Federal Court stops removal order

September 1, 2002

There was no argument that Mathew McDonnell had overstayed his visa, but he wanted a Bridging E visa so that he could tie up his financial affairs with regards to his young child before leaving the country.The Immigration Department, however, saw things differently. Not only did they deny McDonnell his visa, but they tried to remove him under section 198 of the Migration Act before he could appeal the decision to the Migration Review Tribunal.Luckily for McDonnell, a last minute Federal Court injunction stopped the Department from proceeding with the removal order pending the outcome of a Migration Review Tribunal decision.McDonnell’s Barrister Nicholas Poynder, said in an interview that the decision could potentially be precedent setting by shoring up the right of review for immigrants.“It sets a precedent that the department has to allow applicants the opportunity to have their decisions reviewed,” said Poynder, who was instructed by Anne O’Donoghue, Principal Immigration Lawyer with Immigration SolutionsThe Federal Court’s decision was handed down after 6pm on August 6, less than a day before McDonnell was scheduled to be removed.“There were no precedents for this particular situation, and we had to take quick action, before the client was removed,” said O’Donoghue.Poynder told the court that the Minister created a “legitimate expectation” that McDonnell’s case would be heard by the tribunal, and that the minister could not frustrate that expectation without first giving McDonnell an opportunity to weigh in on the issue.G. Cranwell, who appeared for the Immigration Department, disagreed, suggesting that the Minister’s rejection letter simply informed the applicant of his statutory rights rather than giving him a “legitimate expectation” that he would be heard.Poynder also argued that by removing the right to a merits review hearing, the Minister would be frustrating his own statute, which guaranteed such a hearing, rendering the primary decision final.The Migration Act provides a right of merits review to a tribunal if applicants want to have their cases reviewed on merits, as opposed to procedural, grounds. As such, “the minister can effectively move any right of review altogether by removing the person before they have any opportunity to go to the tribunal, which cannot be the way the [Migration] Act is supposed to operate,” Poynder said.Cranwell noted that the Presiding Justice, The Honorable Peter Hely, had in a previous case (Lewai v Minister for Immigration and Multicultural Affairs) accepted the removal of an applicant before his case could be subject to judicial review. However, in his decision Hely said he couldn’t dismiss Poynder’s argument that Judicial and Merits review were treated differently.Moreover, said Hely, in another case (Arkan v. Minister for Immigration and Multicultural Affairs), a Federal Court Justice had proceeded on the practical utility of the applicant remaining for his hearing. While the applicant in Arkan had exhausted every possible avenue of the Immigration system to the point where there would be no practical benefit to him remaining in the country, McDonnell’s staying in the country would allow him to take care of his affairs before leaving.McDonnell’s case is not the only one to raise procedural fairness issues within the immigration system this month. A high court decision raised questions about procedural fairness at the Refugee Review Tribunal (hyperlink to bulletin item on the high court decision).Links:Lewai caseArkan caseSection 198A. Offshore entry person may be taken to a declared country 198A. (1) An officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3).(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:

(a) place the person on a vehicle or vessel; (b) restrain the person on a vehicle or vessel; (c) remove the person from a vehicle or vessel; (d) use such force as is necessary and reasonable.

(3) The Minister may:

(a) declare in writing that a specified country:

(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and (ii) provides protection for persons seeking asylum, pending determination of their refugee status; and (iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and (iv) meets relevant human rights standards in providing that protection; and

(b) in writing, revoke a declaration made under paragraph (a).

(4) An offshore entry person who is being dealt with under this section is taken not to be in immigration detention (as defined in subsection 5(1)). (5) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

By: Anne O'Donoghue and Tim McDonald