Case: Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368 ; (2006) 155 FCR 465
Outcome: considered
Counsel for the Minister submits that this Court does not have jurisdiction to deal with the application on the basis that the question of the reasonable practicability of removal is not a jurisdictional fact. Counsel refers to the decision of Besanko J in Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368 ; (2006) 155 FCR 465 , which involved a decision under s 198(6) of the Act to remove from Australia an unlawful non-citizen in detention who suffered from mental illness. His Honour held that the proposed removal of Mr Beyazkilinc from Australia pursuant to the subsection was a "privative clause decision", as that term is defined in s 474 of the Act . The question of the reasonable practicability of the removal was held by his Honour not to be a jurisdictional fact. Counsel for the Minister says that, applying this ruling in the present case, the Court does not have jurisdiction and therefore the application to restrain the Minister must fail. 13 In the course of his judgment in Beyazkilinc [2006] FCA 1368 ; 155 FCR 465 , Besanko J referred at 475-476 to four relevant factors to be taken into account in determining whether there was an arguable challenge to removal. At 476-477, his Honour noted that, while two of the factors suggested that the question of reasonable practicability should be characterised as a jurisdictional fact, the other two factors spoke strongly against it and outweighed the first two factors. 15 Counsel for Mr Asaad contends that the relevant decision in this case is not a privative clause decision (see s 474 of the Act ), and as a result would not be a decision for the purpose of s 476A. This would in turn mean that there is room for argument that the reasoning of Besanko J is wrong. Counsel also contends that once the jurisdiction of the Court is invoked, then it has jurisdiction to do whatever is necessary to ensure that it determines the matter and does justice on the application. 16 In my view, it is reasonably arguable, at least sufficiently so for the purposes of granting interlocutory relief in the present case, that the reasoning and decision of Besanko J is wrong when his Honour weighed the various considerations leading to the conclusion concerning the jurisdictional fact. I am also of the opinion that there is sufficient room for argument in this case on the question of the application of the privative clause. Accordingly, in order to preserve the status quo and having regard to the balance of convenience (which, on the evidence, I am satisfied, clearly favours the non-removal of Mr Asaad from Australia), I grant the interlocutory relief sought by Mr Asaad. 17 The foregoing are the reasons for my decision to make the orders on 9 May 2008. I direct that the parties approach my Associate in chambers to arrange for the listing of this matter for further appropriate directions. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 4 June 2008 Counsel for the Applicant: Mr S. Prince Solicitor for the Applicant: SBA Lawyers Counsel for the Respondent: Mr. A. Markus Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 May 2008 Date of Judgment: 4 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/836.html