Minister for Immigration & Multicultural & Indigenous Affairs v WAKX

REASONS FOR JUDGMENT ON DIRECTIONS ON MOTION FOR LEAVE TO APPEAL Introduction 1 WAKX, an unlawful non-citizen who arrived in Australia in September 1998, was held in immigration detention between that time and his release from detention by an order of this Court made on 6 August 2003. WAKX commenced proceedings in this Court on 16 October 2002. By an amended application he sought his release from immigration detention on the basis that there was no reasonable foreseeable possibility that he would be returned to his country of origin within a reasonable time. On 6 August 2003, Lee J made an interlocutory order releasing him from immigration detention on various conditions, pending the hearing and determination of the substantive application. The matter was not immediately listed as there were proceedings pending in the High Court relating to the constitutional validity of the indefinite detention for unlawful non-citizens unable to be returned to another country. 2 Following the judgments of the High Court in those cases and further amendments to the application, WAKX still seeks either a mandatory order requiring the Minister to return him to India or an injunctive order requiring his release from detention. The substantive application has not yet been listed for hearing. A further directions hearing is scheduled before Lee J on 1 April 2005. In the meantime, the Minister has before her an application by WAKX for permission to apply, within Australia, for a spouse visa. Since his arrival in this country he has married an Australian citizen. 3 On 17 September 2004, the Minister filed a motion, returnable before Lee J, seeking a discharge of his Honour's order of 6 August 2003 releasing WAKX from detention. His Honour declined to list that motion in advance of the hearing of the substantive application. The Minister now seeks leave to appeal against that decision. The Minister seeks to have the application for leave to appeal heard and determined by a Full Court and asks that, if it grants leave, the Full Court proceed immediately to hear and determine the appeal. 4 For the reasons set out below, I do not consider that an applicant for leave to appeal against an interlocutory decision has the right to require that the application be heard and determined by a Full Court. In my opinion the motion should be heard and determined by a single judge and I will make directions accordingly. Factual and Procedural History 5 WAKX claims to be an Indian national. He arrived in Australia by boat without lawful authority on 9 September 1998. He was taken into immigration detention at that time. He lodged an application for a protection visa on 24 September 1998. That application was refused by a delegate of the Minister on 20 October 1998. An application to the Refugee Review Tribunal (the Tribunal) for review of the delegate's decision led to the delegate's decision being affirmed by the Tribunal on 11 January 1999. 6 WAKX did not seek judicial review of the Tribunal decision. He did on various occasions ask the Minister to exercise the powers conferred by ss 417 and 48B of the Migration Act 1958 (Cth) and either substitute a more favourable decision or allow him to make a further application for a protection visa. 7 On 16 October 2002, WAKX commenced proceedings in this Court with an application filed on his own behalf. He was still, at that time, in immigration detention. In the application he claimed to have been denied access to legal facilities while in immigration detention. He also claimed to have been denied educational facilities. He said he was suffering great injustice and prejudice. He intended to raise several questions of public importance at the trial. The application, on the face of it, did not disclose either the nature of final or interlocutory relief sought or a legal basis for any relief. 8 The matter came before Lee J on 1 November 2002. His Honour made directions including a direction that the parties attend the Registrar for a conference to be conducted as a mediation proceeding. He also made a direction under O 80 of the Federal Court Rules that the Registrar endeavour to secure 'pro bono' representation for WAKX. Subsequently Dr Cameron agreed to represent WAKX on a pro bono basis. A number of adjourned directions hearings followed. 9 On 6 June 2003, Lee J directed that WAKX have leave to file and serve an amended application on or before 27 June 2003. His Honour also gave directions for the filing and service of affidavits and for the fixing of a hearing date. An amended application was filed on 26 June 2003 in which WAKX claimed an order in the nature of mandamus requiring the Minister to remove him from Australia to India within a time to be specified. In the alternative, an order was sought in the nature of habeas corpus that he be released from immigration detention. 10 In the grounds of the amended application it was alleged that the Minister has detained WAKX since his arrival in Australia and has continued to hold him in detention notwithstanding his request to be returned to India. Reliance was also placed on the Tribunal's finding that WAKX was a low level member of the Jammu Kashmir Liberation Front, which membership would not prevent him from travelling throughout India allowing him reasonably to relocate within that country and that Australia accordingly did not owe him protection obligations. WAKX alleges that he requested removal from Australia on 21 September 2002. The Minister's officers had been endeavouring to obtain travel documents for him since January 1999 which would enable his removal to India. These efforts had proved fruitless and were unlikely to prove successful in the reasonably foreseeable future. 11 WAKX claimed by way of interlocutory relief an order that pending the hearing and determination of the application he be released from immigration detention. A motion seeking such interlocutory relief was also filed on 26 June. His Honour listed the motion for hearing on 16 July 2003 and directed that the parties file minutes of proposed conditions of release if an interim order were to be made as sought. He also directed that WAKX file an undertaking to abide by whatever conditions the Court might impose if the order were to be made. On 16 July 2003, the matter came on and directions were made for further affidavits to be filed. The motion was stood over to 6 August 2003. 12 On 6 August 2003, his Honour made an order in the following terms: '1. On the undertaking of the applicant filed on 15 July 2003 and to be read as referring to the Minute of Conditions attached, and subject to the performance of the conditions in that Minute of Conditions, the applicant is to be released from detention until further order. 2. The costs of the motion to be reserved.' There was attached to the order a Minute of Conditions of Release which required that he reside at a specified address and not live elsewhere without the prior written consent of an officer of the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). Reporting conditions were also imposed and a requirement that WAKX deposit a bond by way of bank cheque in the sum of $3,000 with the District Registrar. A further condition required that, in the event that WAKX receive notice from the Australian Government Solicitor or an officer of DIMIA as to arrangements made for his removal from Australia pursuant to s 198 of the Migration Act, he should take all reasonable steps in his power to comply with those arrangements in order to facilitate his removal. 13 WAKX was released from immigration detention in accordance with the order made on 6 August 2003. The matter was not listed for hearing, no doubt because of the pendency of appeals in the High Court relevant to the validity of the continuing detention of unlawful non-citizens who were unable to be returned to another country. 14 On 4 June 2004, the undertaking of WAKX and the conditions upon which he was released from detention were varied. On 9 July 2004, orders were made for the filing of affidavits and for the application to be listed for hearing on a date to be fixed by the District Registrar after 1 October 2004. Directions were also made for the filing of outlines of submissions. 15 On 17 September 2004, a motion was filed on behalf of the Minister seeking discharge of the order made by Lee J on 6 August 2003. In a supporting affidavit reference was made to the decisions delivered by the High Court on 6 August 2004 in the matters of Al-Kateb v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 37 and Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38. The Minister contended in the supporting affidavit that, in the light of those judgments, the application was bound to fail and should be dismissed. The Minister had written to WAKX's solicitors requesting that he consent to an order dismissing the application or, in the alternative, discharging the interlocutory order made by Lee J. His counsel, Dr Cameron, had responded that he would not consent to an order dismissing the application or to the discharge of the order effecting his interlocutory release. 16 On 19 November 2004, the proceedings were listed for a directions hearing before Lee J. At that directions hearing his Honour declined to list the Minister's motion for hearing but made further directions preparing for the hearing of the substantive application. These required any amended application to be filed by 3 December and included further programming orders in relation to the filing of affidavits. The matter was adjourned for directions in respect of listing for hearing on 11 February 2005. 17 On 6 December 2004, a minute of a proposed further amended application was filed. The primary relief claimed was an order in the nature of mandamus requiring the Minister to remove WAKX to India. Injunctive relief was also sought restraining the Minister from detaining him in an immigration detention centre. The grounds of the application set out the matters referred to in its earlier version. They include, additionally, an allegation that on 17 July 2003 an officer of the Minister had deposed to her firm belief that the prospect of WAKX's removal in the reasonably foreseeable future was very good if he were to cooperate with the department by divulging his true identity or providing more information that could possibly identify him as an Indian citizen. She further deposed that in the absence of cooperation there was still a reasonable likelihood that WAKX could be removed in the reasonably foreseeable future. The grounds of the proposed application alleged that notwithstanding these 'assurances' it has not proved possible to remove WAKX to India and there is little likelihood that this will prove possible in the reasonably foreseeable future. WAKX alleged that he had demonstrated since his release from the centre that immigration detention on conditions similar to those to which he is presently subject would be sufficient to ensure that he will not abscond and would remain ready for removal should this prove possible. 18 It is further asserted in the proposed further amended application that on 10 November 2004 WAKX married an Australian citizen, originally a Somali refugee, whom he met in 1998 in the Port Hedland Immigration Detention Centre. He has applied for a spouse visa which would allow him to remain in Australia with his wife and her three children. The grounds then stated: 'The decision that the Applicant again be placed in immigration detention centre is disproportionate to the purpose requiring that the Applicant be available for removal from Australia, and excessive and unreasonable insofar as it fails to have regard to his personal circumstances, and to the unlikelihood that his removal from Australia will be possible in the reasonably foreseeable future.' 19 At the directions hearing on 11 February 2005, Lee J made orders that the application be amended in terms of the minute of the proposed further amended application. He extended the time for the parties to file affidavits and directed that the matter be listed for a directions hearing on 1 April 2005. He gave liberty to apply. His Honour expressly declined at that directions hearing to set down the Minister's motion for hearing in advance of the hearing of the substantive application. His Honour expressed the view that the sensible approach was to hear both the Minister's motion and the substantive application together. In the meantime, there was an application pending before the Minister for the grant of a visa under the provisions of s 417 of the Migration Act including, it appears, an application for permission for WAKX to make a formal application for a spouse visa while still within Australia. Ordinarily such an application must be made offshore. 20 By a motion filed on 18 February 2005, the Minister sought leave to appeal from the refusal by Lee J to list for hearing his notice of motion seeking discharge of the interlocutory release order. The matter came before me for directions on 9 March 2005. Counsel for the Minister requested that the motion be heard by a Full Court. He submitted that he was entitled to elect to have the matter dealt with by a Full Court rather than by a single judge. Some discussion ensued on the question whether such an election was available. I adjourned the matter for twenty-four hours in order to consider that question and to enable counsel to make any supplementary submissions on it. The solicitors for the Minister subsequently sent a letter to the Court referring to the relevant authorities. Statutory Framework 21 Section 24 of the Federal Court of Australia Act 1976 (Cth) (the Act) provides, inter alia: '(1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine - (a) appeals from judgments of the Court constituted by a single Judge. ... (1A) An appeal shall not be brought from a judgment referred to in sub-section (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.' 22 The word 'Court' is defined in s 4 of the Act as '... the Federal Court of Australia established by this Act'. 23 Section 25 of the Act provides, inter alia: '(1) The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court. ... (2) Applications: (a) for leave or special leave to appeal to the Court; or (b) for an extension of time within which to institute an appeal to the Court; or (c) for leave to amend the grounds of an appeal to the Court; or (d) to stay an order of a Full Court; may be heard and determined by a single judge or by a Full Court.' 24 Reference should also be made to O 52. Order 52 r 10 provides: '(1) An application for leave to appeal from an interlocutory judgment of the Court may be made orally to the Judge who has pronounced the judgment at the time of its pronouncement. (2)(a) Where an application has not been made in accordance with subrule (1), an application may be made by motion on notice to a single Judge or to a Full Court, and the provisions of Order 19 shall apply. (b) The notice shall be filed and served within seven days from the pronouncement of the interlocutory judgment from which leave to appeal is sought or within such further time as the Court or a Judge may allow. (3) An applicant under subrule (2) may present his or her case and argument in writing pursuant to rule 15A.' Whether there is a right to elect a hearing by the Full Court 25 There is long standing authority for the proposition that a party must elect to have an application for leave to appeal from an interlocutory decision dealt with by either a single judge or the Full Court. Those cases so held in deciding that the exercise by a single judge of the jurisdiction to grant or withhold leave to appeal exhausted the appellate jurisdiction of the Court on that issue. That is to say, the grant or refusal of leave by a single judge could not be appealed to a Full Court. Nor could the application for leave be renewed in the Full Court. In Reid v Nairn (1985) 60 ALR 419 an application for leave to appeal from an interlocutory decision had been refused by a single judge. The application was renewed before the Full Court which was asked, in the alternative, to treat it as an appeal from the refusal to grant leave. Fox and Forster JJ, after referring to s 25(2) of the Act, said (at 421): 'In our view this language, and particularly the use of "determined", makes it reasonably plain that the issue is to be decided by a judge or by a Full Court, whichever is first seized of the matter. There are the alternatives, but they are true alternatives, and are not to be understood in the progressive sense that the appellant relies upon. This is a different question from whether an appeal lies.' Later they said (at 421): 'A party wishing to appeal from an interlocutory order has to make an election whether the judge or a Full Court should be approached for leave. In the latter instance a question may arise, on occasion, whether the Full Court should be asked to consider the merits of the appeal at the same time as leave is sought.' The appeal from the refusal of leave and the renewed application for leave to appeal were both dismissed by the Full Court in that case. 26 Reid v Nairn was followed by the Full Court in Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424. This was a case in which a single judge of the Court refused leave to appeal against an interlocutory judgment. The applicant for leave sought the leave of the Full Court to appeal both against the judgment and against the single judge's refusal of leave. The Full Court dismissed the application. It followed Reid v Nairn and said (at 432): 'In our opinion, ss 24(1A) and 25(2) of the Federal Court Act, when read together, mean that application may be made to either a single judge or a Full Court of the Federal Court for leave to appeal from an interlocutory judgment, whether an interlocutory judgment of the Court constituted by a single judge or an interlocutory judgment of the Supreme Court of a State or Territory. A party must elect to apply for leave to appeal to this Court constituted by a single judge or a Full Court. As the Court remarked in Reid v Nairn the parties' election is between true alternatives which are neither progressive nor successive. Once the order has been made granting or refusing leave, no appeal lies from that order.' 27 It is important to bear in mind that the question for determination in the cases cited was not whether a party applying for leave to appear had a right to require the application to be heard by a Full Court as distinct from a single judge. It was whether a party, once having elected to proceed before a single judge, could renew the application or appeal from its refusal to a Full Court. The Full Courts in those cases did not have before them, and did not determine, whether an applicant for leave is entitled to require that the application be heard by a Full Court. 28 Section 25(2)(d) confers the appellate jurisdiction of the Court in applications for leave to appeal on 'a single judge or ... a Full Court'. It does not in terms, or by implication, confer upon a party the right to require that the application be heard by the Full Court. The section, in my opinion, leaves it open to a single judge before whom the matter is listed to direct that it be determined by a single judge or to refer it to a Full Court subject to the authority of the Chief Justice to finally determine whether the matter should be heard by a Full Court. This facility is particularly apt in a case such as the present where the time within which the matter could be considered by a Full Court could well equal or exceed the time within which the substantive application could be set down for hearing. The present case is a matter which concerns the exercise of a judge's discretion to list an interlocutory motion for hearing in advance of the hearing of the substantive application. It would be a rare occasion that an application for leave to appeal against the exercise of such a discretion would require or justify the attention of a Full Court. 29 In Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543, the Full Court followed the decision in Thomas Borthwick in dismissing, as incompetent, an appeal to the Full Court from a refusal by a single judge to allow an extension of time in which to institute an appeal against a judgment of another judge of the Court. At 554 their Honours said, after referring to Reid v Nairn and Thomas Borthwick, and a later decision in Hall v Anderson [1997] FCA 654: 'In none of these cases was it necessary to resolve the question of who has the ultimate authority to decide whether an application for leave to appeal should be determined by a single judge or a Full Court. Nor is it necessary to resolve this question in the present case. However, we think it appropriate to make some comments on the issue.' 30 Their Honours went on to say: 'It is, in our view, open to an applicant to request that an application for leave to appeal be listed either before a single judge or a Full Court, as the applicant prefers. Ordinarily, if such a request is made, we would expect the Registry to accede to it, recognising of course that the composition of the Court, whether comprised of a single judge or the Full Court, is a matter for the Chief Justice under s 15(1) of the Federal Court Act. If the Registry does not accede to the applicant's request, it is open to the applicant to ask the Court or judge before whom the matter is listed to consider referring it to a Full Court or a single judge (as the case may be). It is then for the judge or the Full Court before whom the matter is listed to consider whether the matter is more appropriately dealt with in the manner suggested by the applicant. If, for example, a single judge considers that the application for leave should be dealt with by a Full Court, he or she would make directions for the matter to be so listed, subject of course to the authority of the Chief Justice, pursuant to s 15(1) of the Federal Court Act, to determine the constitution of the Court in a particular case and to any arrangements that had been made under that subsection. If, on the other hand, the single judge determines the application for leave (whether or not an application is made for the matter to be listed before a Full Court), that is the end of the application. No appeal is available, except by special leave to the High Court.' 31 The passage cited from Wati was reproduced in the judgment of Drummond J (Cooper and Dowsett JJ agreeing) in Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCAFC 269. After quoting the passage his Honour went on to say (at [13]): 'That, in my opinion, is a clear statement that there is in truth no election available to a litigant to determine which is the forum in which an application of the present kind will be held. As their Honours say, the litigant can request that the matter be heard either by a single judge or by a Full Court. But it is for the Court to determine, having regard to considerations such as the importance of the issue raised and the efficient deployment of judicial resources and other matters, which forum will in fact be constituted to deal with the application.' 32 In Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681, Hely J refused an application for leave to appeal from a decision of Madgwick J ordering the provision of security for costs of a pending appeal. The applicant for leave submitted to Hely J that the application for leave should be referred to a Full Court rather than being dealt with by him. His Honour, however, decided that he should determine the matter himself rather than requesting the Chief Justice to convene a Full Court for that purpose. His Honour cited the decision in Wati as authority for the proposition that that was a matter for him to determine. He did not consider it appropriate for the application to be referred to a Full Court because, in his opinion, the decision of the judge at first instance was clearly correct. Conclusion 33 In my opinion, the position is clear. Neither Reid v Nairn nor Thomas Borthwick is authority for the proposition that an applicant for leave to appeal against an interlocutory judgment has a right to have the application for leave heard and determined by a Full Court. In my opinion it is not appropriate that this matter be dealt with by a Full Court. The question relates to the timing of the listing of a motion to discharge an interlocutory order releasing WAKX from immigration detention on conditions. I will hear and determine the motion for leave. I will hear from the parties as to whether they wish to put any further submissions on the merits of the leave application. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.