Gurung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 509 (19 April 2002)

Last Updated: 12 September 2002

FEDERAL COURT OF AUSTRALIA

Gurung v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 509

MIGRATION - cancellation of spouse visa - primary decision - deportation pending - interlocutory injunction sought - no jurisdiction to review - if not primary decision then out of time - no power to extend time - no arguable case for grant of relief.

Migration Act 1958 (Cth) ss 475A, 476, 477(2)

Judiciary Act 1903 (Cth)

Hocine v Minister for Immigration and Multicultural Affairs [2000] FCA 778; (2000) 99 FCR 269 cited

DHAN GURUNG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W120 OF 2002

FRENCH J

19 APRIL 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W120 OF 2002

BETWEEN:	DHAN GURUNG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	19 APRIL 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application for an interlocutory injunction is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W120 OF 2002

BETWEEN:	DHAN GURUNG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	19 APRIL 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1 This is an application which was filed in Court today, brought on behalf of Dhan Gurung. The application is said to be an application for review of a decision by the Minister for Immigration and Multicultural and Indigenous Affairs to cancel the applicant's permanent residence spouse visa. The applicant seeks an urgent injunction requiring the Minister not to remove him from Australia and an order that he not be detained.

2 An affidavit has been filed by a solicitor, Mr De Alwis, acting for the applicant. It states that on 18 April 2002, that is to say yesterday, the applicant's sister consulted Mr De Alwis concerning her brother who is said to be detained at the Villawood Detention Centre in New South Wales. Mr De Alwis says in his affidavit that he telephoned the applicant and obtained instructions yesterday. Those instructions indicated that the applicant had lost all documents relating to the cancellation of his visa when he left his marital home. The documents, it is said, cannot be found. Mr De Alwis says he has prepared his application on the basis of instructions from the applicant which are based on his memory.

3 The applicant said to Mr De Alwis that he had been informed by a caseworker in the Immigration Department that he would be deported after 18 April 2002. Mr De Alwis confirmed with an officer of the Australian Government Solicitor's office in Sydney that the applicant would be deported as soon as practicable after 18 April. His instructions evidently indicated that in July 1999 the applicant came to Australia on a student visa. He married a Ms Hannah King. They separated in September 2001 but remain married at the present time. They have a two-year-old child. It is asserted, presumably on the basis of the applicant's instructions, that the marriage may not yet have irretrievably broken down although there is a conflict between the spouses at the present time.

4 According to the applicant, as reflected in Mr De Alwis' affidavit, his wife took the child and moved to Melbourne last year and he became very depressed. About two and a half months ago he was notified that his visa was cancelled on the ground that the marriage was not ongoing. He became more depressed. He missed his child and was fearful of losing the child forever if he was deported. However, due to his depression, according to Mr De Alwis' instructions, he withdrew from life and did not attend to the cancellation of his visa or to the removal of the child. He was arrested and detained about one and a half months ago and remains in detention. Until his sister contacted Mr De Alwis on his behalf no action had been taken by the applicant.

5 Mr De Alwis says he is instructed that there may be a chance of reconciliation. He asserts that the rights of the child were not addressed prior to the cancellation of the visa. The fact that the marriage had survived the period of two years was not taken into account by the decision-maker. The fact that the marriage has not yet ended has not been taken into account, he says. He says that the chance of reconciliation has not been addressed by the decision-maker. He also asserts that the decision-maker did not address the question whether Australia would be violating an international covenant against torture, cruel and inhuman treatment and Article 5 of the Universal Declaration of Human Rights.

6 The applicant, he says, is "in breach" of the provisions of Pt 8 of the Migration Act 1958 (Cth) and since he has not applied to the Federal Court challenging the cancellation of his spouse visa and as the cancellation is a privative clause decision he is, according to Mr De Alwis, "presumed to be in breach of the statutory limit in applying to the Federal Court."

7 Mr De Alwis says that he has advised the applicant that the provisions of Pt 8 of the Migration Act and the relevant provisions of the Migration Legislation Amendment Judicial Review Act (2001) may be ultra vires the Constitution and that the provisions may be bad in law. He says, in the affidavit, that he will be submitting to the Court that the provisions are discriminatory and contravene s 51 of the Constitution and that the provisions withdrawing the rights of the applicant to seek an extension of time from the Federal Court are "bad in law". He asserts that the Federal Court has jurisdiction to grant an extension of time to the applicant to lodge this application for review. He claims that unless an injunction is granted restraining the respondent from removing the applicant from Australia, grave prejudice will be caused to the applicant. His sister, who is a permanent resident of Australia, will also be aggrieved.

8 It is not in dispute that the decision to cancel a visa is a privative clause decision within the meaning of s 474(2) of the Migration Act. Argument was not developed on whether it is also a "primary decision" within the meaning of s 476(6). The amendments to the Act, which came into effect on 2 October 2001, provided that the Federal Court and the Federal Magistrates Court have only certain limited jurisdiction in relation to privative clause decisions. The Court retains its general jurisdiction under s 39B of the Judiciary Act 1903 (Cth). Section 475A of the Migration Act provides:

"Section 476 does not affect the jurisdiction of the Federal Court under section 39B or 44 of the Judiciary Act 1903 or section 39 of the Federal Magistrates Act 1999, or the jurisdiction of the Federal Magistrates Court under section 483A of this Act, section 44 of the Judiciary Act 1903 or section 32AB of the Federal Court of Australia Act 1976, in relation to:

(a) a privative clause decision that is a decision made on a review by a Tribunal under Part 5 or 7 or section 500; or

(b) any other decision in respect of which the court's jurisdiction is not excluded by section 476."

Section 476 provides, in the relevant parts:

"476(1) Despite any other law (including section 483A, sections 39B and 44 of the Judiciary Act 1903, section 32AB of the Federal Court of Australia Act 1976 and section 39 of the Federal Magistrates Act 1999), the Federal Court or the Federal Magistrates Court do not have jurisdiction in relation to a primary decision."

9 Subsections (2A) to (5) are not relevant for present purposes. Subsection (6) defines a "primary decision" as a privative decision that is reviewable or has been reviewed under Pt 5 or 7 or section 500 or that would have been so reviewable if an application for such review had been made within a specified period. Section 477 then provides for time limits on applications for judicial review. An application to the Federal Court or the Federal Magistrates Court under s 39B of the Judiciary Act for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of a privative clause decision, in relation to which the jurisdiction of the Federal Court is not excluded by s 476, must be made to the Federal Court within twenty eight days of the notification of the decision. Subsection (1A) is not relevant for present purposes. Subsection (2) provides:

"The Federal Court or the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subsection (1) or subsection (1A) outside the period specified in that subsection."

10 It appears on the face of it that the decision in respect of which complaint is made is a primary decision. On that basis the jurisdiction of the Court is excluded by s 476. If it otherwise falls within the scope of s 475A it would nevertheless be caught by s 477 which imposes a time limit on applications that is jurisdictional in character. There is ample authority on the previous provisions of the Act relating to time limits, and to similar effect, which establishes that point.

11 The constitutionality of those provisions has previously been agitated in this Court - Hocine v Minister for Immigration and Multicultural Affairs [2000] FCA 778; (2000) 99 FCR 269. The only basis upon which Mr De Alwis contends that he would have an arguable case in relation to obtaining an extension of time or otherwise invoking the jurisdiction of this Court is that Pt 8 of the Migration Act is, ultra vires, the Constitution. He puts that on the basis that the provisions of Pt 8 which limit the time within which applications can be made to this Court are not provisions for the peace, order or good government of the Commonwealth within the meaning of s 51 of the Constitution in that they specifically target persons who are migrants. This is said to be inconsistent with the requirements of international law.

12 Mr De Alwis has not advanced any argument which would disclose an arguable case in support of the grant of an interlocutory injunction in this application, The application is beyond the jurisdiction of the Court in so far as it seeks review of a primary decision. If the cancellation in question was not a primary decision then the application is in any event beyond the jurisdiction of the Court as falling outside the time limits which s 477 provides.

13 There is no basis upon which the Court can award an interlocutory injunction to restrain the deportation of the applicant. The application for an interlocutory injunction is therefore dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French .

Associate:

Dated: April 2002

Counsel for the Applicant: Solicitor for the Applicant: Date of Hearing: Date of Judgment:

Mr V De Alwis Mr V De Alwis 19 April 2002 19 April 2002