Taylor v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 There is brought for the applicant a notice of motion seeking that, subject to the undertaking given by the applicant, the respondent be restrained from continuing to detain the applicant in immigration detention under the Migration Act 1958 (Cth) ('the Act') appending the hearing of his application in this matter or until further order. 2 The substituted application which is thus referred to is stated to be based on the applicant's aggrievance by the decision of the respondent made on 21 December 2001 whereby it was determined to cancel the applicant's BF transitional (permanent) visa pursuant to the provisions of s 501 of the Act. He states in his application he is further aggrieved by the consequent decision to hold him in detention and the intended decision to remove him from Australia. 3 The grounds of the application are that the respondent has acted unlawfully and beyond the powers of the Commonwealth in that, if I may shorthand it this way, neither the migration power nor the aliens power in the Constitution extends to the case of the applicant; that is, the legislation does not have application to him and he is not subject to the powers purported to be exercised by the respondent under s 501(2) of the Act. Hence it is said there is no power to remove him from Australia or to hold him in detention. It will be noted in the substituted application there is no challenge to the constitutional validity of the Act. Rather the application challenges the application of the Act to the particular case of the applicant. 4 The evidence which is brought on the interlocutory application comprises two affidavits from the applicant, one from his wife and documents filed on behalf of the respondent. 5 The background circumstances may be shortly stated as follows. The applicant is a citizen of the United Kingdom and a British subject who came to Australia with his wife and two children in 1980. He and his wife have two further Australian-born children. The applicant was released from Bunbury Regional Prison on parole at midnight on 4/5th of January 2002. On 8 January 2002 he issued the substantive application challenging the lawfulness of the decision to cancel the visa to which I have referred. The respondent intimated an intention to have the applicant taken into detention on the basis that his visa having been cancelled, he was an unlawful non-citizen. At or about the beginning of May 2003 the applicant completed his prison sentence and was transferred to the Perth Airport Detention Centre. 6 The full circumstances of the applicant's position appear in the record of the Minister's decision leading to cancellation. They include reference to his prior criminal conduct, two instances in the United Kingdom and four instances in 1982 in Australia and a further four instances in the year 2000 in Australia. It is not necessary for me to further canvass all the matters that were addressed by the Minister in the record of decision which is in the respondent's affidavit, save to say that based thereon the Minister signed the decision record. In it he stated he did not consider the applicant passed the character test and the applicant had not satisfied him that he passed that test, so that he had decided to exercise his discretion under subs 501(2) of the Act to cancel the applicant's visa. It is of course that decision which is challenged. 7 In an application for an interlocutory injunction, it is the well-established law that the Court must look to the two tests. The first is whether there is a serious question to be tried in the sense of an arguably serious issue and, secondly, whether the balance of convenience favours the granting of the injunction. It is only when those tests are satisfied that the Court has any legal basis upon which to exercise the power of the court to grant the equitable relief. 8 Here the case for the respondent draws attention to law which it is said should affect the way in which those tests are applied and how the Court should approach the matter in this particular case. The first is what was said by Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 155 - 156: 'In the absence of compelling grounds, it is the duty of the court to respect, indeed, to defer to, the enactment of the legislature until that enactment is adjudged ultra vires.' 9 Further attention is drawn to that dicta by Gummow J in Ex parte Cowgill; Re Minister for Immigration & Multicultural & Indigenous Affairs (High Court of Australia, Gummow J, 4 April 2003) P19 of 2003 and P100 of 2002 on an application under s 75(5) of the Constitution in the High Court of Australia. There his Honour, having referred to what was stated by Mason ACJ, then asked what were the compelling grounds that were existent in the case before him. He said that there the applicant had pointed to his undoubtedly important interest in his personal liberty, but Gummow J was of the view that the conjunction of s 501 and s 196 of the Act represented a legislative judgment upon countervailing considerations. Therefore, he said, the validity of the legislative assessment should be reserved until the Full Court of the High Court ruled on the matter. 10 These matters were recently considered by French J in Preston v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 420. He there concluded, after examining the context in which Mason ACJ expressed the dicta to which I have referred, that at [23]: 'As appears clear from what was said by Mason ACJ in Castlemaine Tooheys and by Linden J in Morgentaler v Ackroyd, the compelling grounds requirement is simply a way of expressing the accepted test for the grant of interlocutory relief in the special case of asserted statutory invalidity. It was also apparent from the remarks of Gummow J in Ex parte Cowgill that his Honour saw the requirement for compelling grounds in the same way. The requirement for compelling grounds in such cases is an expression of the requirement that the balance of convenience favour the grant of the relief sought.' 11 The reference to Morgentaler v Ackroyd (1983) 42 OR(2d) 659 is a reference to what precedes the dicta of Mason ACJ at 155 - 156 in Castlemaine Tooheys to which I have referred. That was a Canadian case which was said by Mason ACJ to indicate that the courts in Canada have taken the view that only in exceptional circumstances will an interlocutory injunction be granted to restrain enforcement of a statute challenged on constitutional grounds. The citation of what was said by Linden J in Morgentaler v Ackroyd at p 668 shows that it is referable to those who challenge the constitutional validity of laws and to grave injustice that would result if the law is eventually proclaimed unconstitutional. The 'grave injustice' referred to there is that which would exist if there were exceptional circumstances to displace the constitutionality before that had been found. 12 As I have already said, I do not consider the application in this case is one which challenges the constitutional validity of laws. It accepts the validity of the Act but says, in the particular case of the facts relating to the applicant, the Act in its terms has no application to him. That is more, I think, than simply a nice distinction. 13 Furthermore, I notice that by reference to the Halsbury's Laws of Australia there is some doubt expressed in par [385-130] whether a presumption of constitutional validity exists in Australia. The authorities there addressed do not refer to Castlemaine Tooheys and the dicta to which I have referred but raise other issues that may be germane to a consideration of the application of the Canadian approach in Australia. 14 Nevertheless, accepting that what has been said been stated by Mason ACJ and Gummow J, I give it high regard. In the circumstances, however, I think I should approach it in the same way as French J has approached it. In any event I do not consider that, in its terms relating to challenging of constitutional validity, it gives rise here to a serious issue to be tried because here the issue is the validity of the application of the Act itself. 15 The submissions of the respondent contend that this case is distinguished from that in Preston by the fact that in Preston, among the factors considered by his Honour in weighing the balance of convenience, there was something more than what was there described as the constitutional issue, namely there were, in the grounds of the application in that case, non-constitutional administrative law grounds which were thought to be weak. I regard that as a slender point of distinction. True it is, however, that there are not in this case any such non-constitutional grounds to be weighed. 16 I should note that there is no issue that the Court has the power to make an interlocutory order of the nature sought, pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth); see Minister for Immigration & Multicultural & Indigenous Affairs v VFAD of 2002 [2002] FCAFC 390. 17 I therefore turn to apply the tests in relation to whether there is a serious question to be tried and whether the balance of convenience favours the invocation of equitable jurisdiction. 18 It is not in dispute that there is a serious question to be tried. This follows from the fact that the issue which the substantive application raises is itself listed for argument in the High Court of Australia on 17 June 2003. Clearly the issue is arguable. Even French J, who was of the contrary view in the case of Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1422 at first instance, accepted in Preston that there was a seriously arguable case to the contrary of his view and therefore a risk that the applicant was being detained unlawfully. 19 Turning to the balance of convenience, I find the following six factors weighing in favour of the application. The first is that there is a serious issue to be tried. For reasons I have already stated, I do not give to that the strength that might be invoked if there was a constitutional challenge to the validity of the Act itself. 20 Secondly, I accept that the question of the fact that the applicant is in detention when there is a serious issue to be tried raises issues for consideration in the balance. In this respect I rely on par [27] of the reasons of French J. There, although he accepted that the constitutional presumption might require weighing, he set against that the countervailing consideration that every person is entitled, unless lawfully detained, to be at liberty, so that a seriously arguable case that a person was being detained in the purported exercise of a power beyond constitutional limits raises a risk the person is being unlawfully detained. He considered that was a significant factor in the weighing of the balance of convenience. 21 Thirdly, I place weight on the personal circumstances relating to the applicant and in particular those which appear in pars [21] and [23] of the affidavit of the applicant's wife. From those it appears that it is necessary for her to work long hours to meet mortgage payments. She does so in Bunbury and visits her husband from there. His relocation from the Bunbury prison to the Perth Airport Detention Centre has increased her anxiety and stress levels and is costly to her. It has produced stress and physical reactions in her. I give those factors weight in the balance. I take into account in weighing them also that the impact on her results from matters for which she has no responsibility, namely, that because there is no accord between the Commonwealth and the State Governments in relation to immigration detention in the city of Bunbury it is necessary for the applicant to be detained in the Perth detention centre. 22 Fourthly, I accept that the applicant has shown prior compliance with parole and bail conditions. I discount the non-compliance with the directions of Lee J because that involved failure of responsibility by the applicant's former solicitor. 23 Fifthly, I take into account that although the case before the High Court will be heard in June it can in the normal course of events be anticipated that the resolution of the issue on which the applicant's substituted application is based will take some time and that it may not be until towards the end of the year that any resolution of the issue appears. 24 Sixthly, I note the offer of conditions which the applicant makes as to reporting, residence and so on and I take those into account. 25 Weighed against those matters are the applicant's past criminal record, particularly as it includes recidivism at a period of some years after the initial significant occurrences. Also, I weigh the seriousness of his prior criminal conduct. I am not, as was French J in Preston, confident that this Court could formulate any reliable prognosis as to the risk of flight or non-compliance with conditions, but I do consider that, as the family of the applicant are located in Western Australia that is not at any significant level and to that extent I make that prognosis. 26 The matter is not clear-cut. The matter is a difficult one, given the past record of the applicant. Nevertheless it is important that if the decision of the High Court is, as it were, in favour of the contentions that the applicant would make in his case he would be unlawfully in detention for a significant period of time. Weighing all the balancing factors, I consider that there is a balance in favour of granting the interlocutory relief in those circumstances. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.