CHS19 v Minister for Home Affairs
[2021] FCA 895
•4 August 2021
FEDERAL COURT OF AUSTRALIA
CHS19 v Minister for Home Affairs [2021] FCA 895
File number: WAD 78 of 2021 Judgment of: MCKERRACHER J Date of judgment: 4 August 2021 Catchwords: MIGRATION – application for urgent injunctive relief restraining removal to the applicant’s receiving country (Taiwan) – where the applicant instead seeks removal to Hong Kong due to fears of harm if returned to Taiwan – where applicant’s protection visa application has been refused and all avenues of merits review, judicial review and appeal have been exhausted – no proper basis to order injunctive relief Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 177, 181(3)(a), 198(6) Cases cited: CHS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 146 Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 18 Date of hearing: 16 June 2021 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr PR Macliver Solicitor for the Respondent: Australian Government Solicitor ORDERS
WAD 78 of 2021 BETWEEN: CHS19
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
ORDER MADE BY:
MCKERRACHER J
DATE OF ORDER:
4 AUGUST 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCKERRACHER J:
INTRODUCTION
By urgent application before the start of a proceeding dated 7 April 2021, the applicant seeks the granting of an injunction to prohibit his removal from Australia to Taiwan (Republic of China) by officers of the Department of Home Affairs under the direction of the Minister. He seeks instead to be removed from Australia to Hong Kong.
For the following reasons, there is no basis to grant such relief.
BACKGROUND
The applicant is a citizen of Taiwan who arrived in Australia on 17 March 2013 on a visitor visa. The visa was cancelled on arrival as a delegate of the Minister was not satisfied that the applicant had an intention only to visit Australia as a tourist.
In May 2014, the applicant was convicted of drug importation and spent a period of time in prison. Following his release, he was placed in immigration detention.
The applicant applied for a Safe Haven Enterprise visa (SHEV) on 27 March 2019. A delegate of the Minister refused to grant the SHEV on 3 April 2019. The applicant then applied to the Administrative Appeals Tribunal for review of that decision. The Tribunal affirmed the decision on 22 May 2019.
The applicant applied for judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. That application was dismissed on 12 June 2019. An appeal to this Court was dismissed on 18 February 2020: CHS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 146.
The applicant did not seek special leave to appeal to the High Court of Australia from the Federal Court’s judgment. He has no current applications before any court, other than this application for an injunction.
RECENT EVENTS
Although the applicant is a citizen of Taiwan, on 6 March 2020, he requested the Department remove him from Australia to Hong Kong and released his passport to the Australian Border Force to allow arrangements to be made. The applicant has indicated that he would fund the removal to Hong Kong, rather than Taiwan. He fears return to Taiwan as he will be punished by certain persons for reasons which (in the applicant’s interest) do not require amplification. This is the same expression of fear that formed the basis of his unsuccessful SHEV application.
The Minister has given some consideration to the applicant’s request for removal to Hong Kong. The evidence reveals that he has made a number of inquiries to examine the possibility of satisfying the request. Ultimately, as the certainty of the outcome of these inquiries has been quite inconclusive, the Minister intends to adopt the original course of returning the applicant to Taiwan. He contends that no injunction should be granted. The inquiries were:
(a)on 27 February 2020 and 12 March 2020, inquiries were made by an Australian Border Force officer to the Chinese Consulate in Australia about whether the applicant could be removed to Hong Kong;
(b)on 13 October 2020, an Australian Border Force officer made inquiries about travel restrictions in Taiwan and Hong Kong to the Integrity Liaison Officer at the Australian Consulate-General Hong Kong, and the Liaison Officer replied on 15 October 2020;
(c)on 12 April 2021, in response to a request from a different Australian Border Force officer, the Liaison Officer provided updated information on travel restrictions in Taiwan and Hong Kong; and
(d)on 22 April 2021 and 23 April 2021, the Liaison Officer made inquiries to the Senior Immigration Officer in the Hong Kong Airport Division about removal arrangements for the applicant as a Taiwanese passport holder. On 23 April 2021, the Superintendent and Acting Regional Director of the Australian Consulate-General in Hong Kong reported to the Border Force officers the outcome of the inquiries.
None of these responses indicated with any clarity that the applicant could be removed to Hong Kong. It is clear however, that Taiwan will receive the applicant, regardless of whether his removal is voluntary or involuntary. On this basis, the Minister considers that absent a court order (which is firmly opposed), no attempt will be made to remove the applicant to Hong Kong.
The applicant, for his part, says that Hong Kong will receive him and has produced documentation he says evidences that. These documents include a number of what appear to be copies of ‘Notification Slip for Pre-arrival Registration for Taiwan Residents’ that were annexed to the applicant’s supporting affidavit. The majority of the text on these documents is written in a foreign character script, presumably Cantonese, however some English text indicates that:
This registration is valid for two months and good for two entries to the Hong Kong Special Administrative Region with a stay up to 30 days upon each landing …
Some versions of the slips produced are date stamped on various dates from last year, however one of the slips is undated.
The applicant also sent directly to my chambers via email prior to the hearing a series of email communications exchanged between the applicant and the Hong Kong Immigration Department. These emails appear to have been translated by a certified translator. Responses received by the applicant from that Department appear to provide only generic advice about entry restrictions and quarantine requirements in relation to COVID-19. On 19 and 21 July 2021, the applicant sent two further emails to my chambers attaching what appear to be updated or more current versions of the ‘Notification Slips’ annexed to his supporting affidavit.
CONSIDERATION
It is not possible to say with any certainty whether the documents produced by the applicant will permit him safe entry into Hong Kong. It is unclear whether his personal circumstances have been made known. In any event, the question to be addressed is whether there is any proper basis for the Court to intervene in the applicant’s removal process by ordering the Minister to remove the applicant to a place other than his receiving country. That question must primarily be addressed having regard to the following.
The applicant’s SHEV was refused, and his subsequent applications for merits and judicial review were dismissed. His subsequent appeal to this Court was also dismissed, and he has not made an application for another substantive visa. He is currently an unlawful non-citizen in immigration detention.
It follows that a consequence of the dismissal of his appeal in this Court on 20 February 2020 was that the applicant was required to be removed from Australia as soon as reasonably practicable pursuant to s 198(6) of the Migration Act 1958 (Cth). The applicant’s reference at para 2 of his statement of facts in support of his application (and annexed to his affidavit) to the obligation in s 181(3)(a) of the Migration Act to remove a designated person as soon as practicable is misconceived. He repeated the same contention orally. The applicant is not a ‘designated person’ within the meaning of that term in s 177 of the Migration Act.
The applicant is a citizen of Taiwan, and there is no legal or other basis which would warrant the Court granting an injunction to prohibit his removal to Taiwan in circumstances where his application for a protection visa in relation to Taiwan was refused, his subsequent applications for merits and judicial review were unsuccessful, his further appeal to this Court was also unsuccessful, and he has not made another valid application for a substantive visa.
The fact that a protection visa applicant may still continue to hold a subjective fear of persecution in his or her country of nationality after a protection visa application has been refused because of an assessment that he or she does not meet the criteria for protection in s 36(2)(a) or s 36(2)(aa) of the Migration Act, and subsequent applications for merits review and judicial review have been refused, and an appeal has also been unsuccessful, is no basis for the grant of an injunction to prohibit removal to his or her country of nationality.
CONCLUSION
There is no basis at all for the relief sought by the applicant. His application must be dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher. Associate:
Dated: 4 August 2021
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