La Bara v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is a proceeding claiming declarations and an interlocutory injunction restraining the removal from Australia of the applicant. The proceeding was transferred to this Court by order of a Federal Magistrate made on 28 April 2008 pursuant to s 39 Federal Magistrates Act 1999 (Cth). 2 The applicant is a citizen of Indonesia. He came to be on the Australian mainland after representatives of the Australian Fisheries Management Authority boarded his fishing vessel in waters between Australia and Indonesia, took him and his crew into custody and destroyed the fishing vessel. At the time of the hearing, the applicant was detained in the Immigration Detention Centre at Berrimah in the Northern Territory. I was informed that a decision had been taken by the appropriate authorities not to prosecute the applicant for any offence and that the applicant's enforcement visa had, as a consequence, ceased to exist. For that reason, the applicant was "covered by subparagraph 193(1)(d)" within the meaning of subs 198(2) of the Migration Act 1958 (Cth) ('the Act') and, consequently, liable to removal from Australia in accordance with that subsection. He sought an injunction to prevent that from occurring. 3 On 28 April 2008, the applicant issued in the Supreme Court of the Northern Territory the proceeding that was eventually before me. By reason, presumably, of the Supreme Court's lack of jurisdiction to hear the matter, the applicant sought to have the matter heard by this Court. The proceeding was listed for hearing before me late in the afternoon on 28 April 2008 as a matter of urgency, as the applicant's removal was to occur the following morning. The applicant sought an interim injunction for a period of about a week to restrain his removal from Australia. At the hearing, counsel for the respondents submitted at the outset that the Court lacked jurisdiction by reason of this Court's limited jurisdiction in migration matters: s 476A of the Act. Counsel for the applicant did not contend otherwise and he informed the Court that the applicant would instead issue proceedings in the Federal Magistrates Court. I made no order and adjourned. Subsequently, the Federal Magistrate ordered that the proceeding be transferred to this Court and the matter was listed for hearing before me, again as a matter of urgency, in the evening on 28 April 2008. At this stage, proceedings had not been formally filed in the Federal Magistrates Court, nor in this Court, and the originating process and affidavits were in Supreme Court forms. Upon counsel for the applicant undertaking to issue proceedings in the Federal Magistrates Court and to file the affidavits upon which he relied, I proceeded to hear the substance of the application. At the conclusion of the hearing, I ordered that the application for an interim injunction be refused and said that I would deliver reasons in due course. The following are my reasons for refusing the application for an interim injunction. 4 The matters a court must consider on an application for an interim injunction are well-known. They were explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623 per Kitto, Taylor, Menzies and Owen JJ and recently reiterated in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65]-[72] per Gummow and Hayne JJ (Gleeson CJ and Crennan J agreeing at [19]). In this case, I was not satisfied that the applicant had made out a prima facie case. The applicant's submissions were put in terms of there being two "serious questions to be tried" (see Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153). It is permissible to approach the issue as one of whether there is a serious question to be tried provided that whether a question to be tried is a 'serious' question is understood to depend upon the same considerations, explained in Beecham 118 CLR 618, which go to the strength of the probability upon which the existence of a prima facie case turns: O'Neill 227 CLR 57 at [70] per Gummow and Hayne JJ (Gleeson CJ and Crennan J agreeing at [19]). 5 The applicant alleges that his detention and removal into Australia against his will and the destruction of his fishing vessel were unlawful and that he has causes of action under Australian law against the Commonwealth of Australia in connection with those events. The applicant's contention as to the serious question to be tried is not the question of the Commonwealth's liability for the applicant's apprehension, rendition and detention or for the destruction of the applicant's vessel. The applicant submitted that there were two serious questions to be tried and that they were sufficient to justify the granting of an injunction to restrain his removal from Australia, at least on an interim basis. First, he submitted that his removal from Australia would "sterilise" his common law rights to obtain legal advice and to instruct legal advisers in connection with his claim for damages against the Commonwealth. Secondly, he submitted that his removal would contravene a right of consular access which arises under the Vienna Convention on Consular Relations [Opened for signature 24 April 1963. 596 UNTS 261, Art 36 (entered into force 19 March 1967) (entered into force for Australia 14 March 1973)] ("the Convention"). Either or both of these "rights" were said (at least on a prima facie basis) to override or at least to qualify the obligation of the Commonwealth or its officers under the Act to remove the applicant from Australia. 6 The applicant relied upon two affidavits, one of a Kerry Anne Sibley, and one of a Wahono Yulianto. The respondent did not object to the affidavits being read. 7 Ms Sibley is a solicitor and the effect of her evidence is that she is instructed to prosecute a claim for damages arising from the detention of the applicant and the destruction of his fishing vessel; that in order to carry out those instructions, she needs to take further and more detailed instructions; and that communication with the applicant, if he is deported to Indonesia, will be difficult. An appointment between Ms Sibley and the applicant was scheduled for the morning of 29 April 2008. 8 Mr Yulianto is a diplomatic representative of the Republic of Indonesia and the effect of his evidence is that he has met the applicant three times and obtained information "on a preliminary basis" from the applicant about the applicant's detention and the destruction of the applicant's fishing vessel. He says that he needs more time to communicate with the applicant for the purpose of preparing a full report on the matter for the Indonesian Ambassador. 9 The claim that there is a serious question to be tried as to the "sterilisation" of the applicant's common law rights to instruct legal advisers and obtain legal advice can be rejected on any one of a number of grounds. The respondent's submission was that, assuming such a common law right to exist, it could not prevail over the statutory obligation in the Act to remove the applicant. It is clear, in my opinion, that such common law right to instruct legal advisers as may exist - and the applicant never articulated the precise basis or scope of this alleged right - cannot entail a right in the applicant to remain in Australia. It is true, as the respondent submitted, that the statutory obligation to remove the applicant could displace the applicant's common law rights. Although I would not readily impute to the legislature an intention to displace those rights absent a clear statement of that intention, in my opinion the mandatory command of s 198 is expressed in clear and unambiguous language. In this regard, I refer to the decision of the High Court on the interpretation, in a different factual context, of ss 189, 196 and 198 of the Act in Al-Kateb v Godwin (2004) 219 CLR 562 and, in particular, at 581 per McHugh J and at 643 per Hayne J (Heydon J agreeing at 662-3). Their Honours held that the provisions, being sufficiently clear, could not be read as subject to any intention not to affect fundamental rights. The shorter answer, however, is that neither the power to remove the applicant, nor the actual removal of the applicant, displaces any cause of action he may have against the Commonwealth or his right to instruct legal advisers in connection with such cause of action. I was told that his personal circumstances in Indonesia are such that it will be practically difficult for him to instruct legal advisers in Australia. That may be so, but does not constitute sufficient reason to restrain his proposed removal. 10 The claim that there is a serious question to be tried in relation to a right said to arise from the Convention was put on a somewhat shifting basis. It is plain that the Convention itself cannot be the source of rights under Australian law. Some provisions of the Convention have been incorporated into Australian law in the Consular Privileges and Immunities Act 1972 (Cth) but the applicant did not seek to rely upon this Act. The applicant cited Article 36 of the Convention, which deals with communication between consular officials and nationals of the officials' sending state, but that article is not incorporated into the domestic law. The applicant expressly did not contend that the rights expressed in the article had attained the status of customary international law and, even if they had, it by no means follows that they are for that reason enforceable by this Court. The applicant submitted primarily that the Convention, ratified by the Commonwealth, would be "a relevant consideration in relation to the ability of the Minister to remove" a foreign national from Australia. It was not made clear whether the applicant used the phrase "relevant consideration" in the administrative law sense, namely, a condition of the lawful exercise of the statutory power to deport, or whether the submission was as to the interpretation of the scope of the power. Counsel for the respondents evidently understood the submission against them to be of the latter form and submitted that although unincorporated treaties can be used as an extrinsic aid to interpretation, this was not an appropriate case. It matters little, for the applicant cannot succeed on either basis, as I will explain. 11 The proper use of unincorporated treaties in the interpretation of statutes is limited. The Act is not one which gives effect to the Convention. Nevertheless, Parliament is presumed to have intended to legislate in conformity with Australia's international obligations: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ. That presumption is, however, rebutted by unambiguous language: Polites v Commonwealth (1945) 70 CLR 60. Although ambiguity in a statute may be resolved in favour of the interpretation consistent with those obligations, no relevant ambiguity was identified by the applicant in the present case. Nor is any ambiguity discernible. I refer again to the decision of the High Court in Al‑Kateb 219 CLR 562 and especially at 642 per Hayne J and at 661 per Callinan J. It is not open on the language of the Act to interpret the power to remove an unlawful non-citizen as subject to the provisions of the Convention, least of all unincorporated provisions. 12 The power to remove in s 198(2) is to be exercised "as soon as reasonably practicable" and is a mandatory, rather than discretionary power. In my opinion, the Convention is not, having regard to the language of the Act, its purpose and subject-matter, a relevant consideration to the exercise of the power in the sense that an officer acting under the section would exceed his or her jurisdiction in not having regard to its provisions. I would not wish to foreclose an exceptional case in which some aspect of consular relations between an unlawful non-citizen and the diplomatic personnel of the non-citizen's State was such as to render it not "reasonably practicable", within the meaning of the Act, to remove the non-citizen. This case, however, is not such a case. The applicant has not been denied consular access, as the evidence reveals he has met on three occasions with Mr Yulianto. The collection of information by the Indonesian government about the applicant's circumstances and his treatment by the Australian government will not be affected by the applicant's removal to Indonesia. The Convention does not provide the applicant with any basis to assert a right to remain in Australia. 13 For these reasons the applicant did not establish any entitlement to remain in Australia nor any prima facie basis for such an entitlement. Therefore, I found there to be no prima facie case or serious question to be tried and it was unnecessary for me to consider the balance of convenience. Accordingly, I refused the application for interim injunctive relief. 14 The applicant sought an order for the preservation and delivery up of the applicant's GPS system, which had been seized by Commonwealth authorities prior to the destruction of his fishing vessel and which, I was told, would be evidence in any action for damages by the applicant against the Commonwealth. The respondents consented to the making of such an order and the order was made. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.