Faalogo v Minister for Immigration
[2016] FCCA 2556
•30 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAALOGO v MINISTER FOR IMMIGRATION | [2016] FCCA 2556 |
| Catchwords: MIGRATION – Application for interlocutory injunction in aid of application for constitutional writs to quash the decision of delegate of Minister for Immigration and Border Protection to cancel visa on character grounds pursuant to s.501(3A) of the Migration Act 1958 (Cth) – whether there is a serious question to be tried that delegate was under a duty to accord the applicant procedural fairness before cancelling the visa pursuant to s.501(3A) - – no serious question to be tried – interlocutory injunction refused. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s. 15 Migration Act 1958 (Cth), s. 477(1), 477(2), 501(3A), 501(5), 501(6), 501(6)(a), 501(7)(c), 501CA(1), 501CA(2), 501CA(3), 501CA(3)(b), 501CA(4) |
| Cases cited: Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148 Tait v The Queen (1962) 108 CLR 620 |
| Applicant: | MORMON FAALOGO |
| Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| File Number: | SYG 2625 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 29 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 30 September 2016 |
REPRESENTATION
| Applicant in person. |
| Solicitors for the Respondent: | Mr A Keevers of Sparke Helmore Lawyers |
ORDERS
The applicant’s application for an interlocutory injunction that was heard on 28 September 2016 is dismissed.
The applicant pay the respondent’s costs of that application set in the amount of $2,000.
The matter is listed for directions at 9.30 am on 27 October 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2625 of 2016
| MORMON FAALOGO |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
At 12 noon on 28 September 2016, there came before me as duty judge an application for an interlocutory injunction to restrain the Minister for Immigration and Border Protection (Minister) from taking steps to remove the applicant from Australia. I was informed the Minister intended to remove the applicant from Australia on 29 September 2016. After hearing the application I indicated I would deliver judgment at 9.30 am on 29 September 2016. I begin by setting out the facts out of which the application for an interlocutory injunction has arisen.
The application for an interlocutory injunction is made by Mr Faalogo, who is not legally represented and who is currently in immigration detention. Although a citizen of New Zealand, Mr Faalogo arrived in Australia when he was an infant and has remained in Australia since that time. On 5 February 2000 Mr Faalogo was granted a Class TY Subclass 444 Special Category (Temporary) visa (Mr Faalogo’s visa).
On 18 September 2014, Mr Faalogo was sentenced to imprisonment for a term of five years for aggravated break and inter with intent to commit a serious indictable offence, the relevant indictable offence being stealing. Mr Faalogo’s sentence was subject to a non-parole period of two years and six months, which meant Mr Faalogo was eligible for release by no earlier than 4 June 2016. It appears that Mr Faalogo was released from prison on or about that day, but was immediately placed in immigration detention. Mr Faalogo’s being sentenced to five years imprisonment and his serving that sentence has called into play s.501(3A) of the Migration Act 1958 (Cth) (Act), which provides as follows:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph (a) of s.501(6) of the Act provides that, for the purposes of s.501, a person does not pass the character test if “the person has a substantial criminal record (as defined by subsection (7))”. Subsection 501(7) of the Act provides that, for the purposes of the character test, a person has a “substantial criminal record if” among other things “the person has been sentenced to a term of imprisonment of 12 months or more”.
On or shortly before 11 May 2016 the Minister, through his delegate, exercised the power conferred by s.501(3A) of the Act by cancelling Mr Faalogo’s visa. The decision was an “original decision” within the meaning of s.501CA(1) of the Act to “cancel a visa that has been granted to a person”. Being an “original decision”, s.501CA(3) required the Minister as soon as practicable to do two things. The first was to give Mr Faalogo a written notice that sets out the Minister’s original decision together with particulars of the “relevant information”, being the information specified in s.501CA(2) of the Act.
The second thing s.501CA(3) required the Minister to do was to invite Mr Faalogo to make representations to the Minister “within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision”. The period within which representations had to be made have been prescribed by the Migration Regulations1994 (Cth) (Regulations). Under reg.2.52 of the Regulations, the representation provided for by s.501CA(3)(b), is “within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act”.
On 11 May 2016, a delegate of the Minister issued a notice pursuant to s.501CA(3) of the Act (Cancellation Notice) and caused that notice to be provided to Mr Faalogo on or shortly after that day. After setting out the effect of s.501(3A) of the Act, the Cancellation Notice informed Mr Faalogo he did not pass the character test because he has a substantial criminal record within the meaning of s.501(6)(a) of the Act “on the basis of section 501(7)(a), (b) or (c)” of the Act. The notice specifically referred to s.501(7)(c) of the Act and noted that on 18 September 2014 Mr Faalogo had been convicted of aggravated break and enter with intent to commit a serious indictable offence. The notice then referred to Mr Faalogo having an opportunity to “seek revocation of the cancellation decision”. That is a reference to s.501CA(4) of the Act, which confers power on the Minister to revoke a cancellation of a visa cancelled under s.501(3A) of the Act. Subsection 501CA(4) of the Act provides:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The cancellation notice then provided information about how Mr Faalogo could make representations about the revocation of the cancellation of his visa. The cancellation notice stated:
If you decide to make representations about the revocation of the decision to cancel your visa you can write to us using the attached revocation request form.
Under the heading “lodging the revocation request form” the Cancellation Notice provided the following information:
If you decide to make representations to the Minister to revoke the mandatory cancellation of your visa it is essential that you complete and lodge the revocation request form within 28 days after you are taken to have received this notice as this timeframe cannot be extended.
There is in evidence documents held by the Department of Immigration and Border Protection (Department) in relation to the cancellation of Mr Faalogo’s visa. The Department’s files do not contain a revocation request form in relation to the cancellation of Mr Faalogo’s visa or any other document that suggests or may suggest the Department received a revocation request form. Mr Faalogo, however, gave evidence that, about two weeks after he received the cancellation notice, he completed the revocation request form. At the time he completed it he was held at the Mid North Coast Correctional facility. Mr Faalogo says that after he completed the form he provided the completed document to an official who worked at the corrections facility with a request that the form be provided to the Department. Mr Faalogo did not know the name of the officer to whom he gave the revocation request form, nor did Mr Faalogo keep a copy of the document he completed. Under cross-examination, Mr Faalogo said he did not follow up what had become of the revocation request form. Mr Faalogo did say, however, that his case officer at the Department informed him in July 2016 that the Department had received no response from Mr Faalogo.
On 15 September 2016, Mr Faalogo sent to this Court’s Registry a fax as follows:
To whom it may concern,
My name is Mormon FAALOGO. I wish to make a request to appeal the revocation decision. The reason being a breach of procedural fairness.
Later in the day, Mr Faalogo faxed to the Registry an application and affidavit which, after some delay, was accepted by the registry of the court for filing. The application was in the prescribed form. That form directs the attention of the person who completes it to a choice of boxes to tick which are relevant to the application the person completing the document wishes to make, and to provide information specified in the form. The applicant ticked the box next to the words “decision made by the Minister or another person under the Migration Act”. Next to the words “name of decision-maker” there is handwritten the words “Minister’s delegate”, and next to the words “date of decision” there is handwritten “14/05/16”. That appears to be intended to be a reference to the decision to cancel Mr Faalogo’s visa which is referred to in the Cancellation Notice. Under each of the headings “grounds of application for extension of time” and “grounds of application” there appear the handwritten words “breach of procedural fairness”.
The Court has power under s.15 of the Federal Circuit Court of Australia Act 1999 (Cth) to grant, among other things, “interlocutory orders”. That includes the power courts of equity have traditionally exercised to grant injunctions to preserve the status quo pending the determination of a claim for a legal remedy. The principles which guide the exercise of that power are well established. A court will grant an interlocutory injunction if it is satisfied that:
a)there “is a serious question to be tried or that the [applicant] has made out a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action the [applicant] will be held entitled to relief”;
b)the applicant “will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted”; and
c)The “balance of convenience favours the granting of an injunction”.
The quotations are taken from the judgment of Mason ACJ (as his Honour then was) in Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148 at 153.
The strength of the case an applicant must demonstrate will vary with “the nature of the rights [the applicant] asserts and the practical consequences likely to flow from the order he seeks” (see Beecham Group Limited v Bristol Laboratories (1968) 118 CLR 618 at 622). One potential practical consequence that must be borne in mind is whether the grant or refusal of an interlocutory injunction, in effect, would dispose of the action finally in favour of whichever party succeeded on that application (see Australian Broadcasting Corporation v O’Neill (2005) 227 CLR 57 at 84, paragraph 72, per Gummow and Hayne JJ). This consideration is particularly relevant in this case. If Mr Faalogo does not obtain the interlocutory injunction he seeks, it is likely that, as a practical matter, his application for judicial review will be finally disposed against him. He will be deported and probably will be unable to continue with his application for judicial review.
I then turn to what is the most important issue I must consider, and that is whether Mr Faalogo’s application raises a serious question to be tried. As I have already noted, the relief Mr Faalogo seeks is directed to the Minister’s decision by his delegate under s.501(3A) of the Act to revoke Mr Faalogo’s visa. And the ground on which he seeks to challenge the Minister’s decision is that he was denied procedural fairness. Mr Faalogo does not claim – and on the undisputed evidence before me, there could be no basis for him to so claim – that Mr Faalogo did pass the character test. He had been sentenced for a term of 12 months or more; and at the time the Minister cancelled the visa, Mr Faalogo was serving a prison sentence on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a state or a territory.
In my opinion, Mr Faalogo’s claim does not raise a serious question to be tried that the Minister’s decision by his delegate to cancel Mr Faalogo’s visa is liable to be set aside because Mr Faalogo was denied procedural fairness, and that is because it is not arguable that the exercise of the power under s.501(3A) of the Act to cancel a visa is subject to a duty to accord procedural fairness to the person whose visa is cancelled. First, s.501(5) provides that:
The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).
Second, the duty to accord procedural fairness may be excluded not only by express statutory provisions, but also by necessary implication of the statute pursuant to which the power is conferred.[1] The power will be excluded by necessary implication where the application of the duty to accord procedural fairness would be inconsistent with the proper operation of the relevant statutory provision conferring that power. [2]
[1] See Annetts v McCann (1990) 170 CLR 596, at page 598, where Mason CJ, Deane and McHugh JJ said: “It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.”
[2] See Aronson and Groves, Judicial Review of Administrative Action, 5th Edition, 2013, at page 456
In my opinion, quite apart from s.501(5) of the Act, it is beyond argument that to imply into the operation of s.501(3A) of the Act a duty to accord procedural fairness would be inconsistent with the scheme of which s.501(3A) forms part.
The Act provides a mechanism, although perhaps an unusual mechanism, where the visa holder, in substance, is given a statutory right to make representations to the Minister about whether the cancellation of that person’s visa should be revoked. It is true that this is different to a visa holder being given a right to make representations before a visa is cancelled. This difference, however, is one of form. In substance, the visa holder is provided with the opportunity to make submissions in relation to the cancellation of the visa by making representations after being notified of the cancellation. It is impossible to conceive that Parliament intended a visa holder to be accorded procedural fairness before the Minister could exercise the power of cancellation under s.501(3A) and also to afford the visa holder the right to make representations after that power is exercised for the revocation of the cancellation.
There are three other matters I should address. The first is that Mr Faalogo, who is not legally represented, did not make any submission about the nature of his claim and the legal grounds on which I should grant an interlocutory injunction. That is understandable, given that Mr Faalogo is not legally qualified. Mr Faalogo, however, requested the matter be adjourned to enable him to obtain legal advice and to make further inquiries. That Mr Faalogo is not legally represented and may need time to obtain legal assistance and obtain evidence cannot, in the absence of some evidence that raises a serious question to be tried, support the making of an interlocutory injunction, at least not usually. Although, the Court may in cases of extreme time constraints grant an injunction without forming a view about whether a serious question is to be tried (see Tait v The Queen (1962) 108 CLR 620), the Court generally does not have the power, or at least would be unwilling to exercise such power if it does have it, to grant an injunction simply on the ground that the person seeking the injunction believes he or she may or hopes he or she has a potential legal right and seeks an injunction to provide him or her time to determine if he or she does have such right.
In the case before me, although the application for an injunction has come in circumstances of some urgency, that is the consequence of Mr Faalogo’s choice. He has been aware of the cancellation of his visa from 14 May 2016 and, on his own evidence, Mr Faalogo became aware some time in July 2016 that the Department did not receive the revocation request form which Mr Faalogo says he completed two weeks after he received the Cancellation Notice. Mr Faalogo, therefore, had ample time to seek and obtain assistance which he now says he wants time to seek.
The second matter I should note relates to the evidence Mr Faalogo gave about his having completed the revocation request form and having provided the completed form to a corrections officer. Whether or not that is true is not relevant to the claim Mr Faalogo makes. His claim is directed to the delegate’s cancellation of Mr Faalogo’s visa. Whether or not Mr Faalogo completed and submitted a revocation request form cannot affect the validity of the decision to cancel Mr Faalogo’s visa under s.501(3A) of the Act.
In any event, I do note that Mr Faalogo’s evidence about his having completed and submitted the revocation request form was vague. Mr Faalogo could not identify the corrections officer to whom he says he provided it. Further, the objective facts are difficult to reconcile with Mr Faalogo’s evidence. Had Mr Faalogo, in truth, completed and submitted the revocation request form, it is reasonable to expect that he would have mentioned that fact in the fax he sent to the registry on 1 September 2016. Instead, Mr Faalogo there stated he wished “to appeal the revocation decision”. That indicates an awareness that Mr Faalogo had not previously made any attempt to appeal or question the cancellation of his visa.
I mention these matters, not because I intend to make any findings about Mr Faalogo’s evidence, which is a task courts on applications for interlocutory injunctions do not usually undertake, but to record that Mr Faalogo’s evidence about his completing and submitting the revocation request form did not induce in me any anxiety that there may be available to Mr Faalogo an arguable case which, due to his being an unrepresented litigant, Mr Faalogo did not appreciate was potentially available to him.
The third and final matter I wish to note is the Minister’s submission that an additional difficulty Mr Faalogo faces is that Mr Faalogo became aware of the cancellation on 14 May 2016, but he made this application to the Court outside the 35-day period prescribed by s.477(1) of the Act. That meant that Mr Faalogo would have required an order under s.477(2) of the Act. That Mr Faalogo applied for an interlocutory injunction outside the 35-day period prescribed by s.477(1) of the Act would have been a matter to consider, had I concluded Mr Faalogo did have an arguable case for relief. Given I am not satisfied Mr Faalogo’s claim raises a serious a question to be tried, there is no need to consider s.477(2) of the Act.
For these reasons, Mr Faalogo’s application for an interlocutory injunction should be dismissed, and I propose to make an order to that effect.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 4 October 2016
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