DZB16 v Minister for Immigration

[2016] FCCA 3336

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZB16 v MINISTER FOR IMMIGRATION [2016] FCCA 3336

Catchwords:
MIGRATION – Ex parte telephone application for injunctive relief to prevent applicant’s removal from Australia – whether there is a prima facie case or serious question to be tried identified by the applicant’s application – application for injunctive relief refused.

Legislation:
Migration Act 1958 (Cth), ss.5F, 417, 476, 477
Migration Regulations 1994 (Cth), reg.1.15A

Cases Cited:
M211of 2003 v Refugee Review Tribunal [2004] FCAFC 293
Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57

Applicant: DZB16

Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File Number: SYG 3631 of 2016

Judgment of: Judge Street

Hearing date: 19 December 2016

Date of Last Submission: 19 December 2016

Delivered at: Sydney

Delivered on: 19 December 2016

REPRESENTATION

Applicant: In person via telephone

No appearance by or on behalf of the respondent. 

ORDERS

1. Leave be granted to the applicant to file in Court and to move on ex parte the application of the applicant and supporting unsworn affidavit by Alison Mary Battisson dated 19 December 2016.

2. The applicant be identified by the pseudonym ‘DZB16’.

3. A copy of these Orders be sent to the respondent.

4. The ex parte application for injunctive relief is refused.

5. The proceeding is listed for directions before this Court on Wednesday, 21 December 2016, at 2:15pm before me.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3631 of 2016

DZB16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of an application for injunctive relief to restrain the respondent from removing the applicant from Australia.

2. The applicant unsuccessfully sought review of a refusal of a permanent residence visa application by the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal dismissed that application and affirmed the decision under review. The applicant was notified of that decision on 23 August 2016. The applicant thereafter unsuccessfully sought Ministerial Intervention pursuant to s.417 of the Act. On 8 December 2016, the applicant was notified of the respondent’s intention to remove the applicant from Australia.

3. Late in the afternoon of 19 December 2016, a Ms Battisson, who is not the applicant’s lawyer, sought to make an application for an ex parte injunctive order on behalf of the applicant. The Court conveyed to Ms Battisson that it would only permit the applicant, or a legal representative of the applicant who was a qualified and admitted lawyer, to make an application for an ex parte injunction. The Court provided contact details so that the applicant could take steps to contact the Court. At approximately 6:30pm on 19 December 2016, the applicant made a telephone application from the detention centre, seeking an ex parte injunction in relation to his removal from Australia. 

4. The applicant explained that there had been an issue as to whether he was a ‘spouse’ within the meaning of the partner visa requirements, and that the Tribunal had found that the applicant did not meet the definition of ‘spouse’ under s.5F of the Act and reg.1.15A of the Migration Regulations 1994 (Cth).

5. The reasons of the Tribunal were not provided with the affidavit prepared in draft by Ms Battisson in support of the application for injunctive relief. The annexures did however identify the steps taken to seek Ministerial Intervention and stated that the time period of 35 days for a right of review in respect of the Tribunal’s decision dated 23 August 2016 had well and truly expired. The pursuit of Ministerial Intervention is not ordinarily a basis upon which a satisfactory explanation can be provided for the purpose of determining whether it is necessary in the interests of the administration of justice to extend time under s.477 of the Act (see M211of 2003 v Refugee Review Tribunal [2004] FCAFC 293 and Daniel v Minister for Citizenship and Multicultural Affairs [2004] FCA 21).

6. In considering the application for injunctive relief, the Court takes into account the principles identified in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65] per Gummow and Hayne JJ:

   “65... By using the phrase “prima facie case,” their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

   How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”

7. The Court explained to the applicant that it needed to consider whether there was a reasonable argument to meet the prima facie case threshold of the Tribunal’s decision being affected by relevant legal error. The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained that this meant that the Court was considering whether or not there was a reasonable argument that the Tribunal’s decision was unlawful or the Tribunal’s decision was unfair.

8. The applicant asserted that the Tribunal’s decision was unlawful and unfair because the decision had been adverse to the applicant. The bare assertion of an adverse finding by the Tribunal does not identify any prima facie case to support injunctive relief to restrain the applicant’s removal from Australia. The applicant referred to the fact that he had a newborn child who was four months old and in the custody of the Department of Community Services (“DOCS”). The applicant also made reference to the fact that there were proceedings in the Children’s Court in Parramatta in relation to what was said to be a child custody issue, returnable on 16 January 2017.

9. The applicant did not provide any satisfactory explanation as to the nature of the child custody dispute, other than referring to the fact that the child’s mother was apparently in hospital and that the applicant understood the child to be in the custody of DOCS.

10. In seeking to explore with the applicant whether there was any prima facie case, the Court asked the applicant whether the Tribunal was aware that the applicant’s alleged spouse was in hospital at the time of the Tribunal hearing. The applicant indicated that the Tribunal was aware that his spouse was in hospital. The applicant confirmed that he attended a hearing before the Tribunal to give evidence and present arguments.

11. Nothing said by the applicant during the telephone application identified any proper basis upon which there could be said to be a prima facie case in respect of an alleged jurisdictional error in the decision of the Tribunal made on 23 August 2016, and no prima facie case demonstrating that the decision to remove the applicant from Australia was unlawful.   

12. The applicant indicated that he had been notified of the decision to remove him from Australia on 8 December 2016. However, he provided no satisfactory explanation as to why it was only hours before his proposed removal that he was making an application to the Court for injunctive relief. Nonetheless, if the Court had been satisfied that there was a prima facie case of unlawfulness in respect of the proposed removal of the applicant, or in relation to the decision of the Tribunal made on 23 August 2016 in being the subject of jurisdictional error, the Court would have granted interim relief.

13. In the course of the application, the Court tried to ascertain whether there was any officer of the respondent present in relation to the proposed deportation. A purported security officer was identified by the applicant, who was then put on the phone to the Court. The security officer of the respondent refused to properly identify himself and refused to identify his full-name or his position, or to assist the Court in understanding whether or not there was any representative of the respondent present. It is not appropriate for security officers or officers of the respondent not to fully cooperate with the Court in any ex parte application if asked questions on the telephone. It is not something that should occur again in the future. Nonetheless, the absence of satisfactory communication in relation to the respondent does not give rise to any relevant basis upon which injunctive relief should be granted.

14. The Court identified for the applicant the Orders that it proposed to make, which granted leave to the applicant to make the application and rely on the unsworn affidavit of Ms Battisson in support of the ex parte application. The Court ordered that a pseudonym be given to the applicant. The application for ex parte injunctive relief was refused. Directions were made for a copy of the Orders to be provided to the respondent and the matter was listed for further directions before the Court on Wednesday, 21 December 2016 at 2:15pm. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 21 December 2016