La Bara v Minister for Immigration and Citizenship [2008] FCA 785

La Bara v Minister for Immigration and Citizenship [2008] FCA 785

The applicant failed to establish any entitlement to remain in Australia nor any prima facie basis for interim relief; removal under s 198 Migration Act 1958 (Cth) is not subject to asserted common law rights or unincorporated treaty rights, and statutory language is sufficiently clear to rebut presumption against invasion of common law rights.

Parties
Applicant: La Bara; First Respondent: Minister for Immigration and Citizenship; Second Respondent: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
28 May 2008
Procedural Posture
Application for Interim Injunction / Interlocutory; Hearing on Interim Relief
Outcome
Application for interim injunction refused
Legal Topics
Interim Injunctions, Removal From Australia, Statutory Interpretation, Common Law Rights, Consular Access, International Law
Migration Interim Injunctions Removal From Australia Statutory Interpretation Common Law Rights Consular Access International Law

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Parties

La Bara

Applicant

Minister for Immigration and Citizenship

First Respondent

Commonwealth of Australia

Second Respondent

Procedural Posture

Application for Interim Injunction / Interlocutory; Hearing on Interim Relief

Legal Issues

  1. 1 Whether removal from Australia under s 198 Migration Act 1958 (Cth) is subject to common law right to instruct legal advisers
  2. 2 Whether removal affects cause of action or ability to instruct legal advisers in Australia
  3. 3 Whether removal is subject to right of consular access under Article 36 Vienna Convention on Consular Relations 1963

Ratio Decidendi

The applicant failed to establish any entitlement to remain in Australia nor any prima facie basis for interim relief; removal under s 198 Migration Act 1958 (Cth) is not subject to asserted common law rights or unincorporated treaty rights, and statutory language is sufficiently clear to rebut presumption against invasion of common law rights.

Court Disposition

Application for interim injunction refused

Orders

  • Application for interim injunction refused
  • Respondents (if in possession of GPS system referred to in paragraph 7 of Kerry Anne Sibley’s affidavit) to preserve and deliver up to Registrar of Court within 48 hours