Re Minister of Immigration, Local Government and Ethnic Affairs v Fernando Montero [1992] FCA 42 (13 February 1992)

FEDERAL COURT OF AUSTRALIA

Re: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
And: FERNANDO MONTERO
No. D G7 of 1991 FED No. 43
Administrative Law (Procedure) - Courts

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY 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

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 C.R. McDonald

Solicitors for the Respondent: Messrs Loftus and Cameron

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 of Beaumont J. The appeal should be dismissed with costs.

The Minister for Immigration, Local Government and Ethnic Affairs appeals, by leave, from interim orders made by a Judge of the Court restraining the Minister from detaining Fernando Montero, the respondent, in custody and ordering that Mr Montero be released from the custody in which he was held pursuant to the provisions of the Migration Act 1958 ("the Act"). The appeal arises in the following circumstances.
The background

2. Mr Montero is a citizen, and permanent resident, of the Republic of the Philippines. On 20 February 1991, an Australian entry visa was issued to Mr Montero in the Philippines. The visa was a "visitor" class visa and bore the notation "Work Prohibited". On 10 March 1991, Mr Montero sought to enter Australia at Darwin airport. An officer of the Department of Immigration, Local Government and Ethnic Affairs purported to refuse entry to Mr Montero, cancelled his visa and took him into custody. (By s.26 of the Act, the Minister may at any time, in his or her absolute discretion, cancel a valid visa. By s.89(2) of the Act, a person who disembarks from an aircraft at a proclaimed airport, being a person whom an authorised officer reasonably believes to be seeking to enter Australia in circumstances in which the person would become an illegal entrant, may be taken into custody. By s.89(3), where a person who travels by aircraft from a place outside Australia to a proclaimed airport has sought and been refused an entry permit at that airport, the person may be taken into custody.) An approach was then made to the Regional Director of the Department, Malcolm Paterson, seeking to have overturned the decision to refuse Mr Montero entry and to have him released from custody. The request was refused by Mr Paterson by letter dated 12 March 1991.

3. On 19 March 1991, Mr Montero filed an application in the Court for an order of review, nominating the Minister and Mr Paterson as respondents, seeking to review Mr Paterson's decision "not to overturn an initial decision to cancel (Mr Montero's) visa and refuse (him) entry to Australia." Mr Montero sought the following relief: (1) "An order quashing the decision". (2) "A declaration that the applicant is entitled to enter Australia". (3) "Alternatively to (2)...a declaration that the decision is void and that the applicant be entitled to exercise his rights pursuant to the visa issued to him in Manila by the first respondent."

4. On 22 March 1991, Mr Montero applied for a stay of the Minister's decisions pending the final hearing of his application for judicial review. On that day, the learned primary Judge, having noted certain undertakings given to the Court by Mr Montero and by his sister, Teresita Muscat, ordered, inter alia: (1) that, until further order, the Minister and Mr Paterson be restrained from detaining Mr Montero in custody; and (2) that Mr Montero be released from custody. Costs of the application for interlocutory relief were reserved.

5. Subsequently, Mr Montero was given leave to amend his application for judicial review in two respects. First, James William McLoughlan, the officer of the Department who refused Mr Montero entry and cancelled his visa, was joined as a respondent in lieu of Mr Paterson. Second, the application was amended so as to seek review of Mr McLoughlan's decisions to refuse entry and cancel the visa.

6. On 8 April 1991, the learned primary Judge gave leave to the Minister to appeal to a Full Court from orders (1) and (2) above. On 17 April 1991, the Minister filed his notice of appeal. Subsequently, the appeal was fixed for hearing on 6 May 1991. Meanwhile, on 12 and 13 April 1991, the primary Judge heard the application for final relief. On 3 May 1991, shortly before the hearing of this appeal, the Judge ordered: (1) that the decision to refuse entry and cancel the visa be set aside; and (2) that the matter be remitted to the original decision maker to be dealt with according to law. Liberty to apply was reserved.
The relevant reasoning of the primary Judge

7. In his ex tempore reasons for granting interim relief, the Judge said:

"Although the application identifies the decision which is sought
to be reviewed as the initial decision to cancel the applicant's
visa and refuse entry, it seems that the more appropriate
application would be to review the decision of Paterson on 12
March 1991 not to overturn the initial decision.
The decision of Paterson on 12 March 1991 is not in my view
susceptible to being stayed in the ordinary sense. It is
therefore appropriate to deal with this present application as one
seeking injunctive relief as to which I am satisfied the Court has
jurisdiction under the Federal Court of Australia Act."

8. His Honour next addressed the issue whether there was a serious question to be tried at the final hearing on the substantive claim that the administrative action in cancelling the visa and refusing entry was invalid. For the reasons he then gave, the Judge concluded that there was such a question. The Judge finally considered whether the balance of convenience favoured the grant of interim relief and decided, for the reasons he then expressed, that it did.
The Minister's appeal

9. By his notice of appeal, the Minister seeks, first, an order setting aside the orders made at first instance mentioned above; and secondly, a declaration that the Court had no jurisdiction or power to make those orders. The grounds stated in the notice of appeal were (1) that the Judge had no power or jurisdiction to make the orders; (2) that the Judge "erred in applying the test of the balance of convenience in deciding whether to grant the application for the release of (Mr Montero) from custody in that his Honour did not address the question whether the circumstances were exceptional."
Is the present appeal now academic?

10. As has been said, after the institution of this appeal from an interlocutory order, final relief, as claimed by Mr Montero, has been granted. It is implicit in the reasoning of the Judge on the final hearing that the interim injunction would be made permanent if such an order were sought pursuant to the liberty to apply which was reserved. To this extent the appeal is of academic concern only (cf. Don Pasquale v Customs and Excise Commissioners (1990) 1 WLR 1108). However, the issue of costs of the interlocutory application, of the application for leave to appeal and of the appeal itself up to the final hearing at first instance, remain to be resolved. In respect of these matters, the appeal raises questions which are not merely of academic interest.
Appeal argued with The Minister v Msilanga

11. This appeal was argued at the same time as the appeal in The Minister v Msilanga. Similar submissions were made by the parties in both appeals. There is a deal of common ground in both appeals and, to avoid repetition, these reasons should be read in conjunction with my reasons in Msilanga.
Conclusions

12. Again it will be necessary to consider separately the questions which arise on this appeal.
What was the subject-matter of the principal proceedings?

13. The essential issues at the final hearing of the principal proceedings were the validity of the decisions (1) to cancel the visa and (2) to refuse entry.
Did the Judge have jurisdiction, or power, to grant the interim relief sought?

14. In my opinion, ss.19 and 23 of the Federal Court of Australia Act 1976 (the "FCA Act") read (if need be) in conjunction with s.15 of the Administrative Decisions (Judicial Review) Act 1977 (the "ADJR Act"), conferred jurisdiction, or power, on the Judge to grant "appropriate" interlocutory relief where the usual tests for the grant of interim relief are satisfied. In the present case, in my view, it was appropriate that interim relief take the form of an order for release from custody. In the principal proceedings, the validity of the decisions to cancel the visa and to refuse entry was attacked. As has been noted, the authority to take Mr Montero into custody pursuant to s.89 of the Act depended upon the effective cancellation of his visa. If the purported cancellation of the visa were held to be ineffective, it would be logical, and appropriate, to restrain further executive action which flowed from the purported cancellation, specifically the taking of Mr Montero into custody. Because the arrest and detention of Mr Montero and the cancellation of his visa were interdependent events, it followed, in my view, that in proceedings to review the validity of the cancellation of the visa, it was appropriate to order that a step taken consequent upon the cancellation be reversed, pending the final hearing of the challenge to the cancellation. In this way, the necessary relationship between the claim for interim relief and the claim for final relief, discussed in Jackson, was demonstrated in the present case (and see Rifki v Minister for Immigration and Ethnic Affairs 46 ALR 301 at p 3O3; Brisbane Gas Co. Ltd. v Hartogen Energy Ltd. 42 ALR 685 at p 689).
Did the Judge otherwise err in granting interim relief?

15. For similar reasons to those I have given in Msilanga, I am of the opinion that the learned primary Judge did not err in his approach in deciding, in his discretion, to grant interim relief. As in Msilanga, the Minister did not seek, on the appeal, to attack the detail of the Judge's findings. Instead, the Minister's submissions concentrated upon the matters of principle which now arise. Looked at as a matter of approach, and thus of principle, the course taken by the Judge was, in the circumstances of this case, an orthodox and proper one. In my view, the Minister has been unable to demonstrate any error in the approach adopted.
Result of the appeal

16. In the result, I would dismiss the appeal with costs.

This appeal was heard at the same time as the appeal in Minister for Immigration Local Government and Ethnic Affairs v Msilanga, and these reasons should be read with my reasons for judgment in that appeal. Common to the two matters is the question of the extent of the court's power, by way of a grant of interlocutory relief, to order the release of a person who has been taken into custody under the Migration Act 1958 and has applied under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") for judicial review of a relevant decision made under the Migration Act.

2. The respondent, Mr Montero, was successful in obtaining an interlocutory order for his release in the following circumstances. He had arrived at Darwin airport upon an international flight from the Philippines with a valid visa for entry into Australia for a period of six months as a visitor. It was a condition of his visa that he was prohibited to work in Australia. Before he had left the airport, his visa was cancelled by an immigration official on the ground that he had indicated an intention to engage in activities which would contravene the work prohibition. As a consequence of the cancellation of Mr Montero's visa, he was regarded by "an authorized officer" as falling within s. 89(3) of the Migration Act, and was taken into custody at Darwin airport. I find it unnecessary to discuss the details of what followed. It is sufficient to state that Mr Montero took proceedings under the Judicial Review Act in which he sought review of the decision to refuse him entry into Australia and expressly (by later amendment) of the decision to cancel his visa. He also sought and obtained the interlocutory order for his release to which I have referred.

3. In Mr Montero's case, as in Msilanga, the appellant Minister claims that the learned primary judge was without power to grant interlocutory relief of this kind and that, if he had the power, he erred in exercising it without first making a finding that the circumstances were exceptional. There was no challenge to the view of the learned primary judge insofar as he held a sufficient case had been made out that the cancellation of the visa involved a vitiating error of law. In fact, before the appeal came on for hearing, Mr Montero's principal application for relief under the Judicial Review Act was heard, and the decision to cancel the visa was set aside. An appeal from that decision has since been dismissed: Minister for Immigration, Local Government and Ethnic Affairs v Montero (Spender, French and von Doussa JJ, unreported, 14 August 1991).

4. The case bears more than a little resemblance to Watsana Singthong v Minister for Immigration and Ethnic Affairs (1988) 18 FCR 486, where I granted similar interlocutory relief. Singthong has been followed by Wilcox J. in Pesava v Minister for Immigration Local Government and Ethnic Affairs (1989) 18 ALD 95, by Lee J. in Manoher v Minister for Immigration Local Government and Ethnic Affairs (unreported 10 May 1991) and by Hill J. in Li Fang v Minister for Immigration Local Government and Ethnic Affairs (unreported, 19 September 1991).

5. In Manoher, Lee J. suggested that the test to be applied under s. 15 of the Judicial Review Act is simply "what is just and fair in the circumstances having regard to the interests of the applicant and the interests of the respondent in maintaining efficient departmental administration or efficient discharge of duties imposed on the respondent by statute". The principal authorities supporting this view are collected in Aboriginal Development Commission v Ralkon Agricultural Co Pty Ltd (1987) 15 FCR 159 at 163. I do not find it necessary, for the decision in this case, to determine whether s. 15 is governed by a different rule from that which applies under s. 23 of the Federal Court of Australia Act 1976 in its application to s. 16 of the Judicial Review Act, or in applications for interlocutory injunctions generally. There is no suggestion the learned primary judge departed from the orthodox approach. It may perhaps be said that the objective of the traditional tests is to achieve a just solution between the parties, and that they are sufficiently flexible to enable this objective to be achieved in the wide variety of circumstances with which the court may be confronted. The Australian authorities, of course, establish that whether a sufficiently serious question to be tried has been shown, and whether the balance of convenience favours an order, are not questions to be determined in strict isolation from each other: Martin Engineering Co v Matflo Engineering Pty Ltd (1987) 17 FCR 132 at 137. As Mason A.C.J. said in Castlemaine Tooheys Limited v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148 at 154:

"The degree of likelihood of success in the action is a factor that
is related to the balance of convenience".

It has been held otherwise in England, where the degree of the strength of a plaintiff's case will not generally be taken into account: Lawrence David Ltd v Ashton (1988) 20 IPR 244 at 255; but see Times Newspapers Ltd v Her Majesty's Attorney-General (1991) 20 IPR 609 at 633-634, per Lord Oliver of Aylmerton; Regina v Secretary of State for Transport, Ex parte Factortame Ltd. (No. 2) (1991) 1 AC 603 at 671.

6. For the reasons I have given in Msilanga, I reject the proposition that interlocutory relief by way of an order releasing a person from custody can only be granted in exceptional circumstances.

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