Dir19 v Minister for Home Affairs

[2019] FCCA 2840

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIR19 v MINISTER FOR HOME AFFAIRS & ORS [2019] FCCA 2840

Catchwords:
MIGRATION – Expedited hearing – interlocutory order preventing removal or deportation from Australia – balance of convenience – interlocutory injunction made.

Applicant: DIR19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS

Third Respondent: RASHIMI IN HIS CAPACITY AS THE HOLDER OF POSITION NUMBER 60019093

File Number: MLG 1785 of 2019

Judgment of: Judge McNab

Hearing date: 20 September 2019

Date of Last Submission: 20 September 2019

Delivered at: Melbourne

Delivered on: 20 September 2019

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Winstan Lawyers

Counsel for the Respondents: Mr Cunynghame

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Until further order, an injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, servants from taking any steps to remove the applicant from Australia.

2. Within 28 days, the parties advise the Court by email to the Associate to Judge Riethmuller ([email protected]) of the current visa status of the applicant and whether there is any current intention to remove her from the jurisdiction pending the determination of the Federal Circuit Court Application MLG1785 of 2019.

3. The parties’ costs be reserved.

4. The Interlocutory Application filed 20 September 2019 be adjourned to a date to be fixed.

5. Liberty is granted to the parties to apply on short notice.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1785 of 2019

DIR19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS

Second Respondent

RASHIMI IN HIS CAPACITY AS THE HOLDER OF POSITION NUMBER 60019093

Third Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction

1. This matter has come on at short notice. The applicant has filed an Application in a Case today, 20 September 2019. Her lawyer, Mr Tran, has filed an affidavit in support of this Application in a Case on 20 September 2019.

2. The applicant has applied for injunctions in the following terms:

   1. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, servants from taking any steps to remove the applicant from Australia.

   2. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, servants from refusing to grant a visa to enable the Applicant to remain in Australia until the end of her current proceedings in the Court.

   3. The First Respondent pay at the applicant's costs of and incidental to the application in a case.

   4. Such further orders as the Court thinks appropriate.

3. The matter came before the Court with the applicant being represented by Mr Krohn of Counsel and the First Respondent (‘the Minister’) being represented by Mr Cunynghame.

Background

1. Mr Tran’s affidavit of 20 September 2019 deposes that:

   6. The applicant is a female national of Vietnam, born on 24 March 2001, currently 18 years of age.

   7. On or about 5 April 2010 the applicant was granted a student (subclass 571) visa ("the Student Visa) to Australia.

   8. The Student Visa was granted until 15 March 2013.

   9. On or about 8 April 2010 the applicant first entered Australia, when she was 9 years of age.

2. Since her arrival in Australia, the applicant has been living with her uncle who is an Australian citizen, who was born on 28 January 1970.

3. The applicant’s student visa expired on 15 March 2013 and the applicant remained in Australia unlawfully until about 30 August 2013 when a bridging visa was granted to her.

4. On about 4 September 2013, an application was lodged with the Department of Immigration and Border Protection (‘Department’) (as it then was) for the applicant when she was 12 years of age.

5. A letter was sent to the Refugee Review Tribunal (‘RRT’) on 8 October 2013 by the person assisting the applicant at that time requesting a review of a decision.

6. On 27 March 2014, the RRT sent a written notification of its decision to the person assisting the applicant affirming the decision of the Department.

7. On 1 April 2014, the Department wrote to the person assisting the applicant that the matter had been referred to the Minister for Ministerial Intervention under section 417 of the Migration Act on 27 March 2019.

8. On 5 August 2016, an officer from the Department wrote a letter to the applicant notifying of the Ministerial Intervention Request Outcome. That officer advised that it was decided that the request did not meet the Minister’s guidelines and that it was finalised by the Department without referral.

9. On 25 August 2016, the applicant applied for a Child (Residence) (class BT) Orphan Relative (subclass 837) visa (the ‘Child Residency Visa’)

10. On 4 January 2017, the application for the Child Residency Visa was refused. This application was refused on the basis that the application was not lodged within the required timeframe of 12 months from the relevant date of 15 March 2013 when the student visa expired.

11. On 16 January 2017, the applicant applied to the Administrative Appeals Tribunal (‘Tribunal’) for a review of the Department’s decision to refuse to grant a Child Residency Visa to the applicant.

12. On 11 February 2019, the Tribunal made a determination to affirm the decision of the Department.

13. On about 3 March 2019, the applicant’s solicitors wrote to the Minister seeking his intervention, which was subsequently refused on 7 May 2019.

14. On 6 June 2019, an application was filed with the Federal Circuit Court of Australia (‘FCCA’) to appeal against the Minister’s decision of 7 May 2019 not to intervene (‘the 6 June application’). There is a directions hearing for this application in the FCCA on 24 November 2021.

15. Since May 2019, the applicant has been granted a number of bridging visas.

Evidence and submissions

1. The respondent submitted evidence to the Court which was labelled exhibit R1. Exhibit R1 contains a chain of emails which includes reference to a bridging visa granted on 21 June 2019, which was to expire on 5 July 2019. That visa – the Bridging E (class WE) Bridging E (General) (subclass 050) – includes condition 8512, which states that the holder of this visa must leave Australia by Friday 5 July 2019.

2. That condition was the subject of correspondence between the applicant’s solicitors and the Minister’s solicitors. The solicitor for the applicant sought an undertaking that the Minister would do all things reasonably required to ensure that the applicant is not removed from Australia prior to the conclusion of the current proceedings in the FCCA. That request for an undertaking was subject to response from the solicitors for the Minister:

   I refer to your emails to me dated 25 and 28 June 2019 concerning the decision to grant your client a Bridging visa E on 21 June 2019.

   I am instructed that there are no plans to remove your client, noting also that the applicant holds a visa and is not in immigration detention and we therefore consider it is not necessary to give an undertaking.

   If you or your client have any queries concerning the applicant's visa status we invite you to contact the department directly.

3. A subsequent bridging visa was granted to the applicant, which is found at exhibit KDT-04 of Mr Tran’s affidavit of 20 September 2019. That exhibit provides that the visa cease date is 22 September 2019. Condition 8512 of that visa clearly states that:

   The holder must leave Australia by 22 September 2019.

4. In response to the application, the Minister submits that there is no serious question to be tried in this case on the basis that there is no current evidence of any current intention to deport the applicant. The Minister says, as a precondition to the removal of the applicant, there must be a notice of intention to remove and the applicant needs to be detained.

5. Otherwise, the Minister says that, on the basis of the material filed, the 6 June 2019 application is incompetent as it seeks a review of a non-reviewable decision of the Minister.

6. The Minister did not make submissions in relation to the question of the balance of convenience but tended to rely on question of whether there was a serious question to be tried.

7. In response, Counsel for the applicant submitted, in substance, that there has been a notification by virtue of the conditions of the visa. There has been no undertaking not to deport or remove the applicant and that the balance of convenience favours the grant of the injunctions sought.

Consideration

1. I note that the applicant has been a resident of Australia since the age of nine and that she has resided with her uncle since that time. She is currently completing year 12 at a school in Melbourne and is undertaking her exams. Mr Tran’s affidavit of 20 September 2019 deposes she has grown up in Australia and is more fluent in English than Vietnamese and that the applicant return to Vietnam as she does not have a home to go to.

2. Whether the final matter is established at hearing is a matter for final hearing.

3. In terms of determining the balance of convenience and the question of whether there is a serious question to be tried, I take those matters into account.

4. In my view, there is a serious question to be tried. Whilst I accept that the Minister indicated that there are no plans to remove the applicant, there has been no assurance given by the Minister that her removal will not happen pending the conclusion of this application before the Court. If there is no substance to the application, the Minister may apply to have the application summarily dismissed.

5. Furthermore, I think the balance of convenience does favour the grant of the injunction. There will be very significant hardship to the applicant if she was to be deported, particularly given her age and the fact that she is undertaking her final year of school. I think the threat of deportation or the question of deportation would weigh very heavily on a young person, particularly at this time of year.

Conclusion

1. In those circumstances, I am prepared to make the order sought in the application with the proviso that the order restraining the Minister from removing the applicant from Australia be an interim order.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  8 October 2019