Case: Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476
Outcome: cited
The very rapid removal of Mr Morrison from Australia, following the cancellation of his visa and his detention, the latter of which occurred on 8 May 2007, initially raised concerns on my part that it might have been a procedure adopted in order to defeat the possibility of judicial review. In order to grant interlocutory relief to restrain his removal, pending a substantive application, I would have to have regard both to the possibility that he has some case to argue in relation to the decision to cancel his visa and secondly that the balance of convenience lies in favour of an interim order. These two requirements are inter-dependent. Of course, the stronger the case that there is an arguable error on the part of the Minister, the less the balance of convenience need lie in favour of the applicant in order to justify the grant of relief. In this case, I had virtually no basis for determining that there had been, in the Minister's decision, any jurisdictional error of the kind which would warrant the grant of relief under s 39B of the Judiciary Act 1903 (Cth) , in accordance with the principles enunciated in such cases as Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 and other authorities concerning judicial review under the Migration Act . The materials which were before me indicate that there was a reason for his very rapid removal and I was informed from the bar table, by counsel for the Minister, that he was being escorted by no less than 10 police officers. 23 It is not for the Court to pass judgments upon the strength, or weakness, of the considerations which led to the decision not to allow the usual administrative notice of 48 hours before removal. There is no statutory requirement that such notice be given. If I thought that there were a reasonable case that removal were being effected precipitately in order to deprive the applicant of access to the Court, then that would, I think, arguably constitute a collateral purpose outside the proper exercise of the power to detain and remove. However, I was not in a position to make that judgement. However doubtful I may be as to the strength of some of the factors which are relied upon by the Department for his removal in these circumstances I also have regard to the fact that Mr Morrison's relatives have instructed solicitors today, for the first time. Had some form of representation been obtained earlier, following the notice of intention to cancel a visa, then it is possible that there might have been communication with the Department which would have avoided the suddenness of this removal. The intention to cancel Mr Morrison's visa was something of which he has known for a long time and indeed he has made submissions on his own account and provided supportive material from relatives and associates in answer to it. While I also had regard to the fact that there were obviously considerable resources being devoted to his expeditious removal for the reasons that have been given, the question whether those reasons would be judged on their merits as good or bad, is not a matter which concerned the Court. There was not enough to disclose, as I have indicated earlier, a collateral purpose for his removal on this basis and therefore I was not prepared to grant the immediate interlocutory relief that was sought. It remains open to counsel, upon further instructions, to apply to the Court for directions for the return of Mr Morrison to Australia. I make no comment as to the extent of the Court's power upon that regard nor whether any proper case could be made to support such an order assuming the power to exist. 24 For the preceding reasons the motion for interim relief was dismissed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 14 May 2007 Counsel for the Applicant: Mr S Walker Solicitor for the Applicant: SanLing Chan Counsel for the Respondent: Mr P Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 May 2007 Date of Publication of Reasons: 14 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/723.html