CMG16 v Minister for Immigration

[2017] FCCA 216

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMG16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 216

Catchwords:
MIGRATION – Application for interlocutory injunction to restrain Minister from serving removal orders pending determination of a judicial review application – where Applicant holds a bridging visa – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.46A

Cases cited:

Patrick Stevedores Operations (No.2) Pty Ltd v Maritime Union of Australia (No.3) (1998) 195 CLR 1; [1998] HCA 30

VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1022

Applicant: CMG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2404 of 2016

Judgment of: Judge Barnes

Hearing date: 3 February 2017

Delivered at: Sydney

Delivered on: 3 February 2017

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application for an interlocutory injunction is dismissed.

2. The Applicant pay the First Respondent’s costs of the application for an interlocutory injunction fixed in the sum of $3,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2404 of 2016

CMG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Before the Court is an application for an interlocutory injunction restraining the Respondents from serving removal orders on the Applicant pending determination of the substantive proceedings. 

2. The substantive application is an application for judicial review of a decision of the Immigration Assessment Authority (the IAA).  When the matter came before me for directions, I listed the application for an interlocutory injunction for hearing today.  The substantive matter was adjourned for a callover later this year. 

3. The Applicant was given the opportunity to file affidavit evidence and/or submissions in support of his application for an interlocutory injunction.  He did not do so.  When given the opportunity to explain the basis on which he pursued his application for an interlocutory injunction, he referred only to a concern about conditions in his home country and stated that he did not wish to return.

4. The Minister filed written submissions and relied on affidavits of Joel Eitan Palte affirmed on 27 January 2017 and Vanessa Sarah Page affirmed on 25 January 2017. 

5. The injunction is sought in relation to both the Minister and the IAA.  Clearly, there is no basis for any such order in relation to the IAA.  It is apparent that the Applicant’s concern relates to the Minister or the Minister’s Department.

6. The First Respondent opposed the grant of any interlocutory injunction on the basis that it was not necessary and would be inconsistent with the operation of the Migration Act 1958 (Cth) (the Act).

7. It is relevant to outline the background to these proceedings. The Applicant, a citizen of Sri Lanka, arrived in Australia as an unauthorised maritime arrival in 2012. In 2013 he lodged an application for a protection visa. In 2015 the bar under s.46A(1) of the Act was lifted and he was invited to apply for a Safe Haven Enterprise Visa, which he did. In June 2016 a delegate of the Minister refused to grant the visa and on 11 August 2016 the IAA affirmed that decision. The IAA decision is the subject of the substantive proceedings.

8. The Applicant sought review of the IAA decision by application filed on 6 September 2016.  In his application he included the application for an interlocutory injunction.  As the Minister submitted, the principles in relation to the grant of an interlocutory injunction are well-settled.  In Patrick Stevedores Operations (No.2) Pty Ltd v Maritime Union of Australia (No.3) (1998) 195 CLR 1; [1998] HCA 30 at [35], a majority of the High Court indicated:

   …The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked…

9. Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ also found that the Federal Court had jurisdiction to make interlocutory orders “to prevent frustration of its process”.  In effect, that is what the Applicant appears to seek in this case on the basis that he seeks to preserve his presence in Australia while the substantive proceedings are on foot. 

10. It is apparent from departmental records annexed to the affidavit of Mr Palte that at the time of his application to this court, and thereafter, the Applicant has been the holder of a bridging visa.  He was granted a Bridging E (Class WE) (Subclass 050) visa on 14 October 2016 in conjunction with these judicial review proceedings.  The provisions of Schedule 2 of the Migration Regulations in relation to a Subclass 050 visa include, as one of the prerequisites for such a visa, circumstances in which an applicant has made a valid application for a substantive visa of a kind that can be granted if he or she is in Australia; has applied for judicial review of a decision not to grant the visa; and the judicial review proceedings, including any proceedings on appeal, have not been completed (see paragraph 050.212(3), in particular subpara. (b)(i)).  Those circumstances apply to the Applicant.  Importantly, as provided for in clause 050.512, such a bridging visa permits the holder to remain in Australia until either another bridging visa is granted in respect of his or her judicial review application or (subject to an exception that is not relevant), 28 days after the judicial review proceedings, including any proceedings on appeal, are completed or, if there is a withdrawal, for 28 days thereafter.  In other words, the Applicant is not unlawfully in Australia.  I am satisfied on the evidence before me that he is the holder of a Bridging E visa.

11. It was in those circumstances that, as attested to in the affidavit of Ms Page, the Minister’s solicitors wrote to the Applicant by letter of 16 December 2016 confirming that, as advised in a letter to the court, they were instructed that the Minister did not have any intention of removing him ahead of the finalisation of his judicial review proceedings and that he held a bridging visa on the basis of these judicial review proceedings that was valid throughout the proceedings and for a period of 28 days after finalisation of the proceedings.  The letter sought the Applicant’s consent to have the hearing of the interlocutory application vacated.  Consent was not forthcoming. 

12. The Minister relied on VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1022 in which Heerey J dealt with an application for an interlocutory injunction restraining the Minister from removing the applicant from Australia pending determination of his application for judicial review of a decision of the Refugee Review Tribunal.

13. The applicant in VQAB was not the holder of a bridging visa.  He was in detention.  Furthermore, as described in VQAB at [4]-[5], it appeared that he had received a letter from the Department offering financial assistance for re-integration into the country from which he came that indicated that should the package not be accepted, he would be returned involuntarily and without financial assistance as soon as practicable. The letter gave the VQAB applicant 14 days to consider that offer.  It was in those circumstances that he commenced proceedings seeking an interlocutory injunction restraining his removal. 

14. In this case there are no such circumstances.  It is not clear why, as the holder of a visa, the Applicant saw a need to seek an interlocutory order in the absence of any threatened removal.  Apart from his concern about circumstances in his home country it may be that he misunderstands the effect of holding a bridging visa.  As I endeavoured to explain to him while in effect such visa permits him, to remain in Australia.  In contrast, as Heerey J pointed out at [10], the applicant in VQAB was in detention and his position was not “protected by the usual bridging visa granted to asylum seekers challenging the refusal of protection visas in the courts”. 

15. In VQAB, as in this case, the Minister had indicated through his solicitors that there was no intention to remove the applicant from Australia, but had not given any undertaking to that effect. Heerey J considered (at [11]) whether he was satisfied that there was “a serious or substantial risk” that the applicant would be deported before the hearing of his application for review.  In the circumstances in VQAB, and having regard to the absence of an intention to remove the applicant before his proceedings were completed, Heerey J was not satisfied that there was such a risk or, indeed, any lesser degree of risk. In that context his Honour accepted, and (at [11]) “treat[ed] seriously”, the statement from the solicitor for the Minister that there was no intention to remove the applicant from Australia, but also indicated that, without making any formal order and relying on the good faith of the Minister, he would expect that if there were to be any change in that intention, the Minister would give reasonable notice to the applicant’s pro bono counsel. 

16. While there are factual differences of some significance between the circumstances in VQAB and this case, what Heerey J said remains directly in point as a matter of principle.  In this case on the evidence before me I am not satisfied that there is a serious or substantial risk (see VQAB at [11]) that the Applicant would be served with removal orders or, for that matter, removed from Australia, before the determination of his application for judicial review of the decision of the IAA.

17. I accept what is said by the Minister’s solicitors in relation to the absence of any intention to remove the Applicant prior to conclusion of his judicial review proceedings and I note as the Applicant holds a visa such action would appear unlikely unless there were to be a cancellation of his bridging visa.  Moreover, as I indicated to the solicitor for the Minister, I would expect, relying on the Minister’s good faith, that if there were to be any change in that intention the Minister would give reasonable notice to the Applicant.  As I explained to the Applicant, if he were to be served with removal orders, he would then have the opportunity to seek an urgent interlocutory injunction from the Court. 

18. In the present circumstances an interlocutory injunction would be futile and unnecessary.  The Applicant has not established that there is any risk at all that he would be removed before the determination of his judicial review application, having regard, in particular, to the fact that he holds a bridging visa as well as to the attitude of the Minister. 

19. The application for an interlocutory injunction should be dismissed. 

20. The Applicant has been unsuccessful in his application for an interlocutory injunction.  In their letter of 16 December 2016 the solicitors for the Minister put him on notice that if he were unsuccessful in the interlocutory application there would likely be additional costs awarded against him.  There is nothing in the circumstances of this case that warrants a departure from the normal principle that an unsuccessful applicant should meet the costs of the Respondent.  These are interlocutory proceedings, but they are by nature discrete and separate from the substantive proceedings.  It is appropriate to make a costs order in relation to this aspect of the proceedings at this stage.  The amount sought is reasonable and appropriate in light of the nature of this and other similar proceedings.  I have explained to the Applicant that his judicial review application otherwise remains on foot. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  10 February 2017