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 applications referred to in sub-s 198(5). The decision is reasonably capable of reference to the power conferred, indeed it is mandatory. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 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 MERKEL J: 3 This is an application for leave to appeal from a decision of a judge of the court, Sackville J, refusing to grant an interlocutory injunction restraining the removal of the applicant from Australia under subsection 198(5) of the Migration Act 1958 (Cth) ("the Act"). Under that section, a Commonwealth Officer is required to remove an unlawful non-citizen as soon as reasonably practicable in certain circumstances. It was common ground before his Honour that these circumstances applied to the applicant but the parties were in dispute as to whether the removal should be deferred because it was not reasonably practicable to remove the applicant: · prior to the healing of his knee injury; or · prior to the hearing and determination of the proceedings he issued against the Minister and Australian Correctional Management Pty Ltd in relation to his knee injury and also of a complaint to HREOC concerning that injury. 4 His Honour dealt with the issues raised by the applicant on the merits and put to one side the additional question of whether the decision to remove the applicant was not a judicially reviewable decision because it was a privative clause decision: see ss 474(1) and (2) of the Act. Sackville J declined to grant the relief sought as (1) he was satisfied the knee injury had sufficiently healed to enable the applicant to travel and (2) he was satisfied that the applicant's removal did not present a sufficient impediment to the conduct of the proceedings or to his complaint to HREOC to warrant his remaining in Australia until those matters had concluded. 5 I am not satisfied that there is sufficient doubt about the correctness of his Honour's decision on those issues to warrant the grant of leave to appeal. Nor am I satisfied that injustice or unfairness has been demonstrated to warrant the grant of that leave. 6 A further issue was raised by the applicant as to his Honour's refusal to allow cross-examination of the doctors who had reported that the applicant was fit to travel. I am not satisfied that there was any denial of natural justice in that regard. Indeed, it was common ground between all of the doctors who presented reports that the applicant's knee had healed sufficiently to render him fit for travel. In the course of the hearing before Sackville J one of the doctors queried whether the applicant's lack of mobility rendered him vulnerable to a high risk of deep vein thrombosis on his return flight to China. That doctor, who was called by the applicant, was not able to quantify the risk. There was no evidence that the doctor had any special expertise in relation to this question and his Honour did not regard the unquantified risk as sufficient to warrant a finding that the applicant faced a serious or real risk of deep vein thrombosis by reason of the flight. In my view his Honour was clearly correct in arriving at that conclusion on the evidence before him. 7 Of course, if a person who is to be removed under sub-s 198(5) proffers expert medical evidence or material that the removal would expose that person to a real or serious risk to their health then that would raise a serious issue as to whether the power of removal should be exercised, as it may not be reasonably practicable to remove the person in those circumstances. However, the applicant had not proffered such evidence to the Minister or to the removing officer or before Sackville J or this Full Court. Indeed, the solicitor for the Minister accepted that if such evidence were proffered it would be considered by the appropriate officer prior to the exercise of power under the relevant sub-s of s 198. 8 In these circumstances, I have concluded that it is not unjust to refuse leave to appeal in the present case. It was and remained open to the applicant to proffer such evidence but he has not done so. Accordingly, as was the situation before Sackville J, it is unnecessary to consider whether sub-s 474(1)of the Act operates to preclude this court from granting the relief sought by the applicant in any event. For those reasons I would refuse leave to appeal and dismiss the application for leave to appeal with costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 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 CONTI J: 9 I agree with the reasons for decision of Heerey J and Merkel J and the orders proposed. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: Solicitor for the Applicant: Duker & Associates Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 May 2002 Date of Judgment: 29 May 2002