FEDERAL COURT OF AUSTRALIA NAFC v Minister for Immigration & Multicultural & Indigenous Affairs (No 3) [2003] FCA 13 NAFC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1293 OF 2002 LINDGREN J 13 JANUARY 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1293 OF 2002 BETWEEN: NAFC APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE OF ORDER: 13 JANUARY 2003 WHERE MADE: SYDNEY UPON THE RESPONDENT'S UNDERTAKING TO THE APPLICANT AND TO THE COURT: THAT on the hearing of the appeal in proceeding N 1409 of 2002: (a) the respondent will not take the point that the applicant has already been removed from Sydney; and, accordingly (b) the respondent will agree that in all respects the merits of the appeal are to be determined as if the applicant had not been removed from Sydney and had remained in detention at the Immigration Detention Centre, Villawood; and THAT if the applicant's appeal in proceeding N 1409 of 2002 succeeds on the merits, the respondent will return the applicant to the Immigration Detention Centre, Villawood as soon as practicable following the Court's delivery of reasons for judgment favourable to the applicant on the appeal, without charging to the applicant any of the costs of his removal from that Centre or return to that Centre: THE COURT ORDERS THAT: 1. The injunction ordered on 24 December 2002, as varied on 7 January 2003, be dissolved with effect from 5.00 pm on Friday 17 January 2003. 2. The costs of the applicant's motion brought by notice of motion filed on 19 December 2002 be reserved, pending determination of the appeal in proceeding N 1409 of 2002. 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 N 1293 OF 2002 BETWEEN: NAFC APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE: 13 JANUARY 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 I published reasons for judgment on 24 December 2002 in relation to the applicant's motion brought by notice of motion filed on 19 December 2002. I will take those reasons for judgment and the orders made on 24 December 2002 as read. Pursuant to the leave reserved to the respondent ("the Minister") to apply for a dissolution or variation of the injunction granted on 24 December 2002, the Minister notified the Court on 2 January 2003 that he wished to apply for a dissolution of the injunction. The Minister's application for a dissolution of the injunction has been before the Court on 7 January 2003, 9 January 2003 and again today. 2 The Minister has now proffered an undertaking to the Court (see par [23] of my reasons for judgment dated 24 December 2002). The applicant's appeal in proceeding N 1409 of 2002 is now fixed for hearing on 13 February next. 3 There have been other developments since the motion was heard on 24 December 2002. In the first place, Mr Cranwell, who appears for the Minister, informed the Court on 7 January that due to recent fires at the Woomera Immigration Reception and Processing Centre, it was no longer practicable to accommodate the applicant at that Centre and instead it was desired to remove him to the Baxter Immigration Reception and Processing Centre. The applicant's family has already been removed from Woomera to Baxter. Mr Cranwell filed in Court an affidavit, sworn 6 January 2003, of Christine McPaul of the Department of Immigration & Multicultural & Indigenous Affairs ("the Department") as to the facilities available at the Baxter Centre. In substance, Ms McPaul's affidavit was that the same facilities are available at Baxter as are available at Woomera. Ms McPaul's affidavit was, with necessary adjustments, identical to her affidavit, sworn 9 December 2002, which was read on the hearing before Beaumont J. 4 Mr Poynder, who appears for the applicant, indicated that he wished to cross-examine Ms McPaul and the proceeding was stood over to 9 January 2003 when that cross-examination took place. 5 Another development is that the Refugee Review Tribunal has now fixed the application before it for hearing on Friday 7 February 2003. This is prior to the date fixed for the hearing by the Full Court of the appeal. Mr Poynder has sought and been granted leave to re-open his case on the motion to read an affidavit of his instructing solicitor, Kerry Daniel Murphy, sworn 13 January 2003, in relation to work which will have to be done with the assistance of the applicant as a matter of urgency. Mr Murphy was cross-examined by Mr Markus, who now appears for the Minister, with a view to showing that in fact there has already been ample opportunity for these matters to be attended to. 6 I do not propose to review the evidence in detail. The two salient points to my mind are that: · the Minister is prima facie entitled to the benefit of Beaumont J's decision in his favour; and · the undertaking now proffered by the Minister to the applicant and to the Court overcomes the problem of the appeal being nugatory – that being the basis on which I granted the injunction on 24 December 2002. 7 When Ms McPaul was testifying I did raise with her the question whether the Department still wished to relocate the applicant, at a cost, I understand, of some $10,000. She implied, I think, that she would consider whether, in all the circumstances, it was still appropriate to remove the applicant in the light of the changed circumstances of which she had become aware immediately prior to testifying. 8 Some small allowance should be made in terms of time in favour of the applicant so that his legal advisers can attend within the next few days to any outstanding matters relating to the Tribunal proceeding. While I propose to dissolve the injunction, I will do so only from 5.00 pm this coming Friday 17 January 2003. 9 Accordingly, upon the respondent's undertaking to the applicant and to the Court: that on the hearing of the appeal in proceeding N 1409 of 2002: (a) the respondent will not take the point that the applicant has already been removed from Sydney; and, accordingly (b) the respondent will agree that in all respects the merits of the appeal are to be determined as if the applicant had not been removed from Sydney and had remained in detention at the Immigration Detention Centre, Villawood; and that if the applicant's appeal in proceeding N 1409 of 2002 succeeds on the merits, the respondent will return the applicant to the Immigration Detention Centre, Villawood as soon as practicable following the Court's delivery of reasons for judgment favourable to the applicant on the appeal, without charging to the applicant any of the costs of his removal from that Centre or return to that Centre the Court will order that: 1. The injunction ordered on 24 December 2002, as varied on 7 January 2003, be dissolved with effect from 5.00 pm on Friday 17 January 2003. 2. The costs of the applicant's motion brought by notice of motion filed on 19 December 2002 be reserved, pending determination of the appeal in proceeding N 1409 of 2002. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 16 January 2003 Counsel for the Applicant: Mr N C Poynder Solicitors for the Applicant: Craddock, Murray & Neumann Solicitor for the Respondent: Mr G Cranwell (7 January 2003) and Mr A Markus (9 and 13 January 2003) of the Australian Government Solicitor's Office Date of Hearing: 7, 9, 13 January 2003 Date of Judgment: 13 January 2003