Appiah-Brenyah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 219
•25 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Appiah-Brenyah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 219
File number(s): SYG 1962 of 2021 Judgment of: JUDGE VASTA Date of judgment: 25 October 2021 Catchwords: MIGRATION – application for injunction - review of decision of AAT – consideration of serious issue to be tried – application dismissed Legislation: Migration Act 1958 (Cth) ss 195, 195A, 256 Cases cited: N/A Division: Division 2 General Federal Law Number of paragraphs: 26 Date of last submission/s: 25 October 2021 Date of hearing: 25 October 2021 Place: Brisbane Solicitor for the Applicant: the Applicant appearing on his own behalf Solicitor for the First Respondent: Sparke Helmore ORDERS
SYG 1962 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALFRED APPIAH-BRENYAH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
25 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Application in a case filed 25 October 2021 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the application in a case fixed in the sum of $500.00
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex tempore)JUDGE VASTA
This is an application for an injunction restraining the Minister, particularly Australian Border Force, from removing the Applicant until finalisation of this matter.
The background to this matter is extremely important in considering all issues. The Applicant came to Australia on 16 December 2007. He came here because his father had been sponsored to work as a mining engineer by a mining company. The nomination was for the Applicant’s father, the Applicant’s mother and their three adult children of which the Applicant was one of those. He was 30 years of age at the time that he arrived here. The Applicant said that he was dependent upon his father at that time.
After almost two years, the father had to apply for another visa. This time it was a Subclass 856 visa. The company applied as a nominated employer, but realised then that the three adult children were still part of the nomination. It decided to withdraw its nomination on 19 June 2009. This meant that the father of the Applicant and mother of the Applicant had to look at other ways in which they could remain in this country. The mother and father were able to be nominated for permanent residence. They acquired Australian citizenship after that.
The father withdrew his application for the 856 visa once the mining company withdrew their application. However, it seems that even though the father had withdrawn his application, the secondary application of the Applicant had not been withdrawn. This is notwithstanding that it was now an application that had no prospect of success, and was an application that could never be actually granted.
The Applicant had, during the time from 2007 to 2009, become involved in a relationship with a woman by the name of Rebecca Billie. She is an Australian citizen of Torres Strait Islander heritage.
In December 2009, a case officer contacted the Applicant and told him that his visa was about to be cancelled and that by it being cancelled he would lose any right to remain in the country. The Applicant told the case officer that Ms Billie was pregnant with twins. The case officer told the Applicant to apply for a partner visa and that the cancellation decision would then be delayed until the New Year.
According to the Applicant, he decided that the time frame was too short, given that the twins were then born on 4 December 2009. He said that money was an issue - he was working at an abattoir at the time - but it closed down for the summer season. So, he and Ms Billie were short of money.
He said that he asked his parents for help, but he and his father were not on speaking terms by then. This meant that the Applicant did not lodge a partner visa application at all, but certainly not before the visa upon which he was in Australia was cancelled. The Applicant didn’t obtain any immigration advice at the time, but nor did he follow up with the Department.
This meant that from 4 January 2010, just over two years after the Applicant had arrived in this country, he now became an unlawful non-citizen. He did nothing to change this status at all. He remained in his relationship with Ms Billie. He ran afoul of the law in the intervening period.
On 22 August 2016, he was charged with an offence of common assault with the victim being Ms Billie. He was fined and a domestic violence order was made where he, the Applicant, was the Respondent and Ms Billie was the aggrieved.
Two years later, on 21 August 2018, the Applicant was charged with stealing $300. That money was Ms Billie’s. The Applicant ended up paying back Ms Billie the money and he, the Applicant, was fined for the offence of stealing. A further domestic violence order was made on this day.
A month later on 24 September 2018, the Applicant was convicted of breaching that domestic violence order.
Three months later on 17 December 2018, the Applicant was convicted again of breaching that domestic violence order.
On 8 January 2019, the Applicant was charged with breaching the domestic violence order and was remanded in custody. On 24 February 2019, the Applicant was convicted of the breach of domestic violence order and was sentenced to a period in jail.
On 3 June 2019, the sentence for the domestic violence order breach was completed. The Applicant was released from custody in relation to that criminal offence, but was immediately taken into immigration detention because his immigration status had finally caught up with him.
At 19.30 hours, that is, 7.30 pm on 3 June 2019, the Applicant was provided with a form 1423, which is colloquially known as a VIN, a very important notice.
That notice is required to be provided to a detainee as soon as reasonably practical after their detention. This is necessary so that a detainee is aware that they have only two working days to apply for a visa, or within those two working days to indicate their intention in writing to apply for a visa within the next five working days, and then they have to then apply for the visa within the five working days. If a detainee does not apply for a visa within that time period, they are precluded from applying for any visa other than a bridging visa or a protection visa after that time. This is pursuant to s 195 of the Migration Act 1958 (Cth) (“the Act”).
It seems that the Applicant was transferred from the Townsville watch-house to the Brisbane detention centre in Pinkenba after it was that he had signed the VIN. Since that time, the Applicant has not seen Ms Billie, has not seen his daughters and has not seen Ms Billie’s other children face to face. The Applicant said that whilst he was at the Pinkenba detention centre in Brisbane, an officer asked him about his passport because he was about to be returned to Ghana, and he told that officer that his passport had expired.
On 30 September 2019, the Department told the Applicant that his application as a secondary Applicant on his father’s 856 visa application that had been lodged in 2009 remained outstanding. As I have earlier said, the application was one that was totally devoid of any prospect of success because there was no nomination by the company, and certainly, the withdrawal of the primary visa holder’s application meant that a secondary visa holder could never be successful. Seeing the common sense of that, the Applicant, on 15 October 2019, withdrew that 856 visa application. That withdrawal was finalised the next month.
On 25 October 2019, the Applicant applied to the Minister to grant him a visa pursuant to s 195A of the Act. That section allows the Minister, if it is in the public interest to do so, to grant a detainee a visa of a particular class, whether or not the person has applied for the visa or not.
That application for ministerial intervention was unsuccessful.
On 19 December 2019, the Applicant was transferred from Pinkenba in Brisbane to Yongah Hill Immigration Detention Centre in Western Australia, some two hours’ drive north of Perth.
The Applicant then applied for a bridging visa. This was refused on 24 March 2020.
He made another application for a bridging visa, but this was refused on 28 April
On 9 July 2020, the Applicant again applied to the Minister for ministerial intervention and for a grant of a visa pursuant to s 195A. Again, this application was not successful.
The Applicant applied for a third bridging visa, and this was refused on 10 July 2020.
On 20 August 2020, the Applicant was transferred to Christmas Island.
On 30 January 2021, he lodged a fourth bridging visa application. The delegate refused that application.
On this occasion, the Applicant asked the Administrative Appeals Tribunal (“the AAT/Tribunal”) for a review of that application. The Tribunal heard that review application in February of this year. The AAT noted that, in the application that had been before the delegate, the one that the AAT was reviewing, the Applicant wanted to apply for a substantive visa, namely an onshore partner visa, and that the Applicant said that he had no intention of departing Australia. When the delegate said that he could apply offshore for a partner visa, the Applicant said to the delegate that he was not interested in this as it would be too difficult for him to depart Australia and leave his family.
The Tribunal had to look at whether the applicant met the requirements for a bridging visa. Firstly, to meet the requirements of a bridging visa, the applicant must be able to apply for a substantive visa. As I have already indicated, in going through the history of the matter, the Applicant is precluded, pursuant to s 195, from applying for a substantive visa. This means that he does not meet the requirements for a bridging visa.
One of the other aspects for a bridging visa is that there needs to have been acceptable arrangements made for the Applicant to depart Australia. As previously mentioned, the Applicant said that he has no intention of departing Australia, and has not taken any steps to explore departing Australia. It seems then that he was not able to make acceptable arrangements to depart Australia.
As I have said, the only other visa that the Applicant had applied for was the 856 visa, but that has been withdrawn, and, in any event, that would never have been able to have been successful. The Applicant simply does not meet the requirements for a bridging visa.
For those reasons, the AAT affirmed the decision of the delegate not to grant a bridging visa.
However, the AAT then described in detail - some four and a half pages of what is realistically an 11 page judgment - reasons why the Minister might exercise the discretion he has pursuant to s 195A. In doing that, the AAT itself referred the matter to the Minister pursuant to s 195A.
That part of the reasons is not a matter that is justiciable in any Court, nor is any application that is before the Minister justiciable in a Court insofar as my Court, does not have, as it were, the power to look at whether the matter before the Minister is a matter for which injunctions should issue.
The Applicant was told, on 19 October 2021, that the Minister was now considering his deportation to Ghana, and that such would occur within the week. That same day (19 October 2021), the Applicant filed an application, in this Court, to review the AAT’s decision of 12 February 2021.
The Applicant had 35 days in which to make that application for judicial review. The application, on the best scenario for the Applicant using the time and date of a facsimile that is at the top of his application, is that he filed the application at 15.20 on 19 October 2021. Given that the date of the decision was 12 February 2021, the Applicant is some seven months out of time. That means that the matter before the Court is an extension of time application.
The application I am dealing with is whether I should issue an injunction restraining the Minister from removing the Applicant from Australia until finalisation of the matter. This means I have to decide whether there is a serious question to be tried; if there is, whether there would be irreparable injury caused to the Applicant if I did not issue the injunction; and, thirdly if those two criteria are met, where the balance of convenience lies.
The excuse that the Applicant has given in his application as to why he needs an extension of time is that the Applicant was without liberty and was unrepresented at all relevant times. He claims that there is a duty of care under s 256 of the Act and the Minister has failed the Applicant particularly by not providing the Applicant with the necessary application forms to lodge his application within the required timeframe. The Applicant says nothing in his affidavit as to this aspect.
But more importantly, if one looks at s 256 of the Act, it says that:
Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act, or for obtaining legal advice, or taking legal proceedings in relation to his or her immigration detention.
There is no evidence before me that the Applicant ever requested these forms, and in fact he candidly said that he did not know that he could make a review application to this Court, though somehow it seems he found out that he could do so after the Minister had signalled the Minister’s intention to remove him from Australia back to Ghana.
Given the excuse that was made as to why there was a delay, and the prospects of success as to the affirming of the delegate’s decision not to grant the visa, it would seem to me that this is not a case that could be described as being “a serious issue to be tried”, or even a prima facie case for the relief sought. In that respect, the application for the grant of the injunction would fail.
There has been no evidence of irreparable injury.
The balance of convenience simply does not lie with the Applicant. The Applicant has said to me today that his twin girls are with their mother, and that their mother is an alcoholic, and she is not looking after the children properly, and he is needed to go back there and look after the children. However, the Applicant has not been with the children since January 2019 when he committed, it would seem, his third breach of a domestic violence order, and there is nothing that it would seem shows that even if the application were granted, that he would be released from immigration detention.
The Minister has an obligation to remove someone as soon as possible where they are an unlawful non-citizen. That obligation of the Minister would seem to me to trump the Applicant’s contention that the children need him because of the inability of the mother to control her alcohol intake.
But as I say, I do not even need to consider the irreparable injury or the balance of convenience. I mention them only for completeness. It is because I have found that there is no prima facie case and no serious issue to be tried.
I therefore dismiss the application for an injunction.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 3 November 2021
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