AKC15 v Minister for Immigration
[2017] FCCA 450
•8 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKC15 v MINISTER FOR IMMIGRATION & ORS | [2017] FCCA 450 |
| Catchwords: MIGRATION – Notice of removal from Australia – attempts by applicant to respond to notice within 8 days – unable to initiate application for relief – no immediate access to legal advice – reasonable time and reasonable opportunity to bring legal proceedings – interim injunction granted. |
| Legislation: Migration Act 1958 (Cth), ss.197C, 198(6), 476(2)(d) |
| Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57 SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140 |
| Applicant: | AKC15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| Third Respondent: | MILAN OZEGOVIC, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 137 of 2015 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 8 March 2017 |
| Date of Last Submission: | 8 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 8 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms M.A. Jackson |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the First Respondent: | Ms Whittemore |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The Minister for Immigration and Border Protection, the Secretary of the Department of Immigration and Border Protection, Milan Ozegovic, Department of Immigration and Border Protection whether by themselves, their servants or agents or howsoever otherwise are restrained from removing the Applicant from Australia pending the hearing and determination of the Interlocutory Application filed 8 March 2017 or further order.
Costs are reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 137 of 2015
| AKC15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| SECRETARY OF THE DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Second Respondent
| MILAN OZEGOVIC, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION |
Third Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
At 9.45am this morning, the applicant filed in this court an application in a case seeking an injunction restraining the Minister by himself or his Department, officers, delegates or agents from removing the applicant from Australia pending determination of the substantive application or taking the other action the subject of the proceedings. Also filed at that time was an affidavit of Melinda Anne Jackson affirmed on 8 March 2017. The affidavit discloses that it is proposed to remove the applicant from Australia by a flight that is scheduled to depart at 11.30am today.
The proceeding was commenced in this court on 24 March 2015.
In the proceeding an order is sought quashing a decision by a Delegate of the Minister made on 23 March 2015 being, in effect, that Australia did not owe non-refoulement obligations to the applicant. By a response filed on 23 April 2015 the first respondent, the Minister for Immigration and Border Protection, opposes the making of the orders sought and relies upon the substantive response that there is no legal error or jurisdictional error in the International Treaties Obligations Assessment dated 23 March 2015 as made in relation to the applicant.
It appeared to be common ground from the procedural history that the determination of this matter has, in part, been delayed by reason of the determination before the High Court of Australia of two proceedings concerning the Minister for Immigration and Border Protection in which appeals were brought by the Minister against SZSSJ and SZTZI, respectively. The appeals in those proceedings were determined by the delivery of judgment in the High Court on 27 July 2016: see Minister for Immigration and Border Protection v SZSSJ and Minister for Immigration and Border Protection vSZTZI [2016] HCA 29.
The parties’ lawyer and counsel respectively, who are to be commended for the assistance that they provided to the court in this urgent application, drew my attention to the reasoning in the joint judgment in the SZSSJ and SZTZI appeals commencing at paragraph 58 under the heading “The Federal Circuit Court has jurisdiction” and which conclude on that topic at paragraph 73. The Full High Court there held that the jurisdiction of the Federal Circuit Court of Australia (to hear and determine the matters in which SZSSJ and SZTZI sought declaratory and injunctive relief on the ground that the ITOA process was procedurally unfair), was not excluded by s.476(2)(d) of the Migration Act1958 (Cth) (“Act”).
In this proceeding, a trial had been listed for 4 November 2016. However, the parties, by consent, agreed that that trial be vacated. They so agreed on 19 October 2016 and their trial listing was vacated. The context for the parties’ consent to vacate that trial was (as I was told from the bar table), so as to allow for consideration by the Minister whether the applicant might be permitted to submit a further visa application. The progress of the process which I have described concerning whether the Minister would allow a further submission by the applicant has not been further exposed by the evidence in the urgent circumstances which obtain.
On 1 March 2017, a notice was issued by Australian Border Force entitled NOTICE OF INTENTION TO REMOVE FROM AUSTRALIA. The notice, addressed to the applicant stated:
“I wish to advise you that you are liable for removal from Australia under the following provision of the Migration Act 1958:
s198(6).
Arrangements have been made for your removal. It is anticipated that you will be removed from Australia on Wednesday 8 March 2017. The Department will monitor these arrangements until your departure to ensure that your removal can be effected as intended, including confirming that valid travel documentation is available, that you are medically fit to travel and that you do not have any outstanding legal matters impacting on your removal.”
I do not set out the remainder of that notice but observe that it bears an annotation which reads: “issued 11.44hrs”.
The affidavit by Ms Jackson deposes that she is the solicitor for the applicant and that she makes the affidavit in support of the application for an interlocutory injunction. She deposes as to the applicant currently being detained at Melbourne Immigration Transit Accommodation. The deponent further swears that the applicant is scheduled for removal from Australia to China on 8 March 2017 at 11.30am, and exhibits as MAJ-1 a copy of the applicant’s removal notice. Ms Jackson deposes to having received instructions in the matter at 11.50 pm on 7 March 2017.
Although it has not been possible in the circumstances to fully expose or explore the veracity of the instructions to which the deponent swears, Ms Jackson states in paragraph 5 of her affidavit that she has been informed by the applicant and verily believes that:
a)He has court proceedings on foot;
b)He is scared of returning to China;
c)He received the Removal Notice on 1 March 2017;
d)He tried to email the Perth Registry of the court regarding an injunction, however, the court informed him it could not accept filing by email and he needed to fax the documents;
e)He tried to fax the documents from MITA, but Serco officials informed him the fax machine was broken;
f)He sought assistance of other detainees to try and fax the documents but Serco officials informed them the fax machine was broken.
Ms Jackson’s affidavit thus identifies her instructions as to the efforts made and difficulties encountered by the applicant since 1 March 2017 in seeking to file an application in this court.
The affidavit further exhibits as MAJ-2 a copy of the documentation which the applicant had instructed was emailed to the court but which had not been accepted for filing.
It is not possible in the hearing or determination of an interlocutory application to determine disputed questions of fact. That position is magnified in circumstances where interim relief is sought. It is magnified further where, as here, the application for relief has been brought within hours of the deportation of the applicant. While it is a matter in contest, the affidavit of Ms Jackson does depose to a series of attempts apparently made by the applicant to file documents so as to initiate an application in this court before this morning. Without expressing any view as to the matters deposed to, paragraph 5 of the Jackson affidavit may suggest that the applicant has made several attempts to file process but variously failed to do so by email, and/or by fax, and that his attempts were thwarted in part because, twice he had been told that the fax machine was broken.
I am referred to the seminal decision of the High Court in the Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57 which states the principles to be applied with respect to an application for an interlocutory injunction. Accepting that O’Neill states settled principles in relation to such injunctions, the circumstances in that case could not be more different from the circumstances here.
In my opinion, the principles which obtain with respect to the application for quia timet relief are those stated in Tait v The Queen (1962) 108 CLR 620 at 624-625 (Dixon, CJ). Those principles are well settled and have more recently been applied in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] 72 ALJR 868 at [1]-[2] (Hayne, J).
It was submitted that by operation of s.197C of the Act this court cannot issue an interlocutory injunction in respect of a removal to which s.198(6) applies. Ms Whittemore in helpful submissions drew my attention to a decision of the Federal Circuit Court in MZZFW v Minister for Immigration [2015] FCCA 1902 (Lucev, J); see, in particular at [56]-[60]. I cannot in the present circumstances make a considered decision whether the holding of another member of this court produces the result and compels a conclusion that I am unable to grant quia timet relief as sought.
What also emerged in the course of argument is that it must be a question of fact whether a reasonable time and a reasonable opportunity has been allowed to an applicant to institute legal proceedings to prevent their removal by involuntary means. Ms Whittemore drew my attention to a decision of the Full Federal Court of Australia in SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140. There Allsop CJ, Mansfield and Besanko JJ at [49] held that:
“What is a reasonable time and a reasonable opportunity to bring legal proceedings to prevent removal will always depend on the circumstances.”
See also at [44]-[50]. Their Honours further recognised that the circumstances of an individual may demand very prompt removal.
Accepting the principles stated by the Full Court in SZSPI, nothing in the circumstances before this court presently indicate why very prompt removal is demanded in this case. Whether or not that be the criterion according to which the balance of convenience should be assessed in this case, I am informed by Ms Jackson for the applicant that the scope and operation of s.197C and its interaction with s.198 of the Act is presently the subject of a reserved judgment before the Full Court of the Federal Court of Australia from proceeding BCR16 v Minister for Immigration and Border Protection [2016] FCA 965 (Moshinsky, J).
I am satisfied, on the principles stated in Tait’s case and applied in Patrick Stevedores, that it is appropriate to grant some relief as sought in the application in a case.
Despite my decision, I do not consider it appropriate to grant the relief in terms of the application which, in my view, are too wide. I have cast the text of the injunction as quia timet relief to operate until the hearing and determination of an application for an interlocutory injunction is heard and determined or until further order.
It is not for the court to immediately require how it is that the parties should proceed from here, but I am conscious of the approach which they have taken in this proceeding concerning SZSSJ and SZTZI as to which they were content to await the hearing and determination of those appeals by the High Court. By analogy, or by extension, it may be the parties would prefer that the interlocutory hearing in this matter not occur until after the Full Federal Court has given its judgment in BCR16. This must be addressed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 8 March 2017
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