safety of the applicant and of others. 2. Alternatively, a declaration that s 198(6) of the Act does not authorize the removal of a person from Australia in circumstances where he or she is not medically fit to travel. 3. The respondent is restrained from removing the applicant from Australia until further order.' 4 On that application, I ordered that the Minister and his agents be restrained from removing Mr Asaad until further order. I made this order based on evidence that Mr Asaad had a history of epilepsy and psychiatric problems, and that there was cause for concern that the journey to Syria would jeopardise his health. There was some conflicting evidence on this issue, particularly in respect of the efficacy of protective measures to be taken before and during the flight. Although neither side had any real opportunity to test the evidence, I decided it was appropriate, having regard to the balance of convenience and the fact that Mr Asaad had raised an arguable case, to make the restraining order. 5 The primary proposition advanced on the substantive application on behalf of Mr Asaad is that, due to his health problems, it is not "reasonably practicable" within the meaning of s 198(6) of the Act for him to be removed from Australia. Section 198(6) reads: '(6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if: (a) the non-citizen is a detainee; and (b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and (c) one of the following applies: (i) the grant of the visa has been refused and the application has been finally determined; (ii) the visa cannot be granted; and (d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.' (Emphasis added.) 6 Mr Asaad's case is that the expression "reasonably practicable" necessarily involves the making of a decision on questions of health and safety for the relevant non-citizen. Mr Asaad contends that this submission raises an important question of law, namely, the meaning which should be given to the expression "reasonably practicable". He says that he is entitled to know his position under the Act. Therefore, it is said, a real controversy exists between the parties, the question is not merely hypothetical, and the Court has jurisdiction to make declaratory and restraining orders in his favour. 7 The Minister contends that the Court does not have jurisdiction in relation to the matter which Mr Asaad seeks to raise. The Minister submits in the alternative that Mr Asaad cannot succeed because his claim discloses no reasonable cause of action. 8 In relation to the declaratory orders sought, the Minister submits that they are cast in abstract terms and, if made, would not finally determine any controversy between the parties. This, it is said, shows that there is no "matter" in the application on which the Court can exercise federal jurisdiction. The Minister says that the declarations are simply generalised statements of principle, which might possibly form part of the Court's chain of reasoning in relation to a variety of matters, but which cannot be orders made in the exercise of judicial power because they do not address and resolve the position of Mr Asaad. In other words, the orders as framed do not seek declarations as to the rights of the parties in this dispute. There is considerable force in this submission. The dispute, as the Minister points out, arises from the attempt to enjoin the Minister from removing Mr Asaad from Australia. Accordingly, in my view, while the reasoning involved in deciding whether to restrain the Minister from deporting Mr Asaad may relate to a controversy between the parties, the declaratory orders, in the form now sought by Mr Asaad, are not declarations of right and therefore cannot be made by the Court. 9 In relation to injunctive relief, the issue is whether the action to remove Mr Asaad falls within the scope of s 198(6) of the Act. The Minister contends that the relevant action comes within the definition of a "migration decision" in s 476A of the Act, and that this Court therefore does not have jurisdiction. Under s 476A(1) of the Act, this Court only has original jurisdiction in relation to a "migration decision" in four specified circumstances, none of which arise in this case. However, while that provision limits the jurisdiction of this Court, it does not prevent the Federal Magistrates Court from hearing the present proceeding. Under s 476, the Federal Magistrates Court is given the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. Accordingly, the Minister says that the decision as to whether it is "reasonably practicable" to remove Mr Asaad is a decision which is made under s 198(6) of the Act, which comes within the broad definition of "decision" in s 474(3), and which this Court does not have jurisdiction to review. 10 The Minister further submits that, even if the action is not authorised pursuant to s 198(6) (or any other provision) of the Act, it falls within the description of a "purported privative clause decision" as defined by s 5E of the Act, and is by definition (see s 5 of the Act) a "migration decision". Section 5E defines a "purported privative clause decision" as meaning a decision "purportedly made, proposed to be made, or required to be made" under the Act, which would be privative clause decision except for the fact that there was a failure to exercise jurisdiction or an excess of jurisdiction in the making of the decision. 11 Therefore, the Minister says, on either of these two lines of argument, the action or determination which Mr Asaad challenges is a "migration decision" within the meaning of the Act, which this Court does not have jurisdiction to review. 12 Counsel for Mr Asaad submits that this Court has jurisdiction to hear and determine the application for injunctive relief and to make the declarations sought. He contends there is a real controversy between the parties as to the meaning of the expression "as soon as reasonably practicable" in s 198(6) of the Act, and that this controversy, in raising a question as to the correct interpretation of a Commonwealth enactment, involves a "matter" necessary to ground federal jurisdiction. 13 Counsel for Mr Asaad also submits that there is nothing in s 476A to exclude the jurisdiction of this Court in relation to matters which may affect decisions under the Act which are yet to be made. It is submitted that the Minister's reliance on s 5E of the Act is misplaced because any challenge made to the correctness of an opinion prior to taking action (in this case, the removal of Mr Asaad from Australia) is merely part of the decision-maker's reasoning process, and thus cannot itself be a "decision" within the meaning of s 5E. Accordingly, counsel contends, a decision as to whether it is reasonably practicable to remove Mr Asaad would not be "a migration decision" for the purposes of s 476A and the jurisdiction of this Court is not excluded. 14 Counsel for Mr Asaad submits that the issue for determination is whether, in proposing to form an opinion about whether it was "reasonably practicable" to remove a person, the officer making the decision acts outside his or her jurisdiction if he or she misinterprets the meaning of the expression. 15 In response to this, counsel for the Minister relied on the decision of Besanko J in Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006)155 FCR 465. In that case, Besanko J decided that the question of "reasonable practicability" under s 198(6), which question may include an assessment of the relevant non-citizen's physical and/or mental health, is not a jurisdictional fact which conditions the existence of the duty in that provision of the Act. The difficulty for the applicant in that case was that the jurisdictional error was not pleaded in the Statement of Claim because the case proceeded on the assumption that it was sufficient to allege that it was not reasonably practicable, as a matter of fact, to remove the applicant from Australia. His Honour did not consider that was a sufficient ground. On this point, Mr Asaad submits that the present case gives rise to issues different to those canvassed by Besanko J, and that Beyazkilinc 155 FCR 465 is therefore not determinative in this application. 16 As I have decided to transfer the proceeding to the Federal Magistrates Court (see below at [19]-[22]), it is not necessary for me to make a final determination in this case as to whether this Court has jurisdiction to hear and determine Mr Asaad's application. I shall, however, make some brief comments on the submissions advanced before me. 17 As noted above at [10], s 5E of the Act provides that a purported privative clause decision is a decision purportedly made, proposed to be made, or required to be made under the Act,which would be a privative clause decision except for the fact that there was a failure to exercise jurisdiction or an excess of jurisdiction when the decision was made. The word "decision", as it is defined in s 474(3), includes a determination as to whether it is reasonably practicable to remove a person pursuant to s 198(6). Moreover, in light of s 5E of the Act, if the decision under s 198(6) is affected by error (whether by not determining a jurisdictional fact or by some other means), it still "purports" to be a decision and thus is properly described as a "purported privative clause decision". In other words, a decision of administrative character for the purposes of s 474(2) of the Act will have been made, or at least purportedly made. In this case, the decision of an administrative character is the decision that it is reasonably practicable to remove Mr Asaad from Australia. The fact that this decision is impugned as erroneous does not enliven jurisdiction in this Court which is otherwise excluded by s 476A. 18 On the basis of this reasoning, it seems reasonably clear to me that this Court does not have jurisdiction to hear and determine the application. However, even if it were to be eventually found that this Court did have jurisdiction to hear the matter, I am of the view that the convenient and expedient course is to transfer the matter to the Federal Magistrates Court, which undoubtedly has jurisdiction. This is preferable because it shall avoid the risk, which may arise if I proceed to determine the issues raised, of involving the parties in future disputes as to the jurisdiction of this Court. It is appropriate not to address the jurisdictional question, at least insofar as the present application before this Court is concerned, as this is a matter for the Federal Magistrate. It is also not necessary to consider whether the reasonable practicability of a non-citizen's removal is a jurisdictional fact in s 198(6) of the Act. 19 This Court has power under s 32AB of the Federal Court of Australia Act 1976 (Cth) and O 82 r 7 of the Federal Court Rules to transfer a proceeding from this Court to the Federal Magistrates Court on the application of a party or on its own initiative. In deciding whether to transfer a proceeding to the Federal Magistrates Court, this Court is directed by O 82 r 7 to several factors, which it may take into account. These include: whether the proceeding is likely to involve questions of general importance such that it would be desirable for there to be a decision of this Court; whether, if transferred, the proceeding is likely to be determined at less cost and more convenience to the parties; whether, if transferred, the proceeding is likely to be heard and determined earlier; and whether the parties desire the transfer. 20 In this case, I am satisfied that the above considerations, on balance, favour transferring the proceeding to the Federal Magistrates Court, thereby avoiding unnecessary delay and expense resulting from disputes concerning jurisdiction. 21 I note that during argument as to whether the Court ought to transfer the matter to the Federal Magistrates Court, a question arose as to whether this Court has power to remit a "proceeding" to the Federal Magistrates Court where this Court does not have jurisdiction due to the absence of a federal "matter". In my view, the expression "proceeding" in s 32AB of the Federal Court of Australia Act 1976 (Cth) is distinct from the expression "matter" (as used in s 39B(1) of the Judiciary Act 1903 (Cth)) and is sufficiently wide to encompass the present dispute between the parties. I therefore consider that the Court has power to, and should, transfer the proceeding notwithstanding any doubt which may exist as to its jurisdiction to hear and determine the application. 22 Accordingly, I order that this proceeding be transferred to the Federal Magistrates Court. The costs to date shall be costs in the cause. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.