CHV20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 721
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CHV20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 721
File number(s): SYG 1203 of 2023 Judgment of: JUDGE GOODCHILD Date of judgment: 15 August 2023 Catchwords: MIGRATION - application for interlocutory injunction to restrain Minister from removing applicant from Australia – applicant in detention – non-finalisation of applicant’s application for Ministerial intervention – whether serious question to be tried – where balance of convenience lies – application dismissed. Legislation: Migration Act 1958 (Cth) ss 14, 189(1), 196(1)(a), 198(6) Cases cited: ALY15vMinister for Immigration and Border Protection [2017] FCA 281
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Commonwealth of Australia v AJL20 [2021] HCA 21; (2021) 273 CLR 43
FEL19 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 331
Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; 170 CLR 649
Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433
Morrison v Minister for Immigration & Citizenship [2007] FCA 723
MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 594
Sami v Minister for Home Affairs [2023] FCA 185
SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140; (2014) 233 FCR 279
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 11 August 2023 Counsel for the Applicant: Mr A Hans (direct brief) Counsel for the Respondent: Mr T Liu Solicitor for the Respondent: Australian Government Solicitor ORDERS
SYG 1203 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHV20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE GOODCHILD
DATE OF ORDER:
15 August 2023
THE COURT ORDERS THAT:
1.The application for an interlocutory injunction is dismissed.
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 GOODCHILD:
The applicant is a 34-year-old citizen of India. He last arrived in Australia on 10 April 2012. The applicant does not hold a valid visa. He is an unlawful non-citizen and pursuant to s 189(1) of the Migration Act 1958 (Cth) (“the Act”) has been in detained immigration detention since 14 June 2019.
On 25 July 2023, the applicant commenced proceedings by way of an Originating Application for Relief under s 39B of the Judiciary Act 1903 (Cth) in the Federal Court seeking “[a] writ of mandamus or prohibition or injunction…against the deportation order issued 24/7/2023”. An affidavit was filed on the same day. A document titled “Statement of Claim” was also filed on the same day. Those documents appeared to be prepared by the applicant himself.
On 28 July 2023, by consent, orders were made by Justice Raper of the Federal Court transferring the proceedings to this Court. On that occasion, the Minister provided an undertaking that the applicant would not be removed from Australia before 7 August 2023.
On the same day (28 July 2023) the proceedings were placed into my docket and came before me for directions. I made orders for the filing of documents and for the matter to be listed for hearing on 11 August 2023. At the conclusion of that court event, the Minister provided a further undertaking not to remove the applicant from Australia on or before the scheduled hearing date.
RELEVANT BACKGROUND
The applicant has had an extensive migration history since he first arrived in Australia on 10 April 2012.
Over the years the applicant has applied for, been refused or had cancelled, various visas.
On 28 March 2022, the applicant signed a Request for Removal from Australia form.
On 2 June 2022, the Indian Consulate issued an Emergency Travel Document for the applicant.
On 15 June 2022, the applicant withdrew his request for removal.
On 14 April 2023, the applicant wrote to the Minister for Immigration, Citizenship and Multicultural Affairs concerning Ministerial intervention. This request remains pending.
On or about 30 May 2023, the applicant made a complaint to the Australian Human Rights Commission (“AHRC”) against the Commonwealth of Australia Department of Home Affairs, alleging a breach of human rights under the Australian Human Rights Commission Act1986 (Cth) (“AHRCA”). The particulars of the complaint were not before the court.
On 19 July 2023, a registered nurse from the International Health and Medicine Services assessed the applicant as fit to travel.
On 24 July 2023, the applicant was notified by an officer of the Minister of an intention to have him removed from Australia pursuant to s 198(6) of the Act. By that Notice, the applicant was advised that he was liable for removal from Australia pursuant to s 198(6) of the Act and that arrangements had been made to facilitate his removal on or after Wednesday 2 August 2023.
It is in respect of this pending removal from Australia that the applicant seeks an injunction to restrain.
For the reasons that follow, I dismiss the application for an injunction to restrain the Minister from removing the applicant from Australia as soon as reasonably practicable.
THE HEARING BEFORE THIS COURT
The applicant was represented by counsel at the hearing before me. By written submissions filed by the applicant’s counsel (dated 4 August 2023), the following orders were sought:
·A writ of certiorari be issued quashing the Minister’s decision to remove the applicant from Australia;
·A writ of habeas corpus be issued in relation to the applicant;
·A writ of prohibition be issued prohibiting the Minister and his delegates, servants or agents from acting upon or giving effect to the Minster’s decision; and
·A declaration be made that the proposed deportation of the applicant was unlawful.
At the outset of the hearing on 11 August 2023, some time was taken with the applicant’s counsel to clarify both the nature of the relief sought by the applicant and to clarify the legal and evidentiary basis for that relief.
Counsel for the applicant confirmed that the relief he was seeking was an injunction restraining the Minister from removing the applicant from Australia. Counsel pressed the application for a writ of certiorari quashing the decision to deport the applicant. Counsel also pressed the application for a writ of habeas corpus.
The applicant relied upon the document titled “Statement of Claim”. I clarified with the applicant’s counsel that this document, whilst titled Statement of Claim and filed in the Federal Court, was to be treated as further submissions.
By this document, the applicant alleged that on 24 August 2022, whilst in immigration detention, he was “sexually assaulted” by staff of an Emergency Response Team. The applicant contended that a criminal investigation was ongoing and that he also had an active matter with the AHRC for breach of human rights under the AHRCA. In that document, the applicant had also claimed that “the Australian Border Force is trying to deport the applicant to supress the matter”, and indicated that a Ministerial intervention request was also in process.
PARTIES’ SUBMISSIONS
There was no dispute between the parties that currently the applicant does not hold a valid visa. The applicant ceased to hold a visa from 14 June 2019. From that date, the applicant was an unlawful non-citizen within the meaning of s 14 of the Act. Accordingly, the applicant remains in immigration detention as s 189(1) operates to require that the applicant be kept in immigration detention and s 196(1)(a) requires him to be kept in immigration detention until he is removed from Australia under s 198.
The applicant contends that the Minister’s removal ‘decision’ was made for an “improper purpose”. According to the applicant, that “improper purpose” was:
[The Minister]’s attempt to silence an outspoken critic of the “out of sight, out of mind” treatment of asylum seekers and aliens by deporting [the applicant] before he had an opportunity to have his complaints to the Australian Federal Police and the Australian Human Rights Commission heard.
The applicant’s written submissions contend as follows:
·that “timing is critical. The applicant has been left like a shag on a rock [in immigration detention] for over four years. It was only when the applicant lodged a complaint with the AHRC that [the Minister] made moves to deport him”;
·that the proposed deportation of the applicant is not justified by the terms of the Australian Constitution, the Migration Act and the International Covenant on Civil and Political Rights;
·that the purpose of the proposed deportation is to “silence a critic of the government’s migration policy” which, in the applicant’s submission, is “extraneous” to the Australian Constitution, the Migration Act and the International Covenant on Civil and Political Rights;
·that the applicant considers that his detention was “disproportionate, arbitrary and punitive” and has subsequently led him to invite the AHRC to intervene in the proceedings; and
·that the applicant’s case is one of both national and international public importance.
The Minister relied on written submissions filed in reply to the applicant’s submissions on 9 August 2023.
I clarified with counsel for the Minister that despite the evolving nature of the relief sought by the applicant, the Minister was treating the application as an application for an injunction to restrain his removal from Australia, the basis of which was that the decision to remove the applicant was based upon an “improper purpose”, and further that a writ of habeas corpus should issue.
In those submissions, it is argued by the Minister, in summary, that the applicant’s application should be dismissed as there is no basis for granting the injunction sought, and because the applicant otherwise provides little evidence in support of his case.
RELEVANT LEGISLATION AND LEGAL PRINCIPLES
There is no dispute between the parties that the applicant has been in immigration detention since 2019 in accordance with s 189(1) of the Act. That provision relevantly provides:
Detention of unlawful non-citizens
(1)If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
(2) If an officer reasonably suspects that a person in Australia but outside the migration zone:
(a)is seeking to enter the migration zone (other than an excised offshore place); and
(b)would, if in the migration zone, be an unlawful non-citizen;
the officer may detain the person.
There is also no dispute that the power to remove the applicant from Australia arises from s 198(6) of the Act which provides:
Removal from Australia of unlawful non-citizens
...
(6)An officer 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.
With respect to the Court’s power to grant interlocutory injunctions, the principles governing the exercise of such a power are well established - the Court can exercise its discretion in that regard where it is satisfied that:
(a)there is a serious question to be tried or that the applicant has made out a prima facie case; and
(b)the balance of convenience favours the granting of the injunction.
The question of whether or not to grant an injunction inevitably turns on the facts before the Court in the particular circumstances of the case: see SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140; (2014) 233 FCR 279 per Allsop CJ, Mansfield and Besanko JJ and FEL19 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 331 per Judge Barnes at [13].
To be satisfied that the applicant would be entitled to interlocutory relief to restrain his removal pending a substantive application, I would have to be satisfied that the applicant had some case to argue in relation to the decision to cancel his visa and that the balance of convenience lies in favour of an interim order: Morrison v Minister for Immigration & Citizenship [2007] FCA 723 per French J at [22].
CONSIDERATION
Serious question to be tried
In deciding whether there is a serious question to be tried, the applicant does not need to show that he is likely to succeed in his substantive application. Rather, he needs to establish that there is a sufficient likelihood of success to justify the preservation of the status quo pending a final hearing: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [65].
The main reasons advanced by the applicant as to why this Court should find that there is a serious question to be tried are:
(a)That the Minister’s decision to remove the applicant from Australia is made for an improper purpose; and
(b)That this Court should issue a writ of habeus corpus as the applicant is unlawfully detained.
Improper purpose
The applicant contends that the Minister moved to deport him only after a complaint was made by him to the AHRC. The date of the complaint was not before the Court. The particulars of the complaint were not before the Court. The applicant referred the Court to an email dated 30 May confirming receipt of a complaint.
I assumed for the purposes of the applicant’s argument that he made a complaint to the AHRC on or around 30 May 2023. I also assumed that the complaint was related to the circumstances of his detention by the Commonwealth of Australia. The applicant submits that, in the circumstances, having regard to the timing of the complaint and the timing of the moves to deport him, the Court should draw an inference that the move to deport the applicant was not in furtherance of s 198(6) but in an effort to silence the applicant.
The applicant’s counsel submitted “it’s not spelt out in [the applicant]’s affidavit…the improper purpose is an attempt to silence a critic – an outspoken critic of the Federal Government’s immigration policies”.
The Minister referred me in its written submissions to the relevant authorities in respect of the circumstances when an inference can be drawn as to improper purpose:
An inference of improper purpose “will not lightly be inferred and … will only be inferred if the evidence cannot be reconciled with the proper exercise of the power”: Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; 170 CLR 649at 672. Whether an exercise of power is vitiated by an improper purpose on the part of the decision-maker is determined by reference to decision-maker’s state of mind: Golden v V'landys [2016] NSWCA 300; 339 ALR 610 at [135]. Decisions are impeachable for improper purpose only where the relevant power is purposive or, at least where some purposes are forbidden: Golden v V'landys at [136] citing M Aronson and M Groves, Judicial Review of Administrative Action, (5th ed, 2013, Lawbook Co) at [5.510]).
A person impeaching the exercise of a power on the basis of improper purpose bears the onus of establishing that issue: Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; 170 CLR 649 at 671.
I am not satisfied that the applicant has discharged the evidentiary burden required to satisfy me that the Minister’s decision to remove the applicant from Australia was made for an improper purpose.
The applicant has not held a visa since June 2019. From that date he was an unlawful non-citizen (s 189(1)). He was required to be held in detention until he was removed from Australia (s 196). He was to be removed from Australia as soon as reasonably practicable (s 198(6)).
The simple fact of the lodging of a complaint by him proximate to a decision to remove him under s 196(6) of the Act goes nowhere to establish that the power exercised under the provision was exercised for an improper purpose. I am asked to “draw an inference” solely on the basis of the proximate dates of the events. The Court is not appraised of the particulars of the complaint.
The removal of an unlawful non-citizen has been described as an “obligation” on the Executive to be effected “as soon as reasonably practicable”, as per [18] of Commonwealth of Australia v AJL20 [2021] HCA 21; (2021) 273 CLR 43 per Kiefel CJ, Gageler J, Keane J and Steward J which states:
The authority and duty to detain an unlawful non-citizen pursuant to s 189(1) for the period specified in s 196(1) is attended by an obligation on the Executive to effect the removal of an unlawful non-citizen “as soon as reasonably practicable”.
There is nothing before me to suggest that the decision to remove the applicant from Australia was for some purpose other than the lawful purpose of the obligation contained in s 198(6).
Habeas Corpus
The applicant pressed the Court for a writ of habeas corpus. By his counsel, the applicant contended, similarly to the improper purpose argument, that this was a matter of inference. As I understood the argument, should the Court be satisfied there exists an improper purpose and that the applicant’s detention has been unlawful because it was harsh, disproportionate and punitive, that would give rise to a habeas corpus writ. Ultimately, counsel for the applicant accepted that the applicant, as an unlawful non-citizen, must be detained until he was removed.
For completeness, and picking up the authorities relied upon by the Minister, as I understood the applicant’s argument, he does not contend that he cannot be removed because he has lodged the complaint with the AHRC or that he has made an application for Ministerial intervention. Indeed, counsel for the applicant conceded that the matter before the AHRC was no bar to the Minister deporting the applicant. In any event, there is clear authority against each of those propositions: see Sami v Minister for Home Affairs [2023] FCA 185; Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433 at [23]; MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 594 at [61].
Balance of convenience
If the injunction is not granted the applicant will be removed from Australia. There is nothing before me to support a conclusion that the applicant can obtain a valid visa and therefore not be an unlawful non-citizen subject to removal under s 198(6) of the Act.
There is no obligation on the Minister to consider whether or not to exercise his personal and non-compellable powers to intervene. There is nothing before me to suggest that the applicant will not be able to pursue his claim with AHRC or that he will not be entitled to relief should he be removed from Australia.
I accept the Minister’s submission that the Court should give weight to the public interest involved in the due administration of the Act, particularly where s198(6) “imposed an obligation on departmental officers to remove the appellants from Australia”: ALY15vMinister for Immigration and Border Protection [2017] FCA 281 at [12].
Given my views above, in the foregoing circumstances I find that there is no serious question to be tried and that the balance of convenience lies against the grant of an interlocutory injunction.
CONCLUSION
The application for an interlocutory injunction is dismissed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 15 August 2023
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