FEDERAL COURT OF AUSTRALIA Madafferi v Minister for Immigration & Multicultural Affairs [2001] FCA 320 MIGRATION – application for interlocutory relief – application to stay the decision of the respondent pursuant to s482(2) of the Migration Act 1958 (Cth) – consideration of meaning of words "securing the effectiveness of the hearing and determination of the appeal" Migration Act 1958 (Cth) s482(2) Madafferi v Minister for Immigration and Multicultural Affairs [2000] FCA 1612 referred to Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 250 applied Ooi v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 133 not followed Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1 referred to Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 considered FRANCESCO MADAFFERI v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 839 OF 2000 MARSHALL J MELBOURNE 16 MARCH 2001 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 839 OF 2000 BETWEEN: FRANCESCO MADAFFERI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MARSHALL J DATE OF ORDER: 16 MARCH 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The Notice of Motion of the applicant dated 15 March 2001 be dismissed. 2. The applicant pay the respondent's costs of and incidental to the Notice of Motion. 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 V 839 OF 2000 BETWEEN: FRANCESCO MADAFFERI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MARSHALL J DATE: 16 MARCH 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is a Notice of Motion by the applicant, Mr Madafferi, in which he seeks an order that pending the hearing and determination of this proceeding, the implementation and operation of a decision of the respondent Minister be stayed. The relevant decision was a decision by the Minister of 18 October 2000 refusing the applicant a spouse visa. As a result of that decision the applicant became an unlawful non-citizen and is liable to be detained. 2 This proceeding challenges that decision. An interlocutory order made on 1 November 2000 had the effect of staying the decision of the Minister; see Madafferi v Minister for Immigration and Multicultural Affairs [2000] FCA 1612. However, on 15 March 2001 a Full Court upheld an appeal against that order and set aside the injunction which had been ordered on 1 November 2000; see Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 250. The hearing of the substantive application commenced on 14 March 2001. It was listed for three days but concluded at midday on 15 March 2001. 3 The current Motion was foreshadowed on the afternoon of 15 March 2001 and filed in the Registry earlier on 16 March 2001. Mr Hurley of counsel appeared for the applicant. He contended that the Court, pursuant to s482(2) of the Migration Act 1958 (Cth) ("the Act"), should act to secure the determination of the application by staying the operation of the Minister's decision pending the hearing and determination of these proceedings. 4 Section 482(2) of the Act provides that: "If an application is made to the Federal Court under section 476 or 477 in relation to a judicially-reviewable decision, the Federal Court or a Judge of the Federal Court may make such orders of the kind referred to in subsection (3) as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal." 5 Mr Hurley contended that in "securing the effectiveness" of the determination of the application the Court could have regard to the interests of third parties, such as Mrs Madafferi and the Madafferi children. He submitted that in the case of an ultimate determination in favour of Mr Madafferi, the determination would be undermined if the income of the applicant's family had dried up due to the financial pressures on the family resulting from the applicant's detention. In other words, if Mr Madafferi's application was ultimately successful, the financial impositions arising from Mr Madafferi's detention would have been unnecessarily imposed on Mr Madafferi and his family. 6 In Ooi v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 133 at 137 ("Ooi"), his Honour, Madgwick J, considered the judgment of Hill J in Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1 ("Halmi") where Hill J discusses the meaning of "effectiveness" for the purposes of s482(2) of the Act. His Honour at [16 –17] said: "The other aspect debated was whether in circumstances like those of this case an interim order staying the operation of the decision to cancel the visa could be for the purpose, as set out in s 482(2), "of securing the effectiveness of the hearing and determination of the appeal". It is true that there are passages in Halmi which, if read alone, could support the view that the "effectiveness" referred to is limited to what might be called due accomplishment of the actual processes of hearing and determination. However, reading Hill J's decision in that case as a whole, it seems to me that it is not what his Honour meant. In any case, such an interpretation is not what I think is meant by s 482(2). The word "effectiveness" can be understood, in this context, to have as its ordinary meaning "the capacity to achieve an intended purpose"… Applying such a meaning, one of the intended purposes of a hearing and determination of a case such as the present is the ascertainment of rights and liabilities of the parties. Another is to grant remedies which, so far as is lawful and possible, can put the parties in the position in which they ought to have been, had those rights and liabilities been correctly observed." 7 Madgwick J went on to hold at [17] of his reasons that: "If it should take the Court some time, as might normally be expected, to arrive at a decision, and if the decision should ultimately be in [the applicant's] favour, then to the extent that he remains in custody pending the further hearing of the matter and the period until a decision is reached, one of the purposes of hearing and determination would to that extent have been frustrated. Consequently, Madgwick J held it may be appropriate to stay a Minister's decision to secure the "effectiveness of the hearing and determination". 8 In Madafferi v Minister for Immigration and Multicultural Affairs [2000] FCA 1612, I considered the applicant's initial application to stay the decision of the Minister and found in favour of the applicant. I formed the view, without any contrary decision being put before me, that Madgwick J was not clearly wrong and as a matter of consistency I should follow him; see Madafferi v Minister for Immigration and Multicultural Affairs [2000] FCA 1612 at [1]. The Full Court, in its judgment of 15 March 2001, does not advert to that aspect of my reasoning nor to the judgment of Madgwick J, but the import of the Full Court's reasoning is inconsistent with Madgwick J's approach in Ooi. On reflection, and with the benefit of the Full Court's reasons, I consider that Halmi is capable of being read as supporting the view that "effectiveness" for the purposes of s482(2) is limited to what might be called the due accomplishment of the actual processes of the hearing and determination of the application. 9 I consider that the Full Court has effectively adopted "the due accomplishment" approach in its decision of 15 March 2001. So much is clear from the judgment at [18], where their Honours refer to the question before them as being whether the mere detention of the applicant pending the final determination of the substantive proceeding could in any way impact upon the effectiveness of the hearing and determination of the substantive proceeding. The answer to that question, reading the Full Court's reasons as a whole, is no. In this respect the Full Court's judgment is directly contrary to the approach of Madgwick J in Ooi at [16] and [17]. 10 At paragraph [23] of the Full Court's reasons the Full Court said: "There does not appear to have been any suggestion that any financial "punishment" would interfere in any way with the capacity of the applicant to prosecute the substantive proceeding. Nor is there any explicit suggestion that being in custody would impede the ability of the applicant to give instructions in connection with the substantive proceeding." 11 Mr Hurley submitted that those observations were only relevant to the question of securing the effectiveness of the determination. I disagree. The hearing has occurred. Its effectiveness was not impugned in any way. Judgment is reserved on the substantive application. My determination of the substantive application cannot in any way be affected by whatever financial punishment is inflicted on the applicant or any of his dependents. 12 One circumstance in which the effectiveness of the determination of the application could have been lessened or rendered nugatory would be if the Minister had removed the applicant from the country before I was able to give judgment. Early in the course of the proceeding that possibility was eschewed. Additionally, a further undertaking has been given by the Minister through counsel, Mr Tracey QC, that if the final judgment is in favour of the Minister, the Minister will not seek to remove Mr Madafferi from Australia until after the expiry of five days from the giving of my reasons for judgment and the making of any final order in the matter. 13 In my view, the effect of the Full Court judgment, quite contrary to the approach of Madgwick J in Ooi, is to emphasise that securing the effectiveness of the hearing and determination of the application is tied to securing the processes of the hearing and the processes of the determination. Section 482(2) of the Act is a provision akin to one that enables the Court to act to preserve the subject matter of the litigation during the hearing of a matter and up until it is finally determined. 14 The situation is analogous to that which the High Court had in mind in Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 33 ("Patrick Stevedores") where their Honours, Brennan CJ and McHugh, Gummow, Kirby and Hayne JJ said: "The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked. The Federal Court had jurisdiction to make interlocutory orders to prevent frustration of its process in the present proceeding." 15 In my view, further guidance in the interpretation of s482(2) of the Act can be obtained from Patrick Stevedores by focusing on the importance of securing the effectiveness of the jurisdiction invoked to prevent the frustration of the Court's processes. For example, it would be consistent with s482(2) of the Act for the Court to act to prevent a decision by the Minister which sought the removal of Mr Madafferi from Australia or sought to have him in detention when he might have been required to instruct Mr Hurley. 16 The effectiveness of the determination of the appeal is secured by my unimpeded ability to examine the evidence, the arguments before me, and the matters that counsel referred me to in a way where I could come to a judgment based on intellectual integrity and deliver reasons appropriately. There is nothing else that can secure the effectiveness of the determination of the application, especially given the undertaking of the Minister not to seek to remove Mr Madafferi in the interim. Consequently, it is my view that the Notice of Motion of the applicant of 15 March 2001 be dismissed. I will also order that the applicant pay the respondent's costs of and incidental to the Motion. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 28 March 2001 Counsel for the Applicant: Mr T Hurley Solicitor for the Applicant: Acquaro & Co Counsel for the Respondent: Mr R Tracey QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 March 2001 Date of Judgment: 16 March 2001 (ex-tempore as revised from the transcript)