Abeyesinghe v Minister for Immigration

[2017] FCCA 961

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABEYESINGHE v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 961

Catchwords:
MIGRATION – Injunction to restrain imminent removal from Australia – serious issue to be tried established – balance of convenience in favour of the grant of the injunction established – injunction granted.

Legislation:

Migration Act 1958 (Cth), ss. 194, 195, 196, 198(6)

Migration Regulations 1994 (Cth), Sch.2, cl.050.223

Cases cited:

A v Hayden [No. 2] (1984) 156 CLR 532
Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57
American Cyanamid Co v Ethicon Ltd [1975] A C 396
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
SZSPI v Minister (2014) FCAFC 140
Tait v The Queen; Scott v Chief Secretary (Vic) (1962) 108 CLR 620

Applicant: SASIKA USHAD DEVINUWARA DIAS ABEYESINGHE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1041 of 2016

Judgment of: Judge Wilson

Hearing date: 5 May 2017

Date of Last Submission: 5 May 2017

Delivered at: Melbourne

Delivered on: 5 May 2017

REPRESENTATION

Solicitors for the Applicant: TAI Lawyers

Counsel for the Respondents: Mr L Brown

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. Until the trial of this proceeding on 17 May 2017 or further order, the respondents, whether by themselves, their servants or agents or however otherwise, are restrained from removing the applicant from the Commonwealth of Australia.

2. This proceeding is listed for hearing before her Honour Judge Jones on 17 May 2017 at 10.30 a.m.

3. Costs are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

BRG 1041 of 2016

SASIKA USHAD DEVINUWARA DIAS ABEYESINGHE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Introduction

1. At approximately 11.30 a.m. today I was notified that the applicant in this proceeding sought an urgent hearing of an application for an interlocutory order restraining the respondents or one or other of them from removing the applicant from the Commonwealth of Australia presently scheduled for Sunday, 7 May that is to say, one clear day from now. At noon today, I heard the applicant’s application for interlocutory relief. Shortly after 2.15 p.m., I commenced to deliver these ex tempore reasons for judgment.

Synopsis

1. For the reasons that follow –

   a)I grant the urgent interlocutory injunction restraining the respondents from removing the applicant from Australia; and  

   b)

   I order this proceeding to be heard at final hearing before

   
   

   her Honour Judge Jones on 17 May 2017 at 10.30 a.m.

Short factual narration

1. On 23 October 2008 the applicant arrived in Australia on a student visa. On 15 March 2012 the applicant lodged a further application for a student visa. It was refused on 30 October 2012. The Migration Review Tribunal (now the Administrative Appeals Tribunal) heard an application to review that refusal lodged on 28 November 2012, and on 16 December 2013 affirmed the delegate’s decision to refuse the grant of the further student visa. On 24 October 2014 the applicant became an unlawful non-citizen. On 10 August 2016 the applicant, who had by then served a period of incarceration in relation to criminal activities, was released, but he was immediately thereupon placed in immigration detention where he presently remains.

2. On 6 September 2016 the applicant applied for a tourist visa. That application was deemed invalid. On 6 January 2017 the applicant applied for a bridging E (Class WE) visa. On 10 January 2017 the Minister’s delegate refused to grant the bridging visa. The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for the review of the delegate’s decision. On 19 January 2017 the applicant appeared before the Tribunal and presented argument. The next day, that is to say on 20 January 2017, the Tribunal affirmed the delegate’s decision not to grant the bridging visa to the applicant. 

3. On 6 April 2017 the applicant applied to this Court for judicial review of the Tribunal’s decision in relation to the bridging visa. He needed an extension of time to bring that application. He asserted that his own impecuniosity was his reason for not applying within time. On 28 April 2017 the applicant was provided with a notice of intention to remove the applicant from the Commonwealth of Australia.

4. On behalf of the Minister before me it was submitted that s.198(6) of the Migration Act 1958 (Cth) (“the Act”) compels the Minister to remove the applicant as soon as is reasonably practicable. One of the issues before me is whether the proposed removal is, in fact, reasonably practicable. In my view, having regard to the hearing date that her Honour Judge Jones has allocated, namely, 12 days from today, it is not reasonably practicable to remove the applicant on Sunday,

   
   

   7 May, one clear day from today.

The arguments

1. At the outset, I record my thanks to Mr Brown of counsel for the Minster and Mr Kamal, the solicitor for the applicant, for their cooperative approach in this case so that I was able to hear the application in a case that was filed earlier today. Possibly doing a disservice to Mr Brown’s argument, to be excused hopefully by the urgency of the preparation of these reasons between 1.00 and 2.00 p.m. today, Mr Brown submitted –

   a)the only relevant judicial review application before me related to the bridging visa, not the tourist visa;

   b)the Tribunal considered the review of the delegate’s decision correctly after posing the correct issues for its consideration;

   c)the relevant issue was whether the visa applicant will comply with the conditions that will be placed on the visa applicant if the visa is granted (as per cl.050.223 of the Migration
   Regulations 1994 (Cth) (“the Regulations”)); and

   d)the Tribunal assessed the relevant issue and determined correctly that the applicant will not abide by the conditions imposed under cl.050.223 of the Regulations.

2. An application for injunctive relief of the sort sought in this case must show –

   a)that a serious issue to be tried exists; and

   b)that the balance of convenience favours the making of such an order.

1. Authorities for that test are old and they include A v Hayden [No. 2],[1] Beecham Group Ltd v Bristol Laboratories Pty Ltd ,[2] Tait v The Queen; Scott v Chief Secretary (“Tait”),[3] Australian Broadcasting Corp v O’Neill,[4] and American Cyanamid Co v Ethicon Ltd and Ors.[5]

   [1] (1984) 156 CLR 532.

   [2] (1968) 118 CLR 618.

   [3] (1962) 108 CLR 620.

   [4] (2006) 227 CLR 57.

   [5] [1975] A C 396.

2. In an urgent case such as this, the court is empowered to make an order even without giving any consideration to or expressing any opinion as to the grounds on which they are based, as the High Court held in Tait.

3. Mr Brown submitted that the serious issue to be tried in this case was unarguably to be resolved in the Minister’s favour. Mr Kamal did not squarely meet that contention. On top of that, Mr Brown contended that the applicant will need to overcome a seemingly insurmountable hurdle, namely, whether in all the circumstances this Court should extend to him an extension of time within which to have brought the application for judicial review. On that issue, I cannot gainsay whether an extension of time will or is likely be granted or refused. For that matter, it seems to me that the issue of whether or not an extension of time is likely to be granted is somewhat off-topic. The serious question to be tried demands the assessment of other more critical issues. 

4. Mr Kamal argued that ss.194, 195 and 196 of the Act applied. In a nutshell, he argued that s.194 of the Act was not complied with in this case because the officer who detained the applicant did not as soon as reasonably practicable after that detaining, ensure that the applicant was made aware of the provisions of ss.195 and 196 of the Act. The relevant information that the detaining officer did not allegedly give to the applicant as soon as reasonably practicable after detaining the applicant was information that the applicant may within two working days apply for a visa.

5. Mr Brown said that last point was a red herring on the facts of this case. Mr Kamal did not devote any particular time to developing the argument about the serious issue to be tried. It seemed that the

   
   

   ss.194 and 195 argument may have involved a factual matter that was disputed. That much was hard to tell. Insofar as the argument about the existence of a serious question to be tried centred around the correctness or otherwise of the Tribunal’s determination in respect of cl.050.223 of the Regulations, that also seemed to me to involve matters much deeper than Mr Brown said the Tribunal’s reasons disclosed.

6. It seemed to me, yet neither party contended, that at least one serious issue to be tried lay in the respondent’s entitlement to invoke s.198(6) of the Act. That section of the Act speaks in mandatory terms of the relevant officer being required to (hence the use of the word “must”) remove “as soon as reasonably practicable” an unlawful non-citizen if various matters canvassed in ss.198(6)(a)–(d) of the Act are met.

7. There is considerable grist in the mill about whether each of those subsections of the Act have been met in the circumstances of this case. Only if they are met “must” the relevant officer remove the unlawful non-citizen, and only then the removing of the unlawful non-citizen must be undertaken when it is “reasonably practicable”. In the circumstances of this case, I am far from satisfied that it is reasonably practicable for the relevant officer to mandatorily perform his or her duty to remove the applicant this Sunday. 

8. It is now past 2.00 p.m., almost 2.30 pm on Friday, 5 May. The proposed removal is a little over a clear day away. There is enough debate in the matters raised that I am not satisfied on the balance of probabilities that –

   a)the Minister’s point about cl.050.223 is necessarily correct; and

   b)Mr Kamal’s point about ss.194 and 195 of the Act is not arguable.

9. In my view, both are arguable, albeit from different perspectives.

10. As to the second question, in any application for a quia timet injunction particularly of the application sought in this case, the balance of convenience must favour the grant of the order. In this case, that translates to the proposition that I raised with Mr Brown and

    
    

    Mr Kamal. In my view, if the relief sought today is refused, this entire litigation is rendered nugatory. That would wholly defeat any interest the applicant wishes to advance. I could only do that in a case beyond argument. This is not such a case. 

11. It must not be forgotten that the instruction from the Full Court of the Federal Court applies with full force derived from the decision in SZSPI v Minister for Immigration.[6] It is always a question of fact whether a reasonable time and a reasonable opportunity has been allowed to institute and prosecute legal proceedings to prevent a person’s removal by involuntary means. 

    [6] (2014) FCAFC 140.

12. A significant question here is why blinding urgency exists in this case to procure the applicant’s removal from Australia, especially in view of the fact that this Court can hear and will hear the whole proceeding in a matter of days. I am unattracted to the Minister’s zeal for the applicant’s removal without giving him a fair hearing. He may or may not succeed on that. All will be known once her Honour Judge Jones decides this case. 

13. In my view, on the balance of convenience tips unmistakably in favour of the grant of the order sought.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 11 May 2017