D2 v Commonwealth of Australia

[2021] FCCA 164

FEDERAL CIRCUIT COURT OF AUSTRALIA

D2 v Commonwealth of Australia [2021] FCCA 164

File number:

ADG 14 of 2021

Judgment of:

JUDGE YOUNG

Date of judgment:

25 January 2021

Catchwords:

MIGRATION – application for an interim injunction – whether there was a serious question to be tried – whether the applicant was likely to suffer irreparable damage – balance of convenience – where the applicant was declared an unlawful non-citizen and held in immigration detention – where the applicant was summonsed to appear for examination at the Australian Criminal Intelligence Commission – Court satisfied appropriate to grant the interim injunction

Legislation:

 Migration Act 1958 (Cth) s 189

Australian Constitution s 51(xix)  

Cases cited:

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR, [1992] HCA 64

Number of paragraphs:

17

Date of last submission:

25 January 2021

Date of hearing:

25 January 2021

Place:

Darwin

Counsel for the Applicant:

Mr Abbott QC

Solicitors for the Applicant:

Patsouris and Associates

Counsel for the First, Second, Third and Fourth Respondents:

Mr Tran

Solicitors for the First, Second, Third and Fourth Respondents:

Australian Government Solicitors

Counsel for the Fifth and Sixth Respondents:

Ms Maharaj QC

Solicitors for the Fifth and Sixth Respondents:

Australian Government Solicitors

ORDERS

ADG 14 of 2021

BETWEEN:

D2

Applicant

AND:

THE COMMONWEALTH OF AUSTRALIA

First Respondent

THE MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTUTRAL AFFAIRS Second Respondent

MINISTER FOR HOME AFFAIRS (and others named in the Schedule)

Third Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	25 JANUARY 2021

THE COURT ORDERS THAT:

1.The first, second, third and fourth respondents be restrained and an injunction issue restraining them from transporting the applicant D2 for the purpose of compliance with a summons to appear for examination at the Australian Criminal Intelligence Commission, Level 26, 311 Spencer Street, Docklands, Victoria at 10.00am on “Thursday 27 January 2021” (this erroneous date appearing in the summons).

2.The proceedings be adjourned to 2 February 2021 at 2.15pm (NT time) for further argument if necessary.

3.Leave be granted for the applicant to file and serve any amended application within 7 days.

4.Liberty to apply for further orders.

5.Costs be reserved.

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. These are applications for interim injunctions brought on urgently by the applicants who are described as D1 and D2. As tomorrow is a public holiday and the applicants are due to be interviewed by the Australian Criminal Intelligence Commission examiner at 8:00am on Wednesday morning, Darwin time, in Melbourne, it is not possible to deal with this matter on Wednesday morning. It is too early and it is not convenient for the court and court staff to be here at that time.  Tomorrow is a public holiday and I do not expect my staff to attend court on a public holiday. The matter has to be disposed of this evening.

3. There has been confusion about when the applicants are due to appear. The summons to D1 requires him to appear on Thursday 28 January 2021 and the summons to D2 requires him to appear on “Thursday 27 January 2021”. On my chambers making an inquiry about what day was intended the solicitor for the applicants said they were supposed to appear on Wednesday 27 January 2021. The matter proceeded on that basis. 

4. I became aware of this matter at about 3:00pm this afternoon. It was filed on Friday afternoon and the respondents have had very little time to prepare their arguments. However, I might say that they, the respondents, via their solicitors and counsel have done an exemplary job in being ready and providing me with references to relevant case law.  Mr Abbott, senior counsel for the applicants, has probably had a little more time to prepare but not much.

5. The substantive relief that the applicants seek is a declaration that the proposed course to be adopted by Australian Border Force, by its agents or employees, of delivering the applicants, D1 and D2, on Wednesday morning to the offices of the Australian Criminal Intelligence Commission examiner in Melbourne would be a detention that goes beyond the lawful purposes of detention under section 189 of the Migration Act 1958 (Cth) (‘the Act’). The lawful purpose is as the High Court case of Chu Kheng Lim v Minister for Immigration (1992) 176 CLR demonstrates, for the purpose of expulsion or deportation of detainees.  There are some related purposes, for example, to apply for a visa.

6. The applicants argue that if they are to be transported as detainees against their will from the detention centre at Broadmeadows to the offices of the examiner in the city of Melbourne, in a motor car or some other vehicle, then for the duration of the journey, at the offices and, presumably, for the return journey to Broadmeadows, that is a detention which is not for the purpose I have described and is therefore unlawful.

7. Mr Tran, who appeared for the Commonwealth of Australia, the Minister for Immigration, the Minister for Home Affairs, and the Commissioner of the Australian Border Force acknowledged that this Court has jurisdiction to deal with the matter. Mr Tran’s argument had two aspects. The first aspect being that the detention in a motor car travelling into the city from Broadmeadows is merely an incident of a much “larger” detention which has a lawful purpose, that is, expulsion or deportation.

8. A second aspect to his submission was that detention for that purpose, travelling into the city, is detention in a “place” and, as the Act makes clear, there is a very wide discretion reposed in the Minister or the Executive about the location of where a person may be detained.

9. I was referred by Mr Abbott to a number of passages from the High Court decision in Chu Kheng Lim (1992) 176 CLR which appears to be a foundational case in this area. It is clear from this case, in my view, that the purpose of immigration detention under section 189 of the Act is limited both by the constitutional provision in section 51(xix) and the power granted under section 189 of the Migration Act. That is, as I have said, the purposes of detention are limited to the expulsion or deportation of a detainee or perhaps other related purposes such as applying for another kind of visa.

10. I was also referred to some case law by Ms Maharaj, senior counsel for the Chief Executive Officer of the Australian Criminal Intelligence Commission (‘ACIC’) and the examiner, Mr David Lusty. Those cases were, in my view, not entirely germane and related to the balance of convenience rather than the matter of whether there was a serious question to be tried. In my view, there is a serious question to be tried in this case. It is, as I have attempted to describe, whether the purpose identified by Mr Abbott in submissions, namely the transportation of his clients from immigration detention to the office of the examiner of the ACIC, is a purpose ancillary to or connected with or giving effect to the lawful purpose of expelling or deporting his clients.

11. In my view, there is an arguable case or a serious question, however we wish to formulate it, that that purpose is unlawful. Another matter that needs to be addressed on an application for an injunction is whether the applicants are likely to suffer irreparable damage. I was not given submissions on that issue. It appears to me that the applicants are to be detained for the purpose of the examination on Wednesday morning where they are likely to be compelled to answer questions about what is said to be criminal activities that they are allegedly involved in or have knowledge of. It appears to me that, if they are subjected to questioning under compulsion in those circumstances and the transporting of them to the office of the examiner for that purpose is unlawful, they are likely to have suffered a very significant infringement on their rights and liberties and that would in the circumstances constitute irreparable damage.

12. The other issue that needs to be addressed is balance of convenience. Mr Abbott made submissions about that. Mr Tran did not. Ms Maharaj also made submissions about that.  She relied on an affidavit from a Mr Pieper who said that there was some urgency about the examination because the applicants were connected with an outlaw motorcycle gang in South Australia and their deportation would leave a gap in the power structure of this outlaw motorcycle gang and it was important that the Australian Criminal Intelligence Commission have information about that urgently.

13. Apart from the bald assertion that that is the case, there was no real evidence to suggest that there was any urgency or particular urgency about such an inquiry. I am not satisfied that there is persuasive evidence of that.  It was also suggested that the applicants may, in effect, avoid an examination by voluntarily agreeing to leave Australia and return to New Zealand, where, as I understand it, the applicants are citizens, and that that is an instance of the urgency of them being examined.

14. It is not in dispute that the applicants have filed applications for judicial review of the Minister’s decision to deport them.  That has not been given a first listing date in the Federal Court, as I understand it. I was told by Mr Abbott that his instructions are that they propose to stay and pursue those applications.  Apparently, one of the applicants are also facing criminal charges in South Australia and it was suggested that may also be an incentive to agree to voluntarily leave.

15. Given that it might be thought that a challenge to criminal charges would not be proceeded with where a person had been deported, I am not convinced that that is anything more than a speculative possibility.  In any event, Mr Abbott told me his instructions were unequivocally that his clients would stay to prosecute the applications in the Federal Court, and in the case of one of his clients, to contest the criminal charges against him.

16. I am not satisfied that those matters outweigh the inconvenience of being obliged to attend at the office of the Australian Criminal Intelligence Commission if that attendance is carried out by unlawful means.  I propose to grant the interim injunction, and for a relatively short period.

17. I propose to adjourn the matter to 2 February 2021 at 2.15pm.

18. Until then there will be an order until further order restraining the first, second, third and fourth respondents from transporting or facilitating the transport of the applicants for the purpose of compliance with the summons to the first applicant, D1, to appear at 10:00 am on Thursday, 28 January 2021, before an examiner at the Australian Criminal Intelligence Commission, level 26, 311 Spencer Street, Docklands, Melbourne and, in relation D2, a summons to appear at 10:00 am on Thursday, 27 January 2021 (an acknowledged error) before the examiner in an examination at the ACIC, level 26, 311 Spencer Street, Docklands, Melbourne, Victoria.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated: 3 February 2021

SCHEDULE OF PARTIES

ADG 14 of 2021
Respondents
Fourth Respondent:	COMMISSIONER OF THE AUSTRALIAN BORDER FORCE
Fifth Respondent:	CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CRIMINAL INTELIGENCE COMMISSION
Sixth Respondent:	DAVID LUSTY