Re Minister of Immigration, Local Government and Ethnic Affairs v Deodatus William Msilanga [1992] FCA 41; (1992) 105 ALR 301 (1992) 34 FCR 169 (1992) 25 ALD 545 (13 February 1992)

FEDERAL COURT OF AUSTRALIA

Re: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
And: DEODATUS WILLIAM MSILANGA
No. S G29 of 1991
FED No. 44
Administrative Law (Procedure) - Courts
[1992] FCA 41; (1992) 105 ALR 301
(1992) 34 FCR 169
(1992) 25 ALD 545

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1), Beaumont(2) and Burchett(3) JJ.

CATCHWORDS

Administrative Law (Procedure) - application for judicial review of decision under Migration Act 1958 s.93 - interim order that applicant be released from custody pending determination of application for judicial review - whether Federal Court has power to make interim order - Federal Court of Australia Act 1976 ss. 19 and 23, Administrative Decisions (Judicial Review) Act 1977 s. 15.

Courts - federal jurisdiction - powers of Federal Court - interim order that applicant be released from custody pending determination of application for judicial review - whether Federal Court has power to make interim order - Federal Court of Australia Act 1976 ss. 19 and 23, Administrative Decisions (Judicial Review) Act 1977, s.15.

Migration Act 1958, ss.55, 93 and 180

Administrative Decisions (Judicial Review) Act 1977, ss.15 and 16

Federal Court of Australia Act 1976, ss.19 and 23

Judiciary Act 1903, s.39B

Piroglu v Minister for Immigration and Ethnic Affairs [1981] FCA 78; (1981) 55 FLR 99

Unlugenc v Minister for Immigration and Ethnic Affairs (1982) 43 ALR 569

Elmi v Minister for Immigration and Ethnic Affairs (1988) 17 ALD 471

The Queen v MacKellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461

Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618

Chan v The Commonwealth of Australia, Stephen J., 12 December 1980, unreported

HEARING

SYDNEY
13:2:1992

Counsel for the Appellant: Mr B. Rayment QC with Mr A. Robertson

Solicitors for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr R. Evans and Mr P. Womersley

Solicitors for the Respondent: Messrs Womersley and Co.

ORDER

Appeal dismissed, with costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

I agree with the reasons for judgment prepared by Beaumont J. The appeal should be dismissed with costs.

2. I add that whilst I agree that there is no requirement for an applicant to show exceptional circumstances, I would emphasise that the circumstances to be considered in determining where the balance of convenience lies will include the immigration issues, as Burchett J. points out in his reasons.

The appellant, the Minister for Immigration, appeals, by leave granted, from an interlocutory order made by a Judge of the Court on 8 March 1991 that Deodatus William Msilanga, the respondent, be released from the custody in which Mr Msilanga was held under the provisions of the Migration Act 1958 ("the Act").
The background

2. Mr Msilanga, a citizen of Tanzania, entered Australia in August 1986 pursuant to a temporary entry permit. In November 1986, Mr Msilanga was granted a resident entry permit. On 20 November 1989, in the Supreme Court of South Australia, Mr Msilanga was convicted of a serious criminal offence and was sentenced to seven years' imprisonment, with a non-parole period of three years commencing on 4 March 1989. With the benefit of remissions, Mr Msilanga was released from custody, on strict parole conditions, on 4 February 1991.

3. Mr Msilanga's conviction and sentence rendered him liable to be ordered by the Minister to be deported pursuant to the provisions of s.55 of the Act. On 7 February 1991, the Minister made that order.

4. By s.93(1) of the Act, where an order for the deportation of a person is in force, an officer may, without warrant, arrest the person. On 8 February 1991, Mr Msilanga was arrested pursuant to this provision. By s.93(2) and (8) of the Act, a person arrested under s.93(2) may be kept in custody pending deportation. On 8 February 1991, Mr Msilanga was taken into custody pursuant to this provision.

5. On 8 February 1991, Mr Msilanga applied to the Administrative Appeals Tribunal, pursuant to s.180(1) of the Act, for a review of the decision of the Minister under s.55. This application is pending and is expected to be dealt with soon. By s.180(3) it is provided that, after reviewing a decision under s.180(1), the Tribunal shall either affirm the decision or remit the matter for reconsideration in accordance with any recommendations of the Tribunal. By s.180(5), it is provided that where an application is made under s.180(1), the deportation order shall not, for the purposes of s.93, be taken to cease, or to have ceased to be in force, by reason only of any order that has been made under s.41 or s.44A of the Administrative Appeals Tribunal Act 1975. (Under s.41(1), subject to the section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision. By s.41(2), the Tribunal may, on the request of a party, stay the operation of the decision the subject of the application for a review. By s.44A(1), subject to the section, the institution of an appeal to the Court from a decision of the Tribunal does not affect the operation of the decision. Under s.44A(2), where an appeal is instituted, the Court or a judge may stay the operation of the decision.) On 8 February 1991, an order was made by the Tribunal staying Mr Msilanga's deportation pending the hearing of the application.

6. By s.93(9) of the Act, it is provided that, in spite of anything else in this section, the Minister or the Secretary may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in custody under the section. On 11 February 1991, the solicitors applied in writing to the Minister for his release.

7. On 25 February 1991, Mr Msilanga instituted proceedings in this Court under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") for an order for review of the decision of the Minister, said to be implicit in his failure to respond to the request for the release of Mr Msilanga, that the application for release under s.93(9) was refused. But, because of subsequent events, to be mentioned shortly, these proceedings were not prosecuted.

8. On 6 March 1991, David George Wheen, a delegate of the Minister, decided that the "continued detention in custody of (Mr Msilanga) was proper." Mr Msilanga then instituted fresh proceedings, the present matter, under the ADJR Act and s.39B of the Judiciary Act 1903 seeking judicial review of Mr Wheen's decision. The application, filed on 8 March 1991, was headed "Application for an order of review and injunctions" and sought: (1) judicial review pursuant to s.5(1) of the ADJR Act of the decision of the Minister on 7 February 1991 to detain Mr Msilanga in custody; (2) judicial review of the decision made on 6 March 1991 to continue the detention by refusing to order the release of Mr Msilanga pursuant to s.93 of the Act; (3) an order under s.39B of the Judiciary Act to "review" the Minister's decision on 7 February 1991 to detain Mr Msilanga in custody; (4) an order under s.39B of the Judiciary Act to "review" the decision on 6 March 1991 to continue the detention of Mr Msilanga.

9. In his application, Mr Msilanga claimed, by way of final relief: (1) an injunction "directing the (Minister) to revoke the deportation order"; (2) an order, pursuant to s.16(1) of the ADJR Act and ss.19 and 23 of the Federal Court of Australia Act ("the FCA Act") and s.39B of the Judiciary Act, directing the Minister to release Mr Msilanga from custody; (3) an order, "pursuant to (s.) 23 of the (FCA) Act under (s.) 39B of the Judiciary Act and (s.) 19 of the (FCA) Act directing the (Minister) to release (Mr Msilanga) from custody."

10. In his application, Mr Msilanga claimed, by way of interlocutory relief, "(a)n order directing the Minister to release Mr Msilanga from custody pending the review pursuant to (s.) 15(1) of the (ADJR) Act...and (ss.) 19 and 23 of the (FCA) Act."

11. As has been said, after a contested interlocutory hearing, on 8 March 1991, a Judge of the Court ordered that Mr Msilanga be released "on bail". (No dispute arises as to the "bail" conditions.)
The reasoning of the primary Judge

12. In his reasons, the learned Judge dealt with a submission put on behalf of Mr Msilanga that the Court had power to make an interlocutory order of the type then sought by virtue of ss.19 and 23 of the FCA Act, read with s.15 of the ADJR Act. The Judge rejected arguments advanced on behalf of the Minister, first, that the Court had no jurisdiction to make an interlocutory order for release from custody and, secondly, that, in any event, no such order should be made as it would have the effect of substituting in the short term the Court's opinion for that of the Minister or his delegate under s.93(9) of the Act. The Judge said:

"The (Minister) directed the court's attention in particular
to reservations on the power to make an order of the kind
sought expressed by Gummow J. in the case of Ali Elmi v The
Minister for Immigration and Ethnic Affairs (see (1988) 17
ALD 471 at pp 472-3)...In my view, this court has
jurisdiction to make orders of the kind sought pursuant to
the sections invoked by the applicant and I rely on the
authority of earlier decisions of the court in...Piroglu v
Minister for Immigration and Ethnic Affairs...and Unlugenc
v The Minister for Immigration and Ethnic Affairs...
In my opinion the reservations expressed in Elmi to which
reference was made are clearly distinguishable. In that
case, the decision pursuant to which the applicant was held
in custody pending his deportation was not the subject of
the application for review. In the present case, both the
decisions pursuant to which the applicant has been, or is
being held, are the subject of the proceedings.
On an application for interlocutory relief the court has to
consider two questions: firstly, whether on the substantive
issues there is a serious question to be tried; and
secondly, if that question is resolved in favour of the
applicant, where the balance of the convenience lies. If
the balance is in favour of the order sought by the
applicant it will be made pending further order of the court
or the determination of the issues."

13. In his Honour's view, there were serious questions to be tried in respect of the decisions made on 7 February and 6 March. As to the former, there was the question whether it had been displaced as the operative decision by the subsequent decision of 6 March. In respect of the latter decision, questions arose with respect to the alleged absence of evidence to support a conclusion that Mr Msilanga was likely to abscond and as to whether irrelevant matters were taken into account.

14. The Judge then addressed the issue of where the balance of convenience lay. He concluded that the balance of convenience indicated that interim relief ought to be granted.
The authorities referred to by the primary Judge

15. The Judge referred to Piroglu [1981] FCA 78; (1981) 55 FLR 99, in which an applicant for judicial review under the ADJR Act of a deportation order, sought an order, pending the final hearing of his application, for release from custody. Senior counsel for the Minister in that case conceded that the Court had power to make the order but opposed its making in the circumstances of the case. Northrop J. said (at pp 101-2):

"The court has power to make the orders sought. Under s.19
of the Federal Court of Australia Act 1976 (Cth), the
Federal Court has jurisdiction to hear and determine the
application for the order to review under s.5 of the
Administrative Decisions (Judicial Review) Act, see s.8.
Under s.23 of the Federal Court of Australia Act the court
has power in relation to matters in which it has
jurisdiction to make orders of such kinds, including
interlocutory orders, as it thinks appropriate...
The applicant is seeking an interlocutory injunction
requiring the respondents to release the applicant from
custody pending the hearing and determination of the
application to review. The principles to be applied by the
court in deciding such a case are clear: see Beecham Group
Ltd. v Bristol Laboratories Pty. Ltd.... See also...per
Stephen J. in Chan v Commonwealth...The hearing of the
motion, however, has not been treated as a preliminary trial
and these reasons give effect to that principle."

16. Northrop J. was not satisfied that the applicant had made out a prima facie case on the substantive merits but said (at p 106):

"In the exercise of my discretion and on the basis that a
prima facie case had been made out, I would not grant the
interlocutory orders sought. The policy of the Migration
Act is clear. Prohibited immigrants should not be left at
large in the community pending deportation unless the
Minister or an authorized officer exercises his discretion
in accordance with s.39."

17. (Section 39 of the Act as it then stood was similar to s.93 of the legislation as it now stands.)

18. Northrop J. added (at p 107):

"I consider this type of case to be very different from the
normal 'bail' case. In those cases a person has been
arrested and charged with a criminal offence but has not
been convicted. He is being held in custody pending trial
and, prima facie, is entitled to bail. In the present case
the applicant has not been charged with any criminal
offence. He is a prohibited immigrant and under the
Migration Act prima facie should be held in custody. Time
limits are imposed by s.38 of the Migration Act and once a
deportation order has been made a deportee, prima facie,
should be held in custody until deported, s.39 of the
Migration Act. The court should not interfere with that
policy except in exceptional circumstances. In the present
case the period during which the applicant is in custody
will not be excessive. He is not being held in a jail with
criminals and is not being treated as a criminal. He will
not be deported before his claim for refugee status has been
determined. There are no sufficient reasons to justify an
exercise of discretion in his favour."

19. In Unlugenc (1982) 43 ALR 569, the applicant, who applied for judicial review under the ADJR Act of a deportation order, sought an order that the Minister be restrained pending the hearing of the applicant's substantive claim, from detaining the applicant in custody. Lockhart J. said (at p 571):

"It is common ground that the court has power to make the
order sought by the applicant namely, that the respondent be
restrained from detaining the applicant pending final
determination of his application for an order of review.
...Northrop (J.) considered a similar application in
Piroglu... His Honour held that this court has power to
make interlocutory injunctions requiring the Minister to
release an applicant from custody pending the hearing and
determination of his application for an order of review.
His Honour held that the source of that power is to be found
in ss 19 and 23 of the Federal Court of Australia Act 1976.
Section 23 empowers the court, in relation to matters in
which it has jurisdiction, to make orders of such kinds as
the court thinks appropriate, including interlocutory orders.
I agree with his Honour's view. I would add for myself that
I see nothing inconsistent with this view and the provisions
of ss 38 and 39 of the Migration Act. Nor was it suggested
in argument before me that there was any such inconsistency.
...Northrop (J.) went on to say that the principles to be
applied in deciding cases of this kind are those enunciated
in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968)
ALR 469; [1968] HCA 1; 118 CLR 618. Counsel for the applicant accepted
this approach and proceeded to argue that a prima facie case
for an order of review had been established in the present
case and that the balance of convenience lay in favour of
granting the injunction sought."

20. Lockhart J. (at pp 573-4) further expressed agreement with the observations of Northrop J. with respect to the policy of the Act, and with the view that the Court should not interfere with that policy except in exceptional circumstances. Lockhart J. added (at p 575):

"The period during which the applicant will be in custody
will not be excessive. He is not being held in gaol with
criminals. The evidence is that the Villawood Detention
Centre is operated by the Department and that all the
detainees are prohibited immigrants - men, women and
children. There is reasonable freedom of movement within
the centre. The people staying there seem to be, on the
evidence, reasonably well looked after.
I am satisfied that the application for release from custody
should be refused."

21. In Habal v Minister for Immigration Local Government and Ethnic Affairs, 12 September 1989, unreported, Lockhart J. reconsidered his reasons in Unlugenc. Lockhart J. said in Habal that the relevant principles were to be found in the judgment of Mason J. in Ratu (see below), in Piroglu and in Unlugenc. Lockhart J. cited the passage in the reasons of Northrop J. already mentioned and said:

"I have reconsidered my agreement with the observations of
Northrop J in the last sentence of the passage quoted. If
it means that a prohibited non-citizen bears the onus of
proving exceptional circumstances before he may obtain an
order releasing him from custody pending his deportation or
hearing of his application for Judicial Review under the
Judicial Review Act, then it goes too far and I withdraw my
agreement with it, otherwise I confirm my agreement with the
passage quoted.
A prohibited non-citizen is, as is mentioned in the same
passage in Northrop J.'s judgment in Piroglu, in a different
position to a person charged with a criminal offence seeking
bail pending trial. Such a person is presumed innocent
until he is proved guilty at his trial but the prohibited
non-citizen bears that status and is therefore liable to be
deported indeed a deportation order may, as it has in the
present case, already have been made against him.
As I pointed out in Unlugenc, a prohibited immigrant, now a
prohibited non-citizen, remains in Australia without lawful
authority, is liable to arrest and detention and has no
right to remain in this country. He is an illegal
immigrant, see Queen v Forbes ex parte Kwok Kwan Lee [1971] HCA 14; (1971)
124 CLR 168.
If the prohibited non-citizen seeks to challenge his status
as a prohibited non-citizen and orders including deportation
orders made against him he bears the civil onus of
convincing this Court that he should be released from
custody pending the hearing of his proceeding. The
commencing point for the Court must however be that the
applicant is, unless and until this Court says otherwise, a
prohibited non-citizen and liable to all the consequences
that flow therefrom.
In my opinion a prohibited non-citizen ought not to be
released from custody unless he satisfies the Court first
that it is unlikely that he will seek to be absorbed into
the community; second, that he will observe any conditions
including conditions as to reporting and notifying changes
of address and the like which the Court may impose in
ordering his release from custody; and third, as to any
other matters which the Court may consider relevant in the
circumstances of the particular case."

22. In The Queen v MacKellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461, Mason J. said (at p 478) that the operation of a deportation order was to render a person "liable to arrest and detention. He is an illegal immigrant, having no right or title to remain here." Mason J. added (at pp 478-9):

"The making of a deportation order under s.18 therefore
provides lawful authority for the removal from Australia
against his will of a person who has no right to remain
here. It is not the case that the order terminates his
right to remain; nor can it be said in the ordinary case
that it deprives him of a legitimate expectation that he
will be allowed to remain here. Deportation, for which the
order provides, is then but a consequence of the prohibited
immigrant's failure to depart when he has no right to remain."

23. The context in which these observations were made was the question whether the power given to the Minister by s.18 of the Act to order deportation was subject to an obligation to observe the principles of natural justice. The High Court in Ratu had held, by a majority, that it was not. However, subsequently, in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, it was held, by a majority of the High Court, that in the light of amendments made to the Act and to the ADJR Act, there was neither any relevant statutory framework supporting, nor any direct authority for, a general proposition that the requirements of natural justice or procedural fairness need not be observed in relation to the making of a deportation order under the Act.

24. Reverting now to the present case, it will be recalled that the primary judge referred to Elmi. There, the applicant sought release from custody, where he had been held pursuant to a direction given under s.39 of the Act, pending the hearing of his application for review under the ADJR Act of a decision of the Minister not to revoke a deportation order. The interlocutory application for release was refused twice on discretionary grounds. On the first occasion (21 December 1987, unreported) Gummow J. said:

"Section 15 of the Administrative Decisions (Judicial
Review) Act 1977 ("the ADJR Act") provides that the Court
may, by order, on such conditions, if any, as it thinks fit,
suspend the operation of the decision in relation to which
an application is before the Court under s.5 of the ADJR Act.
There is before the Court no application which challenges
the decision to issue the direction on 13 November 1987
under s.39 of the Migration Act. Nevertheless, counsel for
the applicant submits that that is not the end of the
matter. Section 39 operates to authorize detention only
where an order for deportation is in force. It would be, as
a matter of jurisdiction, in counsel's submission, open to
the Court as an interlocutory step to suspend the operation
of the order under s.12 of the Migration Act. If this were
done, the result would be that the applicant could then be
released because he could no longer properly be kept in
custody as a deportee within the meaning of s.39.
Implicit in the submission of counsel for the applicant is
the proposition that there is a serious question to be tried
(within the meaning of the authorities) as to whether or not
the deportation order of 28 July 1986 should remain in force.
In my view, the question that was before the Court on 19
November 1987, when the interlocutory restraint on
deportation was imposed, was a serious question concerning
not the making of the deportation order but rather the
obligation, or lack of obligation, of the Minister to follow
the recommendation of the Administrative Appeals Tribunal.
It was this decision which was communicated by the letter of
29 October 1987, to which I have referred.
There are, in my view, in the legal and factual setting of
the present case, real difficulties in applying s.15 in such
a way as to produce the results sought by the applicant.
However, I do not rest my decision on that ground and prefer
to deal with the merits of the matter."

25. On the second occasion, Gummow J. said (17 ALD 471 at pp 472-3):

"There is authority that where what is sought to be reviewed
is the decision of a magistrate to commit fugitives to
prison pending possible extradition under the extradition
legislation, the power of this court under s 15 of the ADJR
Act extends to the making of interim orders suspending the
operation of the decision of the magistrate, including the
order for committal, pending final judgment....However as
Morling J pointed out in Zoeller v A-G..., in the case, not
of a committal order but of a remand under s 17(2) of the
Extradition (Foreign States) Act 1966, there may be a
question whether s 17(2B) thereof affects the power of the
court under s 15 of the ADJR Act.
In the present case, granted the scope of the power in s 15
of the ADJR Act, there remains the difficulty in linking the
decision, whose operation is sought to be suspended, or
proceedings under which are sought to be stayed, with the
decision sought to be reviewed under s 5 of the ADJR Act. I
referred to this aspect in the judgment of 21 December 1987.
In response to this, the applicant today directed attention
to s 23 of the (FCA) Act. That section provides as follows:
'The Court has power, in relation to matters in which it has
jurisdiction, to make orders of such kinds, including
interlocutory orders, and to issue or direct the issue of
writs of such kinds, as the Court thinks appropriate.'
Section 23, which of course applies generally across the
spectrum of the jurisdiction of the court, will not
generally be read as giving power to grant additional
remedies of a kind already specifically provided for in
other legislation where that legislation is directed to a
particular head of jurisdiction of the court and is to be
seen as a comprehensive statement of the remedies there
available...There is a real question as to whether s 15 of
the ADJR Act is not to be taken as such a comprehensive
statement so that s 23 of the (FCA) Act is to be read accordingly.
Further, even if this not be so, s 23 does not operate at
large or in a general way. In Jackson v Stirling
Industries Ltd..., Deane J., with the agreement of the Chief
Justice, Wilson and Dawson JJ, said: 'Section 23 of the
Federal Court of Australia Act 1976 (Cth) confers upon the
Federal Court a broad power to make orders of such kinds,
including interlocutory orders, as it 'thinks appropriate'.
Wide though that power is, it is subject to both
jurisdictional and other limits. It exists only 'in
relation to matters' in respect of which jurisdiction has
been conferred upon the Federal Court. Even in relation to
such matters, the power is restricted to the making of the
'kinds' of orders, whether final or interlocutory, which are
capable of properly being seen as 'appropriate' to be made
by the Federal Court in the exercise of its jurisdiction.'
Brennan J...said that the relief which the Federal Court was
authorised to give did not extend beyond the grant of
remedies appropriate to the protection and enforcement of
the rights or subject matter in issue. In the earlier
decision of this Court in Rifki v Minister for Immigration
and Ethnic Affairs..., Toohey J. held there was power under
s 23 of the (FCA) Act to stay proceedings under a
deportation order where the decision sought to be reviewed
was an alleged refusal to supply a statement of reasons
under s 13 of the ADJR Act, and where s 15 thereof applied
only to that alleged refusal. The reasoning in that
decision may require reconsideration in the light of what
has been said by the High Court in Jackson v Stirling
Industries Ltd., supra.
In my view, in the light of the statements which I quoted
from Jackson's case, and given the nature both of the
application for review made in these proceedings under s 5
of the ADJR Act and of the power already found in s 15 with
its apparent attendant limitations, there remains a real
difficulty in the path of the relief sought today by the
applicant.
However, as I have indicated, I prefer to base my decision
on the merits of the application."

26. The context in which the observations cited from Jackson [1987] HCA 23; (1987) 162 CLR 612 were made was whether an order for the preservation of assets pending trial went beyond what was "appropriate" in terms of s.23 of the FCA Act.
The Minister's appeal

27. By his notice of appeal, the Minister appeals from the whole of the judgment at first instance on these grounds: "1. The Judge had no jurisdiction or power to make the order that the respondent be released from custody pending the hearing and determination of the application for judicial review dated 8 March 1991. 2. The Judge, having found that there was a serious question to be tried, erred when considering the balance of convenience in himself embarking upon an examination of the merits and making his own findings of fact."
The Minister's arguments in support of the appeal

28. In support of the appeal, the following arguments were advanced on behalf of the Minister: (1) The power conferred by s.15 of the ADJR Act, by which a Judge may stay the operation of a decision or proceedings under a decision, was not invoked by the Judge in the present case and, in any event, was not available for use in this instance. The power being exercised by the Minister and his officers was that conferred by s.93 of the Act. After the decision made on or about 7 February 1991 to arrest and detain Mr Msilanga as a consequence of the deporation order made on 7 February, there was a further decision on 6 March 1991 that Mr Msilanga should continue to be held in custody pending his deportation. Whilst it could be said that the decision made on or about 7 February to arrest and detain Mr Msilanga was a decision the operation of which might be suspended pursuant to s.15 of the ADJR Act, the decision of 6 March not to order his release could not relevantly be affected by that power. In any event, the order made by the Judge granting bail was not an order intended to be referable to s.15. (2) The power of the Court to grant interlocutory relief in the present type of case was not argued in the two seminal decisions in Piroglu and Unlugenc. (3) Section 23 of the FCA Act should not be read as giving power to grant additional remedies of a kind already specifically provided for in other legislation directed to a particular head of jurisdiction where that legislation, in this case the ADJR Act, is a comprehensive statement of the remedies available. (4) Even if s.23 were available, the grant of bail exceeded what was appropriate. (5) The exercise of discretion miscarried because the Judge failed to address the question whether, in the language used in Piroglu, the circumstances were "exceptional".

29. It is necessary to consider separately the several questions that arise on the appeal.
What decision or decisions were sought to be reviewed at the final hearing of the application for review under the ADJR Act?

30. It is important first to identify the "matter" which is the subject of the principal proceedings.

31. As has been said, the application for review sought judicial review of first, the decision on 7 February to detain in custody and, secondly, the decision on 6 March 1991 to continue the detention. As the Judge noted, both decisions were purportedly made pursuant to s.93 of the Act. It appears that the first decision, to arrest and detain, was purportedly made pursuant to s.93(1) and (2) of the Act. It appears that the second decision was made in the context of s.93 generally, although Mr Wheen referred specifically to his "discretion" under s.93(9) to release a person from custody. Apart from the jurisdiction conferred on the Court under s.39B(1) of the Judiciary Act and possibly available also (a question not presently necessary for decision), by s.8 of the ADJR Act, jurisdiction is conferred upon the Court to hear and determine applications made to the Court under that Act. By s.5(1) of the ADJR Act, a person aggrieved by a decision to which the Act applies may apply to the Court for an order of review in respect of the decision on the grounds there stated. It is not, and could not be, suggested that the two decisions sought to be reviewed are not capable of review under the ADJR Act. These are the "matters" which are the subject of the principal proceedings.
Did the Judge have jurisdiction, or power, to grant interim relief pending the final hearing of the matters the subject of the proceedings?

32. In my opinion, the Judge did have this jurisdiction, or power, by virtue of ss.19 and 23 of the FCA Act, read (if need be) in conjunction with s.15 of the ADJR Act. I respectfully agree with the Judge that the reservations expressed in Elmi are not applicable here. I am further of the view that nothing in s.15 of the ADJR Act is intended to derogate from the width of the powers given to the Court by s.23 of the FCA Act for use in an appropriate case: s.15 of the ADJR Act addresses a possible need to suspend the operation of a decision; but this provision is silent on, and does not address, the different question, with which we are now concerned, that is, whether the Court has the power to order that a person be released from custody. It is true that an interim order under s.23 of the FCA Act could not travel beyond the jurisdiction or powers conferred by s.16 of the ADJR Act or s.39B of the Judiciary Act by way of final relief - the stream cannot rise higher than its source. But it is plain that final relief by way of release from custody could be ordered in the present type of case. That is to say, as a matter of power or jurisdiction, if release can be ordered at the final hearing, it must also be within the Court's competence to make such an order at the interim stage, if this is otherwise appropriate.

33. It is true that in both Piroglu and Unlugenc, the power to grant the interim relief, but not its exercise, was conceded by the Minister. But, in my view, the concession was properly made.

34. In Chan v The Commonwealth of Australia, Stephen J., 12 December 1980, unreported, in an application for an interlocutory injunction in a matter under the Act, Stephen J. enjoined the defendants from continuing to detain the plaintiff in custody. Stephen J. said:

"The use of injunctive relief for such a purpose is unusual,
but this in itself provides no ground for withholding that
relief if jurisdiction is made out and if I am satisfied
that as a matter of discretion an injunction ought to go.
Section 31 of the Judiciary Act confers jurisdiction
generally in this area - Beecham Group Ltd. v Bristol
Laboratories Pty Ltd. [1968] HCA 1; (1968) 118 CLR 618 at p 622, and
Order 49, rule 12 (1) of the Rules of this Court are
applicable. It was not suggested in argument that because
the present injunctive relief is directed to securing the
plaintiff's release from custody this in itself was enough
to deny him the remedy sought.
It was said on the Defendants' behalf that s.39(8) of the
Migration Act confers an exclusive power to order the
release of the plaintiff. I regard that sub-section as
directed to a very different situation to the present; one
in which there has been a curial decision that a deportation
order is invalid. It does not, I think, give rise to any
inference as to want of jurisdiction in the present case nor
do I regard the general power conferred by the Judiciary
Act to have been rendered inapplicable by any specific
provision of the Migration Act.
The jurisdiction is discretionary. I intend to exercise my
discretion in accordance with the judgment of this Court in the
Beecham Group case. I have accordingly looked at two questions:
the establishment of a prima facie case as that term is there
explained and the balance of hardship or injury."

35. The proceedings in Chan were, presumably, brought pursuant to s.75(iii) and (v) of the Constitution. As has been seen, Stephen J. referred to Beecham at p 622. There, Kitto, Taylor, Menzies and Owen JJ. said:

"It is as well to begin consideration of the appeal by
recalling the principles to be observed in dealing with
applications for interlocutory injunctions in patent cases.
The jurisdiction is discretionary, being a part of the
jurisdiction under s.31 of the Judiciary Act 1903-1965 (Cth)
to make all such orders as are necessary for doing complete
justice in the cause."

36. In my opinion, the reasoning in Beecham and Chan on the issue of jurisdiction is applicable in the present case: s.23 of the FCA Act is, for present purposes, the counterpart of s.31 of the Judiciary Act. Although Chan was mentioned by Northrop J. in Piroglu, it is an unreported decision and this may explain why the reasoning of Stephen J., which is squarely in point here, was not drawn to our attention.

37. On behalf of the Minister, reference was made to Simsek v MacPhee [1982] HCA 7; (1982) 148 CLR 636. There, the plaintiff, a Turkish citizen, entered Australia pursuant to a temporary entry permit which expired. He applied to the Department of Immigration and Ethnic Affairs for refugee status. The Minister ordered his deportation. He was arrested. He instituted proceedings in the High Court claiming that he had been refused the opportunity to make representations to the Minister or the Committee considering his application for refugee status. He applied to Stephen J. for interlocutory injunctions designed to restrain the defendants from deporting him before the determination of his claim and also to ensure his release from custody. Stephen J. said (at p 641):

"If the power of deportation which Parliament has given to
the Minister is to be interefered with in a case such as the
present, where the applicant neither denies that he was a
prohibited immigrant nor contests the validity of the making
of the deportation order itself, the applicant must in my
view first make out a prima facie case for injunctive relief
in accordance with the principles referred to in Beecham
Group Ltd. v Bristol Laboratories Pty. Ltd."

38. Stephen J. concluded that the plaintiff had failed to make out a prima facie case to a permanent injunction against deportation. Accordingly, the claim for an interim injunction against deportation was dismissed. Stephen J. also refused the other injunction sought, saying (at p 645):

"The case of the second injunction sought, that directed to
the applicant being released from custody pending
determination of his application to the Committee, is a
fortiori. His present status as a prohibited immigrant
against whom a deportation order has validly been made
provides statutory authority justifying his being held in
custody."

39. In my view, there is nothing in the reasoning in Simsek on the issue of jurisdiction which is inconsistent with the decisions in Beecham and Chan on this point. On the contrary, the reference by Stephen J. in Simsek to Beecham confirms his approach in Chan with respect to the jurisdiction to entertain a claim for interlocutory relief of the present kind.
Does the decision or reasoning in Jackson indicate that the primary Judge lacked jurisdiction or power to order release from custody?

40. As has been noted, s.23 of the FCA Act limits the power of the Court to what is, in the circumstances of the particular case, "appropriate". Where, as here, there is a claim raising serious questions whether decisions to arrest and to detain in custody were validly made, it was, in my opinion, "appropriate" for the learned primary Judge to deal with the matter on an interim basis by ordering release pending a final hearing. There is nothing, in my view, in the reasons in Jackson which would contradict this conclusion. The claim for interim relief is clearly related to the claim for final relief and thus the necessary relationship has been established. For this reason, the reservations expressed in Elmi, where no challenge to the decision to arrest was made, have no application. Moreover, in my view, it was "appropriate", in the language of Jackson, that the interim relief here take the form of an order for release from custody. In my opinion, the reasoning in Chan and in Beecham with respect to the jurisdiction, or power, to grant suitable interim relief reinforces the view that s.23 of the FCA Act was available here, if otherwise appropriate, to justify the grant of the interim relief sought.
Is s.15 of the ADJR Act relevant here, and if so, does it take away or reinforce the jurisdiction or power available under s.23 of the FCA Act?

41. I agree with the learned primary Judge that the immediate source of his jurisdiction or power was s.23 of the FCA Act, read in conjunction with s.15 of the ADJR Act. There is nothing in the latter provision which is inconsistent with the former. Each provision empowers the Court, in an appropriate case, in the exercise of a judicial discretion, to restrain,on an interim basis and pending final determination of the substantive claim, administrative action where a serious question arises as to the validity of that action. The appropriate form of that restraint will depend upon the circumstances of the particular case. Where the administrative actions under challenge are decisions to arrest and to detain in custody, there is no reason, in principle, why it would not be appropriate for the Court to order, on an interim footing, that the party be released from custody until the substantive claim is dealt with. In my view, s.15 of the ADJR Act does not detract from the operation of s.23 of the FCA Act in any relevant way in the present case.
Did the primary Judge err in adopting the "serious question to be tried" test in determining whether interim relief should be granted?

42. On behalf of the Minister, it was submitted that, given the public law context of these proceedings, it was inappropriate to apply the test applicable in the case of an application for interim relief in "private" litigation, e.g., proceedings brought to preserve private property. I have difficulty in accepting this submission. In Castlemaine Tooheys Ltd. v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148, in a public law case, Mason C.J. said (at p 153):

"The principles governing the grant or refusal of
interlocutory injunctions in private law litigation have
been applied in public law cases, including constitutional
cases, notwithstanding that different factors arise for
consideration. In order to secure such an injunction the
plaintiff must show (1) that there is a serious question to
be tried or that the plaintiff has made out a prima facie
case, in the sense that if the evidence remains as it is
there is a probability that at the trial of the action the
plaintiff will be held entitled to relief; (2) that he will
suffer irreparable injury for which damages will not be an
adequate compensation unless an injunction is granted; and
(3) that the balance of convenience favours the granting of
an injunction.
Recently two members of this Court have held that the
plaintiff must establish that there is 'a serious question
to be tried', to use the expression favoured in American
Cyanamid v Ethicon Ltd...., in preference to the 'prima
facie case' test which was adopted in Beecham Group Ltd. v
Bristol Laboratories Pty. Ltd....: Australian Coarse Grain
Pool Pty. Ltd. v Barley Marketing Board of
Queensland...(Gibbs C.J.); Tableland Peanuts Pty. Ltd. v
Peanut Marketing Board...(Brennan J.). In my opinion that
is the correct test to be applied at least in the majority
of cases..."

43. It follows, in my view, that, in this respect also, the primary Judge adopted the correct approach in the present case.
Did the primary Judge err in not insisting that "exceptional" circumstances be shown in order to justify the grant of interim relief?

44. The primary Judge applied the conventional "balance of convenience" test. This accords with the approach taken by Stephen J. in Chan and by Mason C.J. in Castlemaine Tooheys. In my opinion, the Judge was also correct in this approach to the interlocutory application.

45. As has been noted, in Piroglu, reference was made to the need to show "exceptional" circumstances in the present type of case. In other situations, for instance, in the exercise of the High Court's "inherent" jurisdiction on an appeal, it is said that the jurisdiction of that Court to grant bail pending the hearing of the appeal, will only be exercised in "exceptional" circumstances (see Zoeller v Federal Republic of Germany [1989] HCA 67; (1989) 64 ALJR 137 per Mason C.J. at p 138; see also Narain v Director of Public Prosecutions (1987) 71 ALR 248; Manfal Pty. Ltd. (In Liq.) v Trade Practices Commission (1990) 65 ALJR 256 per Toohey J. at p 257). Similarly, the High Court's inherent jurisdiction to preserve the subject matter of the litigation pending the determination of an appeal, has been described as "extraordinary" and granted "only in exceptional circumstances" (see Smith Kline and French Laboratories (Australia) Ltd. v The Secretary to the Department of Community Services and Health, [1991] HCA 13; (1991) 99 ALR 417 per Mason C.J. at 421). But the present jurisdiction is not of this special kind. Here we have a serious question arising as to the validity of administrative decisions and proceedings brought, at first instance, to restrain the execution of those decisions pending a final hearing at first instance. In such a case, assuming, as was reasonable to assume in the present case, irreparable damage to the applicant if interim relief were not granted, it was appropriate that the Judge proceed, as he did, to address the balance of convenience in accordance with the reasoning of Stephen J. in Chan and of Mason C.J. in Castlemaine Tooheys. It was not, in my view, necessary that the Judge address the different question whether the applicant for interim relief could show "exceptional" circumstances. The relevant inquiry was where, in all the circumstances, the balance of convenience lay.
Did the primary Judge err by not having regard to the presumption of regularity?

46. This is, of course, a presumption that may be rebutted. The primary Judge concluded, for the reasons he then gave, that the applicant had demonstrated that a serious question arose as to the validity of the administrative action challenged. In other words, the learned Judge decided that, for present purposes, the presumption had been displaced. There is no challenge in this appeal to the Judge's view that a serious question arose.
Did the primary Judge misconceive his role as that of an administrator by reviewing the facts and substituting his own view of the merits of the decisions?

47. In my opinion, this argument is without substance. It is
clear that the Judge exercised a judicial discretion as distinct from embarking on an exercise in administrative action. It was the Judge's duty, as an incident of his judicial discretion, to find the facts, primary and secondary (see, e.g., The Queen v Alley; Ex parte New South Wales Plumbers and Gas Fitters Employees' Union [1981] HCA 61; (1981) 153 CLR 376 per Gibbs C.J. at p 382; per Mason J. at p 389). The Judge was bound to do this in order to exercise his discretion in a way which was appropriate for a court to do in the exercise of judicial, not executive, power. The Judge did this and did no more, even if, in some areas, his conclusions of fact differed from those of the original decision makers. It is not suggested that it was not reasonably open to the Judge to form those conclusions.
Result of the appeal

48. In the result, I propose that the appeal be dismissed with costs.

This appeal raises an important question concerning the power of the court to grant interlocutory relief pending the final hearing of an application for judicial review brought under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). The principal proceedings relied, as well, on s. 39B of the Judiciary Act 1903; however, if the interlocutory order made can be supported under or by virtue of the Judicial Review Act, it will not be necessary to consider whether the court possessed the same power by virtue of the Judiciary Act.

2. A few words will suffice to explain the circumstances. A deportation order was made under s. 55 of the Migration Act 1958 against the respondent, Mr Msilanga. He applied to the Administrative Appeals Tribunal for a review of the decision to deport him. Upon the making of the deportation order, Mr Msilanga had been taken into custody under s. 93 of the Migration Act, but he was not deported because the Administrative Appeals Tribunal stayed his deportation pending its review of the decision reflected in the order. However, that stay did not affect his custody. Under s. 93(9) of the Migration Act, the Minister or the Secretary "may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in custody under (s. 93)". Application was made to the Minister, pursuant to this provision, for the release of Mr Msilanga. The Minister's delegate having declined to make an order for release, and positively decided the detention in custody should continue, Mr Msilanga instituted the proceedings mentioned at the commencement of these reasons under the Judicial Review Act, and also under s. 39B of the Judiciary Act, for judicial review of both that decision and the original decision to detain him in custody. In his application, an order was sought under s. 16(1) of the Judicial Review Act directing the Minister to release Mr Msilanga from custody.

3. Pending the final hearing of the matter, Mr Msilanga then sought interlocutory relief in the form of an order directing his interim release. This relief was resisted by the Minister, but after an interlocutory hearing, a judge of the court made an order granting release on bail subject to conditions. (The decision is reported as Msilanga v Hand [1991] FCA 68; (1991) 22 ALD 27.) Against his Honour's order, the Minister appeals, claiming, first, that it was made without jurisdiction, and secondly, that, if the judge had the power to make such an order, he exercised the power upon a wrong principle.

4. Counsel for the Minister conceded, and plainly it could not be denied, that the power conferred by s. 15 of the Judicial Review Act would have enabled the court, in respect of each decision, to "suspend the operation of the decision" and to "order ... a stay of all or any proceedings under the decision", but it was contended that s. 15 exhausts the interlocutory remedies available in such a case. Section 15 was said to be of no avail to Mr Msilanga because, although the original decision to arrest and detain him was in its nature capable of being suspended or stayed, the later decision should be characterised simply as a decision not to release him; and the suspension of a decision not to release him would, it was said, have no effect on his continuing custody. The argument overlooks the fact that the application made by Mr Msilanga sought review, not only of the later decision, but also of the original decision to detain him in custody. The original decision being susceptible of suspension or stay, it seems to me the power conferred by s. 15 of the Judicial Review Act was in fact adequate to meet the situation. What s. 93(9) enables the Minister to do is to release a person from an existing custody; but if the decision (reached under s. 93(2) and (8)) to keep the person in custody is itself suspended or stayed, any decision under s. 93(9) not to grant a release must fall, because there is no longer any custody to which it can apply. This position may be contrasted with the circumstances analysed by the Privy Council in Minister of Foreign Affairs, Trade and Industry v Vehicles and Supplies Ltd (1991) 1 WLR 550. That the power to stay, even without the added power to "suspend the operation of the decision", must be given a wide effect was confirmed by the Court of Appeal in Regina v Secretary of State for Education and Science, Ex parte Avon County Council (1991) 1 QB 558. However, I propose to consider the matter on the footing upon which the argument was presented. Situations may very well arise with respect to which the power in s. 15 may prove inadequate, since the justice of the case may demand some further or other interlocutory order. It is, therefore, a very important question whether the court will then be impotent.

5. There is no doubt that, upon a final hearing, the court's arm is long enough and powerful enough to do justice. Section 16(1) confers on the court as defined (that is, by s. 3(1), the Federal Court) a discretion to "make all or any of the following orders":

"(a) an order quashing or setting aside the decision,
or a part of the decision, with effect from the
date of the order or from such earlier or later
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 Court
considers necessary to do justice between the parties."

The power the learned primary judge conceived of himself as exercising in the present matter was, of course, the power conferred by paragraph (d). It is wide enough to deal with the present problem.

6. The only question, therefore, is whether the court has interim powers to match its ultimate powers. For myself, I can entertain no doubt of the answer. Section 16 of the Judicial Review Act having given the court jurisdiction to make the orders to which I have referred, s. 19 of the Federal Court of Australia Act 1976 confirms that jurisdiction, and s. 22 emphasises its scope. Section 23 of the Federal Court of Australia Act then provides:

"The Court has power, in relation to matters in which it has
jurisdiction, to make orders of such kinds, including
interlocutory orders, and to issue, or direct the issue of,
writs of such kinds, as the Court thinks appropriate."

This is as wide a conferral of power to grant the full range of interlocutory relief as any court could require. The fact that the parliament has seen fit (by s. 15 of the Judicial Review Act) to give expressly a special, and plainly appropriate, power to suspend or stay the very decision which is the core of the subject matter of jurisdiction in judicial review provides no reason at all for a conclusion that the wide powers of the court, to grant necessary interlocutory relief in respect of what may have been done pursuant to the decision, are in any way reduced. Section 15 is an affirmation of power to make a decision going to the heart of the matter; it would be a strange conclusion that a power to suspend the decision itself enfeebles the powers of the court to deal with its consequences.

7. The power of the court to make an interlocutory order for the release of a person held in custody in such circumstances as the present, or in similar circumstances, has been accepted for at least the past ten years. In Piroglu v Minister for Immigration and Ethnic Affairs [1981] FCA 78; (1981) 55 FLR 99 at 101, Northrop J. held that he had this power, which he attributed to the effect of s. 23 of the Federal Court of Australia Act. (In the later case of Kaur-Bonicelli (infra), he explained, as I have done, how s. 23 operates upon s. 16 of the Judicial Review Act.) Northrop J's decision was followed by Lockhart J. in Unlugenc v Minister for Immigration and Ethnic Affairs (1982) 43 ALR 569 at 571. The power has been asserted repeatedly since: Rifki v Minister for Immigration and Ethnic Affairs (1983) 46 ALR 301 at 303, per Toohey J.; Shand v Minister for Immigration and Ethnic Affairs (Lockhart J. unreported 18 November 1986); Siu Wing Tam v Minister for Immigration and Ethnic Affairs (Foster J. unreported 17 March 1988); Watsana Singthong v Minister for Immigration and Ethnic Affairs (1988) 18 FCR 486 at 489 and Stephenson v Minister for Immigration Local Government and Ethnic Affairs (1989) 18 ALD 249 at 252, the last two cases being decisions of my own; Mayur Kumar v Minister for Immigration Local Government and Ethnic Affairs (Beaumont J. unreported 3 April 1989); Pesava v Minister for Immigration Local Government and Ethnic Affairs (1989) 18 ALD 95 at 101, per Wilcox J.; Jovcevski v Minister for Immigration Local Government and Ethnic Affairs (Lockhart J. unreported 14 July 1989); Habal v Minister for Immigration Local Government and Ethnic Affairs (Hill J. unreported 22 August 1989); Habal v Minister for Immigration Local Government and Ethnic Affairs (Lockhart J. unreported 12 September 1989); Somaghi v Minister for Immigration Local Government and Ethnic Affairs [1990] FCA 321; (1990) 21 ALD 104, per Lockhart J.; Kaur-Bonicelli v Minister for Immigration Local Government and Ethnic Affairs (Northrop J. unreported 11 April 1990); Kirakos v Minister for Immigration Local Government and Ethnic Affairs (Gray J. unreported 16 October 1990); Calvert v Minister for Immigration Local Government and Ethnic Affairs (Hill J. unreported 7 March 1991); and Manoher v Minister for Immigration Local Government and Ethnic Affairs (Lee J. unreported 10 May 1991).

8. Faced with all these decisions, counsel for the appellant referred the court to Elmi v Minister for Immigration and Ethnic Affairs (1988) 17 ALD 471, where Gummow J. expressed a doubt as to the scope of the court's powers under s. 23 of the Federal Court of Australia Act. But it should be emphasised that Gummow J. did not hold that the cases I have referred to were wrongly decided; he simply stated (at 473) "there remains a real difficulty in the path of the relief sought" (i.e. release from custody pursuant to an interlocutory order). The actual decision in Elmi was to reject the application on the merits. In any event, since Elmi was decided, the High Court in Park Oh Ho v The Minister of State for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 167 CLR 637 at 644, in a joint judgment of five justices, has emphasised the width of the powers of this court to be found in s. 16 of the Judicial Review Act. The High Court said:

"The legislative purpose to be discerned in the conferral by
s. 16(1)(c) and (d) of power to grant declaratory and
injunctive relief in addition to the power to quash or set
aside (with effect from a specified date) an impugned
decision is clear. It is to allow flexibility in the
framing of orders so that the issues properly raised in the
review proceedings can be disposed of in a way which will
achieve what is `necessary to do justice between the
parties' (s. 16(1)(d)) and which will avoid unnecessary re-
litigation between the parties of those issues. The scope
of the powers to make orders which the sub-section confers
should not, in the context of that legislative purpose, be
constricted by undue technicality. In particular, the
phrase `any matter to which the decision relates' in s.
16(1)(c) should be construed as encompassing any matter
which is so related to, in the sense of connected with, the
impugned decision that it is appropriate that it be dealt
with by the grant of declaratory relief in judicial
proceedings for the review of the propriety of that decision."

Park Oh Ho was a case concerned with the power to grant declaratory relief contained in s. 16, but the passage I have cited makes it unequivocally clear that no narrow view should be taken of the cognate power to grant an injunction. It is that power which is picked up by s. 23 of the Federal Court of Australia Act. In my view, it is ample to cover cases of the present kind.

9. The appellant did not dispute the learned primary judge's finding that the respondent had established a serious question to be tried within the meaning of the well known principle governing the grant of interlocutory relief. However, it was submitted that, if the court held in favour of jurisdiction, it should nevertheless reach the conclusion that interlocutory relief, in the form of an order securing the release of an applicant from custody, should not be granted in a case of this kind, because to do so would be to usurp the functions of the Minister. Alternatively, it was submitted that such relief should be granted only in exceptional circumstances. Both these propositions seem to me to be contrary to the unreported decision of Stephen J., delivered 12 December 1980, in Chan v The Commonwealth of Australia, which Beaumont J. has cited in his reasons. In my opinion, the submissions are also contrary to the whole thrust of the reasoning of Mason A.C.J. in Castlemaine Tooheys Limited v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148.

10. Once a sufficient case is shown that the Minister's decision is invalid, the court has a duty to consider the exercise of the powers entrusted to it, in accordance with the principles that govern the exercise of those powers, which are not limited in the ways the submissions suggest. As Sir William Wade pointed out in a note in (1991) 107 LQR 4 at 5:

"The practice of granting powers to ministers rather than to
the Crown has the great virtue that it prevents the Crown's
immunities from obstructing the operation of the rule of law
and the effectiveness of remedies against the state."

11. (The learned author of the note, to which Lord Oliver of Aylmerton referred in the Advice he delivered for the Privy Council in Minister for Foreign Affairs, Trade and Industry v Vehicles and Supplies Ltd (supra, at 557), made this observation in the course of a trenchant criticism of a passage in the speech of Lord Bridge of Harwich in Factortame Ltd v Secretary of State for Transport [1989] UKHL 1; (1990) 2 AC 85 at 143 et seq. It is unnecessary to examine that passage, which asserts the immunity of the Crown and of the officers of the Crown against interlocutory injunctions, a point described by Lord Oliver in the Privy Council matter (ubi cit.) as "far from easy". It is unnecessary because s. 16 of the Judicial Review Act and s. 23 of the Federal Court of Australia Act fill the gap that Lord Bridge perceived in the Crown Proceedings Act 1947 (UK), by reason of the failure to amend it as recommended by the Law Commission's Report which his Lordship discusses. I should add that, if there were any doubt - as I do not think there is - about the application of s. 23 to a claim for interlocutory relief against a Minister of the Crown in a case involving judicial review, s. 64 of the Judiciary Act 1903 would settle that doubt: cf. Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 at 22-23. Of course, where a challenge to administrative action is made under s. 39B of the Judiciary Act, the court has the powers conferred on it by that section and by s. 75(v) of the Constitution.)

12. The submission that the Minister's powers restrict those of the court, in a matter committed to its jurisdiction, to order the release of an applicant from custody is in serious conflict with "the jealous care our law traditionally devotes to the protection of the liberty of those who are subject to its jurisdiction", to cite the words of Lord Scarman in Khera v Secretary of State for the Home Department (Reg. v Secretary of State for the Home Department, Ex parte Khawaja) [1983] UKHL 8; (1984) AC 74 at 111. Lord Scarman went on to say:

"If Parliament intends to exclude effective judicial review
of the exercise of a power in restraint of liberty, it must
make its meaning crystal clear."

Far from attempting to do that, the Australian parliament provided, in the Judicial Review Act, for judicial review of the Minister's decision, and conferred upon the court the wide powers set out in s. 16. The Minister's function has been performed, and the matter has now moved, as the legislation intended it should in appropriate cases, into the arena of the court.

13. But it needs to be emphasised that at no stage did the Minister have some peculiar authority over the whole disposition of Mr Msilanga as he chose. That view of executive power was abandoned (for common law countries) in the 17th century. The power of the Minister, no less than that of the court, extends only so far as parliament has determined, under the constitution. Both constitution and parliament have subjected decisions he may make, in relevant respects, to the exercise of judicial power. For the court to use its power is not to meddle in the concerns of the executive, but to do its plain duty in accordance with the constitution and the will of the parliament.

14. It would be a dangerous regression indeed if decisions of the Minister, often made in fact by delegates, were seen as precluding the courts from administering justice fully and humanely. When a matter comes to the court, the parties have, under our procedures, an unrivalled opportunity to ensure that the possible injustice of decision on a false issue, or upon concealed grounds, or upon inadequate information, is avoided, and the issues each may wish to raise are determined. Furthermore, the question to be decided, upon an interlocutory application for release pending the hearing of a proceeding in which judicial review is sought of an administrative decision, is never the same question which the administrator decided. His was not a decision pending judicial review. The problem for an humane system of justice, governed by the principles of the common law, posed by a temporary imprisonment which the ultimate decision may prove to have been unjust, was never his problem. Though the decisions may appear superficially similar, they are made, in a fundamental sense, for a different purpose; and there may well be some difference also in the considerations taken into account. Indeed, the proceeding for judicial review will, in itself, have added a new dimension to the question; often there will be a new incentive for the applicant to comply with any conditions upon which he may be released. These considerations are quite apart from the new or amplified evidence which, in many cases, will be available at an interlocutory hearing.

15. Counsel for the appellant sought to bolster his contentions by reliance on a presumption of the regularity of the delegate's decision. But "(t)here is no room for presumptions in favour of the executive where the liberty of the subject is concerned": Schlieske v Federal Republic of Germany (1987) 14 FCR 424 at 432. Indeed, the argument collides with what Lord Atkin, in a very famous judgment, described as "one of the pillars of liberty", the principle that "in English law every imprisonment is prima facie unlawful": Liversidge v Sir John Anderson [1941] UKHL 1; (1942) AC 206 at 245.

16. So far as concerns the alternative argument, that the jurisdiction should only be exercised in exceptional circumstances, I do not think that either the power conferred by s. 15 of the Judicial Review Act or the power conferred by s. 23 of the Federal Court of Australia Act in its operation upon s. 16 of the Judicial Review Act, should be construed as restricted in that way. I accept that immigration matters will frequently raise issues not raised in many other types of applications. But what that means is, not that the law is different in respect of them, but that the factual considerations subsumed under the rubric of balance of convenience will, in those cases, be enlarged to take account of the immigration issues. The governing principles remain those to which Mason A.C.J. referred in Castlemaine Tooheys. They were the principles which the learned primary judge applied in this case.

17. In my opinion, the appeal should be dismissed with costs.