Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1429
•22 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1429
File number(s): BRG 253 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 22 June 2021 Catchwords: MIGRATION – injunction sought to prevent removal from Australia – whether serious question to be tried Legislation: Migration Act 1958 (Cth) ss 133C, 137K, 198 Cases cited: Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 661
Karl Antony Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (QUD 101 of 2021, 21 June 2021, Transcript of Draft Judgment, White J)
Number of paragraphs: 15 Date of last submission/s: 22 June 2021 Date of hearing: 22 June 2021 Place: Perth Applicant: In person (by Microsoft Teams) Counsel for the Respondent: Mr T Eteuati (by Microsoft Teams) Solicitor for the Respondent: Australian Government Solicitor ORDERS
BRG 253 of 2021 BETWEEN: KARL ANTHONY BETHELL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
22 JUNE 2021
THE COURT ORDERS THAT:
1.That the applicant’s application for an interlocutory injunction restraining his removal from Australia be dismissed.
2.The applicant’s application for an interlocutory injunction releasing him from detention be dismissed.
3.The Court’s orders (1) and (2) made earlier today cease to have effect forthwith.
4.The applicant pay the first respondent’s costs in an amount to be agreed, or, failing agreement, to be assessed by a registrar of this Court.
5.Leave to appeal in the terms sought by the Applicant not be granted.
REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)
JUDGE LUCEV
The applicant (“Mr Bethell”) seeks, amongst other things, interlocutory orders that the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), may not remove Mr Bethell from the Australian mainland pending further order and that Mr Bethell be released from detention pending final decision. The substantive application is the subject, also, of an application for extension of time. But in the present context, in considering whether or not there is a serious question to be tried, the Court need only have regard to the terms or grounds of the application proper, and it is not presently necessary to consider the question of an extension of time in which to file the application itself.
The issue of an interlocutory injunction restraining removal of Mr Bethell from Australia, and insofar as it is sought that he be released from detention, requires that there be, firstly, a serious question to be tried and, secondly, that the balance of convenience favours Mr Bethell.
Mr Bethell asserts that he has not been provided fairness or natural justice by the Minister in the decision-making process and the initial right to respond to his visa cancellation. In that respect the Court notes that there is, under s 133C(4) of the Migration Act 1958 (Cth) (“MigrationAct”), no right to natural justice in the making of a decision by the Minister to set aside an earlier decision, in this case of the Administrative Appeals Tribunal, and to cancel a visa.
In relation to the assertions that the Minister took action with respect to Mr Bethell’s removal contrary to an undertaking not to do so, and by way of a subterfuge with respect to the offer of revocation, it is the Court's view that that is to misunderstand the obligations that are imposed in respect to deportation. Section 198(5) of the Migration Act places a positive obligation on an officer to, as soon as reasonably practicable, remove an unlawful non-citizen if the non-citizen is a detainee and has neither applied for a substantive visa nor applied under s 137K of the Migration Act for revocation of the cancellation of the substantive visa. There is no evidence, and it appears to be common ground, that there is no application for the purposes of 198(5)(b) of the Migration Act.
Effectively, there is an assertion in relation to the matters discussed that the Minister's decision is invalid in part because of the time which Mr Bethell has spent in detention. That is a matter which the Federal Court considered yesterday in a judgment which was, with respect, on a slightly different primary issue. Nevertheless, in relation to this issue, the Federal Court found that the validity of Mr Bethell's detention did not turn on the omission of the Minister to determine a revocation application in a more timely way than has occurred: Karl Antony Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (QUD 101 of 2021, 21 June 2021, Transcript of Draft Judgment, para 9 per White J). This Court is bound by that finding and would in any event have made a finding to similar effect.
Mr Bethell complains about paragraph 26 of the Minister's decision, in which the Minister made this observation:
I have considered Mr Bethell has previously provided a statement that his son has a right to a meaningful relationship with him and that if his visa was cancelled his son would lose the opportunity of a meaningful relationship or any form of contact.
The Minister went on to consider that issue at paragraphs 27, 28 and 29. And at paragraph 29 said:
Having regard to the above I consider the cancellation of Mr Bethell's visa will result in a separation of a child from their father. I consider that it is in Leo's best interest to have some form of contact with his father in the long term. I give this significant weight in favour of the decision not to cancel Mr Bethell's visa.
At paragraph 43 the Minister, again, as part of the final weighing in arriving at a conclusion on the factors relevant to the exercise of a discretion, had regard to a primary consideration – namely, the best interests of Mr Bethell's son – and found that those best interests would be best served by not cancelling the visa. In that regard he had also considered the impact on Mr Bethell, and other family members and social networks, and found that the above factors weigh in favour of not cancelling Mr Bethell's visa. In the circumstances, the absence of the family report due in February 2021 about Mr Bethell’s complaints could not have altered, with respect, that conclusion, and, in the Court's view, could not have altered the weight (favourable to Mr Bethell) in respect of that conclusion by the Minister.
In respect of paragraph 28 of the Minister’s decision Mr Bethell complains that the Minister refers to a current domestic violence order and asserts that that is not, in fact, a current domestic violence order but, rather, a temporary protection order, and that that is a matter critical to the Minister's consideration in this issue. It is certainly a matter to which the Minister referred, but he otherwise in the decision also referred to a further restraining order preventing Mr Bethell from contacting his ex-partner until 1 December 2035. At the end of the day it is a matter of minimal significance that the Minister might have incorrectly described the order as a domestic violence order when, in fact, it is described in its terms as a “protection order”. In either event, the protection order had the effect of preventing Mr Bethell from doing certain things, including contacting his ex-partner and from contacting his son until 11 September 2022. As the Court has said, the distinction in terms is a matter, in those circumstances, of minimal significance.
Mr Bethell also asserts that the Minister erred in putting weight on a clearly neutral ground, being Australia's international obligations, because there were no international obligations. That, with respect, misapprehends what the Minister put weight upon at paragraph 42 of the Minister's decision. The Minister put weight upon the fact that Mr Bethell had not expressed any concerns or issues to the Department that would give rise to any international obligations to which Australia is a signatory. The Minister had indicated that he was not aware of any international obligations which might be breached as a result of cancelling Mr Bethell's visa, but then went on to indicate that Mr Bethell had not expressed any concerns or issues with the Department that would give rise to any international obligations to which Australia is a signatory, and, therefore, Mr Bethell has, with respect, misapprehended what it is that the Minister has placed weight upon in that regard.
In relation to the alleged use of incorrect or irrelevant information about Mr Bethell, Mr Bethell made extended and somewhat passionate submissions. However, the Minister's decision does not rely upon any such information. Mr Bethell focused upon the fact of alleged criminal information other than convictions in the Southport District Court in Queensland of unlawful stalking, etcetera, and attempting to pervert the course of justice, in respect of which there is, in the affidavit, a verdict and judgment record indicating that Mr Bethell was found guilty and sentenced. Mr Bethell, with respect, speculates about the impact that incorrect information may have had upon the Minister for the purposes of the Minister's decision. But there is simply no evidence before the Court, and no obvious material from which an inference can be drawn, that any incorrect information was relied upon by the Minister. The Minister has, in the Ministerial decision, confined himself appropriately with respect to matters of which there can be no dispute that Mr Bethell has been found guilty. And there is, as the Court has indicated, no basis and nothing in the evidence upon which the Court can reach a conclusion that the Minister had regard to otherwise incorrect or irrelevant information. Further, Mr Bethell has had the opportunity to file two affidavits in relation to this matter, and they do not identify any incorrect or irrelevant information that the Minister is said to have relied upon. The Court also notes in respect of the application dealt with by the Federal Court yesterday, which was also an application for an urgent interlocutory injunction to restrain the Minister from deporting Mr Bethell, but pending the determination of his appeal against an earlier Federal Court judgment in respect of a habeas corpus application: Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 661, that the Federal Court, in dealing in large part with many similar factual matters which have been put before the Court today, including the question of assessing the validity of the Minister's decision to cancel a visa, rejected the application for an interlocutory injunction restraining removal.
In all those circumstances the Court is not satisfied that there is a serious question to be tried. It is unnecessary to consider the question of balance of convenience. The Court, in any event, is of the view that there is no obvious balance of convenience which favours Mr Bethell in relation to these issues.
Orders are to be made in the following terms:
(a)that the applicant’s application for an interlocutory injunction restraining his removal from Australia be dismissed;
(b)the applicant’s application for an interlocutory injunction releasing him from detention be dismissed;
(c)the Court’s orders (1) and (2) made earlier today cease to have effect forthwith; and
(d)the applicant pay the first respondent’s costs in an amount to be agreed, or, failing agreement, to be assessed by a registrar of this Court.
Mr Bethell also sought leave to appeal the above orders on the basis that:
(a)the “DVO” (domestic violence order) was a “TPO” (temporary protection order), and the statement it would run to “12 September 2022 was false”; and
(b)the Minister misunderstood the law of international obligations.
It is not manifest to the Court that there is any substance in the proposed basis on which leave to appeal is sought, and leave to appeal will not be granted.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 24 June 2021
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