HU v Minister for Immigration

[2016] FCCA 382

FEDERAL CIRCUIT COURT OF AUSTRALIA

HU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 382

Catchwords:
MIGRATION – Ex parte application – interlocutory injunction – deportation – whether prima facie case – application for injunction refused.

Legislation:

Migration Act 1958 (Cth), s.476

Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 360
Tait v The Queen (1962) 108 CLR 620

Applicant: QUILONG HU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: AUSTRALIAN BORDER FORCE

File Number: SYG 437 of 2016

Judgment of: Judge Street

Hearing date: 24 February 2016

Date of Last Submission: 24 February 2016

Delivered at: Sydney

Delivered on: 3 March 2016

REPRESENTATION

Solicitors for the Applicant: Mr N. Xu

No appearance by or on behalf of the respondent

ORDERS

1. Interim ex parte application for injunction is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 437 of 2016

QUILONG HU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

AUSTRALIAN BORDER FORCE

Second Respondent

REASONS FOR JUDGMENT

1. This was an ex parte telephone application for an injunction to restrain the removal of the applicant from Australia.  The Court heard the application between approximately 8.10 pm and 9 pm by telephone on the application of the applicant’s solicitor, having indicated to the Court that the applicant was to be removed at 10 pm on 24 February 2016.  The applicant’s solicitor informed the Court that the applicant had a student visa that had been cancelled on 24 February 2016, being the day upon which the applicant returned from China and was detained upon his return at the airport by reason of the issues surrounding his student visa. 

2. The Court was informed that the applicant last attended any study for approximately a month in November 2014.  The Court was informed that the applicant had enrolled in a Bachelor of Economics in respect of which on 20 July 2015 that enrolment was cancelled for the non-commencement of studies.  The Court was informed that there had been another offer to the applicant to do a bachelor course at Macquarie University, but that had expired due to the failure to pay the fees. 

3. The Court was also informed that the reason for the applicant’s non-commencement of studies had been his mother’s health and her heart condition, which apparently had recently improved.  It is also submitted that the applicant had purchased a property and would lose his 10 per cent deposit if the injunction were not granted.  It was also submitted that the applicant had recently become engaged and that unless the injunction were granted, the applicant would be unable to pursue that relationship with another person on a student visa. 

4. The solicitor for the applicant identified that he had only recently been instructed at about 7 pm.  And that prior to that time, the applicant alleged an impediment in relation to contacting his family or a lawyer.  The solicitor for the applicant alleged that there may be an issue of a contravention of section 192 in relation to the applicant not being released after four hours of detention. 

5. Given the urgency of the matter, the Court was prepared to hear the application on the basis  that if a prima facie case could be made out of an excess of statutory authority by either the first respondent or the second respondent, that it would be within the Court’s power to grant an interim injunction to preserve the subject matter of the proceedings so as to determine on a contested inter partes basis whether that prima facie case could be made out, including whether the Court’s jurisdiction had been properly invoked.  This Court has an implied jurisdiction to preserve the subject matter so as to effectively exercise its processes and to prevent a proceeding being rendered nugatory pending an urgent interim determination, see Tait v The Queen (1962) 108 CLR 620, at [623]-[625]; Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 360 at [31].

6. The Court was not persuaded that the applicant had any prima facie case of an excess of statutory power by either of the respondents. Given the ex parte nature and extreme urgency of the application, it was not necessary for the Court to determine the jurisdictional issue as to whether there was a migration decision within s.476 of the Migration Act 1958 (Cth) or a matter within the Court’s jurisdiction in relation to the second respondent.

7. Suffice to say, given the urgency of the matter, if the Court had been persuaded that there was a prima facie case of an excess of power by either respondent, a short interim injunction would have been granted to permit an inter partes hearing on the issue of both jurisdiction and the continuation of any such interim order. 

8. At the commencement of the application, the solicitor for the applicant confirmed that he was a solicitor on the role of the Supreme Court of New South Wales, and gave an undertaking to the Court to file an application in respect of the application for interim relief being made to the Court.  At the end of the hearing of the application, the Court noted that the application for an interim injunction was refused, and directed the applicant solicitor to file an application and affidavit.  The Court noted that the affidavit should set out the substance of what was said to and by the Court in the ex parte telephone application. 

9. The applicant solicitor was also directed to inform forthwith the second respondent that the application for an injunction had been refused. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  3 March 2016