BRIEF CHRONOLOGY OF NON-REFOULEMENT ACTIONS
In M38, Marshall J held that s. 198 of the Migration Act, which authorises “removal” of unlawful non-citizens is not subject to any limitation by reference to Australia’s non-refoulement obligations under Article 33 of the Refugees Convention.
His ruling is at http://www.austlii.edu.au/au/cases/cth/federal_ct/2003/458.html
It was decided on 15 May 2003
An appeal was heard on 28 May, and refused: http://www.austlii.edu.au/au/cases/cth/FCAFC/2003/131.html .
An application for special leave to appeal to the High Court has been filed. It is due to be heard on 12 December 2003.
Subsequent applications of the same sort have been variously dealt with:
Date | SA Applications | NSW Applications | WA Applications |
29.5.03 |
| NAQA, NAQB, NAQC, NAQD & NAQE – N602/03– Bennett J
NAQL – N608/03 – Bennett J
NAQO – N609/03 – Bennett J
Minister restrained from removing applicant from Villawood IDC without first proving 2 days’ notice of such removal (see Annexure A – minutes of order) |
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30.5.03 | Fardin Bagheri – S542/03 – Mansfield J
1. The respondent is restrained from removing the applicant from Australia until the hearing and determination of this application or until further order. |
| Daryoush NAJAD – W127/03 – French J
Court ordered that
1. The respondent is restrained from removing the applicant from Australia until the hearing and determination of this application or further order. |
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10.06.03 |
| NAPY – N600/03 – Moore J
Similar orders as Bennett J made on 29 May 2003 (See Annexure A for terms)
Minister restrained from removing applicant from Villawood IDC without first proving 2 days’ notice of such removal |
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18.07.03 |
| Beladjine (NATB) – N807/03– Stone J
Proceeding be dismissed under O20 R2 as not disclosing a reasonable cause of action |
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25.07.03 |
| NAQA – N602/03– Branson J
NAQL – N608/03 – Branson J
NAQO – N609/03– Branson J
NAPY – N600/93 - Branson J
1. Without prejudice to the continuing operation of the order made by Bennett J on 29 May 2003, make order that:
2. No further steps, including the hearing of the notice of motion foreshadowed by the respondent, be taken in this matter until further order of the Court.
3. Parties have liberty to apply to seek an order of the kind referred to in paragraph 1 of the notice of motion on 48 hours’ notice.
Branson J said that if the applicants accepted the decision of M38 bound her, what they were really trying to do preserve their position in the event that the appellants in M38 were successful in the High Court, and it would be better for them to seek an adjournment or have this matter referred to the full court or have her honour state a case, rather than proceed with the hearing of the motion. Applicant’s counsel then sought instructions and applied for an adjournment. Adjournment was opposed by the Minister on the basis that the mere fact that a special leave application was pending.
Branson J said that if she refused the adjournment and struck the proceedings out, then the applicants would no doubt simply seek leave to appeal to the full court and that, if the special leave application in M38 had not been dealt with by the time of the hearing of the full court appeal, the applicants would no doubt then seek special leave to appeal to the High Court from any decision of the full court. The applicants confirmed that that was the case. In these circumstances her Honour indicated that a refusal of the adjournment would simply result in unnecessary further proceedings. |
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26.07.03 |
| Beladjine (NATB) – N807/03 – Branson J
2. The Minister for Immigration and Multicultural and Indigenous Affairs and his servants and agents be restrained from removing the applicant from Australia until further order. |
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30.07.03 (hearing)
31/07.03 (orders made) | Bagheri – S542/03 – Selway J (all)
Shorafa – S522/03
Nabhani – S524/03
Darvishzedehj – W117/03
Shams – W118/03
Selway J (all)
1. That the respondent, his officers, servants and agents be restrained from removing the applicants from Australia without first providing 2 days’ notice of such removal to the applicants. |
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11.08.03 |
| NATB – N807/03– Heerey, Finn and Conti JJ
Decision reserved. Appeal allowed on 15.08.03 |
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22.08.03 | Bagheri – S542/03
Shorafa – S522/03
Nabhani – S524/03
Darvishzedehj – W117/03
Shams – W118/03
Selway J (all)
1. The respondent be restrained from removing the applicant(s) from the territory of Australia without first giving 2 days’ notice. |
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22.08.03 | Actions S603/2003 to S615/2003 –
Lander J (all) 1. Until 2.15 on 8 September 2003 (the applicant for interlocutory injunction will be heard at this time) the respondent be restrained from removing the applicants from the territory of Australia without first giving 2 days’ notice. |
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23.08.03 | Salimi, Tapeh and Azizifaed– Action no. to be advised – Lander J (all)
1. Until 2.15 on 8 September 2003 the respondent be restrained from removing the applicant/s from the territory of Australia without first giving 2 days’ notice. |
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26.08.03 | Mokantaryan – S624/2003– Mansfield J (SAAK) 1. Until 4pm CST 27 August 2003 the respondent is restrained from removing the applicant from the territory of Australia. |
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24.10.03 |
| SAAK & NATB – Full Federal Court (Wilcox, Lindgren and Bennett JJ) decision reserved |
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