FEDERAL COURT OF AUSTRALIA He v Minister for Immigration & Multicultural Affairs [2001] FCA 1368 HAI QING HE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 901 of 2001 SACKVILLE J SYDNEY 19 SEPTEMBER 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 901 OF 2001 BETWEEN: HAI QING HE APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: SACKVILLE J DATE OF ORDER: 19 SEPTEMBER 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The notice of motion filed in Court on 19 September 2001 be dismissed. 2. The sixth applicant in proceedings N 901 of 2001, Hai Qing He, pay the respondent's 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 WALES DISTRICT REGISTRY N901 OF 2001 BETWEEN: HAI QING HE APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: SACKVILLE J DATE: 19 SEPTEMBER 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application by way of notice of motion seeking an order that a person identified as the applicant, namely Mr Hai Qing He ("Mr He"), not be removed from Australia pending what has been described as an appeal to the Full Court of the Federal Court. The motion has been heard at very short notice, as Mr He is to be removed from Australia and returned to China tomorrow unless an injunction is granted by the Court to restrain his removal. 2 The short background is this. Proceedings have been instituted in this Court (N901 of 2001) by eight applicants, including Mr He. The applicants claim damages for breach of a duty said to have been owed to them by the respondent ("the Minister") and Australasian Correctional Management Limited ("ACM"). The breach relates to assaults that are alleged to have taken place on 27 April 2001, while the applicants (who were unlawful non-citizens) were detained at the Villawood Detention Centre. 3 An application was brought by five of the eight applicants seeking interlocutory orders restraining the Minister from removing them until a variety of proceedings had been determined, including the action for damages commenced in this Court. Emmett J heard this application yesterday and delivered an ex tempore judgment today dismissing the claim for interlocutory relief. It should be noted that the other three applicants in the proceedings claiming damages against the Minister and ACM did not join in the application for interlocutory relief, since they have either been removed from the country or have left of their own accord. 4 The notice of motion before me is apparently brought only by Mr He. Mr He seeks interlocutory orders because the Minister has given 72 hours notice, as contemplated by an undertaking provided on the Minister's behalf to the Court, that he intends to remove Mr He from Australia. The removal is scheduled to take place, as I understand it, at 12.35 pm tomorrow. None of the other four applicants in the damages claim who are still in Australia seeks similar relief, apparently because the Minister has not yet given notice that he intends to remove them from Australia. 5 Although the notice of motion refers to an appeal to the Full Court, Mr Tees, who appears on behalf of Mr He, accepts that the judgment of Emmett J is interlocutory in character. Accordingly, the applicant would need to obtain leave to appeal, pursuant to O 52 r 10 of the Federal Court Rules (the "FCR"),in order to pursue a substantive appeal. 6 It must be said that the motion has presented difficulties. As I have explained to the legal representatives for each party, I have the benefit of incomplete typed notes prepared by Emmett J for his Honour's ex tempore judgment. Neither I nor the parties, however, have had the benefit of a transcript of his Honour's reasons. There has simply been insufficient time for a transcript to be prepared. A further difficulty is that the legal representatives, although able to refer me to some of the material before his Honour, were not able to do so in any systematic fashion. I do not say this to be critical, since they have been required to deal with this application at very short notice. The parties' inability to be precise as to the material that was admitted into evidence by Emmett J has, however, made it unusually difficult to assess the issues raised by the notice of motion. 7 It seems to me that the critical question to address is whether the applicant has reasonable prospects of obtaining leave to appeal against his Honour's judgment. I must deal with this question as best I can on the limited information before me. 8 Mr Tees submits that his Honour erred in reaching the conclusions that he did, and that there are reasonable prospects that leave to appeal would be granted. Save for one issue, I do not think there is any substance in the contentions that have been put on Mr He's behalf. 9 Mr Tees argues that his Honour erred in rejecting an argument apparently founded on the dissenting judgment of Deane and Toohey JJ in Leeth v Commonwealth of Australia (1992) 174 CLR 455. But Mr Tees accepts that the judgment, insofar as it propounds an implied constitutional guarantee of equality, does not represent current constitutional doctrine in Australia. 10 Mr Tees, as I understand his argument, also seeks to challenge his Honour's holding that there was no juridical basis for this Court to restrain the removal of Mr He and the other applicants remaining in Australia from Australia pending the completion of criminal investigations into what they claim was criminal conduct on 27 April 2001. His Honour also held that there was no juridical basis for an order restraining the removal of the applicants from Australia pending the completion of investigations by the Human Rights and Equal Opportunities Commission into the events of 27 April 2001. 11 I have been unable to discern from Mr Tees' submissions the manner in which his Honour is said to have erred in reaching those conclusions. I should add that, in any event, the proceedings before the Human Rights and Equal Opportunities Commission appear to have been terminated. On 17 September 2001, separate proceedings were instituted in this Court alleging unlawful discrimination against the applicants. It is difficult to see what those proceedings add to the claim for damages already before the Court. 12 The issue that has caused me some concern is the submission that his Honour erred in refusing to grant an injunction restraining the removal of the five applicants still in Australia, including Mr He, by reason of the pendency of the claim for damages in this Court. A submission has been made by Mr Carter, on behalf of the Minister, that s 198(6) of the Migration Act 1958 (Cth) ("Migration Act") obliges the Minister to remove Mr He as an unlawful non citizen, and that that statutory obligation must prevail over any other principle of law that otherwise might be invoked to justify a temporary restraining order. 13 It is by no means obvious to me that the interpretation of s 198(6) of the Migration Act advanced by Mr Carter is correct, at least where proceedings are already under way against the Minister seeking damages. Mr Carter has not suggested that the proceedings were instituted otherwise than in good faith. In this connection I refer to my own decision in Kopiev v Minister for Immigration and Multicultural Affairs [2001] FCA 1831. In my view, the construction of s 198(6) of the Migration Act, in the absence of an authoritative determination by the Full Court of this Court or the High Court, is an open question. 14 Mr Carter, however, also submits that his Honour made critical factual findings when rejecting the application for interlocutory relief to the extent it was founded upon the pendency of the claim for damages in this Court. In particular, Mr Carter says that his Honour was not satisfied that any of the applicants would suffer substantial forensic prejudice if they were to be removed from Australia at this stage of the litigation. 15 It is by no means clear to me precisely what evidence was adduced before Emmett J. Neither of the legal representatives was able to provide me with all of the documentary material before his Honour. It does seem, however, that the evidence before Emmett J indicated that the Judge hearing the damages claim, Wilcox J, has already taken evidence from the applicants in support of their case. They have all been cross-examined. 16 The evidence also indicated, so it appears, that although one video tape relevant to the events of 27 April 2001 has been played in Court, there is another video tape to be played. Beyond that, it is not clear to me what evidence was adduced before Emmett J as to the likely conduct of the proceedings before Wilcox J. Mr Carter, as I understand it, accepts that it was common ground before Emmett J that the respondents might adduce evidence before Emmett J in the proceedings to be determined by Wilcox J. But there seems to have been no evidence before Emmett J as to the role that the five applicants remaining in Australia would be expected to play in relation to that evidence. In particular, no evidence seems to have been adduced as to whether instructions were required from Mr He in relation to the cross-examination of the respondent's witnesses and, if so, whether the requisite instructions could not be obtained from Mr He in China. 17 On the basis of what has been put to me at this hearing, I am unable to be satisfied that there is a substantial prospect of leave to appeal being granted on this aspect of the case. In my opinion, Mr Tees has not been able to suggest any cogent basis upon which Emmett J's factual finding might be set aside. 18 This does not mean that any application for leave to appeal from Emmett J's decision is necessarily bound to fail. I have reached the conclusion I have expressed on the basis of the arguments put to me. 19 In these circumstances I do not think it would be appropriate to grant injunctive relief to restrain the removal from Australia of Mr He. I therefore dismiss the application. 20 I conclude by making the observation that it is inevitable that the removal of a person from Australia at short notice, prior to a scheduled hearing in proceedings brought by that person against the Minister, will create significant difficulties for the Court and for the parties to the litigation. Mr Carter has suggested that the reason the Minister's delegate has decided to remove Mr He is that the delegate has formed a view that he is under a duty to do so, by reason of s 198(6) of the Migration Act. I have observed that that view is not self-evidently correct. In any event, it has not been explained to me why that duty was thought to become operative only two days ago. Nor has it been explained why the duty has been considered to arise in relation to one of the five applicants remaining in Australia but not to the other four. 21 The motion must be dismissed. The applicant must pay the Minister's costs of the motion. 22 I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 25 September 2001 Solicitor for the Applicant: Duker & Associates Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 19 September 2001 Date of Judgment: 19 September 2001