DKN20 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 698

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DKN20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 698

File number(s):	PEG 166 of 2022
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	24 August 2022
Catchwords:	MIGRATION LAW – urgent application for interlocutory injunction preventing applicant’s removal from Australia – where applicant seeks further opportunity to apply for protection visa – consideration of whether the applicant has an arguable case – consideration of whether the balance of convenience lies in favour of granting the injunction – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss 48A, 48B, 197C, 198, 501
Division:	Division 2 General Federal Law
Number of paragraphs:	28
Date of last submission/s:	23 August 2022
Date of hearing:	23 August 2022
Place:	Melbourne
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr P Knowles
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

PEG 166 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DKN20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	23 AUGUST 2022

THE COURT ORDERS THAT:

1.The applicant’s application filed on 22 August 2022 be 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).

EX TEMPORE REASONS FOR JUDGMENT

DEPUTY CHIEF JUDGE MERCURI:

INTRODUCTION

1. This is an application for an interlocutory injunction brought by the applicant on an urgent basis.  In essence, the applicant is due to be deported from Australia this evening at about 11:00pm Perth time.  By his application, the applicant seeks an order that the deportation not proceed and that he be given a further opportunity to lodge a protection visa application.

   Applicant’s submissions

2. In submissions to this court, the applicant said that he was given notice of his deportation on Friday afternoon after the court had closed and that he prepared his application and affidavit over the weekend and filed it at the first opportunity on Monday 22 August 2022.  The applicant relies upon his initiating application and an affidavit, both of which he filed yesterday.

3. In his affidavit, the applicant states that he applied for a protection visa and that he is still in fear of his life if he were to return to Morocco.  He also says that at about the same time that his protection visa was being considered, he got married and applied for and was granted a partner visa.  He says that his marriage collapsed and then he ‘became a 501’, by which I understand that his visa was cancelled.  He says that he now finds himself in a ‘Catch 22 situation’ as he cannot now re-apply for another protection visa.

4. The application was initially filed in the Federal Court and by order of Justice Banks-Smith, it was transferred to this court earlier today.

   Minister’s submissions

5. The Minister opposes the applicant’s application and relies upon an affidavit of Madisen Anne Scott affirmed 23 August 2022.

6. It is submitted for the Minister that the applicant is an unlawful non-citizen and under s 198 of the Migration Act 1958 (Cth) (‘the Act’) the department officers are under a duty to remove him as soon as reasonably practicable.

7. At the hearing before me, the applicant appeared on his own behalf from detention.  He was assisted by an interpreter, although when he spoke he requested to make submissions in English, which he did.  The interpreter interpreted the Minister’s submissions and my comments to the applicant.

   BACKGROUND

8. The background to this matter is not largely in dispute.

9. The applicant is a citizen of Morocco and arrived in Australia in about 2006.  Shortly thereafter, he applied for a protection visa.  That application was refused by a delegate of the Minister and the applicant sought a review of that decision by the Refugee Review Tribunal (‘the Tribunal’), as it then was.  The Tribunal affirmed the delegate’s decision.

10. The applicant sought judicial review in the then Federal Magistrate’s Court.  It is common ground that the applicant did not appear at the final hearing in that matter and the application for judicial review was dismissed for non-appearance.

11. The applicant, in submissions today, said that he was told by the Department at the time that he could not proceed with an application for a protection visa and an application for a partner visa, so he decided to proceed with his application for a partner visa.

12. In any event, the judicial review application was dismissed in November 2007.   No application was made to have that proceeding reinstated, nor was any appeal lodged in relation to that matter.

13. The applicant was ultimately granted a partner visa in 2011. On 18 November 2017, the applicant’s visa was cancelled pursuant to section 501(3A) of the Act. The background to that is set out in the affidavit of Ms Scott. It is not necessary to set that out in detail other than to say that the applicant sought a revocation of the cancellation decision and then subsequent judicial review of the refusal to revoke.

14. The applicant exhausted his review rights in relation to the cancellation decision when his special leave application to the High Court was refused on 9 December 2021.

    CONSIDERATION

15. In considering an application for an interlocutory injunction, the court have regard to whether or not the applicant has an arguable case and where the balance of convenience lies.

16. It is submitted for the Minister that the court ought not grant the injunction preventing the applicant’s removal from Australia, principally on the basis that there is no arguable case.

    Does the balance of convenience lie in favour of granting the injunction?

17. The Minister also says that the balance of convenience does not favour the making of such an order.  Counsel for the Minister appropriately conceded that the applicant is one of a number of people scheduled for removal on the same flight this evening and therefore the costs of the flight would not be entirely wasted were the court to issue an injunction.  It is submitted for the Minister, however, that there would be some prejudice in so far that the applicant would need to continue to remain in detention at additional cost to the Commonwealth.

    Does the applicant have an arguable case?

18. I now turn to consider the principal issue of whether the applicant has an arguable case.

19. The applicant essentially raises two issues.  He says that he fears harm if he were to be returned to Morocco and he further alleges that the Department has fraudulently obtained his travel documentation.

    Fear of harm if returned to Morocco

20. In relation to his claim to fear harm if returned to Morocco, it is submitted for the applicant that he has not exhausted his rights to press his application for a protection visa and he should be given the opportunity to do so.  When asked about this, the applicant said that he had not fully exhausted all appeal rights in relation to his protection visa application.

21. The difficulty with this argument is that the applicant made an election in 2007 not to pursue his application for a protection visa.  Consequently, his application was dismissed and he took no steps for almost 15 years in relation to that matter.  Consequently, the current position is that the applicant’s application for a protection visa has been considered and determined.   There are currently no current judicial review applications on foot in relation to that matter.

22. Moreover, as submitted by counsel for the Minister, section 48A of the Act prevents the applicant from making a fresh application for a protection visa whilst in Australia, subject to section 48B. Section 48B permits the minister, if they consider it to be in the public interest, to advise the applicant in writing that section 48A does not apply. There is no suggestion by the applicant that the Minister has exercised his discretion under section 48B, nor is there any power in this court to compel the Minister to do so.

23. In addition, section 197C(2) of the Act relevantly provides that an officer’s duty to remove an unlawful non-citizen as soon as reasonably practicable under section 198 arises irrespective of whether there has been an assessment of Australia’s non-refoulement obligations in relation to the non-citizen. Therefore, any stated fears for the applicant’s return to Morocco cannot be a barrier to his removal under the non-refoulement principles.

    Fraud engaged in by the Department

24. The second issue raised by the applicant is that he suggests that there was some kind of forgery engaged by the Department of Home Affairs in obtaining travel documentation for him.

25. At paragraph [22] of her affidavit, Ms Scott says that on 27 August 2021, the Department of Home Affairs Removal Team lodged an application for a travel document on behalf of the applicant with the Embassy of the Kingdom of Morocco.  Annexed to Ms Scott’s affidavit at MAS-8 is a copy of the email and attachments sent to the Moroccan Embassy.

26. Relevantly, that letter contains a request in issuing an emergency Travel Document for the applicant.  That letter also makes it clear that the applicant is not co-operating with the removal process to return him to Morocco.  It is clear from that correspondence that there was no representation made by the Department staff that it was the applicant who was seeking to obtain a Travel Document, but rather, it was the Department seeking the co-operation of the Moroccan Embassy in the production of such a document for the applicant.

    CONCLUSION

27. For each of these reasons, the applicant has not established a prima facie case which would warrant the granting of an injunction.  Similarly, for the reasons articulated by counsel for the Minister, I am not satisfied that the balance of convenience lies in granting the injunction sought.

28. I therefore refuse the applicant’s application and order that the application be dismissed.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Deputy Associate:  

Dated:       24 August 2022