BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 690
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 690
File number(s): MLG 1381 of 2023 Judgment of: JUDGE J YOUNG Date of judgment: 3 August 2023 Catchwords: MIGRATION – application for urgent interlocutory injunction – applicant seeking to restrain Minister from removing applicant from Australia – applicant in detention – where applicant’s request for Ministerial intervention has not been finalised – whether proceedings be transferred to Federal Court of Australia – whether serious question to be tried – where balance of convenience lies – found absence of a serious question to be tried outweighs the competing balance of convenience considerations Legislation: Federal Circuit and Family Court of Australia Act 2021 s 153(1)
Migration Act 1958 (Cth) ss 5(9), 48A, 48B, 351, 417,
195A, 197C, 198(5), 198(6)
Cases cited: ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363
APF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 182
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
BJM16 v Minister for Immigration and Border Protection [2019] FCA 137
BJM16 v Minister for Immigration & Anor [2016] FCCA 2408
BUL23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 628
Bullock v The Federated Furnishing Trades Society of Australasia (No 1) [1985] FCA 19; (1985) 5 FCR 464
CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 870
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 408 ALR 381; [2023] HCA 10
Harmouch v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 428
Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433
Mokhlis v Minister for Home Affairs [2020] HCA 30
Morrison v Minister for Immigration and Citizenship [2007] FCA 723
MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023 FedCFamC2G 594
MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877
Plaintiff M196 of 2015 v Minister for Immigration and Border Protection [2015] HCATrans 212
Plaintiff M196 of 2015 v Minister for Immigration and Border Protections [2015] HCATrans 240
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of hearing: 2 & 3 August 2023 Place: Melbourne Counsel for the Applicant: Mr Aleksov and Ms Best Counsel for the First Respondent: Ms Hooper Solicitor for the Applicant: Lander and Rogers Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
MLG 1381 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BJM16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
AUSTRALIAN BORDER FORCE
Second Respondent
order made by:
JUDGE J YOUNG
DATE OF ORDER:
3 August 2023
THE COURT ORDERS THAT:
1.The Application filed on 2 August 2023 be dismissed.
2.The applicant pay the first respondent’s cost in a sum to be fixed if not agreed.
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
JUDGE J YOUNG:
INTRODUCTION
Before the Court is an Application filed 2 August 2023 in which the applicant seeks an urgent interlocutory injunction preventing his removal from Australia pending the resolution of his claim to final relief and an order transferring the proceedings from this Court to the Federal Court of Australia.
The applicant is scheduled to be removed from Australia pursuant to s 198(6) of the Migration Act 1958 (Cth) (Migration Act) on 4 August 2023 at 11.00am (although at the time of the hearing it was understood that the applicant’s removal was scheduled for 3 August 2023 at 3.00pm). On 27 July 2023, the applicant made requests to the Minister to exercise her personal, non-compellable powers in s 48B of the Migration Act in favour of the applicant, to allow the applicant to be granted or apply for further visas so that he can remain in Australia.
BACKGROUND
The applicant is a citizen of Sri Lanka who arrived in Australia on 9 April 2013.
On 8 July 2013, the applicant applied for a Protection (Class XA) visa (Visa) on the basis of, among other things, his Tamil ethnicity and presumed political opinion as someone presumed to be associated with the Liberation Tamil Tigers Eelam.
On 12 September 2014, a delegate of the Minister (delegate) refused to grant the applicant the Visa.
On 12 May 2016, the Administrative Appeals Tribunal (Tribunal) affirmed the decision of the delegate not grant the applicant the Visa.
On 6 June 2016, the applicant applied for judicial review of the Tribunal’s decision in the (then) Federal Circuit Court of Australia (FCCOA).
On 15 September 2016, the applicant’s application for judicial review was dismissed. [1]
[1] BJM16 v Minister for Immigration & Anor [2016] FCCA 2408
On 18 February 2019, the Federal Court of Australia upheld the FCCOA’s decision to dismiss the judicial review application.[2]
[2] BJM16 v Minister for Immigration and Border Protection [2019] FCA 137.
The applicant then lodged an application for special leave to the High Court of Australia, but discontinued such application in December 2019.
The applicant’s bridging visa ceased on 20 July 2020 and, as such, the applicant became an unlawful non-citizen from 21 July 2020.
In 2021 the applicant was charged with driving while intoxicated. On 26 July 2022, the applicant was remanded in criminal custody for six months.
On 25 January 2023 the applicant was released from criminal custody and transferred directly to immigration detention under s 189 of the Migration Act, where he has been detained since.
On 27 July 2023, the applicant received a notice from Australian Border Force of their intention to remove him from Australia on 3 August 2023. The applicant is now booked on a flight departing from Sydney international airport at 11.00am on 4 August 2023.
On 27 July 2023, the Refugee Advice and Casework Service on the applicant’s behalf made an application to the Minister urgently requesting a ministerial intervention under s 48B of the Migration Act. In support of his request under s 48B of the Migration Act, the applicant claimed that strong and compelling circumstances had arisen since his application for the Visa was refused.
The applicant’s basis for making such request was that he held information about a change in his circumstances and that such information would allegedly strengthen any further application for a protection visa.
On 28 July 2023, the first respondent’s solicitor emailed the applicant’s solicitor indicating that the Department would continue with the current arrangements to remove the applicant from Australia, unless a Court makes an order restraining the Minister from removing the applicant from the Commonwealth of Australia or it is no longer reasonably practicable to remove the applicant.
APPLICATION TO THIS COURT
The Application, which was filed on 2 August 2023, came before this Court for hearing on an urgent basis and was heard on the same day it was filed.
The Application as filed
The applicant sought the following interlocutory relief:
1.An injunction preventing the removal of the applicant from Australia pending the resolution of his claim to final relief.
2.An order that the proceeding be transferred to the Federal Court of Australia under section 153(1) of the Federal Circuit and Family Court of Australia Act 2021.
The application sought the following final order:
1.An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
The sole ground relied on by the applicant in support of his Application is as follows:
1.The applicant has made a request under section 48B of the Migration Act 1958 to be permitted to make a further visa application. Until that request is lawfully resolved, there is no power, nor any duty, to remove the applicant from Australia.
The applicant relied on the following material:
(1)Application;
(2)Affidavit of David Burke;
(3)Outline of submissions;
(4)Guidelines regarding the Ministerial Intervention power under s 48B of the Migration Act (Guidelines);
(5)Plaintiff M196 of 2015 v Minister for Immigration and Border Protection [2015] HCATrans 212;
(6)Plaintiff M196 of 2015 v Minister for Immigration and Border Protections [2015] HCATrans 240; and
(7)Outline of submissions concerning transfer of proceedings.
The respondent relied on the following material:
(1)Outline of submissions;
(2)Affidavit of Matthew Burnham;
(3)MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023 FedCFamC2G 594 (MZAPC 1 );
(4)MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877 (MZAPC 2);
(5)Harmouch v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 428;
(6)BUL23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 628;
(7)Mokhlis v Minister for Home Affairs [2020] HCA 30;
(8)Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433 (Marya); and
(9)APF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 182.
STATUTORY FRAMEWORK
Removal of unlawful non-citizen
The source of the obligation to remove the applicant in the present case is s 198(6) of the Migration Act which provides:
An office must remove as soon as reasonably practicable an unlawful non-citizen if:
a)the non-citizen is a detainee; and
b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
c)one of the following applies:
i)the grant of the visa has been refused and the application has been finally determined;
ii)the visa cannot be granted; and
d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
In the present case, the applicant is a detainee and his applications for substantive visas have been refused and finally determined within the meaning of ss 5(9) and (9A) of the Migration Act.
Request for Ministerial intervention
Section 48A of the Migration Act operates to prevent a non-citizen who has previously made a protection visa application from making a further protection visa application while in the migration zone.
Section 48B(1) of the Migration Act allows the Minister, if the Minister thinks it is in the public interest to do so, to determine that s 48A does not apply to prevent an application for a protection visa being made by a non-citizen. The non-citizen may then apply for a protection visa within seven days after written notice of the Minister’s decision is given.
The power in s 48B(1) may only be excised by the Minister personally (s 48B(2)). The Minister does not have a duty to consider whether to exercise the relevant powers whether requested to do so by the applicant or by any other person, or in any other circumstances s 48B(6). Power in s 48B(1) is therefore referred to as personal and a non-delegate power of the Minister.
The High Court has considered the Minister’s personal and non-compellable powers in a number of cases, most recently in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 408 ALR 381; [2023] HCA 10 (Davis). The High Court confirmed that the Minister exercises the personal and non-compellable powers ‘by personally making the first or both of two distinct sequential statutory decisions neither of which the Minister is obliged to make’. The first decision is a procedural decision to either consider or to not consider whether it is in the public interest to exercise the relevant power. The second decision is a substantive decision to either think that it is in the public interest to exercise the power and to do so, or to not think that it is in the public interest to exercise the relevant power and not to do so: see Davis at [14] per Kiefel CJ, Gageler and Gleeson JJ.
CONSIDERATION OF APPLICATION FOR INTERLOCUTORY INJUNCTION
Relevant Principles
The relevant principles in relation to the granting of an interlocutory injunction were recently set out in (MZAPC 1). I respectfully repeat and adopt those principles as follows:
In considering whether to exercise the discretion to grant an interlocutory injunction, it is appropriate for the Court to consider:
whether there is a serious question to be tried, which requires the applicant to show that there is a sufficient likelihood that he will succeed at the final hearing to justify the preservation of the status quo pending the final hearing; and
whether the inconvenience or injury that the applicant would suffer if the injunction is refused outweighs or is outweighed by the inconvenience or injury the Minister would suffer if the injunction is granted: see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 (O’Neill) at [65].
The two limbs of the test for the grant of an interlocutory injunction are interrelated. This was explained in Morrison v Minister for Immigration and Citizenship [2007] FCA 723, where French J (as his Honour then was) said at [22]:
… In order to grant interlocutory relief to restrain his removal, pending a substantive application, I would have to have regard both to the possibility that he has some case to argue in relation to the decision to cancel his visa and secondly that the balance of convenience lies in favour of an interim order. These two requirements are inter-dependent. Of course, the stronger the case that there is an arguable error on the part of the Minister, the less the balance of convenience need lie in favour of the applicant in order to justify the grant of relief…
and in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 870, where Thawley J said at [13]:
Consideration of the two main inquiries cannot be conducted completely independently of each other, because “an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even” and “[a] more doubtful claim (which nevertheless raises ‘a serious question to be tried’) may still attract interlocutory relief if there is a marked balance of convenience in favour of it”: Bullock v The Federated Furnishing Trades Society of Australasia (No 1) [1985] FCA 19; (1985) 5 FCR 464 at 472 per Woodward J (Smithers and Sweeney JJ agreeing at 467 and 469 respectively); see also ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363at [28] (Charlesworth J).
Is there a serious question to be tried?
The serious question to be tried must relate to the grounds of the Application and the final relief sought.
In deciding whether there is a serious question to be tried, the applicant need not show that he is likely to succeed in the substantive Application. Rather, the applicant needs to establish that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the final hearing: see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [65].
The applicant contends that because he has made a request pursuant to s 48B of the Migration Act which has not been decided, there is no power or duty to remove him from Australia until that request is lawfully resolved.
In support of this proposition the applicant submits that:
(a)there is a tension between s 198 and s 48B of the Migration Act;
(b)a literal application of s 48B has the capacity to obliterate the possibility of the Minister exercising the power reposed in her to permit fresh protection Visa applications;
(c)the Migration Act is not to be construed so as to result in a disharmonious operation;
(d)the interaction between the policy manifested in s 198 and the policy manifested in s 48B must be resolved so as to preserve a reasonable opportunity for the Minister to exercise her power to permit a fresh protection visa application and for that protection visa application to be made;
(e)the Minister has made arrangements for the exercise of the powers which are set out in the Guidelines and that process takes time. Section 198 ought not be construed so as to be “at war” with this process.
The first respondent submits that the applicant’s contentions are unarguable in the face of s 198(6) and s 197C of the Migration Act and the decisions of Colvin J in MZAPC 2, Ladham J’s decision in MZAPC 1 and Rofe J’s decision in Marya.
The applicant conceded that there are comments in these authorities that are inconsistent with the applicant’s contentions, however, submits that the arguments presented to this Court had not previously been considered.
I do not consider the applicant’s submissions to demonstrate that there is a serious question to be tried. I accept the first respondent’s submission that the applicant’s contentions cannot be sustained in light of s 198(6) and s 197C of the Migration Act and the authorities referred to above. Whilst the applicant considers his arguments in this matter to be novel, they raise a question of statutory construction of s 198(6) and that section’s interactions with the power under s 48B(1) of the Migration Act. In my view, the authorities relied upon by the first respondent are apposite to, and determinative of, that question and, therefore, whether there is a serious question to be tried in the present case.
In MZAPC 2 Colvin J considered and dismissed an application for leave to appeal from the Judgment of Ladhams J in MZAPC 1, in which her Honour dismissed an application for an interlocutory injunction. In MZAPC 1 her Honour relied on the decision of her Honour Rofe J in Marya where her Honour said at [23]:
As noted by counsel of the Minister, an outstanding application for ministerial intervention does not prohibit the Department from removing an individual pursuant to s 198(5) of the Act. Even if the substantive relief was granted by the Court at a future date, the applicant would not have a basis to avoid removal and would have no legal right to remain in Australia. The Minister’s obligation under s 198(5) to remove an unlawful non-citizen persists despite any unresolved application for ministerial intervention.
Ladham J found that although Rolfe J’s comments were in relation to the obligation in s 198(5) rather than the obligation in 198(6), her Honour’s comments are apposite to the obligation in s 198(6). This finding was not disturbed on appeal.
At [63]-[64] of MZAPC 1 Ladhams J said:
I make the following observations regarding the text and context of s 198(6).
Section 198(6) of the Migration Act clearly imposes an obligation to remove an unlawful non-citizen as soon as reasonably practicable if all of the circumstances set out within that paragraph exist. There is nothing in the text of that provision to suggest in any way that the obligation to remove can only be exercised if there are no pending requests for Ministerial intervention. Further, such a construction would be inconsistent with other provisions of the Migration Act. It is inconsistent with the clear words of the provisions conferring the Minister’s personal and non-compellable intervention powers, which make clear that the Minister does not have a duty to consider whether to exercise the relevant powers whether requested to do so by the applicant or by any other person, or in any other circumstances. Taking into account those provisions, the effect of the applicant’s preferred construction would be that officers of the Department can only perform their duty under s 198(6) if the Minister considers the exercise of a power that he has no duty to consider.
Colvin J identified at [5]-[7] that the applicant had made requests to the Minister to exercise the powers in s 48B (as well as in ss 195A, 351 and 417) and from [8]-[11] discussed the nature of these personal non-compellable discretionary powers. His Honour stated the aspects of the powers (no duty to exercise, making the request gives rise to no compulsion on the part of the Minister, Minister cannot be required to exercise/consider the exercise, no implied obligation on the Minister to do something) were fatal to the application for injunctive relief. His Honour found that the primary judge was therefore correct to refuse the application.
In dismissing the application for leave to appeal her Honour’s decision in MZAPC 1, Colvin J said in MZAPC 2 at [30] and [40]:
I am not satisfied that the decision of the primary judge was attended with sufficient doubt to justify leave to appeal. The principal difficulty with the characterisation of the legal contentions advanced by the applicant as being sufficiently arguable to support a grant of leave to appeal is that they seek to give some legal consequence to the fact that the applicant has made requests for the Minister to consider the exercise of the personal powers. The error lies in the notion that a request might be 'pending' in some sense. The description of a request as 'pending' ascribes to the request some characteristic that requires a decision or determination at some future time such that the request awaits some subsequent event that is to occur. However, as has been explained, the nature of the relevant powers is such that they are both personal and non-compellable. It would alter their character if the making of a request could give rise to some form of requirement for the Minister to indicate whether or not the request was to be considered.
Firstly, as has been explained, the appeal proceeds upon a false premise that any request for the exercise of the personal non-compellable powers may be 'pending'. It seeks to give statutory significance to a request that the power be exercised in circumstances where the nature of the power is such that no person other than the Minister can make a procedural decision as to whether to consider exercising the power. An obligation to make a procedural decision as to whether to consider the exercise of the power cannot arise from the making of a request any more than it can arise from the formation of a judgment by departmental officers. The adjudication as to what the public interest requires is entrusted solely to the Minister.
Further, submissions as to the necessity to “harmonise” the provisions that allow a request to be made of the Minister with the terms of s 198 were made to the Court in MZAPC 2 (at [27]) and rejected. Following his Honour’s analysis of the proper construction to be given to the presently relevant provisions of the Migration Act at [40] – [43], Colvin J concluded at [44]:
Within that statutory context the absence of any provision which expressly qualifies the circumstances in which removal must occur by reference to any of the powers the subject of the request made by the applicant is stark….
Accordingly, there is no “tension” or disharmony between s.198(6) and s.48B of the Migration Act.
As to the applicant’s submissions regarding the Guidelines, I accept that the Guidelines set out a process by which the Minister proposes to exercise her power under s 48B. However, for the reasons set out above, I reject the applicant’s submissions that the above construction of s 198(6) places it “at war” with the Guidelines or the literal application of s 48B obliterates the possibility of the exercise of the Minister’s power. The Guidelines cannot compel that which the statute does not. The making of a request to the Minister to exercise her power under s 48B(1) gives rise to no compulsion of any kind and the Minister cannot be required to exercise the power or even consider whether to exercise the power: MZAPC 2 at [10]. As Colvin J said in MZAPC 2 at [11]:
In short, having regard to the nature of the personal powers entrusted to the Minister, it is not possible to identify whether, and if so when, a request made by a person like the applicant may be attended by the Minister.
In light of all of the above, I am not satisfied that there is a serious question to be tried.
Where does the balance of convenience lie?
The applicant submits that the balance of convenience lies in his favour for the following reasons:
(a)removing the applicant from Australia “obliterates” the function of s 48B(1) and denies the Minister the ability to favourably intervene in his case;
(b)the applicant fears harm if he is returned to Sri Lanka;
(c)the granting of an interlocutory injunction would allow further development of the applicant’s arguments.
The first respondent submits that the balance of convenience favours refusing an injunction.
I accept that if the injunction is not granted and the applicant is removed from Australia the Minister will not consider the applicant’s request under s 48B(1). However, this must be viewed in the context where there is no obligation on the Minister to consider whether or not to exercise her personal and non-compellable powers. As such, as was noted by Ladham J in MZAPC 1, the consideration of the ministerial intervention request and the possibility of an exercise in the applicant’s favour are mere possibilities and not something to which the applicant is entitled.
I accept that there is some prejudice to the applicant if the injunction is not granted.
I also accept that the applicant has expressed fear of harm if he is returned to Sri Lanka. Further, this would occur in circumstances where the applicant’s most recent claim to be entitled to protection has not been assessed. However, s 197C of the Migration Act makes clear that any non-refoulement obligations Australia may owe the applicant are not relevant to the duty under s 198 to remove the applicant as soon as reasonably practicable.
The first respondent submits, and I accept, that there is a public interest in the proper administration of the Migration Act and this weighs against the balance of convenience favouring the applicant. As Lucev J said in APF23 v Minister for Immigration and Citizenship and Multicultural Affairs [2023] FedCFamC2G 182 at [24]:
...Importantly, in the circumstances of this case, there is also the statutory provisions of s 198 of the Migration Act. The public interest in the proper administration of the Migration Act is a further reason why the balance of convenience lies against granting the granting of an injunction. This is particularly so in circumstances where s 198(6) of the Migration Act imposes an obligation on officers of the Department of Immigration and Border Protection to remove an unlawful non-citizen from Australia, with the granting of an interlocutory injunction having the effect of requiring the Minister to direct his officers to proceed in defiance of that section: see also ALY15 v Minister for Immigration and Border Protection [2017] FCA 281 at [12]. The proper administration of the Migration Act is a factor that should be taken into account in deciding where the balance of convenience lies.
There are therefore balance of convenience considerations both in favour of, and against, the granting of interlocutory injunctive relief.
Given my conclusion that there is no serious question to be tried, and the interrelated nature of the serious question to be tried and the balance of convenience, on balance I decline to exercise my discretion to grant the interlocutory injunctive relief sought. The absence of a serious question to be tried outweighs the competing balance of convenience considerations.
Accordingly, it is not necessary that I determine whether an order ought be made transferring the proceedings to the Federal Court of Australia pursuant to s 153(1) of the Federal Circuit and Family Court of Australia Act 2021.
DISPOSITION
The application for an interlocutory injunction is therefore dismissed.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 3 August 2023
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