Ayoub v Minister for Immigration and Border Protection

[2016] HCATrans 47

[2016] HCATrans 047

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S43 of 2016

B e t w e e n -

OMRAN AHMED AYOUB

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Application for order to show cause

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON MONDAY, 7 MARCH 2016, AT 10.22 AM

Copyright in the High Court of Australia

MR O.A. AYOUB appeared in person.

MS A.M. MITCHELMORE:   If the Court pleases, I appear for the defendant.  (instructed by DLA Piper Australia)

HIS HONOUR:   Mr Ayoub, I think you are appearing in person and you are assisted by Mr Ahmad Al Romi, an interpreter?

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   Mr Ayoub, are you able to stand up?

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   Can that microphone be moved closer to Mr Ayoub and to you, Mr Al Romi, so that we can hear more clearly what you are saying.  Can you speak up?  Mr Ayoub, I have your application.  Just before I hear from you, through Mr Al Romi, I want to ask Ms Mitchelmore one or two questions.

MR AYOUB (through interpreter):   Sure.

HIS HONOUR:   Ms Mitchelmore, what is the present situation with respect to the arrangements for removal of Mr Ayoub from Australia?

MS MITCHELMORE:   Your Honour, the plaintiff is scheduled to be removed at 9.55 pm this evening.

HIS HONOUR: The last thing that happened was, as I understand it, the decision of an officer of the Minister not to refer a request for intervention under section 195AB.

MS MITCHELMORE: Section 195A, your Honour.

HIS HONOUR: Section 195A, I am sorry, yes.

MS MITCHELMORE:   Yes, your Honour is correct.

HIS HONOUR:   That request had been made, I think, by an agent, Northam & Associates?

MS MITCHELMORE:   That is correct, your Honour, yes, on 12 October.

HIS HONOUR:   That was made on 12 October 2015?

MS MITCHELMORE:   Yes.

HIS HONOUR:   The refusal decision was made on – or at least the decision not to refer the matter was made on 10 February and Mr Ayoub’s migration agent notified on the 11th?

MS MITCHELMORE:   That is correct.

HIS HONOUR:   Yes.  All right, thank you very much.  Just take a seat for a moment.  Mr Ayoub, you can just remain seated while I speak to you and then I will get you and the interpreter to stand up so I can hear you clearly when you respond.  Now, as I understand the matter, in 2014 ‑ that is, in May of 2014 – the Minister for Immigration made a decision to cancel your permanent visa and did so on the basis of your criminal conviction for which you had been sentenced, I think, to seven years imprisonment with a parole period of five and a half years.  As I understand it, you had been sentenced in 2009 and when the Minister made his decision I think you were due for release on parole.

MR AYOUB (through interpreter):   I was released, yes.

HIS HONOUR:   Yes, okay.  I understand that there were submissions made to the Minister then about the possible effect of cancellation of your visa and removal from Australia on your family.

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   Right.  The Minister decided that those concerns about the effect on your family were outweighed by his concerns about your criminal conduct.  The answer - he understands that?

MR AYOUB (through interpreter):   He understands, yes.

HIS HONOUR:   Yes.  Mr Ayoub, you have some English yourself, I think, do you?

MR AYOUB (through interpreter):   Not too strong.

HIS HONOUR:   Not too strong.  But you are happy with Mr Al Romi’s interpretation of what you are saying?

MR AYOUB (through interpreter):   No problems.

HIS HONOUR:   All right.  Now, what then happened, I understand, is that in October last year your migration agent wrote to the Minister asking that they consider granting you a visa even though your visa had been cancelled.

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   In that letter to the Minister, there was quite a lot of material, or documents, about the effects of being removed on your family.

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   But the Department of Immigration decided not to refer the matter back to the Minister, because the Minister had already considered the effects on your family in his original decision to cancel your visa.

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   What your application in this Court is about is challenging that decision of the Department not to refer your request to the Minister.

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   All right.  Now, it has come before me today because you are about to be removed from Australia, so I will treat your appearance before me today as though you were seeking a temporary order to keep you in Australia so that your application could further be concerned.  That is what I understand you would want today.  I am not saying you will get it; I am just saying this is what you are asking for, as I understand it.

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   All right.  I want to explain to you one or two things about this process.  It is very hard for a non‑lawyer and particularly for a non‑lawyer when I am speaking through an interpreter, however good the interpreter is.

MR AYOUB (through interpreter):   I was segregated; I was not allowed to talk on the phone or talk to a lawyer or anything.

HIS HONOUR:   Yes, I understand.  Before an application like this could succeed, you would have to show some kind of serious legal error – a mistake about the law – on the part of the decision‑maker; that is on the part of the officer who made the decision.

MR AYOUB (through interpreter):   I need a lawyer.  I need to defend myself.  I have four kids.  I do not have a place to live in Lebanon.  I do not have a house.  Would I live on the street with my kids?  Are you going to take off the citizenship from my kids as well?

HIS HONOUR:   Just a minute – I understand why you say you need a lawyer.  Can you try to explain to me in your own words, as simply as you can, why you have not been able to get a lawyer at this stage to help you?

MR AYOUB (through interpreter):   All the lawyers are scared of dealing with the Minister.  I do not know why.

HIS HONOUR:   Have you approached people to represent you?

MR AYOUB (through interpreter):   I talked to one lawyer, and then they put me in segregation, so I was unable to talk to anyone else.  They did not give me a mobile phone.  They did not give me anything.  I was there for 10 days.  I was not allowed to talk to anyone.

HIS HONOUR:   All right.

MR AYOUB:   My kids are here.  I have got four kids here, my wife is sick.  I cannot change…..first time, in the gaol, first time in the gaol.

MR AYOUB (through interpreter):   This is the first time in the gaol.  Would not the Minister give us a chance?

HIS HONOUR:   Okay.  Just take ‑ ‑ ‑

MR AYOUB (through interpreter):   I do not have a house; we do not have a house in Lebanon.  My kids are Australian, my wife is Australian.  Are we going to sleep on the street in Lebanon?  I do not have work.  Everywhere in the area where I am going to go is full of violence.

HIS HONOUR:   Okay, take a seat ‑ ‑ ‑

MR AYOUB:   I commit the crime, done mistake, admitted the mistake, admitted the crime.  Sorry, I done it.  Sorry, sir, I done apologise, I have done the sorry – the mistake we have done it.  I need one chance.  I want to help my family.

MR AYOUB (through interpreter):   I am very sorry about the crime that I have committed.  I just want one chance to help my family.

HIS HONOUR:   Okay, take a seat for a moment.  Mr Ayoub, just take a seat for moment please, just take a seat.

MR AYOUB:   Thank you.

HIS HONOUR:   I understand what you are saying.  Okay, Ms Mitchelmore, what I might do is just adjourn briefly to allow the

applicant to just compose himself, and other people in the courtroom also.  When I come back what I want to discuss with you is ‑ regardless of the apparent merits or lack of merits of the application – the question of whether or not it would be appropriate in this case to make some inquiries in relation to whether representation could be arranged, even if on a pro bono basis.

Plainly, again, whatever the merits of the application in a legal sense, there are potentially significant impacts on some family members and it might be thought desirable that they have access to some form of advice which, obviously, he does not have at the present time.  I know that there has been a migration agent involved previously.  I will just adjourn for a couple of minutes and then come back and speak to you further.

MR AYOUB:   Thanks, your Honour, thank you.

AT 10.38 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.44 AM:  

HIS HONOUR:   Yes, Ms Mitchelmore. 

MS MITCHELMORE:   Your Honour, it might assist if I provide your Honour with some further chronology in relation to the matter.  I should indicate that I was provided with a one page letter from the plaintiff when I came into Court this morning.  Your Honour may have a copy of that. 

HIS HONOUR:   Yes, I do.  Now, be conscious, Ms Mitchelmore, when you are speaking that ‑ ‑ ‑

MS MITCHELMORE:   The interpreter needs to ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ try to do it in a way that the interpreter can follow you and tell Mr Ayoub what you are saying.

MS MITCHELMORE:   Yes, certainly, your Honour.  In the period between when I received the document and now, I have had my solicitor make some inquiries as to what the position in relation to the plaintiff has been in recent times.  I am instructed that the plaintiff was taken into separation detention on 26 February due to concerns for his own safety and those of others.  Your Honour, that is the day after the application was filed in this Court by the plaintiff. 

HIS HONOUR:   Yes.

MS MITCHELMORE:   On 29 February, the plaintiff was taken to the airport and put on a plane but was ordered – ultimately that was aborted.  Between 29 February and 1 March, the plaintiff was in hospital and then between 1 March and today he has been in separation detention.

HIS HONOUR:   Yes.

MS MITCHELMORE:   I am instructed that one would normally not have access to phone or internet in separation detention, however a request can be made to speak to a lawyer through a Serco officer who would then contact the Department about whether the request can be facilitated.  I am instructed further that the plaintiff contacted my instructing solicitor by phone on Friday on the mistaken assumption that he was – or just wanting to confirm whether or not she was his lawyer. 

HIS HONOUR:   Yes.

MS MITCHELMORE:   Your Honour, they are the circumstances as I am instructed in relation to the plaintiff between perhaps 26 February and today’s date.

MR AYOUB (through interpreter):   Not true.

MS MITCHELMORE:   Your Honour, insofar as an adjournment is concerned, my instructions are to oppose it ‑ ‑ ‑

HIS HONOUR:   Yes.

MS MITCHELMORE:   ‑ ‑ ‑ on the basis of the merit of the application and the time between the making of the decision on the 11th – when it was communicated on 11 February and today’s date.  Even without the period of separation detention, the plaintiff did have a number of weeks within which to seek some legal advice and I note that he filed his application prior to the separation detention occurring.

HIS HONOUR:   Yes, and it looks as though the application itself was done with some sort of assistance having regard to the wording of it.

MS MITCHELMORE:   Yes, your Honour.  I am not in a position to say whether that occurred or not, of course.

HIS HONOUR:   Yes, although it has put together a number of provisions as I think are pointed out, sections 417 and 48B are mentioned, which have nothing to do with the case.

MS MITCHELMORE:   Yes, that is so, and those provisions are reproduced in the affidavit of the plaintiff as well.

HIS HONOUR:   Yes.  In practical terms, how difficult is it to rearrange flights to Lebanon if he were not to be sent tonight?  I am talking about a difference between, say, today and Thursday, for example.

MS MITCHELMORE:   Yes.  Your Honour, I would need to obtain some instructions about that.  I am not presently in a position to assist your Honour in that regard but I imagine I could obtain some instructions about that relatively quickly.

HIS HONOUR:   It just strikes me that having regard to the – and this is really independently in the sense of the merits of the application – just having regard to the consequences of his deportation that the administration of justice might well be served by some representation and advice, even if it turns out that the application is absolutely hopeless.

MS MITCHELMORE:   Yes, your Honour has my submissions as to the merit of the application.

HIS HONOUR:   Yes, I know, yes.  So I suppose, I mean, one option would be to adjourn the proceeding to some time on Thursday on the basis that an attempt be made to get some pro bono representation which could at least see whether there is any case that can be put in relation to interlocutory relief.  At the moment Mr Ayoub faces great difficulties in making out any case for interlocutory relief.

MS MITCHELMORE:   Yes, your Honour.

HIS HONOUR:   So I suppose what I am really asking for is some indication of the practical implications from the Department’s point of view of an adjournment until Thursday.

MS MITCHELMORE:   Yes.

HIS HONOUR:   If you would like to get some instructions on that, I will again adjourn briefly to enable you to do that and I will speak to Mr Ayoub now about that.

MS MITCHELMORE:   Thank you, your Honour.

MR AYOUB:   Thanks, your Honour.

HIS HONOUR:   Mr Ayoub, the position is that at the moment I cannot see any legal merit in your application.  However, I think it would be useful if you were able to get some legal advice but I cannot delay matters for any extended period in that regard.  What I have asked the Minister’s representative to do is to make instructions as to whether your deportation could be delayed just for a few days in order to inquire as to whether a lawyer can represent you and if so come before the Court say some time on Thursday to see whether there is any basis upon which you could be granted interlocutory relief.  At the moment, I think your case faces very great difficulties but I have regard to the significance of it from your point of view and that of your family.

MR AYOUB (through interpreter):   I am still in the separated detention.  I cannot use a phone yet.  Do you think – I would like more time.  I am going to face difficulty trying to find a lawyer because a lot of lawyers will not be able to take on these cases.

HIS HONOUR:   Well, it will be a question of whether there is a lawyer available at the Bar who might be prepared to provide some pro bono representation or advice.  Another counsel has appeared this morning on behalf of another applicant who was seeking urgent representation.  It may be possible that an inquiry can be made of the Bar Association in New South Wales as to whether there is somebody who would be prepared to look at your case with a view just to seeing whether there is any basis for seeking an interlocutory injunction. 

At the moment, I cannot see it, but that is as much as I can do because as the moment I cannot see on the materials that you have filed any real legal basis for your application.  As I say, I will see whether there is a practical way in which the matter can be adjourned for a short time to determine whether the pro bono representation can be obtained for you, or some form of representation obtained for you to assist the Court.  I am just going to adjourn briefly now while Ms Mitchelmore gets some instructions.

AT 10.56 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.16 AM:

HIS HONOUR:   Yes, Ms Mitchelmore.

MS MITCHELMORE:   Thank you, your Honour.  I apologise for the time that that took.  There is a difficulty with rescheduling for this Thursday.  I am instructed that in order to facilitate the plaintiff’s removal, both medical and security escorts are required to accompany him on the plane and that cannot be organised in time for Thursday.

HIS HONOUR:   Yes.

MS MITCHELMORE:   So the reality is I do not have any instructions as to when that would occur, but that cannot be done by this Thursday.  The costs associated with the removal, I am instructed that the medical escort costs $3,500, security escorts cost $11,300.

HIS HONOUR:   Yes.

MS MITCHELMORE:   With a total cost of 13,000.

HIS HONOUR:   Yes.

MS MITCHELMORE:   I am sorry, your Honour, I am being corrected.  The cost for the plaintiff himself is 13,000, so that is on top of the costs of the medical escort and security.  So that amount has already been lost once in relation to the attempt to remove the plaintiff last week.

HIS HONOUR:   I see.

MS MITCHELMORE:   And would be lost again in the event that he is not removed this evening.  I think that is all that I have in terms of the practical implications from the Minister’s perspective, your Honour.

HIS HONOUR:   Yes, all right.  Thank you.  Mr Ayoub, it appears that there are some very practical difficulties in deferring your removal until later this week.

MR AYOUB:   Yes.

HIS HONOUR:   So what I need to do I think now is to just hear anything that you might have to say about your application, and I have to explain this to you. In your application against the Minister’s – or the Department’s refusal to refer your application to the Minister, you first complain of procedural unfairness. In other words, you say that they denied you procedural fairness in that they applied the wrong law and misconstrued the applicable law by failing to refer your request to the Minister under section 195A of the Migration Act.

THE INTERPRETER:   Sorry, what was the number of the Migration Act, your Honour?

HIS HONOUR: Section 195A. Now, the other ground on which you are challenging the decision is that the decision was unfair and irrational and unjust. The Court when it is confronted with an application of this kind has very limited power to intervene. The Court has previously decided in a case a few years ago that rules of procedural fairness do not apply to this kind of application under section 195A. The other ground about the decision being irrational is a ground on which the Court could only interfere in very extreme circumstances if the decision was so unreasonable that no reasonable person could have made it.

Now, I understand that your position is that there is a significant impact on your family if you were to be removed and that you would be placed in a very difficult position back in Lebanon.  What I would like to hear from you – and I would like you to try and stay calm when you are speaking to me – is what you want to say, if anything, about in particular why you think the Minister’s decision – the Department’s decision – why you think you have a chance of succeeding in overturning the Department’s decision on the basis that it was irrational or unreasonable, and this really has to do I think with what you want to say about your family.

MR AYOUB (through interpreter):   Yes.  At the end of the day I respect you, your Honour, and I respect your decision.  I committed a crime and I did the time in gaol and I was released to spend the rest of my time with my kids.  I finished my time in gaol.  I was released to look for work and live my life outside of gaol.  All of my friends are business people.  I do not have any criminal friends.

HIS HONOUR:   Can I just ask you a question?  How long were you actually free before you were taken into immigration detention?

MR AYOUB (through interpreter):   Five, six days, your Honour.

HIS HONOUR:   Thank you.

MR AYOUB (through interpreter):   My kids were living in a car, they were sleeping in a car.  They did not have money.  I rented a house.  I borrowed money from my friend, I borrowed money from my brother, we rented a house and put furniture in it and we lived nice five days in this house.  They took me to the detention centre and then all of my kids’ life has changed - my wife as well.  My wife is sick; she cannot deal with the four kids.  My older daughter goes to the psychologist.  She is causing stress at school.

I have four little kids I need to take care of.  How does the Minister think I am a risk to the community?  I have good friends.  How am I a risk to the community?  All of my friends are business people.  All I am asking for is a chance to live with my kids here again.  If I go back to Lebanon I am going to – we are going to die there.  I cannot work.  I cannot have protection for my kids.  We are going to sleep on the street.  We do not have a house.  My kids are Australian.  My daughters, they are always crying, every day.  The Minister has broken their hearts.

HIS HONOUR:   Now, calm down, Mr – Mr Ayoub, you need to stay calm so you can tell me your story properly, all right.

MR AYOUB:   Sorry, your Honour.

MR AYOUB (through interpreter):   My kids are sending me photos, letters every day.  My daughter is sick and she goes to psychologist.

HIS HONOUR:   Yes.

MR AYOUB (through interpreter):   I do not have life in Lebanon.

HIS HONOUR:   Now, Mr Ayoub, can I just ask you a question?

MR AYOUB:   Yes, your Honour.

HIS HONOUR:   I think there was a lot of material or information about the effect on your children and family situation put before the Department in the letter that was sent to them in October last year.  Is that right?

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   And that included a psychologist’s report and so forth?

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   Yes, all right.  Thank you.  Yes, is there anything further?

MR AYOUB (through interpreter):   My life with my kids is here.  There I will not be able to take them to school, I will not be able to take them to the market.  I will not be able to take them anywhere.  The area where I live is full of violence.  If I take my kids to live there they are going to see blood everywhere.  They are going to cry, they are going to get scared.  He has

never given me a warning or anything, the Minister.  All I am asking for is just one last chance.  If I do anything bad, if I even get booked by the police, yes, you can deport me.  I learnt all the rules.  I learnt the law now.  I can live here.

HIS HONOUR:   All right.  Thanks, Mr Ayoub.  I will just hear from Ms Mitchelmore.  Thank you.

MR AYOUB:   Thank you, your Honour.

HIS HONOUR:   Ms Mitchelmore, is there anything you want to say?

MS MITCHELMORE:   Your Honour, I have provided an affidavit of Nicole Maddocks, affirmed on 4 March 2016, which I read for the purposes of the proceedings.

HIS HONOUR:   Now, that affidavit basically contains the request that was made to the – or exhibits the request that was sent to the Minister on 12 October 2015 on behalf of Mr Ayoub by his migration agent, Northam & Associates?

MS MITCHELMORE:   That is right, your Honour, yes.  At page 253 of the affidavit is the assessment that was undertaken by the departmental officer.

HIS HONOUR:   Yes.

MS MITCHELMORE:   And relevantly, your Honour, one factual matter which I omitted to address in my written submissions at about point 8 on the page is the fact that the plaintiff also lodged an application for a protection visa.

HIS HONOUR:   Yes.

MS MITCHELMORE:   So that is the only substantive visa that one can apply for upon cancellation of their visa.  Your Honour will see that that was refused – was affirmed by the Tribunal, the refusal, and the Federal Circuit Court dismissed the application.  The relevant criterion that was found to be met is at page 254 to 255 which was “Are there strong compassionate circumstances that would result in irreparable harm and continuing hardship to an Australian citizen”.

Your Honour will see that there is reference to the plaintiff’s significant links to the Australian community and supporting documentation that included a statutory declaration from the plaintiff’s wife, letters from his children, a psychologist and school counsellor report in relation to one of the plaintiff’s daughters, letters from the plaintiff himself and from his extended family and community support letters.

So the departmental officer was aware of and had considered all of the documentation that accompanied the plaintiff’s application made by the agent and set out in a little detail at 244 to 255, some of the particular matters that were of concern in relation to one of the plaintiff’s daughters and his wife.  Then after detailing the content of the letters from the plaintiff at about point 4 on page 255, the officer referred to the fact that there had been the 501 cancellation of the plaintiff’s permanent spouse visa and the fact that primary consideration had been given to the best interests of the children at that time and, in fact, the Minister had found that it was in the best interests of the children that the plaintiff be permitted to remain in Australia.  But, nonetheless, at about point 7 on the page the decision to cancel ‑ ‑ ‑

HIS HONOUR:   Now, where does that appear?

MS MITCHELMORE:   I am sorry, your Honour?

HIS HONOUR:   Where does that finding – if it was the ministerial finding, that was a 501 decision, was it not?

MS MITCHELMORE:   That is right, your Honour, yes.  So your Honour will see at about point 5 on the page:

Overall, the former Minister considered that it is in the best interests of Mr Ayoub’s minor children that Mr Ayoub is permitted to remain in Australia so that the children can maintain personal contact with him and so that he can contribute financially to their upbringing.

So this, of course, is not the officer’s finding; she is recording the finding that the Minister made in the context of the 501 cancellation decision.  At about point 7 on the page the officer noted that:

The decision to cancel Mr Ayoub’s permanent visa concluded that there is an unacceptable risk of harm to individuals or the Australian community if Mr Ayoub was to re‑offend whilst remaining in Australia and that this risk outweighs the countervailing considerations.

So that was the decision of the Minister in cancelling the spouse visa, and that was the visa in respect of which the plaintiff by his agent was making a request for a grant in the submission that was made in October 2015.

Ultimately, on page 256, the case officer identified a number of factors that had to be balanced, noted the plaintiff’s residence “in Australia for over 14 years”, noted his “extensive criminal history which led to the cancellation of his permanent visa”, noted his “significant links to the Australian community” and acknowledged that that “may cause irreparable harm and continuing hardship should [he] be removed”, but noted that the cancellation decision had already considered that matter and that, of course, was a decision made by the Minister personally.

HIS HONOUR:   Yes.

MS MITCHELMORE:   And noted also – looking at the second‑last bullet point – that the plaintiff had “been found not to be owed protection” having made a protection visa application which was refused.  Then, ultimately, it refers to some information from the health and management service as to the current state of health of the plaintiff, indicating there was no indication to suggest he was likely to be adversely affected by remaining in a detention centre environment, noting, of course, that he was on a removal pathway.

The conclusion of the officer and the decision not to refer, in my submission, was one which certainly was open and not lacking in a plausible or intelligible justification insofar as an unreasonableness ground might be involved or alleged.  In my submission, it was also consistent with the guidelines that the Minister promulgated or made in respect of his intervention power, noting in particular the public interest matters to which the Minister referred in section 3 of the guidelines which I have addressed in my written submissions at paragraph 19.

So, notwithstanding that the plaintiff in this case met one of the criterion which might – or as the Minister indicated in his guidelines would present a circumstance for referral, the circumstances of this case involved, perhaps unusually, a situation where the Minister had personally already considered the case, considered the issues in relation to the plaintiff’s children, and had ultimately decided that the interests of the Australian community and questions of risk outweighed the interests of the plaintiff’s children.

HIS HONOUR:   Would it be right to say then that ultimately the decision not to refer the application – or refer the request – was founded upon, inter alia, the proposition that it was really just seeking to revisit the cancellation decision considerations?

MS MITCHELMORE:   Yes, your Honour, in circumstances where the subject ‑ ‑ ‑

HIS HONOUR:   There was more material in relation to the family and effects on the family I think, was there not?

MS MITCHELMORE:   Well, your Honour, I do not have all of the detail before me that ‑ ‑ ‑

HIS HONOUR:   Well, things have moved on.  It was some time since – the cancellation decision was made in 2014.

MS MITCHELMORE:   Yes, certainly, your Honour, but the fact of the matter remained that the Minister had made a determination that it was in the best interests of the children that he remain in Australia but had, nonetheless, taken the view that the ‑ ‑ ‑

HIS HONOUR:   So that was the highest point it could reach, in any event, on this application?

MS MITCHELMORE:   Yes, that is correct, your Honour.  I note at page 4 of the affidavit the request that was made was one for the grant to the applicant of a partner visa or other visa to remain in Australia and rejoin his wife and children, so it was a permanent visa of a nature similar to the one that was cancelled under section 501 of the Act by reason of – on character grounds.

HIS HONOUR:   All right.

MS MITCHELMORE:   Insofar as the allegation of procedural fairness is concerned, your Honour ‑ ‑ ‑

HIS HONOUR:   Well, I do not think I have anything before me in relation to that.

MS MITCHELMORE:   No, your Honour, and, in any event, as your Honour put to the plaintiff, the Court has previously considered the question of the application of procedural fairness in relation to consideration of powers of this nature and, in my submission, the circumstances of the plaintiff’s case are relevantly analogous to those that were considered in Plaintiff S10 of 2011.

HIS HONOUR:   Thank you.

MS MITCHELMORE:   Unless there was anything further, your Honour, those are my submissions.

HIS HONOUR:   All right, thank you.  Now, Mr Ayoub, the Minister’s lawyer has referred me to an affidavit which was filed the other day by a

solicitor acting for the Minister, and that affidavit attaches to it, and so I have before me the request that your migration agents, Northam & Associates, sent to the Minister on 12 October last year for consideration of a visa grant.

MR AYOUB (through interpreter):   Who is the solicitor?

HIS HONOUR:   Also attached to that affidavit was the assessment by the Department officers of that request and their decision not to refer it to the Minister.

MR AYOUB (through interpreter):   You mean their solicitor put the application for them?

HIS HONOUR:   No, no, this is the Department’s officer, the Department’s officer gave reasons for not referring your request to the Minister and those reasons were given on 10 February this year.

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   In those reasons they refer to your personal history and the psychologist’s report in relation to one of your children.

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   Then what it says is this, that when the Minister originally looked at the question in 2014 whether he should cancel your visa he considered the position of the children.

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   He agreed that it would have been better for them if you could have been allowed to remain in Australia, but he had concluded that there was an unacceptable risk of harm to individuals in the Australian community if you were to reoffend while remaining in Australia.

MR AYOUB (through interpreter):   How would I be considered as a risk to the community if all of my friends are businessmen and work in banks?  Does the Minister know me personally?  If you want I can bring all of my community here tomorrow and they can tell you how good of a person I am.

HIS HONOUR:   Yes, I am just trying to tell you how this decision was made by the officer.  The officer then said what the Minister had decided was that the risk that you posed to the Australian community outweighs any other considerations.

MR AYOUB (through interpreter):   Scott Morris cancelled my visa, not Peter Dutton.

HIS HONOUR:   Yes, that is right, but we are looking now at what the officer – the officer making this decision in February was looking back at what had happened before, and then what the officer said was this.  He said in determining whether your case met the guidelines for referral to the Minister the following factors had to be weighed up, and he went through these factors and I just want to mention to you the factors he determined.  He said Mr Ayoub had resided in Australia for over 14 years.

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   He said that for about five years you were in prison serving your prison term.

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   And for about 20 months you had been in immigration detention.

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   He said you have an extensive criminal history which led to the cancellation of your permanent visa.

MR AYOUB (through interpreter):   Yes.

HIS HONOUR:   He said you have significant links to the Australian community, including your wife, four minor children and extended family members, which may cause irreparable harm and continuing hardship if you were to be removed from Australia.

MR AYOUB (through interpreter):   Mainly my kids, my little kids, that is where the problem is going to be.

HIS HONOUR:   What I am trying to say is that the officer accepted that and then we have the – he says the cancellation decision, which Mr Morrison had made, gave primary consideration to the best interests of the children and considered that it was in their best interests that you be allowed to remain in Australia, accepted that it was in the best interests that you be allowed to remain in Australia.

THE INTERPRETER:   Yes.

HIS HONOUR:   But that was outweighed by the fact that there is an unacceptable risk to harm to individuals or the Australian community if you were to reoffend while remaining here.

MR AYOUB (through interpreter):   I am not a criminal.  I am not danger to the society.  The Minister sees me as a criminal but I am not, I am a good person, I am human.  If I get – I have kids, my kids are human.  I am not danger to the community.  If I have one booking from the police, one fine from the police, you can send me to my country.  I swear, your Honour, I am a very good person.  People love me because I am a very good person.  People come and give money to my family because they love me so much.  People give me money to pay my rent.

HIS HONOUR:   Let me just say to you, the officer then went on to say that in spite of your family links and the documentation about the effect of your detention and removal in causing significant hardship to your family, there are significant concerns about risk to the community in this case.  So that is what the officer making the decision said.

MR AYOUB (through interpreter):   I am more than happy to bring in the community that they are talking about.  I will bring in Australians, Lebanese, everything, they show you how much of a good person I am.  They made me a criminal.  I am not a criminal.  They called me a criminal.  I am a father.  I help my neighbours.  I help my neighbours and I take care of my kids.

HIS HONOUR:   Now, Mr Ayoub, what I want to explain to you now is I have outlined that decision to you so you understand how the decision against you was made by the officer, the sort of reasoning that the officer used.  What I now have to tell you is this – and I tried to make it clear earlier – it does not matter whether I agree or disagree with the officer’s decision as to whether you are a good man or a bad man or something in between.  My power is limited because I can only interfere with these decisions if there is a very serious mistake about the law in the way that they have been made – do you understand – so limit on my power.

MR AYOUB (through interpreter):   There is a mistake.  He called me a risk to community.  This is the biggest mistake.  Does he know me?  Does he know who I am?  Has he asked about me?  Has she come and had a coffee with me, has she had lunch with me?  Does he know what is in my heart?  Does he know what I do?  I respect the people, the people respect me outside.  I am not risk to community.  They are seeing me as a risk to community.  I have got four kids to raise and I want to live with them.  I do not want to be deprived from my kids.  I do not want to take them to Lebanon where we all die.

HIS HONOUR:   Well, Mr Ayoub, what I have to decide is whether there is any basis, right now, for me to make a temporary order preventing your removal from Australia.  I am going to just adjourn for a time now to consider whether any such order should be made and I will come back in in a little while and give my decision.  You should understand that there are real difficulties.  I cannot make such an order unless I think that there is at least some sort of case in law that could be made.

But I have heard what you have had to say and I have a look at the materials and I have heard what Ms Mitchelmore has had to say.  So I shall adjourn now and come back probably in about 15 or 20 minutes and give a decision on whether or not your deportation should be delayed.

MR AYOUB:   I respect your decision.  Thank you, your Honour.  Thank you, your Honour.

AT 11.56 AM SHORT ADJOURNMENT

UPON RESUMING AT 1.30 PM:

HIS HONOUR:   Now, I think I have the assistance – we have an interpreter for Mr Ayoub again on this occasion.

MAY DABLIZ, the interpreter.

HIS HONOUR:   I am going to read some reasons for decision in relation to Mr Ayoub’s application and I will read them slowly.  It may be that you will not be able to follow all of them precisely, but I hope that I will read them clearly enough that you will be able to give him the gist of it as you go.

THE INTERPRETER:   Thank you, your Honour.

HIS HONOUR:   On 25 February 2016, the plaintiff, Mr Ayoub, who is a citizen of Lebanon, filed an application in this Court requiring the Minister for Immigration and Border Protection to show cause why a writ of prohibition should not issue to prevent the Minister from proceeding further or taking any further steps or action in relation to his decision refusing a request and application for intervention under sections 48B and 195A of the Migration Act 1958 (Cth) given on 10 February 2016.

Writs of certiorari and mandamus were also sought in relation to the asserted decision. The grounds of relief were denial of procedural fairness and unreasonableness, neither of which was elaborated. As it appears, the decision complained of was in truth a decision by an officer of the Department of Immigration and Border Protection to refuse to refer to the Minister a request for the consideration of the grant of a visa under section 195A of the Migration Act.

As appears from an affidavit filed in support of his application, Mr Ayoub is a non‑citizen who was the holder of a permanent visa which was cancelled by the Minister on 16 May 2014, acting under section 501(2) of the Migration Act.  The cancellation was made on the basis that Mr Ayoub did not pass the character test and had not satisfied the Minister that he did so.  The cancellation was based in part upon Mr Ayoub’s conviction in 2009 of the offence of detaining a person with intent to obtain an advantage.  For that offence he had been sentenced to a term of imprisonment of seven years with a non‑parole period of five years and three months.  His appeal against that sentence to the Court of Criminal Appeal of New South Wales was dismissed.

At the time of the cancellation decision Mr Ayoub was married with four children.  He also had three brothers in Australia and a number of extended family members, although there was evidence before the Minister that the matrimonial relationship had broken down and that his wife was in the process of filing for divorce.  It appears to have been accepted that his relationship with his children could continue despite that breakdown.

The Minister accepted that the cancellation of Mr Ayoub’s visa would not be in the best interests of his children and that overall it would be in their best interests if he were permitted to remain in Australia so that they could maintain personal contact with him and so that he could contribute financially to their upbringing.  Nevertheless, it appears that the Minister concluded that there was an unacceptable risk of harm to individuals or to the Australian community if Mr Ayoub were to reoffend while remaining in Australia and that this risk outweighed countervailing considerations.

Mr Ayoub sought judicial review of the Minister’s decision in the Federal Court of Australia.  His application was dismissed by a judge of that Court on 30 January 2015 and an appeal from the dismissal decision was also dismissed by the Full Court of the Federal Court on 12 June 2015.

On 12 October 2015, Mr Ayoub’s migration agent sent a request to the Minister for consideration of the grant of a visa under section 195A of the Migration Act. The request annexed some 30 documents, including material relating to his children. Among them was a psychological report and a school counsellor’s report about one of the children. The request was assessed by an officer of the Department of Immigration and Border Protection under guidelines on the Minister’s detention intervention power under section 195A.

Among the criteria for referral is the existence of strong compassionate circumstances such that a failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit where at least one member of the family is an Australian citizen or permanent resident.  Another criterion is that there are unique and exceptional circumstances which justify the consideration of the use of the Minister’s public interest powers, and that there is no other intervention power available to grant a visa to the person.

In considering the various criteria, the officer undertaking the assessment set out Mr Ayoub’s background and history.  In answer to the question whether there were strong compassionate circumstances that would result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit, the officer answered in the affirmative.  However, in doing so she observed that it had already been accepted by the Minister in the cancellation decision that cancellation of Mr Ayoub’s visa would deprive his children of direct contact with their father and the prospect of re‑establishing a close paternal relationship with him, although they could have contact by telephone, correspondence or possibly electronic means if he were to be removed to Lebanon.

It was also accepted by the Minister that Mr Ayoub would experience significant emotional hardship as a result of being separated from his children.  Overall, the former Minister had considered that it was in the best interests of his minor children that he be permitted to remain in Australia so they could maintain personal contact with him and so that he could contribute financially to their upbringing.  That being said, the officer, referring to that previous decision, went on to say that in the decision to cancel the permanent visa the Minister had concluded there was an unacceptable risk of harm to individuals or the Australian community if Mr Ayoub was to reoffend or remain in Australia and that that risk outweighed the countervailing considerations.

In determining whether Mr Ayoub’s case had met the guidelines for referral, the officer set out a number of factors to be balanced, including those to which reference has already been made.  The stated conclusion underpinning the decision not to refer the request to the Minister was that:

Notwithstanding Mr Ayoub’s Australian citizen family links and the supporting documentation that Mr Ayoub’s detention and possible removal is causing his family significant hardship, there are significant concerns regarding risk to the community in this case.  Mr Ayoub’s children and wife, as well as his extended family members were considered in the section 501 cancellation decision and were found to be outweighed by Mr Ayoub’s criminality and risks that he presents to the community.

On that basis the decision was made not to refer the application request to the Minister.  It is apparent that despite the compassionate circumstances criterion being satisfied, the decision not to refer was taken on the basis that that criterion had, in effect, been considered by the Minister in his cancellation decision and found not to outweigh the risk to the Australian community posed by Mr Ayoub.

Mr Ayoub is scheduled to be deported tonight.  He has asked for his case to be adjourned for a few weeks as he has not had access to the internet or telephone while recently in isolation in order to get legal representation.  I have taken his request as an application for interim relief restraining the Minister from removing him from Australia pending further order.  Mr Ayoub was assisted by an interpreter in his appearance in Court today.  As I have explained to him, the powers of this Court to grant the relief he seeks are limited.  It is necessary to show some significant error of law, and for the purposes of the grant of interlocutory relief it is necessary to show at least that there is an arguable case for the grant of final relief.

In this case, the application he has filed alleges want of procedural fairness and unreasonableness in the decision complained of.  The grounds are expressed in very general terms and refer to a number of sections of the Migration Act, including section 195A. There are considerable obstacles to success in any application of this kind, not least being the non‑compellable nature of the power conferred on the Minister by section 195A and what the Court has had to say about such powers and the inapplicability of the usual rules of procedural fairness to their exercise in its decision in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636.

I considered whether the hearing of the application for interlocutory relief might be adjourned for a few days to see if legal representation could be arranged for Mr Ayoub.  However, it is clear that there would be considerable expense and disruption to existing arrangements if that course were taken.  Taken by itself, the absence of legal representation is not a sufficient basis for the grant of interlocutory relief.  That being said, the balance of convenience is in Mr Ayoub’s favour for obvious reasons.  The problem is, in my opinion, that he has no arguable case.  To grant an interlocutory injunction in these circumstances would be to engender false hope about the ultimate outcome of his application.

No viable basis for review of the non‑referral of Mr Ayoub’s request appears from the materials before the Court.  There is no arguable case for want of procedural fairness, having regard both to the facts and to what was said by this Court in Plaintiff S10/2011, nor is there any basis for asserting irrationality or unreasonableness on the part of the officer undertaking the assessment.  I therefore decline Mr Ayoub’s request for an interlocutory order restraining the Minister from removing him from Australia.  That will, I think, to all intents and purposes, be the practical end of his application; however I will not make a final order disposing of it but simply make an order at this point refusing interlocutory relief.

The formal orders will be:

1.        Interlocutory injunctive relief is refused.

2.        The matter is otherwise adjourned.

So, Mr Ayoub, the effect of that decision is that I have come to the view that I do not have the basis upon which I could make an order preventing the Minister from removing you from Australia.

MR AYOUB:   Thank you.

HIS HONOUR:   The Court will now adjourn until 3.00 pm.

AT 1.44 PM THE MATTER WAS CONCLUDED