Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Li v Minister for Immigration & Multicultural Affairs [2002] FCAFC 181
MIGRATION – interlocutory injunction sought to restrain removal from Australia – knee injury in detention and legal action arising out of that injury – whether removal reasonably practicable in circumstances – whether applicant afforded natural justice
Migration Act 1958 (Cth) ss 198(5) and 474
The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 - cited LIANG WEI LI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N428 OF 2002 JUDGES: HEEREY, MERKEL AND CONTI JJ DATE: 29 MAY 2002 PLACE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY N428 OF 2002
BETWEEN: LIANG WEI LI
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT JUDGE: HEEREY, MERKEL AND CONTI JJ
DATE OF ORDER: 29 MAY 2002
WHERE MADE: SYDNEY
THE COURT ORDERS THAT the application for leave to appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY N428 OF 2002
BETWEEN: LIANG WEI LI
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE: HEEREY, MERKEL AND CONTI JJ
DATE: 29 MAY 2002
PLACE: SYDNEY
REASONS FOR JUDGMENT
HEEREY J: 1 I agree with what Merkel J has said as to the arguments advanced before us and I agree with his Honour that leave to appeal should be refused with costs. However, I would prefer to base refusal of leave on the ground that the decision to remove the applicant was a privative clause decision within the meaning of sub-s 474(2) of the Migration Act 1958 (Cth) and is therefore, by virtue of sub-s 474(1), not subject to challenge, appeal, review or being quashed or called in question in this court. The same result follows if the relevant decision was the act of preparation for actual removal (sub-s 474(3)(g)). 2 It was not argued on behalf of the applicant and there is no basis for holding that the elements of validity for such a decision identified in The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615, were not satisfied. The bona fides of the decision maker are not attacked. The decision to remove relates to the subject matter of the legislation, namely the removal of unlawful non citizens who are detainees and have not made the
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