Hillman-McLean v Minister for Immigration (No.2)
[2020] FCCA 2445
•1 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HILLMAN-MCLEAN v MINISTER FOR IMMIGRATION (No.2) | [2020] FCCA 2445 |
| Catchwords: MIGRATION – Application for an interlocutory injunction – whether a prima facie case has been made out for the grant of an interlocutory injunction – whether the applicant has access to facilities consistent with s 256 of the Migration Act 1958 (Cth) – application for an interlocutory injunction dismissed. |
| Legislation: Migration Act 1958 (Cth), s.256 |
| Cases cited: AMK16 v Assistant Minister for Immigration and Border Protection [2016] FCA 1557 BVA18 v Minister for Home Affairs (No.2) [2019] FCCA 744 Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156; 217 FCR 238 SZTYO v Minister for Immigration and Border Protection [2015] FCA 30 SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24 Wei v Minister for Immigration and Border Protection [2015] HCA 51 |
| Applicant: | TAMAIKOHA HILLMAN-MCLEAN |
| Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | PEG 316 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 1 September 2020 |
| Date of Last Submission: | 1 September 2020 |
| Delivered at: | Sydney |
| Delivered on: | 1 September 2020 |
REPRESENTATION
The Applicant appeared in person via Microsoft Teams
| Solicitors for the Respondent: | Ms E Tattersall via Microsoft Teams Sparke Helmore |
ORDERS
The application for an interlocutory injunction is dismissed.
The applicant pay the respondent’s costs of the interlocutory injunction application fixed in the amount of $500.00.
Date of order: 1 September 2020
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 316 of 2019
| TAMAIKOHA HILLMAN-MCLEAN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for an interlocutory injunction in respect of proceedings that were commenced on 15 August 2019 seeking a Constitutional writ in respect of a decision of the respondent made on 20 June 2017 to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
The applicant contends that he submitted his application for revocation of the visa cancellation decision on around 29 June 2019 to an EGRP prison officer. A differently constituted Court has conducted a hearing in relation to that jurisdictional fact and is currently reserved.
On Sunday 30 August 2020, the applicant endeavoured to file an application for an urgent interlocutory injunction in respect of the proceedings the subject of the reserved decision to restrain the respondent from removing him to Christmas Island.
That application came to the attention of the reserved Judge on 31 August 2020.
The reserved Judge requested assistance from another Judge of the Court to hear the interlocutory application. Steps were immediately taken to have the matter listed the following day for hearing of the interlocutory application. The Court was then informed that the applicant had already been transferred to Christmas Island. The hearing has taken place in respect of whether or not the applicant should be returned from Christmas Island by the respondent.
The applicant identified that he has an email address that he uses in respect of which he says he needs an SMS code from a mobile in order to access his emails. It is not apparent to the Court that there is such a process that is needed and the applicant acknowledged that he can create a separate email address.
Notwithstanding the applicant’s desire to attend to matters himself, it is apparent that on the face of the evidence before the Court that the applicant has access to facilities consistent with s 256 of the MigrationAct 1958 (Cth) (“the Act”). The applicant’s reference to a desire to attend to matters himself is a reference to his contention that he provided documents to a prison officer in respect of the proposed cancellation of his visa that were not provided to the respondent.
There was a well-recognised line of authority flowing from the High Court’s decision in Wei v Minister for Immigration and Border Protection [2015] HCA 51 which has been the subject of observations by the learned Perry J in AMK16 v Assistant Minister for Immigration and Border Protection [2016] FCA 1557 at [36]:
…officers who are properly authorised under the Act are under an obligation to provide material that is supplied to them for provision to the tribunal in connection with an application for review.
There may or may not be a difference between an officer who is authorised under the Act at a detention centre and prison officers, see BVA18 v Minister for Home Affairs (No.2) [2019] FCCA 744. However it is clear that the officers where the applicant is now detained are authorised under the Act.
The applicant’s complaint in relation to wanting to have control of his documents is not in these circumstances a proper basis upon which the Court is satisfied that a prima facie case has been made out for transfer back from Christmas Island to where he was held in detention or to the mainland.
The principles in relation to the grant of an interlocutory injunction have been identified by the Full Court in Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156; 217 FCR 238 at 254 to 262.
The Court has also taken into account the observations made by the learned Foster J in SZTYO v Minister for Immigration and Border Protection [2015] FCA 30 and that there may be circumstances in relation to the obligations under s 256 of the Act that give rise to it being appropriate to transfer a person for the purposes of the proceedings that are on foot.
The Court is not satisfied that the applicant remaining in Christmas Island in any material way impedes his ability to pursue the proceedings the subject of the reserved judgment or any subsequent proceedings.
The Court has also taken into account the principles of the kind identified in SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24. There was no suggestion of danger to the applicant by reason of him being in Christmas Island in the present case.
The Court finds that no prima facie case has been made out for an interlocutory injunction so as to require the applicant to be returned to the mainland from Christmas Island. The Court is not satisfied that the balance of convenience favours the granting of a mandatory injunction requiring the respondent to return the applicant to another place of detention from Christmas Island. Even accepting the applicant’s assertions in respect of the need for an SMS code to access his emails, the Court is still not satisfied that a prima facie case has been made out for the grant of an interlocutory injunction in respect of the proceedings that are currently reserved. That is because as the applicant acknowledged he can create a new email address that does not require any such SMS code.
For these reasons, the application for an interlocutory injunction is dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 1 September 2020 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Date: 16 September 2020
6
2