Le v Assistant Minister for Immigration and Border Protection

1. The interlocutory application filed on 11 April 2017 is dismissed.
2. The applicant is to pay the respondent's costs of the application to be taxed failing agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 This is an application filed on 11 April 2017 for an order "that the applicant be released on bail by the respondent, delivering the applicant forthwith to the Queensland Probation and Parole Office at 5 to 7 Wharf Street, Ipswich, Queensland 4305 into the hands of the supervising Corrective Service Officer." 2 There are two immediate difficulties with the application in that form. The first is that I have evidence before me that the applicant, Mr Le, is, in fact, no longer on parole in the Queensland system because the parole order to which he was subject expired on 30 June 2017. It would seem to follow that if Mr Le is released on "bail", he will be at large. 3 The second difficulty is that the application does not identify the source of this Court's jurisdiction to make the bail order sought. When I raised this matter with Mr Boccabella, Mr Le's counsel, he said that he did not wish to be confined to ss 22 and 23 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). He also stated that this was not a mandatory injunction application of the kind that was made in Durani v Minister for Immigration and Border Protection [2013] FCA 1264 (Durani). In the end result, Mr Boccabella relied on habeas corpus under the common law of Australia and pointed to the observations of Gleeson CJ in Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 (Al-Kateb) at [26]. The reliance on those observations is curious because it is apparent from what Gleeson CJ said earlier in his reasons that the orders under consideration in Al-Kateb were based on s 23 of the FCA Act (Al-Kateb at [24]). 4 In my view, Mr Boccabella's difficulty in identifying the source of this Court's jurisdiction to make this bail order is telling. That is so because, having regard to the decision of McKerracher J in Durani, I do not consider any such jurisdiction exists under the Migration Act 1958 (Cth) (the Act) as it presently stands and has stood since 2004. On that issue, I respectfully agree with his Honour's analysis in Durani of: (a) the High Court decision in Al-Kateb at [31]-[35]; (b) the operation of s 196(3) and (4) of the Act vis-à-vis ss 22 and 23 of the FCA Act at [38]-[40]; and (c) the effect of the amendments made to s 196 of the Act by the Migration Amendment (Duration of Detention) Act 2003 (Cth) at [46]-[47]. Accordingly, I also agree with his Honour's conclusion that s 196(4) of the Act prevents this Court ordering the release of an unlawful non-citizen who is being held in immigration detention in circumstances similar to those applying to Mr Le. 5 Having mentioned those circumstances, I should record that Mr Le was a citizen of Vietnam. He came to Australia in January 1986, having been granted an entry permit which had the effect, I am told, of giving him permanent residence from his arrival. He was subsequently granted a series of resident return visas. The last of those visas was cancelled on 22 September 2015 pursuant to s 501(3A) of the Act because Mr Le was, at that time, serving a custodial sentence of more than one year. Following that cancellation, Mr Le sought to have the Minister exercise his power under s 501CA(3). The Minister refused to do so on 22 November 2016. In the meantime, in July 2014, Mr Le's citizenship in Vietnam was removed and he is now a stateless person. 6 I should add that I do not consider Durani can be distinguished on the footing that there was some prospect of Mr Durani being deported to India whereas, as a stateless person, Mr Le currently has no prospect of that occurring. This state of affairs may well be a significant factor in the substantive hearing of Mr Le's application, but it is not, in my view, a matter that has any relevant effect at this interlocutory stage. 7 I should also note that a Full Court of this court in Ongel v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 239 considered s 196(4) of the Act and held that the Court did not have the power to release a person who was in detention on "bail" pending the determination of his substantive proceeding. That decision, it seems to me, is binding on me. The position Mr Le, therefore, finds himself in is that the Parliament of Australia has determined his present status as a detained unlawful non-citizen. As McHugh J said in Al-Kateb at [74]: Under the aliens power, the Parliament is entitled to protect the nation against unwanted entrants by detaining them in custody. As long as the detention is for the purpose of deportation or preventing aliens from entering Australia or the Australian community, the justice or wisdom of the course taken by the Parliament is not examinable in this or any other domestic court. It is not for courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to basic human rights. The function of the courts in this context is simply to determine whether the law of the Parliament is within the powers conferred on it by the Constitution. The doctrine of separation of powers does more than prohibit the Parliament and the executive from exercising the judicial power of the Commonwealth. It prohibits Chapter III courts from amending the Constitution under the guise of interpretation. 8 Having reached this conclusion, it is unnecessary to consider the usual factors that would apply in an interlocutory injunction application, noting that, as I have already mentioned above, Mr Boccabella eschewed that characterisation of this application. 9 For these reasons, I dismiss Mr Le's interlocutory application filed on 11 April 2017. 10 Since this application dealt with the discrete issue of bail, I do not consider the outcome of the substantive proceedings will have any bearing on the question of costs. I therefore consider that costs should follow the event and Mr Le should be ordered to pay the Minister's costs of this application, to be taxed failing agreement. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.