VFAD of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCA 1159 (27 August 2002)

Last Updated: 14 February 2003

FEDERAL COURT OF AUSTRALIA

VFAD of 2002 v Minister for Immigration & Multicultural Affairs

[2002] FCA 1159

COURTS - practice and procedure - whether an interlocutory order for release from immigration detention should be stayed pending an application for leave to appeal

Migration Act 1958 (Cth)

VFAD of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCA 1062 - cited

Al Masri v the Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1037 - cited

Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1099 - cited

APPLICANT VFAD OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V470 OF 2002

MERKEL J

27 AUGUST 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V470 OF 2002

BETWEEN:	APPLICANT VFAD OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	27 AUGUST 2002
WHERE MADE:	SYDNEY (BY VIDEO)

THE COURT ORDERS THAT the application of the respondent for a stay of an order for release of the applicant from immigration detention pending an application for leave to appeal be refused. Reserve liberty to apply.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V470 OF 2002

BETWEEN:	APPLICANT VFAD OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE:	27 AUGUST 2002
PLACE:	SYDNEY (BY VIDEO)

REASONS FOR JUDGMENT

1 In the interlocutory application in this matter, which concerned the power of the court to make an interlocutory order for the release of the applicant who is being held in immigration detention under the Migration Act 1958 (Cth) ("the Act"): see VFAD of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCA 1062, upon certain undertakings being given I ordered, inter alia, that until the hearing and determination of the proceedings or until further order the respondent, whether by his servants, agents or howsoever otherwise, be restrained from continuing to detain the applicant in immigration detention under the Act.

2 The applicant was being held in immigration detention at the Curtin Detention Centre. The order for his release was made upon the applicant by his counsel undertaking on his behalf to comply with certain reporting and residential conditions that I determined would minimise any risk of abscondment on his part. The Minister has applied for a stay of the order releasing the applicant, pending the hearing and determination of an application for leave to appeal against my decision and, if leave is granted, until the appeal is heard and determined.

3 An analogous situation arose recently when an final order was made for the release of the applicant in Al Masri v the Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1037 ("Al Masri"). On that occasion I declined to stay my order stating at [1] that, in the usual course, the successful applicant is entitled to the fruits of his or her litigation and that special circumstances justifying a stay pending the determination of any appeal need to be demonstrated by the Minister.

4 The Minister in that case relied upon the following circumstances as special at [2]:

"The release from detention of an unlawful non-citizen, namely a person in Australia who is a non-citizen without a visa, raises an important issue under the Migration Act 1958 (Cth) which should be determined by an appeal court. The release is contrary to the manner in which the Minister has administered the Act. The release may impede the ability of the Minister to remove the applicant from Australia. In particular, the Minister contends that the risk of abscondment may render nugatory a successful appeal in that the applicant may not be able to be removed if he is not in detention."

5 In addition to the above circumstances, the Minister has also relied upon the fact that, at this stage, I have only made an interlocutory order and have not made any final orders such as were made in Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1099 in which it was determined that the detention of Mr Al Masri was unlawful.

6 However, there are some special features in the present case. First, as counsel for the applicant has contended, the Minister has no right of appeal, only a right to apply for leave to appeal. Second, again as counsel for the applicant has contended, I have already determined in this case on the balance of convenience that the applicant should be released. Third, the delegate of the Minister has accepted the veracity of the applicant's claims, so this is not a case where there is evidence of past conduct or deception (such as rejection of claims on grounds of credibility) that might, and I emphasise "might", suggest a real, rather than a theoretical, risk of abscondment.

7 Fourth, the applicant is being cared for by a charitable organisation, the Hotham Mission, which has undertaken responsibility for him and will be fully appreciative of the importance of him abiding by the conditions set out in my order.

8 Finally, as in Al Masri, in the present case there is one aspect which, in my view, is of fundamental importance. The Court has made an order for the release of a person currently being held in detention and therefore an order for the liberty of that person. That circumstance is, in effect, the fruits of the victory that the applicant has enjoyed on his application. To stay my order would substantially deny the applicant the fruits of that victory and, given that the date of the final hearing may not be too distant, it may well be that the victory will be rendered illusory if a stay were granted. I state that matter, not because it prevents me from granting a stay, but because it emphasises that when one is considering the liberty of an individual special circumstances justifying a stay needs to be clearly demonstrated. In my view those special circumstances have not been demonstrated in the present case.

9 In particular, as I stated in [5] in Al Masri, the Minister's right to be protected against the successful outcome of any appeal being rendered nugatory is protected by the reporting conditions with which the applicant has undertaken to comply. I would add that it has not been suggested by the Minister that those conditions are unreasonable or inadequate.

10 For the above reasons, I refuse the application for a stay of my order.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated: 14 February 2003

Counsel for the Applicant:	Ms DS Mortimer and Mr RM Niall
Solicitor for the Applicant:	Mallesons Stephen Jaques
Counsel for the Respondent:	Mr W Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 August 2002
Date of Judgment:	27 August 2002