P1/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1029 (26 September 2003)

Last Updated: 29 September 2003

FEDERAL COURT OF AUSTRALIA

P1/2003 v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1029

MIGRATION - judicial review - claim for interlocutory relief - applicant for protection visa - applicant entered Australia unlawfully by boat - claimed to be minor - removed from Christmas Island to Nauru - brought to Australia under statutory power to appear as witness in coronial inquest - detained while in Australia - statutory designation as `transitory person' - need of medical treatment - proceedings remitted from High Court of Australia - claims for damages against Minister for Immigration and Multicultural and Indigenous Affairs - claim for orders preventing removal from Australia - challenge to validity of statutory provisions authorising removal to Republic of Nauru - challenge to validity of administrative decision to remove to Nauru - claim for interlocutory relief by way of injunction against removal - claim for interlocutory release from detention - claim for interlocutory order maintaining certain conditions of detention - whether serious questions to be tried - balance of convenience - motion dismissed.

Migration Act 1958 (Cth) s 5, s 13, s 14, s 46B, s 196, s 198A, s 198B, s 494AA, s 494AB

Judiciary Act 1903 (Cth) s 39B

Immigration (Guardianship of Children) Act 1946 (Cth) s 4AAA, s 6, s 6A,

Migration Amendment (Duration of Detention) Act 2003 (Cth)

Migration Legislation Amendment (Transitional Movement) Act 2002 (Cth)

WAJC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1631 cited

P1/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W156 OF 2003

FRENCH J

26 SEPTEMBER 2003

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W156 OF 2003

On remittal from the High Court of Australia

BETWEEN:	P1/2003 PLAINTIFF
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS DEFENDANT
JUDGE:	FRENCH J
DATE OF ORDER:	26 SEPTEMBER 2003
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The plaintiff's amended motion filed 19 September 2003 be dismissed.

2. The plaintiff is to pay the defendant's costs of the motion.

3. There is leave for the plaintiff to appeal against this decision.

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	W156 OF 2003

On remittal from the High Court of Australia

BETWEEN:	P1/2003 PLAINTIFF
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS DEFENDANT

JUDGE:	FRENCH J
DATE:	26 SEPTEMBER 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1 The plaintiff, who is a young Afghani national, came to Australia unlawfully in November 2001 and was subsequently removed to Nauru. He was returned to Western Australia by officers of the Department of Immigration, Multicultural and Indigenous Affairs (`DIMIA') for the purpose of giving evidence in a coronial inquest into the drowning of two women on the boat on which he was attempting to reach Australia. He has, since his arrival in Western Australia, required medical treatment to his arm. He resisted an attempt to remove him to Nauru by instituting proceedings first in the Federal Court and subsequently in the High Court of Australia in the exercise of its original jurisdiction. Those proceedings were based in part upon his contention that he was a minor. An interlocutory order was made by the High Court restraining his removal from Australia until the hearing and determination of the proceedings commenced in that court or until he turned 18. The proceedings in the High Court were remitted to the Federal Court but have not yet come on for hearing. In the meantime the plaintiff has turned 18. He is due to undertake medical treatment for an injury to his arm sustained in Afghanistan. That treatment is scheduled for 30 September 2003. The injunction granted in the High Court having expired by virtue of the plaintiff turning 18 on 21 September 2003, he now seeks further interlocutory relief. That relief includes an order restraining the Minister from removing him to Nauru, an order in the nature of habeas corpus releasing him from detention and, alternatively, an order maintaining his present conditions of detention under which he resides in a motel near the Perth Airport and attends the Cyril Jackson High School.

2 The proceedings which the plaintiff has brought against the Minister involve claims for compensatory aggravated and exemplary damages in relation to various breaches of duty said to be owed by the Minister to the plaintiff having regard to his minority. In addition, there is declaratory and other relief sought on the basis that the provisions under which the plaintiff was removed to Nauru are invalid as beyond the legislative power of the Commonwealth. Further, it is said that the Declaration of Nauru under the Migration Act 1958 (Cth) as a place to which the plaintiff could be removed was invalid.

3 For the reasons that follow I have come to the view that the interlocutory relief claimed cannot be granted and that the plaintiff's motion should be dismissed. However I have also ordered that the plaintiff have leave to appeal against that decision should he so wish.

Factual and Procedural History

4 The plaintiff came to Australia by boat without a visa in November 2001. The boat sank in the vicinity of the Ashmore and Cartier Reefs. Two women on the boat drowned at the time of the sinking. The plaintiff, who claimed to have come from Afghanistan, intended to apply for a protection visa once in Australia. He sought protection on the basis of a well-founded fear of persecution by Taliban forces in Afghanistan. He claimed to be a minor and said that he had been born on or about 21 September 1985.

5 The plaintiff was taken to the Australian Territory of Christmas Island on or about 15 November 2001 where he was interviewed and requested a visa to enter and remain in Australia. However he was flown to the Republic of Nauru by the Australian government on or about 29 December 2001. There he was assessed for refugee status by officers of DIMIA. That assessment was evidently adverse. He applied for administrative review of it. That review was conducted by another officer of DIMIA who again found that he was not a refugee.

6 The reviewing officer, in a letter hand delivered to the plaintiff in Nauru, said:

`You recently requested a review of the refugee status assessment which found you not to be a refugee. Following a thorough review and assessment of your claims and careful consideration of all available information, you have been found not to meet the criteria for protection, as set out in the United Nations Refugees Convention, as amended by the Refugees Protocol. Accordingly, you have been found not to be a refugee.'

Among the reasons for his failure to meet refugee criteria was said to be his failure to establish a reasonable possibility that he would experience the harm he feared if he returned to his country of origin. This was evidently based upon the view that the Taliban, from which he claimed to be at risk, were no longer in power in Afghanistan.

7 The plaintiff claimed that while in Afghanistan his arm had been injured by the Taliban, that the injury caused scarring and that he suffered pain and did not have the full use of his hand. In Nauru he was examined by an Australian medical specialist who expressed the opinion, in a report prepared for DIMIA, that the plaintiff required specialist treatment in Australia.

8 On 1 November 2002, the plaintiff was transferred from the Republic of Nauru to Australia for the purpose of giving evidence at a coronial inquest. Following his transfer to Perth for the purpose of giving evidence the plaintiff's solicitors wrote to the Secretary of DIMIA on 5 November 2002 asking for copies of his medical records. They inquired whether the Minister would exercise his discretion to allow the plaintiff to live with his brother in Perth pending resolution of his situation. His brother, who lives in Perth, has a temporary protection visa.

9 On 7 December 2002, a medical report prepared by a Dr Craig Smith, a hand and wrist surgeon, identified the plaintiff's ongoing problems as:

1. Lack of sensation in the ulnar forearm and the hand.

2. Lack of motor function in the ulnar nerve with muscle weakness; and

3. Neuroma symptoms from the cutaneous nerve that had been cut and also from the ulnar nerve itself.

One of the treatment options for the plaintiff was to have nerve related surgery to excise the neuroma and nerve graft and so give him improved sensation and possibly improved muscle function in his long flexors. That procedure was unable to be carried out before the end of January 2003.

10 In response to the representations by the plaintiff's solicitors the Minister advised by a letter from the Australian Government Solicitor's office on 20 December 2002 that he did not wish to turn his mind to considering the plaintiff's request relating to the lifting of the s46A or 46B bar against the plaintiff applying for a protection visa.

11 On the same day the plaintiff made an urgent application in this Court to restrain his imminent return to Nauru. At that time it was the Minister's intention to take him to Nauru and then bring him back to Australia at the end of January to undergo the medical treatment recommended by Dr Smith. He was booked out on a flight from Australia on Sunday 22 December. On 20 December I granted a short stay in order to hear fuller argument on the question of interlocutory relief. This had the practical effect of deferring his removal until 30 December 2002.

12 The matter came on again for hearing on 23 December 2002. By that time an application had been filed in reliance upon s 39B of the Judiciary Act 1903 (Cth). In it the plaintiff claimed final relief by way of a permanent injunction preventing his removal from Australia. Affidavits were filed on behalf of the applicant and the Minister for the purposes of the claim for interlocutory relief. It was submitted for the Minister at the outset that this Court had no jurisdiction to entertain the application by reason of ss 494AA and 494AB of the Migration Act.

13 On 23 December 2002, I made an order dismissing the application upon the basis, inter alia, that the combinations of s 494A and 494AB of the Migration Act in effect limited the jurisdiction conferred upon this Court so that it could not entertain these proceedings - WAJC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1631. I observed at the end of my reasons for judgment:

`Nothing in those sections however is intended to affect the jurisdiction of the High Court under s 75 of the Constitution. Nor could it. The appropriate place to bring this application was in the High Court under s 75(v).'

14 On 3 January 2003, a writ of summons was filed in the High Court on behalf of the plaintiff and on 13 January 2003 Gaudron J made an order in the following terms:

`1. Unless earlier dissolved, an injunction issue restraining the defendant from removing the plaintiff from Australia, pending the hearing and determination of the matter or the applicant attaining the of 18, whichever shall occur first.'

15 Pleadings were subsequently filed and eventually, on 18 June 2003, McHugh J made orders in the following terms:

`1. The further proceedings in this action be remitted to the Western Australian District Registry of the Federal Court of Australia.

2. The application proceed in that Court as if the steps already taken in the application in this Court had been taken in that Court.

3. The Registrar of this Court forward to the proper officer of that Court copies of all documents filed in this Court.

4. The costs of the action to the date of remission including the costs of this order, are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to the Federal Court of Australia and in the discretion of that Court.'

On that remitter the jurisdictional limitation which prevented this Court from entertaining the initial proceedings did not apply.

16 On 1 August 2003, Nicholson J gave directions giving leave to file amended pleadings and that the proceedings continue on affidavit. He adjourned the directions hearing to 1 October 2003.

17 On 15 September 2003, the plaintiff filed a motion seeking orders in the following terms:

`A. An order varying the injunction granted by Her Honour Justice Gaudron on 24 December 2002 by enjoining the respondent from removing the applicant from Australia prior (sic) the hearing and determination of the present proceedings; and

B. An order, in the nature of habeas corpus, that the applicant be released from immigration detention.

C. An order that the respondent pay the applicant's costs.

D. Such other orders as the Court thinks fit.'

The motion came before me as a matter of urgency on 19 September 2003 and was adjourned to 2.30pm on 22 September 2003. The Minister gave an undertaking not to remove the plaintiff from Australia prior to 30 September 2003, it being common ground that he will be undergoing a medical procedure on that date for the removal of a pin from his arm. The plaintiff is presently detained, not at an immigration detention centre, but at the Inter City Motel and has been attending the Cyril Jackson High School. I made a short-term order restraining the Minister from altering present arrangements for the detention of the plaintiff at that motel until 5pm on 22 September 2003 or further order.

18 The matter came on again for hearing of the motion on 22 September 2003. I reserved judgment until 4.30pm today and in the meantime extended the injunction restraining the Minister from altering the present arrangements for detention at the Inter City Motel until 6pm tonight.

The Pleadings

19 The causes of action upon which the plaintiff relies are set out in a statement of claim which was filed in the High Court prior to remittal to this Court. At the hearing of the motion on 22 September 2003 a minute of proposed amended statement of claim was tendered. I proceed to deal with the claim for interlocutory relief on the assumption (in favour of the plaintiff) that the proposed amendment will be accepted.

20 The proposed amended statement of claim begins with the assertion which is no longer true that the plaintiff is a minor. He alleges that he entered Australia's territorial seas on or about 9 November 2001 aboard the Australian Customs Vessel `Arunta' having been rescued in international waters following the burning and sinking of the Indonesian coastal vessel on which he was attempting to reach Australia at Ashmore Reef (par 2). He alleges he spent about three days at Ashmore Reef aboard the Arunta before being involuntarily transferred to `HMAS Tobruk' and taken to Christmas Island (par 3). He was not consulted by any officer of the Minister or of the Commonwealth as to his preferred destination before leaving Christmas Island.

21 The statement of claim goes on to assert that the plaintiff was treated by the Minister as a minor from the time of his arrival at Christmas Island until the present (pars 5 and 6). It asserts his intention to reside permanently in Australia and the fact that he had suffered serious physical and emotional trauma in Afghanistan and in his travels to Australia (pars 7 and 8). The status of the Minister as his guardian pursuant to the Immigration (Guardianship of Children) Act 1946 (Cth) is also pleaded (par 9). He was not exempted from the provisions of s 46A(1) of the Act so that he could be permitted to apply for a visa which would permit him to enter Australia (par 10). It is then pleaded that following his arrival in Australia the plaintiff had a right not to be taken to a country outside Australia by the Minister or the Commonwealth unless that country had been lawfully declared by the Minister to meet certain requirements set out in s 198A(3) of the Migration Act and that the Minister had decided it was in the plaintiff's best interests to be taken to that country and the Minister had given his consent in writing to the removal of the plaintiff from Australia (par 11).

22 The statement of claim alleges that the plaintiff was removed to the Republic of Nauru by aircraft on 29 December 2001 against his wishes (par 12). It refers to Memoranda of Understanding according to which asylum seekers, including the plaintiff, would have their claims to refugee status considered in Nauru.

23 The Minister's Declaration of the Republic of Nauru to be a country which met the requirements of s 198A(3) of the Migration Act is pleaded (par 14). It is then asserted that the Republic did not meet the requirements set out in that subsection because it did not provide access to effective procedures for assessing applications for protection by minors, did not provide protection for minors seeking asylum pending determination of their application and did not meet relevant human rights standards in providing that protection (par 15). The Minister is said to have breached his statutory duties to the plaintiff as his guardian under the provisions of the Guardianship Act (par 16). This is particularised by reference to a number of matters relating to the Minister's treatment of the plaintiff which it is not necessary for present purposes to set out. Consequentially the plaintiff is said to have suffered loss and damage (par 17).

24 The Minister is said to have owed the plaintiff a duty of care which was breached (par 19). It is alleged that the Minister and the Commonwealth also failed to ensure that the plaintiff's rights were protected by the terms of any agreement reached with the Republic of Nauru and failed to ensure that any terms protecting the rights of the plaintiff were observed (pars 20 and 21). Again, it is asserted that the plaintiff suffered loss and damage consequentially.

25 It is also pleaded that the Minister and the Commonwealth falsely imprisoned the plaintiff (par 23). The claim for false imprisonment appears to be based upon contentions that the plaintiff's detention in the Republic of Nauru by officers, servants and agents of the Minister and the Commonwealth was unlawful (par 24). There is a general assertion that the Minister has demonstrated a willingness to engage in conduct without considering the best interests of the plaintiff as his ward and also to act in a manner contrary to the best interests of the plaintiff (pars 25-32).

26 Reference is then made to the previous proceedings initiated on 20 December 2002, the dismissal of that application and the initiation of proceedings in the High Court (pars 33-39). A number of remedies are claimed. They include a declaration of the invalidity of s 198A of the Migration Act insofar as its provisions relate to the removal of the plaintiff on 29 December 2001 from Christmas Island to the Republic of Nauru and insofar as they relate to any future removal of the plaintiff from Australia to the Republic of Nauru. Injunctive relief and, in the alternative, prohibition and certiorari are claimed as well as declarations of unlawful conduct on the part of the Minister and the Commonwealth in connection with the removal of the plaintiff from Australia. A declaration is sought that the provisions of s 46A of the Migration Act are invalid to the extent that they preclude an application by the plaintiff to the High Court of Australia for relief under the provisions of s 75(v) of the Constitution and s 33(3) of the Judiciary Act. Writs of mandamus are also claimed. There is a claim for general, aggravated and exemplary damages. The causes of action supporting those claims do not emerge with clarity.

Statutory Framework - The Migration Act 1958

27 It is convenient for present purposes to reproduce the relevant statutory framework which was set out in my judgment in WAJC.

28 The term `unlawful non-citizen' is defined in s 14 of the Migration Act thus:

`1. A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

2. To avoid doubt a non-citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen.'

This has to be read with the definition in s13 of a `lawful non-citizen' which provides:

`1. A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.

2. An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen.'

For present purposes it is sufficient to refer to subs (1) of each of those provisions to establish that a non-citizen in the migration zone who does not hold a visa that is in effect is an unlawful non-citizen.

29 By s 189 of the Act, if an officer knows or reasonably suspects that a person in the migration zone, other than an excised offshore place, is an unlawful non-citizen, the officer must detain the person.

30 Section 196 requires an unlawful non-citizen detained under s 189 to be kept in immigration detention until he or she is removed from Australia under ss 198 or 199 or deported under s 200 or granted a visa. It may be noted that s 196 has been very recently amended to prevent the interlocutory release of persons held in detention. This amendment was effected by the Migration Amendment (Duration of Detention) Act 2003. That introduces, inter alia, new subss (4) to (7) into s 196. Those subsections provide:

`(4) Subject to paragraphs (1)(a), (b) and (c), the detention is to continue unless a court finally determines that:

(a) the detention is unlawful; or

(b) the person detained is not an unlawful non-citizen.

(5) To avoid doubt, subsection (4) applies:

(a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and

(b) whether or not a visa decision relating to the person detained is, or may be, unlawful.

(6) This section has effect despite any other law.

(7) In this section:

visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).'

Argument on this aspect of s 196 was not advanced in relation to the motion presently under consideration as the Bill had not come into law at that time. Evidently, however, it has now received Royal Assent and come into effect.

31 The terms `excised offshore place' and `offshore entry person' are defined in s 5 thus:

`excised offshore place means any of the following:

(a) the Territory of Christmas Island;

(b) the Territory of Ashmore and Cartier Islands;

(c) the Territory of Cocos (Keeling) Islands;

(d) any other external Territory that is prescribed by the regulations for the purposes of this paragraph;

(e) any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph;

(f) an Australian sea installation;

(g) an Australian resources installation.'

`offshore entry person means a person who:

(a) entered Australia at an excised offshore place after the excision time for that offshore place; and

(b) became an unlawful non-citizen because of that entry.'

32 Section 198A authorises an officer to take an offshore entry person from Australia to a country in respect of which a declaration is in force under subs (3). That section is in the following terms:

`198A(1) An officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3).

(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia;

(a) place the person on a vehicle or vessel;

(b) restrain the person on a vehicle or vessel;

(c) remove the person from a vehicle or vessel;

(d) use such force as is necessary and reasonable.

(3) the Minister may:

(a) declare in writing that a specified country:

(i) provides access, for persons seeking asylum to effective procedures for assessing their need for protection; and

(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv) meets relevant human rights standards in providing that protection; and

(b) in writing, revoke a declaration made under paragraph (a).

(4) An offshore entry person who is being dealt with under this section is taken not to be in immigration detention (as defined in subsection 5(1)).

(5) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.'

It is not in dispute that the Republic of Nauru is a country in respect of which a declaration is in force under s 198A(3).

33 Section 494AA of the Migration Act limits jurisdiction in respect of the exercise of powers in relation to offshore entry persons:

`494AA(1) The following proceedings against the Commonwealth may not be instituted or continued in any court:

(a) proceedings relating to an offshore entry by an offshore entry person;

(b) proceedings relating to the status of an offshore entry person as an unlawful non-citizen during any part of the ineligibility period;

(c) proceedings relating to the lawfulness of the detention of an offshore entry person during the ineligibility period, being a detention based on the status of the person as an unlawful non-citizen;

(d) proceedings relating to the exercise of powers under section 198A.

(2) This section has effect despite anything else in this Act or any other law.

(3) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

(4) In this section:

Commonwealth includes:

(a) an officer of the Commonwealth; and

(b) any other person acting on behalf of the Commonwealth.

ineligibility period means the period from the time of the offshore entry until the time when the person next ceases to be an unlawful non-citizen.

offshore entry means an entry into Australia that occurs:

(a) at an excised offshore place; and

(b) after the excision time for the offshore place concerned.'

Statutory Framework - The Migration Legislation Amendment (Transitional Movement) Act 2002

34 The provisions of the Act so far mentioned are of a general application. A recent amendment to the Act is also relevant. That is the Migration Legislation Amendment (Transitional Movement) Act 2002. That amending Act was the subject of a Second Reading Speech on 13 March 2002. In the Second Reading Speech the Minister said, having referred to earlier amendments passed in September 2001 relating to border protection:

`While continuing to be vigilant, the Government recognises that there are some situations where it may be necessary to bring to Australia some persons who have been taken to a declared country.

This Bill proposes amendments which will allow such a person, called a `transitory person', to be brought to Australia from one of the declared countries in exceptional circumstances.'

35 The term `transitory person' is of central importance to these amendments and a definition of that term is introduced by the amendments into subs 5(1) of the Act. Thus `transitory person' means:

`(a) an offshore entry person who was taken to another country under section 198A or;

(b) a person who was taken to a place outside Australia under paragraph 245F(9)(b) or;

(c) a person who, while a non-citizen and during the period from 27 August 2001 to 6 October 2001:

(i) was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa; and

(ii) was then taken by HMAS Manoora to another country; and

(iii) disembarked in that other country

but does not include a person who has been assessed to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol.'

The notion of assessment to be a refugee for the purposes of the Refugees Convention is not further defined although it may be assumed that it includes assessment by the United Nations High Commission on Refugees.

36 The amendment introduces a new s 46B entitled, `Visa applications by transitory persons', which provides:

`(1) An application for a visa is not a valid application if it is made by a transitory person who:

(a) is in Australia and;

(b) is an unlawful non-citizen.

(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.'

Section 46A which is also mentioned earlier, effectively bars visa applications by `offshore entry persons' subject to a similar discretion in the Minister to lift the bar `in the public interest'. The following subsections (3) to (7) inclusive, of s 46B, relate to the procedures under which Ministerial statements of determinations are laid before Parliament, the contents of such statements and the times within which they must be laid before the Parliament.

37 The amending Act inserts a new s 198B which provides:

`(1) An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia.

(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:

(a) place the person on a vehicle or vessel;

(b) restrain the person on a vehicle or vessel;

(c) remove the person from a vehicle or vessel;

(d) use such force as is necessary and reasonable.

(3) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.'

The section, on the face of it, provides authority to officers to bring transitory persons to Australia with or without their consent. Section 198C provides for certain transitory persons who have been in Australia for a period of six months or more to seek assessment of their claim to be a refugee directly from the Refugee Review Tribunal subject to certain procedures that are set out in that provision and s 198B.

38 The amending legislation also enacted subs 198(1A) dealing with the removal of a transitory person brought to Australia under s 198B. It provides:

`(1A) In the case of an unlawful non-citizen who has been brought to Australia under section 198B for a temporary purpose, an officer must remove the person as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose (whether or not the purpose has been achieved).'

39 The final relevant provision of the amending Act is that which introduces into the Act a new s 494AB entitled `Bar on certain legal proceedings relating to transitory persons':

`(1) The following proceedings against the Commonwealth may not be instituted or continued in any court:

(a) proceedings relating to the exercise of powers under section 198B;

(b) proceedings relating to the status of a transitory person as an unlawful non-citizen during any part of the ineligibility period;

(c) proceedings relating to the detention of a transitory person who is brought to Australia under section 198B, being a detention based on the status of the person as an unlawful non-citizen;

(d) proceedings relating to the removal of the transitory person from Australia under this Act.

(2) This section has effect despite anything else in this Act or any other law.

(3) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

(4) In this section:

Commonwealth includes:

(a) an officer of the Commonwealth and;

(b) any other person acting on behalf of the Commonwealth.

ineligibility period means the period from the time when the transitory person was brought to Australia under section 198B until the time when the person next ceases to be an unlawful non-citizen.'

Statutory Framework - The Immigration (Guardianship of Children) Act 1946

40 The relevant provisions of this Act are ss 6 and 6A. Section 6 provides:

`6. The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of this Act to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.'

Section 6A provides:

`6A(1) A non-citizen child shall not leave Australia except with the consent in writing of the Minister.

(2) The Minister shall not refuse to grant any such consent unless he is satisfied that the granting of the consent would be prejudicial to the interests of the non-citizen child.

(3) A person shall not aid, abet, counsel or procure a non-citizen child to leave Australia contrary to the provisions of this section.

Penalty: Two hundred dollars or imprisonment for six months.

(4) This section shall not affect the operation of any other law regulating the departure of persons from Australia.'

41 The term `non-citizen child' is defined in s 4AAA relevantly as follows:

`4AAA(1) Subject to subsections (2) and (3), a person (the "child") is a non-citizen child if the child:

(a) has not turned 18; and

(b) enters Australia as a non-citizen; and

(c) intends, or is intended, to become a permanent resident of Australia.'

The other subsections of s 4AAA are not relevant for present purposes.

The Claims for Interlocutory Relief

42 The motion filed on behalf of the plaintiff in the present case sets out two of the orders sought. In addition, counsel orally indicated that in the event the plaintiff were not released from immigration detention an order would be sought that his detention be continued under conditions which have regard to his personal circumstances including, but not exclusive of, a diagnosed psychiatric condition from which he suffers.

43 In determining whether interlocutory relief can and should be granted it is necessary to consider:

1. Whether there is power to grant the relief claimed.

2. If so, whether there is a serious question to be tried.

3. Whether the balance of convenience favours the making of the order sought.

44 The Federal Court has extensive power to make orders, including interlocutory orders in relation to matters in which it has jurisdiction. That power is conferred by s 23 of the Federal Court of Australia Act 1976 (Cth). It may of course be displaced by specific statutory provisions.

45 The first question is whether the Court has power, on an interlocutory basis, to restrain the Minister from removing the plaintiff from Australia pending the hearing and determination of these proceedings. Absent any statutory provision to the contrary the general power to grant interlocutory relief will extend to orders which preserve the subject matter of the proceedings. That subject matter, the very thing in issue, may be a party's entitlement to remain in Australia. Such an order was made by Gaudron J on 13 January 2003. It was critically dependent in its terms upon the minority of the plaintiff and came to an end upon the plaintiff attaining the age of 18, which occurred on 21 September 2003. It is not apparent however, that the fact of minority was critical to the existence of the power to make the order made in the High Court. It may be assumed for present purposes, that this Court has power to extend that interlocutory order beyond the minority of the plaintiff, as it has done as an incident of the hearing and determination of the present motion.

46 It is necessary then to consider the nature of the causes of action raised in the proceeding in order to determine whether a restraint upon removal of the plaintiff from Australia is necessary for the preservation of their subject matter. The statement of claim raises tortious causes of action sounding in damages. These could not be said to be destroyed by the removal of the plaintiff from Australia, albeit that removal might impose considerable practical difficulties upon his ability to instruct lawyers and to pursue those claims. Generally speaking all those aspects of the pleading that depend upon the Minister's treatment of the applicant in his capacity as a minor and breaches of duty associated therewith are not extinguished upon the plaintiff's removal. And to the extent that they raise issues of the existence of a special statutory duty owed by the Minister to the minor, that is an historical matter. The plaintiff's minority has passed and duties dependent upon that status can no longer be said to exist nor is it suggested in the statement of claim that they do.

47 Central to the question whether the restraint against removal is necessary to preserve the subject matter of the proceedings are those aspects of the relief claimed which are based upon the contention that the plaintiff's removal to Nauru would be unlawful. The lawfulness of his previous removal to Nauru from Australian waters is attacked, in an historical sense, on the basis that the Minister's declaration under s 198A(3) was not valid. A consequence of that invalidity is said to have been his wrongful imprisonment in Nauru where he was detained following his removal. The lawfulness of that removal is also attacked upon the basis that s 198A is not a valid exercise of the legislative power of the Commonwealth. The basis for the attack upon the validity of s 198A does not appear from the amended statement of claim. Rather it emerges in the written submissions filed on behalf of the plaintiff. There it is said that in order to support the provisions of ss 198A to 198C the Commonwealth's power to make laws with respect to aliens, conferred by s 51(xix) of the Constitution, would have to extend to the control of aliens beyond the borders of the Commonwealth. It was conceded that the aliens power extends to expelling aliens to the borders of Australia and possibly to repelling them at the borders. It was submitted however, that the notion that the Commonwealth could determine the fate of aliens beyond those borders, let alone bring a friendly alien to Australia by force against his or her will, is unsupported by authority and arguably contrary to international law.

48 The argument for the invalidity of s 198A was somewhat tentative. No positive argument was put forward. Want of case law and possible inconsistency with international law were invoked. The lack of case law supporting the validity of a particular kind of legislation cannot provide a basis for invalidating it. Whether the content of international law at the time of the making of the Constitution might have some bearing on the scope of the alien's power was not the subject of submission. The Court is left with, at best, a pale shadow of a constitutional argument which may or may not solidify into something of substance with further development. For the purposes of the grant of interlocutory relief in this case the Court is entitled, and I would venture to say obliged, to regard s 198A as constitutionally valid. In my opinion, the arguments going to the validity of s 198A and associated provisions do not give rise to a question to be tried which is sufficiently serious to warrant the restraint sought.

49 So far as the ministerial declaration under s 198A(3) is concerned, the form of that subsection does not in terms condition the power to make a declaration upon satisfaction of the standards which are its subject matter. The form of the section suggests a legislative intention that the subject matter of the declaration is for ministerial judgment. It does not appear to provide a basis upon which a court could determine whether the standards to which it refers are met. Their very character is evaluative and polycentric and not readily amenable to judicial review. That is not to say that such a declaration might not be invalid if a case of bad faith or jurisdictional error could be made out. In my opinion, however, the argument against the validity of the declaration faces a significant threshold difficulty. It does not support the view that there is a seriously arguable case.

50 The balance of convenience in a practical sense may be said to favour the plaintiff, but the case against validity both as to the declaration and the legislation is, at this stage, so insubstantial that it would not justify making an order to restrain the removal of the plaintiff from Australia.

51 It is contended on behalf of the Minister that, pursuant to s 198(1A) the defendant is under a statutory duty to remove the plaintiff from Australia as soon as reasonably practicable. Even if it be the case that the plaintiff is not a transitory person within the meaning of the Act, he is an unlawful non-citizen and an offshore entry person. As an unlawful non-citizen he would be subject to the requirement to be taken into immigration detention pursuant to s 189(1) of the Migration Act until removed from Australia under s 198. It is submitted on behalf of the Minister that the mandatory terms of the legislation leave no room for transitory persons or unlawful non-citizens to remain in Australia merely for the purpose of pursuing legal proceedings in this country. I accept that submission.

52 In my opinion, assuming that the Court has the power to make the order against removal which is sought at this stage, such an order would be inappropriate. I note, although it is not relevant to the outcome of this motion, that the Minister has undertaken not to remove the plaintiff from Australia until after he has undergone medical treatment for his arm on 30 September 2003.

53 The failure to secure a restraint against removal to some extent makes the balance of the interlocutory claims academic. I do not accept that any basis has been shown for making the second order that seeks the interlocutory release of the plaintiff from detention altogether. Such an order, if made, could only be upon the basis of a seriously arguable case that his detention was unlawful. No such case has been disclosed. It is not necessary therefore for me to consider the effects of the very recent amendments to s 196.

54 The conditions of the plaintiff's detention are the subject of the third order sought as orally framed by counsel at the hearing. I have already made a short-term order in connection with these proceedings to preserve the status quo in that respect. In my opinion, however, the conditions of detention of unlawful non-citizens beyond their minority are generally a matter for executive discretion and not the subject of management by the Court. That is not to say that the Court would not or could not intervene if it were shown that the conditions of detention were directed to purposes extraneous to the purposes of the statute or involved a breach of some statutory duty to the detainee which, as a matter of construction, qualified the detention power. In the circumstances, however, in my opinion, there is no proper basis upon which I could make an order of the kind formulated on behalf of the plaintiff in these proceedings.

Conclusion

55 For the preceding reasons, the motion will be dismissed with costs. However, having regard to the issues raised and the practical importance of this matter to the plaintiff, I will allow leave to appeal against the decision.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated: 26 September 2003

Counsel for the Plaintiff:	Dr JL Cameron
Solicitor for the Plaintiff:	Jarman McKenna
Counsel for the Defendant:	Mr PR Macliver
Solicitor for the Defendant:	Australian Government Solicitor
Date of Hearing:	22 September 2003
Date of Judgment:	26 September 2003