Candemir v Minister for Home Affairs & Anor [2021] HCATrans 122 (4 August 2021)

Last Updated: 6 August 2021

[2021] HCATrans 122

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S42 of 2021

B e t w e e n -

AHMET CANDEMIR

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 4 AUGUST 2021, AT 11.01 AM

Copyright in the High Court of Australia

HIS HONOUR: The orders I make in this matter are as follows:

1. The application is dismissed.

2. The plaintiff is to pay the defendants’ costs.

I publish my reasons and I direct that those reasons be incorporated into the transcript.

This application for a constitutional or other writ in the original jurisdiction of the High Court follows much the same pattern as is evident in Isley v Minister for Home Affairs and Raibevu v Minister for Home Affairs but has some additional features.

The plaintiff is a Turkish citizen who moved to Australia in 1969. He has an extensive criminal record. In 2015, he was convicted in the District Court of New South Wales of supply and possession of a prohibited drug and dealing with proceeds of crime. He was sentenced to a total period of imprisonment of five years with a non‑parole period of three years and eight months.

Shortly before the plaintiff became eligible for parole in 2016, a delegate of the Minister for Home Affairs cancelled his visa under s 501(3A) of the Migration Act 1958 (Cth). On his subsequent release from prison, he was taken into immigration detention under s 189(1) of the Migration Act.

Later in 2016, a delegate of the Minister decided not to revoke the cancellation under s 501CA of the Migration Act. In 2017, the Administrative Appeals Tribunal set aside the non-revocation decision. The plaintiff was released from immigration detention. However, acting under s 501BA of the Migration Act, the Minister set aside the decision of the Tribunal and again cancelled the plaintiff’s visa, following which the plaintiff was again taken into immigration detention under s 189(1) of the Migration Act.

In 2018, an application for judicial review of the Minister’s decision under s 501BA was dismissed at first instance by Gleeson J in the Federal Court of Australia in Candemir v Minister for Home Affairs [2018] FCA 1360. That decision was upheld on appeal to the Full Court of the Federal Court in Candemir v Minister for Home Affairs [2019] FCAFC 33. The plaintiff filed an application for special leave to appeal in the High Court, which he later withdrew.

The originating application for a constitutional or other writ was filed on 31 March 2021. By it the plaintiff sought a declaration that “the decision[s] by the Minister for Home Affairs ... and/or officers of the Commonwealth of Australia ... to detain the plaintiff ... pursuant to s 189(1) of the Migration Act ... were made contrary to law”, a writ of habeas corpus directed to the Minister and the Commonwealth requiring his release, a writ of prohibition restraining the Minister and the Commonwealth “from acting upon or giving effect to the decisions” the subject of the declaration, and damages for false imprisonment on an aggravated and exemplary basis.

Neither in the originating application nor by any subsequent interlocutory process did the plaintiff seek interlocutory relief. He accompanied his application with an affidavit which chronicled the making and processing of a request by him to be removed from Australia to Turkey voluntarily under s 198(1) of the Migration Act. In the events which subsequently occurred, it appears that the plaintiff was in fact removed from Australia on 13 July 2021, reaching Turkey on 15 July 2021.

The plaintiff’s removal from Australia, at his own request, negatives any basis for the relief he seeks in the application by way of writs of habeas corpus and prohibition. Insofar as the plaintiff persists in seeking declaratory relief and damages, his removal also undercuts the factual basis of the ground of the application that his detention was unlawful because “the Minister [was] either unwilling or unable to return [him] from Australia to Turkey within the foreseeable future”. The evidence adduced by the plaintiff provides no foundation for an inference that the Minister was at any earlier time unwilling to comply with his request for removal. Even if it did, consistently with the reasoning of the majority in The Commonwealth v AJL20 (2021) 95 ALJR 567, that unwillingness would not have resulted in his detention pursuant to s 189(1) of the Migration Act having become unlawful.

Insofar as the remaining grounds of the application mirror those in Isley v Minister for Home Affairs and Raibevu v Minister for Home Affairs, those grounds are untenable for the reasons identified in my reasons for decision in those matters.

The plaintiff additionally contends that his detention was unlawful on the basis the Minister's decision to set aside the decision of the Tribunal under to s 501BA(2) was beyond power as the Minister cannot re-exercise the power to cancel the plaintiff’s visa after the Tribunal has set the decision aside when there was no change to the factual basis on which the Tribunal made its decision. Insofar as the plaintiff persists in seeking declaratory relief and damages on this further ground, the application is an abuse of process if for no other reason than that the plaintiff provides no reason why that ground could not have been advanced in the now-concluded judicial review proceeding in the Federal Court. The relevant principles were stated in Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678 [9]‑[14]; 297 ALR 560 at 562‑563. They are applied contemporaneously in Isley v Minister for Home Affairs and Raibevu v Minister for Home Affairs. They need not be repeated.

The application will be dismissed under r 25.09.1 of the High Court Rules 2004 (Cth). There being no reason why costs should not follow the event, the plaintiff must pay the costs of the defendants.

The Court will now adjourn.

AT 11.01 AM THE MATTER WAS CONCLUDED