Lee v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 In this proceeding which came before me yesterday the applicant, by his second amended application then filed, claims the following: (1) A Declaration pursuant to s 151 Migration Act 1958 that the applicant is entitled to a warrant staying his removal from Australia for the purposes of the administration of criminal justice in relation to an offence against a law. (2) An Order that a warrant be issued staying the removal of the applicant from Australia pending hearing of the Applicant's appeal in the District Court on 22 July 2008, plus 28 days, being an appeal from the Applicant's conviction in the Burwood Local Court on 22 October 2007. 2 Section 151 of the Migration Act 1958 (Cth) (the Act) provides: (1) If an unlawful non-citizen is to be, or is likely to be, removed or deported, this Act does not prevent a court issuing for the purposes of the administration of criminal justice in relation to an offence against a law a warrant to stay the removal or deportation. (2) If a criminal justice stay warrant about a non-citizen is in force, the non-citizen is not to be removed or deported. (3) If a court issues a criminal justice stay warrant about a non-citizen, the applicant for the warrant is responsible for the costs of any maintenance, accommodation or immigration detention of the non-citizen while the warrant is in force. A warrant described in s 151 is called a criminal justice stay warrant: s 142 of the Act. 3 It is common ground that the applicant is an unlawful non-citizen who is to be, or is likely to be, removed or deported within s 151(1). The notions of removal and deportation refer to removal or deportation from Australia: see the definitions of "remove" and "deportation" in s 5 of the Act. 4 It is not necessary for me to outline the history of the applicant's period of residence in Australia. What is immediately relevant is that on 22 October 2007 he was convicted in the Burwood Local Court of assault occasioning actual bodily harm (see s 59(1) of the Crimes Act 1900 (NSW)). He has appealed against that conviction and the appeal is currently for hearing in the District Court of New South Wales at Campbelltown on 22 July 2008. The applicant wishes to prosecute that appeal and to tender on the hearing of the appeal expert evidence from a psychologist and from a forensic psychiatrist. 5 It will be noted at once that s 151(1) of the Act does not purport to confer power to issue a criminal justice stay warrant or to make a declaration that a person is entitled to have one issued. The question of this Court's power to issue such a warrant occupied debate yesterday. I am of the view that s 151 does not give the Court power to grant the applicant the relief he seeks. 6 Consistently with this view, it will be noted that s 151 refers to "a court". The section assumes the existence of courts that are otherwise invested with power to issue criminal justice warrants. 7 In written submissions handed up in Court a short while ago it is stated that the applicant now resiles from an argument he advanced yesterday that the necessary power is to be found in s 151 of the Act. Nonetheless, I will address s 151 because in the course of argument today counsel for the applicant has returned to it. 8 Section 151 occurs in Div 4 of Pt 2 of the Act. Division 4 is headed "Criminal justice visitors." Section 141 states that Div 4: ... is enacted so that, if the administration of criminal justice requires the presence in Australia of a non-citizen, that non-citizen may be brought to, or allowed to stay in, Australia for the purposes of that administration. 9 The expression "administration of criminal justice" is defined in s 142 of the Act as follows: administration of criminal justice means: (a) an investigation to find out whether an offence has been committed; or (b) the prosecution of a person for an offence; or (c) the punishment by way of imprisonment of a person for the commission of an offence. The references to investigation, prosecution and punishment in the definition make it clear that the relevant perspective is that of the administrators of the criminal justice system, not that of a person who may be suspected of having committed a criminal offence, or who is being or has been prosecuted for an offence, or who has been or may be punished by way of imprisonment for the commission of an offence. Indeed, the bare expression "administration of criminal justice", even independently of the definition, would, to my mind, indicate the perspective mentioned. 10 The views expressed above are supported by the scheme of the provisions in Div 4. 11 Subdivision B of Div 4 provides for the issue of criminal justice entry certificates and Subdiv C provides for the issue of criminal justice stay certificates, or, of present relevance, criminal justice stay warrants. 12 Subdivision C is concerned with unlawful non-citizens who are to be or who are likely to be removed or deported. Section 147 provides that in such a case if, inter alia, the Attorney-General considers that the non-citizen should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of the Commonwealth, the Attorney-General may give a certificate that the stay of the non-citizen's removal or deportation is required for the administration of criminal justice. 13 Just as s 147 provides for the issue of Commonwealth criminal justice stay certificates, s 148 provides for the issue of State criminal justice stay certificates. Predictably, whereas s 147 relates to offences against the law of the Commonwealth, s 148 relates to offences against the law of a State. Section 148 empowers an authorised official for a State, in certain circumstances, to give a certificate that the stay of a non-citizen's removal or deportation is required for the administration of criminal justice by the State. 14 Section 150 provides that if a criminal justice stay certificate (defined in s 142 as a certificate given under s 147 or s 148) about a non-citizen is in force, the non-citizen is not to be removed or deported. 15 Sections 147 and 148 are "enacted in the public interest in the administration of justice" and "are, on the face of it, not intended to create any rights or privileges on the part of the unlawful non-citizen": Goldie v Commonwealth of Australia [2002] FCA 261 at [36] per French J. Similar observations are applicable to s 151 in my view, and see, to a similar effect, In the matter of an application by Solomon Barudea for a warrant under s 151(1) of the Migration Act 1958 (Cth) [1995] VSC 55 at [22]. 16 I return now to the terms of s 151. The reference to a "court" in that section has an ambulatory operation and refers to any court otherwise seized of power to issue a warrant to stay a removal or deportation for the purposes of the administration of criminal justice in the particular jurisdiction, Commonwealth or State as the case may be. 17 The picture that emerges from the above provisions is that they are concerned with investigation, enforcement and punishment within the criminal justice system of the Commonwealth or of a State respectively. Although I was not directed to any other provision of Commonwealth or State legislation, it seems reasonable to expect that it will be a court invested with jurisdiction in respect of Commonwealth or State investigation, prosecution or punishment that will have power to issue a criminal justice stay warrant in relation to it - in the present case a court of the State of New South Wales. 18 There are at least two other considerations suggesting that s 151 does not give this Court the power to issue a criminal justice warrant on the present application. The first is found in definitions contained in s 142. A "criminal justice entry certificate" is a certificate "given under" one or other of various specified sections, and a "criminal justice stay certificate" is a certificate "given under" s 147 or s 148. In contrast a "criminal justice stay warrant" is simply a warrant "described in" section 151. That is to say, the words "given under" are absent in the latter case. The reason is that a criminal justice stay warrant is not "given under" s 151. 19 The second consideration depends on the legislative history of s 151. Section 151 was originally s 54G of the Act. Section 54G formed part of Div 3 of Pt 2 and was inserted in the Act by the Migration Reform Act 1992 (Cth) (No 184 of 1992). Division 3 of Pt 2 became Div 4 of Pt 2, and s 54G became s 151, following the renumbering effected by the Migration Legislation Amendment Act 1994 (Cth) (No 60 of 1994). 20 In the Explanatory Memorandum for the Migration Reform Bill 1992, para 182 stated of the then proposed s 54G (see now s 151) that the purpose of the section was to ensure that the powers created by Div 3 (see now Div 4) did not interfere with the power of a court to issue a warrant requiring that a non-citizen not be removed or deported. That paragraph of the Explanatory Memorandum also stated: The section [s 54G] also makes it clear that the applicant to the court for the warrant (ie the relevant law enforcement agency) is responsible for any accommodation, maintenance, or migration detention costs associated with requiring that non-citizen to remain in Australia. [my emphasis] This statement is consistent with my statement earlier that the perspective that permeates Div 4 is that of the administrators of the criminal justice system. In sum, the applicant does not have standing to apply for a criminal justice stay warrant under s 151. 21 It appears that the purpose of s 151 is to carve out an exception to s 153. Section 153 provides: (1) Subject to subsection (2), if: (a) this Act requires the removal or deportation of a non citizen; and (b) there is no criminal justice stay certificate or criminal justice stay warrant about the non-citizen; any other law, or anything done under any other law, of the Commonwealth or a State (whether passed or made before or after the commencement of this section), not being an Act passed after that commencement expressed to be exempt from this section, does not prevent the removal or deportation. (2) Subsection (1) does not permit the removal or deportation of a non-citizen if that removal or deportation would be in breach of an order of the High Court, the Federal Court or the Federal Magistrates Court. 22 Section 198(6) of the Act would have the effect in the present case of requiring an officer to remove or deport the applicant from Australia "as soon as reasonably practicable". Accordingly, paras (a) and (b) of s 153(1) are satisfied. Subsection (2) of s 153 limits the operation of the concluding words of subs (1) of that section, but one must look elsewhere to find a power in this Court to make an order of the kind referred to in subs (2). 23 Today counsel for the applicant seeks to rely on s 39B(1) or s 39B(1A) of the Judiciary Act 1903 (Cth), which provide, relevantly, as follows: (1) ... the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. In relation to s 39B(1) it is put that this Court has jurisdiction because an injunction is sought against an officer of the Commonwealth, namely, the Minister for Immigration and Citizenship. In relation to s 39B(1A) it is put that this Court has jurisdiction because the "matter" in question arises under a law made by the Commonwealth Parliament, namely, the Act. Counsel has made it clear that the relief that he seeks is final relief rather than interlocutory relief, although I do not think that the distinction is critical here. 24 In his submissions, counsel for the applicant says that the criminal justice stay warrant referred to in s 151 is, in substance, an "injunction." I need not discuss this submission and am content to approach the matter on the assumption that the applicant seeks an injunction against the Minister. 25 Ultimately, the problem which the applicant still has is to demonstrate a case for the granting of injunctive relief. 26 Section 198(6) of the Act is mandatory in its terms. It has the effect that an "officer" (defined in s 5 of the Act) must remove the applicant from Australia "as soon as reasonably practicable". The fact that the applicant desires to prosecute his appeal on 22 July 2008 does not render it not "reasonably practicable" for an officer to remove him from Australia prior to that date. This Court does not have a general jurisdiction to relieve from the effect of s 198(6). 27 For the above reasons, the Court will order that the application be dismissed and that the applicant pay the respondent's 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 Lindgren.