Lind v Minister for Home Affairs
[2020] FCA 12
•6 January 2020
FEDERAL COURT OF AUSTRALIA
Lind v Minister for Home Affairs [2020] FCA 12
File number: VID 5 of 2020 Judge: BROMBERG J Date of judgment: 6 January 2020 Catchwords: PRACTICE AND PROCEDURE – application for urgent injunction prohibiting removal from Australia – where earlier judgment not yet published – whether injunction should be granted to preserve subject matter of proceeding Date of hearing: 6 January 2020 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 7 Counsel for the Appellant: The appellant appeared in person Solicitor for the Respondent: Mr A Cunynghame of Sparke Helmore Lawyers ORDERS
VID 5 of 2020 BETWEEN: DIUSHON LANCE NIGELE LIND
Appellant
AND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
6 JANUARY 2020
THE COURT ORDERS THAT:
1.Until 7 February 2020 or further order, the respondent be restrained from removing the appellant from Australia.
2.Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
The appellant is a citizen of New Zealand. On 25 May 2012, at the age of 17, he settled in Australia and was granted a special category TY 444 visa (“visa”). On 24 October 2019, the appellant’s visa was cancelled under section 501(3)(b) of the Migration Act 1958 (Cth) by the respondent (“Minister”). On 1 November 2019, the appellant was detained in immigration detention where he remains.
The appellant lodged an application for an extension of time to file an application seeking judicial review of the visa cancellation decision made by the Minister, together with an application for an urgent injunction to restrain his removal from Australia. The application for an extension of time was considered by Anastassiou J on 18 December 2019. Although the delay involved of some 10 days was short, the application for an extension of time, together with the associated application for an injunction, was rejected. The application for an extension of time was rejected on the basis that Anastassiou J determined that the proposed application for judicial review had no real prospect of success.
The appellant is due to be removed by the Minister from Australia tomorrow morning. He has this afternoon made an urgent application seeking an injunction that would prohibit his removal from Australia. The appellant was unrepresented before Anastassiou J and remains unrepresented, although he informs the Court that he has a lawyer who he thinks could act for him, but is currently unavailable.
At this time, the reasons for judgment of Anastassiou J, although delivered ex tempore on 18 December 2019, have not been published and are not available to the appellant. Additionally, and as I understand it, the order made by Anastassiou J has not been formally entered. There may be a question, as indeed was raised by Mr Cunynghame who appeared on behalf of the Minister, as to whether there is a need for the appellant to make an application for an extension of time to file the notice of appeal which he has filed. I do not need to determine that issue now. I need only say that in circumstances where the appellant had no access to a published judgment, and in circumstances where the formal order has not yet been entered, the issue raised may not, in the circumstances, be of much significance.
Mr Cunynghame contended that the appellant needs to demonstrate a serious issue that there is error in the judgment of Anastassiou J. Mr Lind has not, at this juncture, raised any real basis for suggesting that Anastassiou J’s decision is attended by error. His notice of appeal contains two grounds. The first is that his Honour’s decision was legally unreasonable, and the second is that he was not afforded procedural fairness. Unrepresented as he is, and without the benefit of his Honour’s published judgment, it is understandable that despite having raised two grounds of appeal, the appellant is not really in a position to elaborate upon the errors he contends were made by Anastassiou J.
If I was not to grant the injunction sought, the subject matter of the appeal would be rendered nugatory. There is no prejudice suggested by the Minister should an order – at least an order restraining the appellant’s removal for a short time – be made. I consider that it is necessary for the purpose of preserving the subject matter of the appeal to grant the appellant the order he seeks but limited in time in order to give the appellant an opportunity to obtain legal advice, so that if a further order prohibiting his removal is sought, the basis for his contention that the judgment of Anastassiou J is attended with error can be properly put and considered. Whether or not the appellant is able to point to a serious question to be tried in relation to any error in the judgment of Anastassiou J will be better able to be determined in circumstances where both the published judgment of his Honour and legal advice is available to assist the appellant.
Accordingly, I will make an order that until 7 February 2020, the Minister be restrained from removing the appellant from Australia.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 15 January 2020
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