Isley v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 61
•8 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Isley v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 61
File number(s): MLG 275 of 2022 Judgment of: JUDGE EGAN Date of judgment: 8 February 2022 Catchwords: MIGRATION – Application for injunction to restrain removal of applicant from the jurisdiction of Australia – relevant principles to be considered – no jurisdictional error established or claimed in relation to removal decision – no serious question to be tried or prima facie case demonstrated – application dismissed. Legislation: Migration Act 1958 (Cth), s.501(3A) Cases cited: Abdel – Hady v Minister for Home Affairs and Anor HCA 3 November 2021 (S65/2021)
SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140
Li v Mister for Immigration and Multicultural Affairs [2002] FCAFC 181Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submission/s: 8 February 2022 Date of hearing: 8 February 2022 Counsel for the Applicant: Mr J. Williams Solicitor for the First Respondent: Sparke Helmore Counsel for the First Respondent: Mr B. Kaplan Second Respondent: Submitting appearance save as to costs ORDERS
MLG 275 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOHN ISLEY
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
8 FEBRUARY 2022
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Application filed on 7 February 2022 be dismissed.
3.The Applicant pay the Respondents’ costs of and incidental to the interlocutory application, to be agreed or, failing agreement, to be assessed.
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 EGAN:
Introduction
The matter before the Court is an application for an interlocutory injunction to restrain the Applicant’s removal from Australia, as proposed by Australian Border Force (ABF), on 8 February 2022 – namely today. The Court was contacted by a Registrar at approximately 2 am this morning. Matters have progressed quickly since that time.
At the time of the handing down of this judgement, the Applicant is in Perth and due to board a plane at 5.40 pm Brisbane time. The Applicant travelled from Brisbane to Perth, his having travelled from Melbourne to Brisbane early this morning in the company of ABF personnel.
The Applicant is a citizen of the United Kingdom who first came to Australia as a four (4) year old in 1966. His family relocated to Australia permanently in 1971. Apart from one overseas holiday, the applicant has lived in Australia ever since that time.
On 12 October 2015, a delegate to the Minister for Immigration and Border Protection cancelled the applicant’s residency visa on character grounds pursuant to the provisions of s. 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The applicant had been convicted of two (2) charges of indecent assault of a child under the age of 16, and five (5) charges of incest. Those convictions were confirmed on appeal by the Victorian Court of Appeal.
A short time after the applicant had been given notice that his visa had been cancelled, the Applicant sought the Minister’s revocation of the visa cancellation decision.
The application to revoke the visa cancellation was not processed in a timely way. On 10 October 2017, the Minister made a decision not to revoke the cancellation of the applicant’s visa.
The Applicant applied to the Federal Court of Australia seeking an order that the decision of the Minister be quashed. By order of Justice Kerr made on 1 May 2018, that application for review of the Minister’s decision was dismissed.
The Applicant then filed in the High Court an application for the issue of Writs of Prohibition and Habeas Corpus, a declaration to the effect that his detention was invalid, and damages for false imprisonment. Justice Gageler made an order dismissing the Applicant’s Originating Application on 4 August 2021.
Upon the Applicant’s release from prison on 23 September 2019, the Applicant was transferred to the Melbourne Immigration Transit Accommodation (MITA) where he stayed until 8 February 2022.
On 1 February 2022, the Applicant was served with a removal notice by an officer of ABF (the removal decision).
On 7 February 2022 at 2.51 pm, an Application was filed in the registry of this Court seeking:
(a)An injunction preventing the Respondents from removing the Applicant from Australia until further order.
(b)A declaration that the decision of the First Respondent and/or officers of the Second Respondent of 23 September 2019 to detain the Applicant until the date of the filing of that application was unlawful.
(c)The issue of a Writ of Prohibition restraining the Respondents by their agents from acting upon or giving effect to the detention decision.
(d)Damages for unlawful detention on an aggravated and exemplary basis.
The Applicant’s Claims
In the Statement of Claim filed as part of the Application on 7 February 2022, the Applicant claimed that his detention at MITA was unlawful as it was “ … beyond the statutory and non-statutory power of the Respondents and contrary to law”. It was pleaded in the Statement of Claim that the Respondents were unable to remove the Applicant from Australia, and cause him to be transported to the United Kingdom, because of a variety of medical conditions allegedly suffered by him. It was otherwise alleged that the Respondent was subject to an arbitrary and indefinite detention and/or “ … torturous, cruel, inhuman and degrading treatment …”.
Affidavits were filed on behalf of each of the Applicant and the Respondents which had not been sworn or witnessed. Neither party objected to the Court receiving such affidavits on that basis.
The Applicant purported to give an undertaking as to damages. There was no evidence as to the value or enforceability of the undertaking, but the Respondents made no point in that regard.
It was submitted on behalf of the Applicant that the IHMS (International Health and Medical Services) documentation annexed to affidavits before the Court demonstrated that the Applicant was suffering from a number of medical conditions which cumulatively rendered him unfit for travel. On that question, the Applicant relied upon a decision of Gageler J in Abdel – Hady v Minister for Home Affairs and Anor HCA 3 November 2021 (S65/2021). His Honour there ordered that based upon medical evidence relating to the medical condition of the applicant in that case, the question as to whether or not such applicant was unfit to be removed from Australia ought to be remitted to the Federal Circuit Court for its determination.
In the present case, the most recent information contained in evidence before the Court was that the Applicant was medically fit for travel on 7 February 2022. The Court accepts the submission made on behalf of the Respondents that it ought to have been inferred that the note under Q 4 on page 4 of the affidavit of Tom Hillyard filed on 8 February 2022 [1] to the effect that the Applicant had on 7 February 2022 been “ … medically cleared for travel” ought be understood as his having been so assessed by a medical practitioner, as opposed to such assessment having been undertaken by a registered nurse alone. Exhibit 1 was an IHMS Internal Referral Form which recorded that the Applicant had in fact been treated at the Royal Melbourne Hospital emergency department by one Dr Jasmine, who had said that he was “medically stable”. It also recorded that the Applicant had been cleared of any underlying medical conditions post brain CT scan and angiogram. That was confirmed in an email dated 8 February 2022 in which it was said that the co-ordinating registered nurse from the IHMS Health Advice Service (HAS) had spoken to Dr Jasmine, who had confirmed that there was no medical condition which prevented the Applicant from flying.
[1] Annexure TH-1
A document entitled “After Visit Summary” from the emergency department of the Royal Melbourne Hospital dated 7 February 2022 recorded that a CT scan was normal and that the Applicant was discharged from hospital on that date as “medically clear”. The decision in Abdel – Hady involved uncertainty as to whether or not the applicant in that case was medically unfit to travel. That case is accordingly distinguishable on the basis that here there was no such uncertainty. True it was that the Applicant was recorded as having some behavioural problems, but the Court finds that any such problems would not have the effect of preventing travel, or justifying a finding that the Applicant was unfit to travel.
It was submitted on behalf of the Respondents that the Court ought to dismiss the application for an injunction because the Statement of Claim did not seek any declaratory relief to the effect that the giving of the notice to remove the Applicant from Australia was vitiated because of jurisdictional error. There is merit to such submission. First, s. 189 (1) of the Act required a relevant officer to detain the Applicant as an unlawful non-citizen. Second, s. 196 (a) of the Act required the Applicant to be kept in immigration detention until removed from Australia. The fact of such detention did not constitute an unlawful act on the part of either of the Respondents. Neither was the detention arbitrary or indefinite. The Applicant exhausted all avenues of review and appeal in respect of the cancellation of his visa, and accordingly there was no basis on which he could be released prior to removal.
As to the submission that the Applicant ought not to be removed in circumstances where the current proceedings are on foot, the Full Court of the Federal Court in SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140 at [20] said as follows:
“[20] To the extent that [Tchoylak [2001] FCA 872 at [53] ] may be read as meaning that no removal can take place whilesoever any application remains pending in the Court, it is too wide, and is contrary to s. 153 (assuming that section’s constitutional validity).”
The proposition that any intended removal of a non-citizen from the jurisdiction of Australia ought to be stymied because of the institution of any legal proceedings – however lacking in merit such proceedings might be – is contrary to sound public policy considerations.
The present matter is one where the Court finds that the Applicant has no prima facie case. Though the decision to remove the Applicant from Australia was a migration decision, [2] and therefore capable of review by this Court, the Applicant has not put in issue the correctness of the removal decision. Rather, the Applicant has focussed upon the detention decision. In the absence of a claim that the removal decision was one involving jurisdictional error, the current proceedings are misconceived.
[2] Li v Mister for Immigration and Multicultural Affairs [2002] FCAFC 181 at [1] per Heerey J and at [9]
Conclusion
There is no serious question to be tried. Further, the balance of convenience does not favour the continued detention of the Applicant in Australia.
It cannot be suggested that social or economic conditions in the United Kingdom would give rise to the Applicant being tortured, or that he would otherwise be subjected to cruel, inhuman or degrading treatment. The Applicant’s removal from Australia is based upon his having committed heinous crimes. The cancellation of the Applicant’s visa was found to be justified. His removal from the jurisdiction is likewise justified.
The Application for injunctive relief is without merit and is dismissed. The applicant is due to depart the jurisdiction in less than one hour from the handing down of this judgment.
The Court will hear the parties as to costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Dated: 8 February 2022
per Conti J
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