Madafferi v Minister for Immigration & Multicultural Affairs

5 By application filed on 31 October 2000 ("the substantive proceeding") the applicant sought review by the Court of the Minister's decision under s 501A. The application stated grounds contained in ss 476(1)(a), (b), (e), (f) and (g) of the Migration Act. Extensive particulars are set out in the application. The application seeks a determination that "the purported decision of the [Minister] of 18 October 2000" is null and void and of no effect. 6 The applicant also filed a notice of motion on 31 October 2000 seeking orders that pending the hearing and determination of the substantive proceeding (which is listed for trial on 15 March 2001): · the operation of the decision of 18 October 2000 be stayed; · the implementation of the decision be stayed; · the Minister be restrained from treating the applicant as an unlawful non-citizen; · the Minister be restrained from treating the applicant as other than the holder of a visa.

The applicant having given the usual undertaking as to damages, the primary judge made the order of 1 November 2000. The motion before the Court is for leave to appeal from that order. 7 The proposed grounds of appeal are as follows: "Grounds 2. His Honour erred in:- (a) applying the test for the grant of an interlocutory injunction purporting to exercise the Court's powers under section 482 of the Act. (b) considering himself bound to follow Ooi v Minister for Immigration & Multicultural Affairs [2000] FCA 514; (c) construing the decision in Ooi v Minister for Immigration & Multicultural Affairs [2000] FCA 514 as permitting the application of the test for granting an interlocutory injunction to a motion for relief pursuant to section 482; (d) finding that the applicant's personal and family circumstances were relevant to the operation of section 482(2); (e) finding that it was arguable that section 501A did not apply in the circumstances because the decision of the Administrative Appeals Tribunal relating to the applicant was not a decision 'to grant a visa' within the meaning of section 501A(1)(c). 3. The learned trial judge ought to have found that:- (a) upon its proper construction, section 482(2) does not permit application of the test for the grant of an interlocutory injunction; (b) upon its proper construction, section 482(2) requires an applicant to satisfy the Court that, in the absence of an order of the Court, there are circumstances that would be prejudicial to securing the effectiveness of the hearing and determination of the application; (c) there was no evidence that, in the absence of an order of the Court, the effectiveness of the hearing and determination of the application would in any way be prejudiced; and (d) upon a proper construction of section 501A(1)(c), the decision of the Administrative Appeals Tribunal relating to the applicant was a decision 'to grant a visa' within the meaning of section 501A(1)(c)." 8 Section 482(2) of the Act relevantly provides as follows: "(2) If an application is made to the Federal Court under section 476…, a Judge of the Federal Court may make such orders of the kind referred to in subsection (3) as that… Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal." 9 The reference to "the appeal" in s 482(2) must be a reference to a relevant application for review made under s 476. The wording appears to have been borrowed unthinkingly from s 44A(2) of the Administrative Appeals Tribunal Act 1975. Under that Act, a proceeding before the Federal Court for review under s 44 of a decision of the Administrative Appeals Tribunal is referred to as "an appeal", whereas, under the Act a relevant proceeding is referred to as an "application". 10 It is clear that the expression "for hearing and determination of the appeal" in s 482(2) is a composite expression. The Court is required to hear and determine the proceeding. The first question that arises on the leave application and on the hearing of the appeal if leave is granted, is whether the Court has jurisdiction and power to make an interlocutory order of the nature sought otherwise than under s 482(2). 11 Under s 23 of the Federal Court of Australia Act 1976, the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. 12 Where a statute, (such as the Administrative Decisions (Judicial Review) Act 1977 (Cth)), confers express power to make interlocutory orders in relation to proceedings under that statute, such a provision does not derogate from the width of the powers given to the Court by s 23 for use in an appropriate case. However, an interlocutory order under s 23 could not travel beyond the jurisdictional powers conferred by the Act itself by way of final relief: Minister of Immigration v Msilanga (1992) 34 FCR 169 at 179-181. 13 The substantive proceeding must be considered within the framework of Part 8 of the Act, since the jurisdiction and powers of the Court are constrained by the provisions of that Part. Specifically, s 485(1) of the Act provides that the Federal Court does not have any jurisdiction in respect of judicially reviewable decisions other than the jurisdiction provided by Part 8 itself or by s 44 of the Judiciary Act 1903. Section 44 has no present application. A judicially reviewable decision includes a decision made under the Act relating to visas: s 475(1)(c). The decision under review in the substantive proceeding is clearly a decision relating to a visa since it is a decision to refuse an application for a visa. 14 A distinction must, of course, be drawn between jurisdiction of the Court on the one hand and powers on the other. Jurisdiction is conferred on the Court by s 486 of the Act, which provides that the Court has jurisdiction "with respect to judicially reviewable decisions". Section 485(1) limits the jurisdiction of the Court in relation to judicially reviewable decisions to the jurisdiction conferred by Part 8. Sections 481 and 482 then delimit the powers of the Court in the exercise of that jurisdiction. 15 The thrust of the argument advanced on behalf of the applicant is that s 481 of the Act is the source of relevant power. Section 481(1) provides as follows: "481 Powers of the Federal Court (1) On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders:

(a) an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specifies;

(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;

(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties." 16 The applicant's contention places considerable emphasis on s 481(1)(d). However, if the effect of s 481(1)(d) is to confer power to make interlocutory orders, s 482(2) would be virtually otiose. The overall language of s 481(1) indicates that it is concerned with the final relief that the Court may grant. For example, none of the orders set out in paragraphs (a), (b) or (c) could be anything other than final orders. Section 481(1)(d) must, therefore, be construed as relating only to final orders. Section 482(2) then delimits the power of the Court to intervene on an interlocutory basis. 17 The decision under review in the substantive proceeding is the decision to refuse a permanent resident visa. The consequence of that decision is that the applicant became an unlawful non-citizen again. As such, he became liable to detention pending his removal from Australia. An officer of the Department has confirmed that no removal action would be taken whilst there are proceedings before the Court. Accordingly, there is no threat of removal pending the final determination of the substantive proceeding. 18 If there were a threat to remove the applicant prior to the determination of the substantive proceeding, that may be a basis for attracting s 482. That is to say, the effectiveness of the hearing fixed for 26 February 2001 could be significantly impeded by the removal of the applicant from Australia. The question, however, is whether the mere detention of the applicant pending the final determination of the substantive proceeding could in any way impact upon the effectiveness of the hearing and determination of the substantive proceeding. 19 The primary judge adopted the conventional approach in relation to an application for interlocutory relief pending final determination of a substantive proceeding. That is to say, His Honour considered whether there was a serious question to be tried. Having determined that the substantive proceeding raises a serious issue to be tried, His Honour then considered the balance of convenience. 20 Determining the balance of convenience involves weighing the inconvenience to the applicant, assuming that the applicant is ultimately successful, in being deprived of relief pending determination of the substantive proceeding against the inconvenience to the respondent, assuming the applicant ultimately fails, of giving the applicant relief pending final determination. That is a discretionary matter. If the test adopted by His Honour is the correct test, there is no basis for suggesting that His Honour erred in principle in the exercise of that discretion. 21 His Honour considered that there was "a marked balance of convenience in favour of interlocutory relief". His Honour had regard to the following circumstances: · the applicant is a long term resident of Australia; · the applicant is married to a citizen of Australia; · the applicant has children in this country; · the applicant conducts a business and employs staff in Australia; · if interlocutory relief were not granted, the applicant would be placed in migration detention.

22 In his affidavit in support of the motion for a stay, the applicant relevantly said as follows: "22. I have been resident in Australia since 1989. I run a business. I employ staff. The business is fully registered and meets all its taxation, workers compensation and other obligations. I am liable to make mortgage payments on two properties in Melbourne, one of which is my family home. If I am detained while this proceeding continues I, and my wife and children, will be severely punished financially." 23 Those assertions appear to have been admitted without objection and there does not appear to have been any cross-examination on that paragraph of the applicant's affidavit. Nevertheless, while the detention of the applicant could doubtless cause inconvenience and distress as well as financial loss, to him and his family, there is no indication in the affidavit as to how that inconvenience, distress and loss would impact on the conduct of the substantive proceeding, if at all. There does not appear to have been any suggestion that any financial "punishment" would interfere in any way with the capacity of the applicant to prosecute the substantive proceeding. Nor is there any explicit suggestion that being in custody would impede the ability of the applicant to give instructions in connection with the substantive proceeding. There is certainly no finding in relation to either of those matters. 24 It is difficult to see how s 482(2) is attracted in the circumstances of the evidence before the primary judge. His Honour does not appear to have addressed the question of whether the detention of the applicant will impact in any way on the effectiveness of the hearing and determination of the appeal. That is the primary question that arises under s 482(2). To that extent, His Honour appears to have erred in principle. Having regard to the urgency with which the matter came on for hearing, it may be that His Honour's attention was not drawn to the relevance of ss 482 and 485. 25 Even if the substantive proceeding is successful, it would not necessarily follow that a visa would be granted. The most that is sought in the substantive proceeding is a determination that the decision of 18 October 2000 is null and void and of no effect. There is, for example, no claim for a declaration that the applicant is entitled to the grant of a visa. Thus, even if the substantive proceeding were successful, it would be necessary for the Minister to reconsider the question that arises under s 501A. 26 The substantive proceeding raises the question of whether s 501A is attracted in the present circumstances. Section 501A(1) relevantly applies only if a decision is made to grant a visa to a person as a result of not exercising the power conferred by subsection 501(1) to refuse to grant a visa to the person. Accordingly, there is a question whether there has been a decision to grant a visa as a result of not exercising the power conferred by s 501(1) to refuse to grant a visa. The decision of the Tribunal of 7 June 2000 was to set aside the decision of the Minister refusing a visa on character grounds pursuant to s 501 and to remit the matter to the Minister for reconsideration. The Tribunal did not make a decision to grant a visa. Rather, it left it open to the Minister to refuse to grant a visa on character grounds on the basis of any additional information that might become available. The fact is, however, that there was no decision by the Tribunal to grant a visa. 27 If that argument be right, it may lead to success in the substantive proceeding. However, that is simply another basis for contending that there is a serious question to be tried. For the purpose of s 482, however, it is not a relevant question whether there is a serious question to be tried. Under s 482, there is no requirement that there be a serious question for trial. There has been no suggestion that the substantive proceeding is an abuse of process or that it should be otherwise dismissed summarily. The only question that arises under s 482 is whether an order is appropriate for the purpose of securing the effectiveness of the hearing and the determination of the appeal. 28 Thus, His Honour appears to have erred in principle in making the order of 1 November 2000. The further requirement for the grant of leave is that there will be a substantial injustice by reason of the order. If the order should not have been made, the Minister will be restrained from treating the applicant as an unlawful non-citizen in circumstances where the Minister has already determined, in the exercise of his discretion under s 501A, that it is in the national interest that the applicant be refused a visa. That is sufficient to satisfy the requirement for the grant of leave to appeal. 29 During the course of argument, counsel for the applicant sought leave to rely on additional evidence pursuant to s 27 of the Federal Court Act. Under s 27, the Court is empowered, in an appeal, to receive further evidence in its discretion. The further evidence sought to be relied on was directed to establishing that, if an applicant were detained, he would be unable to derive income and that may in some way impede his ability to conduct substantive proceedings. 30 The ordinary requirements for the receipt of fresh evidence under s 27 is that the party applying for the exercise of discretion must demonstrate that the fresh evidence would not have been available at the initial hearing despite the exercise of reasonable diligence and that if the evidence had been available there was at least a firm chance that the result would have been different. The first requirement is not satisfied in the present case. Accordingly, there is no basis for permitting the applicant to adduce fresh evidence on the hearing of the appeal. In any event, it would be most unusual to permit that course where the order appealed from is an interlocutory order and not a final order. It is always open to a party to apply again for interlocutory relief notwithstanding that it has already been refused. 31 Leave to appeal should be granted, the appeal should be upheld and the injunction ordered by the primary judge should be set aside. It may be that a case can be made out for satisfying the requirements of s 482(2). The applicant would be entitled to make any further application for interlocutory relief as he is advised. Any such further application would be on the basis of the evidence then adduced. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Emmett and Conti.

Counsel for the Respondent: RRS Tracey QC and H Symon SC

Solicitor for the Respondent: Australian Government Solicitor