Madafferi v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is a Notice of Motion by the applicant, Mr Madafferi, in which he seeks an order that pending the hearing and determination of this proceeding, the implementation and operation of a decision of the respondent Minister be stayed. The relevant decision was a decision by the Minister of 18 October 2000 refusing the applicant a spouse visa. As a result of that decision the applicant became an unlawful non-citizen and is liable to be detained. 2 This proceeding challenges that decision. An interlocutory order made on 1 November 2000 had the effect of staying the decision of the Minister; see Madafferi v Minister for Immigration and Multicultural Affairs [2000] FCA 1612. However, on 15 March 2001 a Full Court upheld an appeal against that order and set aside the injunction which had been ordered on 1 November 2000; see Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 250. The hearing of the substantive application commenced on 14 March 2001. It was listed for three days but concluded at midday on 15 March 2001. 3 The current Motion was foreshadowed on the afternoon of 15 March 2001 and filed in the Registry earlier on 16 March 2001. Mr Hurley of counsel appeared for the applicant. He contended that the Court, pursuant to s482(2) of the Migration Act 1958 (Cth) ("the Act"), should act to secure the determination of the application by staying the operation of the Minister's decision pending the hearing and determination of these proceedings. 4 Section 482(2) of the Act provides that: "If an application is made to the Federal Court under section 476 or 477 in relation to a judicially-reviewable decision, the Federal Court or a Judge of the Federal Court may make such orders of the kind referred to in subsection (3) as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal." 5 Mr Hurley contended that in "securing the effectiveness" of the determination of the application the Court could have regard to the interests of third parties, such as Mrs Madafferi and the Madafferi children. He submitted that in the case of an ultimate determination in favour of Mr Madafferi, the determination would be undermined if the income of the applicant's family had dried up due to the financial pressures on the family resulting from the applicant's detention. In other words, if Mr Madafferi's application was ultimately successful, the financial impositions arising from Mr Madafferi's detention would have been unnecessarily imposed on Mr Madafferi and his family. 6 In Ooi v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 133 at 137 ("Ooi"), his Honour, Madgwick J, considered the judgment of Hill J in Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1 ("Halmi") where Hill J discusses the meaning of "effectiveness" for the purposes of s482(2) of the Act. His Honour at [16 -17] said: "The other aspect debated was whether in circumstances like those of this case an interim order staying the operation of the decision to cancel the visa could be for the purpose, as set out in s 482(2), "of securing the effectiveness of the hearing and determination of the appeal". It is true that there are passages in Halmi which, if read alone, could support the view that the "effectiveness" referred to is limited to what might be called due accomplishment of the actual processes of hearing and determination. However, reading Hill J's decision in that case as a whole, it seems to me that it is not what his Honour meant. In any case, such an interpretation is not what I think is meant by s 482(2). The word "effectiveness" can be understood, in this context, to have as its ordinary meaning "the capacity to achieve an intended purpose"… Applying such a meaning, one of the intended purposes of a hearing and determination of a case such as the present is the ascertainment of rights and liabilities of the parties. Another is to grant remedies which, so far as is lawful and possible, can put the parties in the position in which they ought to have been, had those rights and liabilities been correctly observed." 7 Madgwick J went on to hold at [17] of his reasons that: "If it should take the Court some time, as might normally be expected, to arrive at a decision, and if the decision should ultimately be in [the applicant's] favour, then to the extent that he remains in custody pending the further hearing of the matter and the period until a decision is reached, one of the purposes of hearing and determination would to that extent have been frustrated. Consequently, Madgwick J held it may be appropriate to stay a Minister's decision to secure the "effectiveness of the hearing and determination". 8 In Madafferi v Minister for Immigration and Multicultural Affairs [2000] FCA 1612, I considered the applicant's initial application to stay the decision of the Minister and found in favour of the applicant. I formed the view, without any contrary decision being put before me, that Madgwick J was not clearly wrong and as a matter of consistency I should follow him; see Madafferi v Minister for Immigration and Multicultural Affairs [2000] FCA 1612 at [1]. The Full Court, in its judgment of 15 March 2001, does not advert to that aspect of my reasoning nor to the judgment of Madgwick J, but the import of the Full Court's reasoning is inconsistent with Madgwick J's approach in Ooi. On reflection, and with the benefit of the Full Court's reasons, I consider that Halmi is capable of being read as supporting the view that "effectiveness" for the purposes of s482(2) is limited to what might be called the due accomplishment of the actual processes of the hearing and determination of the application. 9 I consider that the Full Court has effectively adopted "the due accomplishment" approach in its decision of 15 March 2001. So much is clear from the judgment at [18], where their Honours refer to the question before them as being 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. The answer to that question, reading the Full Court's reasons as a whole, is no. In this respect the Full Court's judgment is directly contrary to the approach of Madgwick J in Ooi at [16] and [17]. 10 At paragraph [23] of the Full Court's reasons the Full Court said: "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."