CDR15 v Minister for Immigration - [2015] FCCA 2824

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDR15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2824

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – interlocutory injunctive relief – whether removal of the applicant was not reasonably practicable under s.198 - no prima facie case or serious question to be tried identified by the applicant's application – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.198, 198AD, 417, 476

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465

Applicant:

CDR15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2854 of 2015

Judgment of:

Judge Street

Hearing date:

20 October 2015

Date of Last Submission:

20 October 2015

Delivered at:

Sydney

Delivered on:

20 October 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents:

Mr Markus
Australia Government Solicitors

ORDERS

The interlocutory application for injunctive relief is dismissed

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2854 of 2015

CDR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) for injunctive relief in respect of a notification provided on 12 October 2015 for the applicant to be removed from Australia.
The applicant was granted a visitor visa on 21 November 2001, which was valid until 27 December 2001. The applicant arrived in Australia on 27 November 2001. On 24 December 2001, just before the expiry of the visitor visa, the applicant applied for a protection visa. On 30 May 2002, the protection visa application was refused, and on 24 June 2002 the applicant appealed to the Refugee Review Tribunal (RRT).
On 8 July 2003, the RRT affirmed the decision of the delegate, refusing a protection visa. On 30 July 2003, proceedings for review were commenced in the Federal Court of Australia. On 18 August 2003 a bridging visa was granted, valid until 12 April 2005.
On 8 December 2004, the Federal Court of Australia proceedings were determined adversely to the applicant, and on 21 December 2004, the applicant commenced proceedings in the Full Court of the Federal Court of Australia which were unsuccessful, and those proceedings brought to an end on 15 March 2005.
On 12 April 2005, the applicant's bridging visa ceased and the applicant became an unlawful citizen. On 1 July 2005, after the applicant was located, the applicant was granted a Bridging visa E class until 5 July 2005. That visa expired on 5 July 2005 and the applicant thereafter became an unlawful citizen and remained in Australia as an unlawful citizen until he was located on 11 March 2015, and has been in detention since that date.
The applicant lodged a Ministerial intervention request on 9 March 2015 under s.417 that was decided not to be considered on 9 September 2015. On 13 October 2015, the applicant lodged a second migration intervention application under s.417 which was dismissed on 19 October 2015.
The notice of intention to remove the applicant refers to s.198(6) and notes that the applicant's application for a visa has been refused and finally determined, and that arrangements are being made for removal of the applicant, and notifies the applicant he will be removed from Australia to China on 21 October 2015.
The application filed in Court seeks two substantive orders, the first being injunctive relief restraining the removal of the applicant under s.198 or s.198AD of the Act. The position in the present case is that the proposed removal is under s.198 and not s.198AD, as it is a removal to the applicant's country of nationality, being China.
The substantive declaration asserts that it is not reasonably practicable for the respondent to remove the applicant within the meaning of s.198(6):
Unless and until consideration has been given by the Minister, Australia’s non-refoulement obligations under the Refugee Convention, the Convention against Torture, and the International Convention on Civil and Political Rights arise from the son’s protection visa application according to law.
The declaratory ruling is declaratory relief in aid of a protection application lodged by the applicant's second son on 16 October 2015. It is apparent from the affidavit evidence that the applicant's wife is not in detention and is still in Australia, and that the removal of the applicant does not prevent pursuit of the applicant's second son’s application.
The applicant asserts that his parents would assist his second son in his application for protection, and the applicant identified that he has three children and a wife here in Australia, and that he has no job and no money in China, and that his children are worried about his welfare. Those are not matters that identify any excess of jurisdiction in the exercise of the power under s.198 of the Migration Act.
The meaning of “reasonable practicability” in s.198(6) was said by Besanko J in Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465 not to be a jurisdictional fact. However, I accept that there may be circumstances in which the evidence demonstrates that there has been an excess of jurisdiction in relation to the purported exercise of power under s.198 by reason of matters such as physical consideration, such as the health of the person or availability of an operating airport in the place of destination, or other non-physical factors.
Nothing in the applicant's evidence identifies any ground upon which it can be said there was an arguable case of an excess of jurisdiction under s.198. The principles in relation to the grant of an interlocutory injunction are identified in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, per Gummow and Hayne JJ:
65… By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal :
"How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks."
I do not accept that the applicant's presence in Australia to assist his second son’s pursuit of a protection visa gives rise to any arguable case that it is not reasonably practicable under s.198 to remove the applicant. Section 198 imposes a duty in the circumstances identified to remove an unlawful non-citizen as soon as reasonably practicable. On the evidence before the Court it is clear that the applicant is an unlawful non-citizen and is in detention. No prima facie case or serious question to be tried is identified by the applicant's application, and there is no right or equity that supports the grant of any interlocutory injunctive relief.
It is not necessary in these circumstances to consider the issue of balance of convenience. However, I should note that the delay in the making of the application by the applicant, in circumstances where he has been in detention since 13 March 2015, and in circumstances where he has engaged in conduct where twice he has remained unlawfully in the community until located, and in the second period he remained unlawfully in Australia for almost 10 years, that these would have been relevant discretionary considerations in respect of the balance of convenience if any arguable question had been identified. For the reasons given, the application for interlocutory injunctive relief is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 22 October 2015