Harmouch v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 428
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harmouch v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 428
File number(s): SYG 725 of 2023 Judgment of: JUDGE LUCEV Date of judgment: 24 May 2023 Catchwords: MIGRATION – application for urgent interlocutory injunction to restrain Minister from removing applicant from Australia – tests for grant of interlocutory injunctive relief – applicant terminally ill and in detention – non-finalisation of applicant’s application for Ministerial intervention to grant medical visa – substantive application for writ of mandamus to compel Minister to make decision by specified date – whether Court has jurisdiction to grant substantive relief sought – whether serious question to be tried
COURTS AND JURISDICTION – application for Ministerial intervention to grant medical visa – substantive application for writ of mandamus to compel Minister to make decision by specified date – whether Court has jurisdiction to grant substantive relief sought
Legislation: Constitution Ch III
Migration Act 1958 (Cth) ss 195A, 198, 351, 474, 476
Cases cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199; (2001) 76 ALJR 1; (2001) 185 ALR 1; (2001) 54 IPR 161; [2001] Aust Torts Reports 81-627
Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57; (2006) 80 ALJR 1672; (2006) 229 ALR 457
Barkla v Colbran [2015] FCA 1470
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720; (2006) 70 IPR 146
CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 870
CUS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 293; (2022) 369 FLR 305
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10
Federated Engine Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398
Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124; (1984) 59 ALJR 66; (1984) 56 ALR 215
Hunt v Knabe (No 2) (1992) 8 WAR 96
McLeish v Faure [1979] FCA 38; (1979) 40 FLR 462; (1979) 25 ALR 403
Morrison v Minister for Immigration and Citizenship [2007] FCA 723
Olde & Ors v Primary Compass Limited ACN 129 159 812 [2011] NSWSC 845
Piefke v Workpac Pty Ltd [2021] FCCA 1166; (2021) 359 FLR 88
Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244
Re Boulton; Ex parte Construction, Forestry, Mining and Engineering Union (1998) 73 ALJR 129
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234
Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507; (2015) 89 ALJR 750; (2015) 254 IR 371; (2015) 323 ALR 1
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of last submission/s: 18 May 2023 Date of hearing: 8 and 18 May 2023 Place: Perth Applicant: In person via Microsoft Teams Counsel for the Respondent: Ms K McInnes via Microsoft Teams Solicitor for the Respondent: Australian Government Solicitor ORDERS
SYG 725 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARWAN HARMOUCH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
24 MAY 2023
THE COURT:
1.Declares that the Court has no jurisdiction to grant the substantive relief sought in the originating application filed 3 May 2023.
2.Orders that the originating application and the application for interlocutory relief filed on 3 May 2023 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).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application filed on 3 May 2023 by the applicant Marwan Harmouch (“Mr Harmouch”) to which the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) is the respondent.
RELIEF SOUGHT
The originating application seeks the following interlocutory relief:
1.Until further order, the first respondent by himself, his delegates, his Department, and its officers, employees or agents be restrained from removing the applicant from Australia until the determination of the present application for judicial review.
2. The costs of the interlocutory application be reserved
The substantive relief sought seeks orders as follows:
1.A writ of mandamus directed to the tribunal, Immigration Assessment Authority or Minister, requiring them to determine the applicant’s application according to law.
2.The Respondent’s finalisation of the Applicant’s application for ministerial intervention be by a specified date;
3. The Respondent pay the Applicant’s costs of and incidental to the proceeding.
The grounds for the substantive relief sought are as follows:
1.The Respondent made a jurisdictional error of failing lawfully to finalise the Applicant’s application for ministerial intervention.
Particulars
a.The Applicant applied to the Minister for Ministerial intervention on 17 January 2022, particularly in the form of a visa for medical treatment under s 195A of the Migration Act 1958 (Cth) (Act);
b.The Minister responded to the request on 21 January 2022 and 16 March 2022 indicating that the Applicant’s case would be assessed by departmental officers against ministerial guidelines and only if those guidelines were met would the matter be referred to the Minister;
c.The course indicated by the Minister was not lawful and instead the Minister personally was required to finalise the Applicant’s application by deciding whether or not to exercise his liberty to consider the case for ministerial intervention, particularly under s 195A of the Act: Davis v Minister for Immigration [2023] HCA 10 (Davis) at [28]-[32];
d.The Minister had otherwise unreasonably delayed in finalising the Applicant’s application personally: Plaintiff S297/2013 v Minister for Immigration [2014] HCA 24 at [37];
e.This Honourable Court has jurisdiction over the Minister’s failure to finalise the Applicant’s application for ministerial intervention, as opposed to the finalisation itself, under s 476(1) and s 476(2)(d) when read with s 474(3)(j) and s 474(7) of the Act: see also Davis at [57]-[62];
FACTUAL BACKGROUND
Solicitor’s Affidavit
Mr Harmouch’s then solicitor (“Former Solicitor”) filed an affidavit sworn/affirmed on 3 May 2023 (“Solicitor’s Affidavit”) stating that on 2 May 2023 at around 10.00pm AEST the Former Solicitor received a phone call from Mr Harmouch, who was detained at Perth Immigration Detention Centre, and that Mr Harmouch provided to the Former Solicitor:
(a)a notice of intended removal, anticipated to be carried out on 3 May 2023: Solicitor’s Affidavit at [4], Annexure SI1;
(b)a notice of removal or deportation costs in the amount of $16,999.84: Solicitor’s Affidavit at [5], Annexure SI2;
(c)an application for Ministerial intervention dated 17 January 2022 (“Ministerial Intervention Application”) under s 195A of the Migration Act 1958 (Cth) (“Migration Act”) signed by solicitors who had previously represented Mr Harmouch, seeking a medical treatment visa: Solicitor’s Affidavit at [6], Annexure SI13;
(d)two replies from the Director, Ministerial Intervention at the Department of Home Affairs, dated 21 January and 16 March 2022 respectively: Solicitor’s Affidavit at [7], Annexure SI4;
(e)a report dated 27 April 2022 from Dr Evan Ng, Mr Harmouch’s radiation oncologist: Solicitor’s Affidavit at [9], annexure SI5; and
(f)a report dated 14 June 2022 from Mr Robin Lillico, Mr Harmouch’s psychologist: Solicitor’s Affidavit at [10], Annexure SI6.
Ministerial Intervention Application
Mr Harmouch’s Ministerial Intervention Application to the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs detailed that:
(a)Mr Harmouch was being held in immigration detention in Yongah Hill Detention Centre;
(b)on 21 October 2021, and while in immigration detention, Mr Harmouch was diagnosed with metastatic (Stage IV) rectal cancer with multiple unresectable lung metastases;
(c)Mr Harmouch experienced severe pain and as a result took strong medication to assist with pain management;
(d)Mr Harmouch’s diagnosis is that his condition cannot be cured and that his treatment is focused on pain management and slowing the progression of the cancer;
(e)Mr Harmouch has been receiving cancer treatment while in immigration detention;
(f)Mr Harmouch’s oncologist advised that Mr Harmouch’s condition is terminal and that the average life expectancy for a person with this condition is no more than 24 months with treatment;
(g)in addition to the cancer symptoms and side effects of treatment, Mr Harmouch was expected to continue to experience psychological distress;
(h)as a result of the diagnosis Mr Harmouch had to undergo surgery to get a stoma bag installed;
(i)his health is expected to decline;
(j)Mr Harmouch’s ongoing immigration detention raised concerns in circumstances where:
(i)Mr Harmouch has remained in immigration detention since his diagnosis;
(ii)Mr Harmouch has cited this as a source of stress and anxiety;
(iii)Mr Harmouch has been unable to understand why he is constantly monitored by officers and treated as if is going to run away, especially considering he does not have the mental or physical capacity to do so as he is dying and requires medical treatment;
(iv)Mr Harmouch’s physicians have expressed concerns regarding an inability for Mr Harmouch to receive the expert medical care that he requires while in immigration detention; and
(v)the money spent on Mr Harmouch’s detention does not include the costs of Mr Harmouch’s medical treatment;
(k)there is a need for Mr Harmouch to be released from immigration detention;
(l)Mr Harmouch is psychologically distressed and has no support in Western Australia;
(m)the level of care Mr Harmouch is receiving in immigration detention is low;
(n)Mr Harmouch is prepared to enter into a bridging visa with the appropriate conditions and enter into a security bond to enable the Minister to release him;
(o)Mr Harmouch seeks ministerial intervention on compassionate grounds in these extraordinary circumstances; and
(p)Mr Harmouch does not have the physical capacity to travel back to Lebanon.
Response to the Ministerial Intervention Application
The Ministerial Intervention Application has not been determined by the Minister. In response to queries on behalf of Mr Harmouch about the progress of the Ministerial Intervention Application, the Director, Ministerial Intervention at the Department of Home Affairs responded on 21 January and 16 March 2022, substantively in the same terms on both occasions, as follows:
As you may be aware, Portfolio Ministers have personal intervention powers under the Migration Act 1958 which allow them to grant a visa to a person, or to make a residence determination to allow them to reside in the community at a specified address and under specified conditions, if they think it is in the public interest to do so. The public interest powers are non-compellable, that is, the Ministers are not required to exercise their power. Further, what is in the public interest is a matter for the Ministers to determine.
The Minister’s guidelines describe the types of cases that might be referred for consideration. All requests are assessed against these guidelines. Only cases that meet the guidelines are referred for the Minister’s consideration. Ministerial Intervention is not an extension of the visa process.
Please note that the Minister is not bound by any timeframes with respect to Ministerial Intervention requests. You will be notified of the outcome of your request in due course.
It is pertinent to observe that the above responses preceded by many months the judgment of the High Court in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 (“Davis”), which is discussed further at [21]-[22] below.
Minister’s Response to the Application
In essence, the Minister’s amended response is as follows:
3. The Court has no jurisdiction to hear the proposed substantive application for judicial review: ss 476(2)(d) and 474(7) of the Migration Act 1958 (Cth) (the Act).
4. An order in the nature of mandamus is not available to compel the exercise of the non-compellable power of the Minister under s 195A of the Act.
…
6.The matter is suitable for expedition. The proposed substantive application seeks an order in the nature of mandamus, compelling the Minister to exercise his discretion under s 195A(2) of the Act. The application has no merit because this Court has no jurisdiction (ss 476(2)(d) and 474(7) of the Act) and the Minister does not have a duty to consider whether to exercise the power under s 195A(2): s 195A(4) of the Act. The expeditious determination of this judicial review application is therefore consistent with the Court’s purpose of quickly, inexpensively and efficiently resolving disputes.
Withdrawal of Former Solicitor and adjournment
At hearing on 8 May 2023:
(a)Mr Harmouch did not appear as he was apparently undergoing chemotherapy treatment;
(b)by order of the Court the Former Solicitor was granted leave to withdraw as Mr Harmouch’s solicitor in circumstances where the Court was advised by the Former Solicitor that Mr Harmouch had orally informed the Former Solicitor that he longer wanted the Former Solicitor to represent him; and
(c)the matter was adjourned to 11 May 2023 for further hearing (and subsequently further adjourned administratively to 18 May 2023).
Mr Harmouch’s submissions
No written submissions were filed for or on behalf of Mr Harmouch.
At hearing on 18 May 2023 Mr Harmouch was self-represented and assisted by an interpreter. Consequently, the Court, before Mr Harmouch made submissions, explained (Transcript, pp 2-3) that:
(a)in order to grant an interlocutory application of the type that has been sought the court must be satisfied of two things:
(i)first, that there is a serious question to be tried in relation to the substantive issue before the Court; and
(ii)second, that the balance of convenience favours the issue of an injunction, and that that requires the Court to consider and balance the inconvenience or injury suffered by the parties if the injunction is either granted or refused;
(b)the Minister (who had filed written submissions) asserted that:
(i)the Court had no jurisdiction to grant the substantive relief sought in the originating application (and therefore could not grant interlocutory relief);
(ii)in any event, the Court has no power to compel the Minister to make a decision on the Ministerial Intervention Application; and
(iii)the Ministerial Intervention Application did not provide a basis to prevent Mr Harmouch from being deported from Australia under the provisions of the Migration Act;
(c)the Minister’s Counsel would make submissions after Mr Harmouch and that he would be given an opportunity to reply to those submissions.
Mr Harmouch made oral submissions (Transcript, pp 3-7) in which he said:
(a)that it was very hard for him to go back (to Lebanon) as “they” had damaged his house, had a left a message there that “we are going to offer you as a sacrifice”, and had taken his car;
(b)he had been in Australia for ten years and the people he fled from are still pursuing him;
(c)Australia was a developed and cultured country that believes in humanity, and he had got used to the system in Australia;
(d)Lebanon was a small country with “all sorts of turmoil[s] and troubles” and, although all of his family were there he would not have any support if he went back;
(e)there was no system in Lebanon and this caused him depression;
(f)he had become ill in detention, and was then transferred from Melbourne to Yongah Hill (Yongah Hill Immigration Detention Centre (“YHIDC”));
(g)the guards at YHIDC had prevented him from obtaining medicine and had assaulted him resulting in injuries to his legs and back, for which he had x-rays, and as a result of which he was told he had cancer;
(h)he cannot sleep well at YHIDC and the food is not good, and the environment there is unhealthy for him;
(i)he does not have the money to pay for legal assistance; and
(j)he has no criminal record.
At the conclusion of Mr Harmouch’s submissions the Court reiterated to Mr Harmouch that he should listen to the submissions about to be made by the Minister’s Counsel, and that he would have the opportunity to reply to them.
Minister’s submissions
The Minister had filed written submissions, but the Minster’s Counsel also made oral submissions, which, helpfully given that Mr Harmouch was self-represented, were as plain and simple as could be given the subject matter. The Minister submitted (Transcript, pp 7-9) that:
(a)Mr Harmouch had not addressed the two issues that the Court needed to be satisfied of for the Court to grant the injunction, namely:
(i)whether there was a justiciable matter; and
(ii)whether there was a serious question to be tried,
and that consequently the balance of convenience issue was not reached;
(b)Mr Harmouch’s protection claims, health situation and detention circumstances had no bearing on the question of jurisdiction or whether there was a serious question to be tried;
(c)Mr Harmouch’s case failed at the outset because the Minister had no compellable duty to consider the Ministerial Intervention Application, and the Court could not compel the Minister to consider the Ministerial Intervention Application: Davis, the originating application was therefore unarguable, and there was therefore no matter or genuine controversy to be resolved;
(d)for the same reasons, there was no serious question to be tried, because at a final hearing the Court could not grant the final relief sought in the originating application;
(e)the final relief sought was unconnected to the application for interlocutory relief because it is not in aid of the final relief sought, and even if an order to the Minister requiring him to consider the Ministerial Intervention Application was able to be made by the Court, it would not provide Mr Harmouch with any right to remain in Australia whilst the Minister considered the Ministerial Intervention Application, and referred to a very recent Federal Court judgment in Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433 (“Marya”) at [23] per Rofe J;
(f)granting the injunction would block the plain operation of s 198 of the Migration Act; and
(g)the Court does not therefore even reach the balance of convenience issue.
Mr Harmouch’s submissions
Mr Harmouch made submissions in reply (Transcript, pp 9-10) as follows:
(a)he had rights like any other person, and had been in Australia for ten years and was ill, and it was not being taken into consideration that he was not a normal healthy person;
(b)the application of all these rules and regulations was causing him heartache and depression;
(c)he was being condemned to death by being deported;
(d)he wants to be treated in Australia; and
(e)he does not have the money to pay a lawyer to represent him.
CONSIDERATION
Relevant provisions of the Migration Act
The relevant provisions of the Migration Act are as follows:
(a)in s 476:
(1)Subject to this section, the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2)The Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to the following decisions:
…
(d)a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(b)in s 474:
(3) A reference in this section to a decision includes a reference to the following:
…
(j) a failure or refusal to make a decision.
…
(7) To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2):
(a)a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE, 351 or 417 or subsection 503A(3);
(c)in s 195A:
(2)If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
…
(4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
(d)in s 198:
(2)An officer must remove as soon as reasonably practicable an unlawful non‑citizen:
(a)who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and
(b) who has not subsequently been immigration cleared; and
(c) who either:
(i)has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or
(ii)has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.
(5)An officer must remove as soon as reasonably practicable an unlawful non‑citizen if the non‑citizen:
(a) is a detainee; and
(b)neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;
regardless of whether the non‑citizen has made a valid application for a bridging visa.
(6)An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c) one of the following applies:
(i)the grant of the visa has been refused and the application has been finally determined;
(ii) the visa cannot be granted; and
(d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
Jurisdiction
In this matter the Minister submits that the Court does not have jurisdiction to grant the substantive relief sought by Mr Harmouch in the originating application.
It is the first duty of every court to ensure that it has jurisdiction to hear the matter before it: Federated Engine Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415 per Griffiths CJ, 428 per Barton J and 454 per Isaacs J; Re Boulton; Ex parte Construction, Forestry, Mining and Engineering Union (1998) 73 ALJR 129 at 133 per Kirby J; Piefke v Workpac Pty Ltd [2021] FCCA 1166; (2021) 359 FLR 88 at [8] per Judge Lucev. The purpose of the exercise of judicial power under Ch III of the Constitution is to quell matters of controversy in relation to matters within jurisdiction: Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507; (2015) 89 ALJR 750; (2015) 254 IR 371; (2015) 323 ALR 1 at [20] per French CJ, Bell, Gageler and Keane JJ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720; (2006) 70 IPR 146; FCA at [47] per Rares J. It is not possible for a Court to legally quell a controversy about which it does not have jurisdiction: jurisdiction cannot be assumed by a Court where it does not exist, even by consent of the parties: Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124; (1984) 59 ALJR 66; (1984) 56 ALR 215; CLR at 141 per Wilson J; Hunt v Knabe (No 2) (1992) 8 WAR 96 at 104 per Malcolm CJ, Murray and White JJ; McLeish v Faure [1979] FCA 38; (1979) 40 FLR 462; (1979) 25 ALR 403; FLR at 467 per JB Sweeney, Evatt and Northrop JJ; Barkla v Colbran [2015] FCA 1470 at [18] per Besanko J.
The personal power given to the Minister by s 195A(2) of the Migration Act to grant a visa has been said to be a non-compellable one which the Minister does not have a positive obligation to consider exercising. The effect of this power was explained in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244 (“Plaintiff M61”) at [70] and [100] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ where the High Court said that:
70 Exercise of the powers given by ss 46A and 195A is constituted by two distinct steps: first, the decision to consider exercising the power to lift the bar or grant a visa and secondly, the decision whether to lift the bar or grant a visa. The Minister is not obliged to take either step. Sections 46A(7) and 195A(4) expressly provide that the Minister does not have a duty to consider whether to exercise the relevant power. And ss 46A(2) and (3) and 195A(2) and (5) make plain that it is for the Minister personally to decide whether to exercise the relevant power…
100As was explained in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002, the unavailability of mandamus entails that there is no utility in granting certiorari to quash the recommendation which the reviewer made in each of these matters. It is thus not necessary to consider whether certiorari to quash the recommendations would lie. More particularly, it is not necessary to examine whether, as was submitted on behalf of the Commonwealth and the Minister, certiorari will not go to quash a decision or recommendation prior to the final exercise of a discretion that directly affects legal rights unless that decision or recommendation must be taken into account by the ultimate decision-maker. (In considering the exercise of power under either s 46A or s 195A, the Minister might, but need not, take account of the recommendations made by those who had conducted an assessment or review of an assessment of an offshore entry person’s claim that Australia owes that person protection obligations.) Nor is it necessary to examine whether, or how, the proposition advanced on behalf of the Commonwealth and the Minister, expressed as it is in absolute terms, might permit or require modification to accommodate cases such as the present, where the right that is affected by conducting the impugned process of decision making is a right to liberty. The claims to certiorari and mandamus must be refused.
More recently in Davis at [12]-[13] and [19] per Kiefel CJ, Gageler and Gleeson JJ, and at [66] per Gordon J, the High Court observed that:
12 Section 351(1) is a conferral of power on the Minister. Section 351(3) and s 351(7) explain the nature of the power so conferred. The prescription in s 351(3) that the power may only be exercised by the Minister personally means that the power is neither delegable by the Minister under s 496 of the Act nor exercisable on the Minister’s behalf by any officer of the Department administered by the Minister under s 64 of the Constitution. The prescription in s 351(7) that the Minister does not have a duty to consider whether to exercise the power in any circumstances means exactly what it says. Under no circumstances can the Minister be compelled to exercise the power.
13The structure of the section is relevantly indistinguishable from the structure of a number of other sections of the Act which confer personal and non-compellable powers on the Minister. Those other sections include ss 46A, 48B, 195A and 417, each of which has been considered by this Court in one or more of Plaintiff M61/2010E v The Commonwealth, Plaintiff S10/2011, Plaintiff M79/2012 v Minister for Immigration and Citizenship, Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship and Minister for Immigration and Border Protection v SZSSJ. Drawing on the reasoning in those cases, the content of the power conferred by s 351(1) can be explicated as follows.
…
19Being under no obligation to exercise the statutory power to make a procedural decision at all, however, the Minister can choose to make no procedural decision one way or the other under s 351(1). The Minister can instead choose to exercise executive power, involving the Minister acting in “a capacity which is neither a statutory nor a prerogative capacity”, to give a non-statutory instruction to officers of the Department administered by the Minister under s 64 of the Constitution as to the occasions, if any, on which the Minister wishes to be put in a position to consider making a procedural decision. Thus, the Minister can exercise executive power to give a non-statutory instruction to departmental officers to the effect that “I wish to be put in a position to consider making a procedural decision in any case that has the following characteristics … but I do not wish to be put in a position to consider making a procedural decision in any case that has the following characteristics … “. That was found to be the effect of the 2009 Ministerial Instructions in Plaintiff S10/2011 as explained in SZSSJ and has been found to be the effect of the 2016 Ministerial Instructions by the Full Court in an unchallenged aspect of the decision under appeal.
…
66 For the reasons given by Kiefel CJ, Gageler and Gleeson JJ, s 351 of the Migration Act 1958 (Cth) requires that the decisions to exercise or not to exercise the power given by that section may be made only by the Minister. Neither a decision to exercise the power, nor a decision not to exercise the power, may be made by an official in the department administered by a Minister (or any other person). I agree with the orders proposed by Kiefel CJ, Gageler and Gleeson JJ.
Having regard to the provisions of s 474(7) of the Migration Act it is clear that a decision of the Minister not to exercise, or not to consider the exercise of, the Minister’s powers under s 195A of the Migration Act is a privative clause decision, and that for those purposes it includes, by reason of s 474(3)(j) of the Migration Act, a failure or refusal to make a decision. It follows that the Minister’s failure or refusal to make a decision, or a decision not to exercise, or not to consider the exercise of, the Minister’s powers has under s 195A of the Migration Act is a privative clause decision under s 474(2)(d) of the Migration Act, and is therefore, expressly, a decision in respect of which the Court has no jurisdiction. It is precisely this type of decision which is the subject of the substantive relief sought in these proceedings, and in respect of which the Court has no jurisdiction. This conclusion is reinforced by the passages cited above from Plaintiff M61 and Davis, and in particular the passage in Davis at [12] per Kiefel CJ, Gageler and Gleeson JJ that the prescription in s 351(7) (in effect in the same terms as s195A(4)) of the Migration Act that the Minister does not have a duty to consider whether to exercise the power in any circumstances means exactly what it says, namely, that under no circumstances can the Minister be compelled to exercise the power.
It follows that there is no justiciable matter for the Court to consider and no jurisdiction to grant the final relief sought by Mr Harmouch. In those circumstances, the originating application can never succeed, and it is strictly unnecessary to consider the interlocutory injunction application.
Interlocutory Injunction Application
Test
Assuming, contrary to what the Court has decided above, that the Court does have jurisdiction in this matter, it would then be necessary to consider the interlocutory injunction application. In considering whether to exercise the discretion to grant an interlocutory injunction, the Court must consider:
(a)whether there is a serious question to be tried, which requires Mr Harmouch to show that there is a sufficient likelihood that he will succeed at the final hearing to justify the preservation of the status quo pending the final hearing; and
(b)whether the inconvenience or injury that Mr Harmouch would suffer if the injunction is refused outweighs, or is outweighed by, the inconvenience or injury the Minister would suffer if the injunction is granted: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57; (2006) 80 ALJR 1672; (2006) 229 ALR 457 at [65] per Gummow and Hayne JJ.
The two limbs of the test for the grant of an interlocutory injunction are interrelated. For example, the stronger the case that there is an arguable error on the part of the Minister, the less the balance of convenience need lie in favour of the applicant in order to justify the grant of relief. In Morrison v Minister for Immigration and Citizenship [2007] FCA 723 at [22] per French J the Federal Court said:
…In order to grant interlocutory relief to restrain his removal, pending a substantive application, I would have to have regard both to the possibility that he has some case to argue in relation to the decision to cancel his visa and secondly that the balance of convenience lies in favour of an interim order. These two requirements are inter-dependent. Of course, the stronger the case that there is an arguable error on the part of the Minister, the less the balance of convenience need lie in favour of the applicant in order to justify the grant of relief…
The interrelatedness of the two limbs was also explained in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 870 at [13] per Thawley J where the Federal Court said:
Consideration of the two main inquiries cannot be conducted completely independently of each other, because “an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even” and “[a] more doubtful claim (which nevertheless raises ‘a serious question to be tried’) may still attract interlocutory relief if there is a marked balance of convenience in favour of it”: Bullock v The Federated Furnishing Trades Society of Australasia (No 1) [1985] FCA 19; (1985) 5 FCR 464 at 472 per Woodward J (Smithers and Sweeney JJ agreeing at 467 and 469 respectively); see also ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363 at [28] (Charlesworth J).
If there is no serious question to be tried the Court will not grant interlocutory injunctive relief: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199; (2001) 76 ALJR 1; (2001) 185 ALR 1; (2001) 54 IPR 161; [2001] Aust Torts Reports 81-627 (“Lenah Meats”) at [16] per Gleeson CJ and [91] per Gummow and Hayne JJ; Olde & Ors v Primary Compass Limited ACN 129 159 812 [2011] NSWSC 845 at [23] per Ball J.
Whether serious question to be tried
Because the Court has no jurisdiction to grant the substantive relief sought in the originating application there is no serious question to be tried. Furthermore, and in any event, there is no serious question to be tried, because the Minister does not have a duty to even consider whether to exercise the power to grant the Ministerial Intervention Application, and under no circumstances can the Minister be compelled to exercise the power to grant a visa under s 195A of the Migration Act: see [22] above.
There is a further reason why there is no serious question to be tried, namely that the interlocutory relief sought by Mr Harmouch (the prevention of deportation) does not have the requisite connection with the final relief sought (effectively a writ of mandamus to compel consideration of the Ministerial Intervention Application): Lenah Meats at [15]-[16] per Gleeson CJ, because s 198 of the Migration Act would still require Mr Harmouch to be removed from Australia even if he were entitled to interlocutory relief requiring the Minister to consider the Ministerial Intervention Application. In Marya at [23] per Rofe J the Federal Court observed as follows:
Further, the interlocutory relief sought by the applicant does not have the requisite connection to the substantive relief sought. As noted by counsel for the Minister, an outstanding application for ministerial intervention does not prohibit the Department from removing an individual pursuant to s 198(5) of the Act. Even if the substantive relief was granted by the Court at a future date, the applicant would not have a basis to avoid removal and would have no legal right to remain in Australia. The Minister’s obligation under s 198(5) to remove an unlawful non-citizen persists despite any unresolved application for ministerial intervention. Regardless, there is no evidence before me that any such outstanding application exists. As such, I am not satisfied that the applicant has an arguable case to be tried.
It follows that, even if the Court had jurisdiction, there could be no grant of interlocutory relief because there is no serious question to be tried: see the authorities cited at [27] above.
Balance of convenience
Given that:
(a)the Court has no jurisdiction to deal with the originating application, and therefore cannot grant the substantive relief sought in the originating application; and
(b)in any event, there is no serious question to be tried,
it is unnecessary to consider the balance of convenience. This renders it unnecessary to consider the submissions of Mr Harmouch concerning his protection claims, health situation and detention circumstances as they have no bearing on the question of jurisdiction or whether there was a serious question to be tried, although the Court notes that it is not evident on the materials presently before it that Mr Harmouch has ever actually made an application for a protection visa. Further, the fact that Mr Harmouch is now not able to afford legal representation matters not in circumstances where the Court has no jurisdiction and, in any event, there is no serious question to be tried. Legal representation would not have assisted to overcome those hurdles. The Court further notes that there is no right to legal representation in migration judicial review proceedings in this Court: SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [3]-[4] per Gyles J; SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24] per Katzmann J; CUS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 293; (2022) 369 FLR 305 at [22] per Judge Lucev.
CONCLUSION AND ORDERS
The Court has concluded that:
(a)it has no jurisdiction to grant the substantive relief sought in the originating application filed 3 May 2023 and there will be a declaration to that effect; and
(b)there is, in any event, no serious question to be tried, and together with the fact that the Court has no jurisdiction to grant the substantive relief sought, there will be an order dismissing the originating application and the application for interlocutory relief filed 3 May 2023.
The Court will hear the parties as to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 23 May 2023
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