FEL19 v Minister for Immigration
[2020] FCCA 331
•6 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FEL19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 331 |
| Catchwords: MIGRATION – Application for an interlocutory injunction to restrain deportation of the Applicant while judicial review proceeding on foot in relation to a decision of the Immigration Assessment Authority – where notice of intention to remove the Applicant was served three days before the first court date – where the Applicant foreshadowed provision of further evidence in relation to the application for an extension of time. |
| Legislation: Migration Act 1958 (Cth), s.470 |
| Cases cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 |
| Applicant: | FEL19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3428 of 2019 |
| Judgment of: | Judge Barnes |
| Hearing date: | 6 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2020 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Until further order, the First Respondent, by himself or by his department, officers, delegates or agents, be restrained from removing the Applicant from Australia.
The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The solicitors for the First Respondent provide the Applicant with a CD or other accessible version of a recording of the Applicant’s protection visa interview on or before 13 February 2020.
The First Respondent file and serve a bundle of relevant documents by 27 February 2020.
The Applicant have leave to file and serve an amended application giving complete particulars for each ground of review relied upon by 30 March 2020.
The Applicant file and serve any additional evidence to be relied upon by 30 March 2020.
The First Respondent file and serve any evidence in reply on or before 17 April 2020.
The application for an extension of time be listed for hearing before Judge Humphreys on a date to be notified to the parties.
The Applicant file and serve written submissions and any list of authorities 14 days before the hearing of the application for an extension of time.
The First Respondent file and serve written submissions and any list of authorities 7 days before that hearing.
Liberty to either party to apply on 3 clear days notice.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3428 of 2019
| FEL19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for an urgent interlocutory injunction preventing the Applicant’s removal from Australia while he has judicial review proceedings before the court.
On 23 December 2019 the Applicant, who is in immigration detention, filed an application in this court seeking review of a decision of the Immigration Assessment Authority (the IAA). The decision of the IAA is dated 9 May 2018. The Applicant therefore sought an extension of time under s.470(2) of the Migration Act 1958 (Cth) (the Act). In the application and in a supporting affidavit he claimed, among other things, that the Department had not notified him of the protection visa refusal and the IAA had not notified him of its decision. He claimed he only found out that his application had been unsuccessful after he was detained. He also referred to mental pressure and depression.
The grounds of review are expressed generally. It was claimed that the Department “[i]dentified [the] wrong issue” and that the IAA “made a serious error”. However the grounds of review also include the following:
3. I need look at my protection visa case recoding interview CD in the federal circuit court because most of them what I was said to department of immigration in the interview its not in the IAA decision or department decision.
(errors in original)
The Applicant also claimed that he was trying to get a lawyer to help him.
This matter was allocated to the docket of another judge and listed for first court date directions before a registrar on 6 February 2020.
On 3 February 2020, the Department of Home Affairs gave the Applicant a notice of intention to remove him from Australia on 11 February 2020. Notwithstanding that this matter had been allocated to a docket, the matter has come before me as duty judge. The listing before a registrar this afternoon for first directions has been vacated, as the present hearing will determine what is to happen next.
The Minister has provided the court with copies of documents the Department gave to the Applicant on 3 February 2020 including a letter which acknowledged that he had commenced the present proceedings in this court, noted that he was being considered for removal on 11 February 2020 and stated that unless the Department was restrained from doing so by an interlocutory injunction or order made by this court or another court of competent jurisdiction it was the Department’s intention to proceed with the removal on 11 February 2020.
The letter advised the Applicant that he may approach the court to apply for an interlocutory injunction to prevent his removal until the proceedings were resolved and that to do so, he needed to contact the court and ask that his matter be listed urgently, and that if he wished to apply outside business hours he needed to contact the court’s duty judge. Contact details (not including how to contact the duty judge) were provided.
Fortuitously for this Applicant, he contacted the court in business hours. He did so by email on 3 February 2020. Appropriately, the solicitors for the Minister accepted that in the brief email he sent, the Applicant was, in effect, seeking an injunction to restrain his removal.
It is necessary to consider whether there is a serious question to be tried and, if so, whether the balance of convenience favours the granting of the injunction (see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46). I have borne in mind that the Applicant would require a lengthy extension of time. In that context all the circumstances would be relevant. It would be usual to have regard, in particular, to factors such as the delay in seeking judicial review and whether there was a satisfactory explanation, any prejudice the Respondents might suffer and the merits of the proposed review application.
The Minister opposed the application for an interlocutory injunction. It was pointed out that the Applicant would require an extension of time of some 558 days. Reference was made to SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 and AWX16 v Minister for Immigration v Anor [2016] FCCA 928, in which, in the absence of satisfactory explanations for delay in commencing judicial review proceedings, interlocutory injunctions were refused in cases where extensions of time under s.470(2) of the Act would be required.
In the context of raising a question about departmental policy in relation to removal of persons with judicial review proceedings on foot, I brought to the Minister’s attention the recent decision of Lum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1420 in which an interlocutory injunction was granted in a case in which the applicant sought an extension of time to review a decision of a delegate under s.501CA(4) of the Act.
It is clearly a matter of the facts before the court in the particular circumstances of the case in question. The fact that other judges have made decisions either way is not determinative.
Further, as the Minister submitted, the issues raised by the Applicant in support of his application were not presented in a logical, detailed form. This is perhaps unsurprising given the Applicant’s circumstances and the fact that he is self-represented. However he told the court that he had lost all the documents and the recording in relation to his protection visa interview. He claimed he had asked the Department for copies and he had been sent some details, but some things were missing and the material provided was incomplete.
The Minister tendered some Departmental documents that would be relevant to a determination of whether there was a satisfactory explanation for the not inconsiderable delay in commencing judicial review proceedings. It was suggested, contrary to what the Applicant stated in his application, that this material (which included correspondence with the IAA), indicated that the Applicant was made aware of the delegate’s decision and that the review was being conducted by the IAA and that it had sent a copy of its decision to the Applicant at the email address that was used by the Applicant to notify the IAA of his postal address and mobile telephone number. That email also stated that a copy of the decision was sent to the Applicant by post.
It is not clear from these documents whether there was a migration agent acting for the Applicant and, if so, whether the notification was sent to the Applicant’s agent. It appears that a migration agent, who may have been representing the Applicant before the Department, contacted the IAA on behalf of the Applicant. The IAA recorded that no further information had been obtained or received. Unsurprisingly, in the circumstances and time at which the matter came before me there is, as yet, no comprehensive explanation of the circumstances in which this occurred.
From the bar table, the Applicant raised a further explanation that he would provide in support of his application for an extension of time, on the basis that he was assaulted and admitted to Westmead Hospital for seven days and that his memory was affected.
In relation to the grounds of review, which as the Minister submitted, were generally expressed, the Applicant claimed that he wanted to get the recording of the departmental interview. I consider that, in effect, he was indicating the he wished to file an amended application and further evidence affidavit in support of his application for an extension of time.
This is not a case in which there is any suggestion that this is an applicant who has been before the court on a number of occasions. In effect, what the Applicant is seeking is an interlocutory injunction until the docket judge is able to determine his application for an extension of time.
A difficulty that I face at this time is that I am, in effect, being asked to determine whether the information that has just been tendered by the Minister is such that I should not be satisfied that there is a serious question to be tried concerning the application for an extension of time. That material relates to the Applicant’s explanation for the delay. However, the Applicant has also raised, albeit from the bar table, an issue in relation to his hospitalisation, about which there is, as yet, no evidence before the court.
Similarly, at this stage it is difficult to evaluate the grounds of review. They are generally worded grounds of review which clearly contemplate clarification in an amended application.
The Minister submitted generally that there was nothing on the face of the decision that was indicative of error. I mean no criticism of the Minister’s solicitors in pointing that out there is, as yet, no courtbook and I am not in a position to consider the decision in context. Importantly, the Applicant has raised at this early stage, a “ground” in his application (filed while he was in detention) that suggests that he has concern relating to a claimed disparity between what he told the delegate and what was recorded in the IAA’s decision. Whether that is so is not something that would be apparent to me, or indeed to anybody else (other than perhaps the Applicant), on the face of the IAA’s decision.
In the event that the Applicant receives and has the opportunity to listen to a recording of the departmental interview and obtain legal advice (which he indicated he was seeking), his grounds of review may be refined. It is usual for first court date orders to provide for the filing of an amended application and further affidavit evidence.
It has been conceded that there would be no prejudice to the Minister from the grant of an interlocutory injunction, but the attention of the court was drawn to matters of public interest and the interests of finalisation of matters before the court. It is also appropriate to take into account (both in relation to whether there is a serious question to be tried in relation to the application for an extension of time and in relation to the balance of convenience) the fact that if the Applicant is removed from Australia he would be removed to a country where he claims that he faces serious or significant harm (see more generally SZSPI v Minister for Immigration and Border Protection (2014) 233 FCR 279; [2014] FCAFC 140).
I acknowledge that it is legally open to the Minister to seek to remove someone from the country, notwithstanding that judicial review proceedings are on foot. However, in my view, in the circumstances of this case, it is appropriate that the court proceed cautiously before being satisfied that there is no serious question to be tried and that the balance of convenience favours removal of the Applicant.
There is little material before the court from the Applicant supporting his application for an extension of time and his contention of jurisdictional error by the IAA. However he lodged this application while in detention and in circumstances where it is not unlikely that in the usual course of events he would have attended a directions hearing (this afternoon) at which time he would have been given the opportunity to file further evidence and hence he could file a more fulsome, detailed affidavit explaining why he was so late in filing his application for review, and also file an amended application which set out, with complete particulars, his grounds of review.
I have had regard to all of the matters raised, particularly the Applicant’s concern about an alleged discrepancy between what he said to the delegate in the protection visa interview and what was recorded in the IAA’s reasons (which he raised in general terms in his application). It would be relevant to have regard to the strength of the grounds of review in any amended application when the question of an extension of time is determined. However the Applicant is not yet in a position to properly identify the asserted omissions from the IAA’s reasons. Further, while there are obviously unresolved issues in relation to the reasons for the delay (and it is a lengthy delay), the Applicant now seeks to raise an issue in relation to his hospitalisation and consequences of an assault.
In these circumstances, I am satisfied that there is a serious question to be tried, notwithstanding that I acknowledge the evidence from the Minister. In my view, the balance of convenience, particularly having regard to the nature of the review application, the foreshadowed issues the possibility of return to a country where the Applicant claims to fear harm and the absence of prejudice to the Minister, favours the grant of an interlocutory injunction, at least to enable the Applicant’s application for an extension of time to be properly determined by the docket judge.
The interlocutory injunction sought should be granted until further order. I will also make directions to progress this matter in lieu of the need for a further appearance before a registrar.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 19 February 2020
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