Makarov v Minister for Home Affairs
[2019] FCA 1903
•18 November 2019
FEDERAL COURT OF AUSTRALIA
Makarov v Minister for Home Affairs [2019] FCA 1903
File number: NSD 1891 of 2019 Judge: NICHOLAS J Date of judgment: 18 November 2019 Catchwords: MIGRATION – application for interlocutory injunction – application to restrain imminent deportation of applicant – where application for review of decision revoking applicant’s Australian citizenship pending – where applicant contends cancellation of citizenship would have rendered him stateless – considerations relevant to balance of convenience and grant of interlocutory injunction Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 41
Australian Citizenship Act 2007 (Cth) s 34(2), (3)
Migration Act 1958 (Cth) s 14, 196, 501(3A)
Cases cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238
Warner-Lambert Co LLC v Apotex Pty Ltd (2014) 106 IPR 218
Date of hearing: 15 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 22 Counsel for the Applicant: Michelle Yu Solicitor for the Applicant: Human Rights for All Pty Ltd Solicitor for the Respondents: Ms D Watson with Ms H Dejean of Australian Government Solicitor ORDERS
NSD 1891 of 2019 BETWEEN: VICTOR MAKAROV
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
18 NOVEMBER 2019
THE COURT NOTES:
The Applicant by his counsel undertakes to the Court to:
(a)submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person whether or not a party, adversely affected by the operation of order 1 below (with or without variation) and;
(b)pay the compensation referred to in (a) to the person or persons there referred to.
THE COURT ORDERS THAT:
1.Until the determination of both this proceeding and the Application for Review of Decision lodged by the Applicant with the Administrative Appeals Tribunal on 11 November 2019, or further order, the Respondents, whether by their servants, agents or otherwise, be restrained from taking any steps to remove the Applicant from Australia.
2.Costs of the Applicant’s application for interlocutory relief heard on 15 November 2019 be reserved.
3.The proceeding is to stand over for a case management hearing to be held on a date to be fixed.
4.Liberty to apply on 2 days’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NICHOLAS J:
Before me is an application for urgent interlocutory relief restraining the respondents from seeking to deport the applicant (“Mr Makarov”) to Ukraine. The proposed deportation is scheduled to occur on 19 November 2019. The interlocutory order sought by Mr Makarov is as follows:
Unless the Court Orders otherwise, the Respondents are restrained pursuant to s.39B(1) of the Judiciary Act 1903 (Cth) from removing the Applicant from Australia, and from giving effect to the decision to revoke the Applicant's Australian citizenship dated 13 September 2007, until after any proceedings before the Administrative Appeals Tribunal and this Court have been determined on a final basis.
The order sought is against both the Minister for Home Affairs (the first respondent) and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the second respondent).
The principles governing the grant of interlocutory relief are well known and need not be repeated: see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65], Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [52]-[67] and Warner-Lambert Co LLC v Apotex Pty Ltd (2014) 106 IPR 218 at [68]-[72].
Mr Makarov was a citizen of Ukraine who applied for Australian citizenship in about August 2000. He became an Australian citizen on 8 February 2001.
On 28 January 2005, Mr Makarov was convicted of eight counts of sexual assault and abuse of a minor that took place in July 1997. On 11 November 2005 Mr Makarov was convicted of a further ten counts of sexual assault and abuse of two minors that took place between July 1998 and August 2000. In respect of those offences, Mr Makarov was sentenced to 12 years imprisonment with a non-parole period of eight years. No doubt the length of the sentence imposed reflects the gravity of his crimes. Mr Makarov was released from imprisonment on 9 December 2018. Since that time he has been in immigration detention.
On 13 September 2007, the Minister decided to revoke Mr Makarov’s Australian citizenship (“the 2007 decision”) pursuant to s 34(2) of the Australian Citizenship Act 2007 (Cth) (“the Act”). Section 34(2) and (3) provide:
(2) The Minister may, by writing, revoke a person’s Australian citizenship if:
(a)the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and
(b) any of the following apply:
(i)the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person’s application to become an Australian citizen;
(ii)the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5);
(iii)the person obtained the Minister’s approval to become an Australian citizen as a result of migration‑related fraud within the meaning of subsection (6);
(iv)the person obtained the Minister’s approval to become an Australian citizen as a result of third‑party fraud within the meaning of subsection (8); and
(c)the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
(3)However, the Minister must not decide under subsection (2) to revoke a person’s Australian citizenship if:
(a)the Minister may revoke the person’s Australian citizenship under that subsection only because of the application of subparagraph (2)(b)(ii); and
(b)the Minister is satisfied that the person would, if the Minister were to revoke the person’s Australian citizenship, become a person who is not a national or citizen of any country.
The advice provided to the relevant Minister at the time he made the 2007 decision was that Ukrainian citizens who acquire foreign citizenship do not automatically lose their Ukrainian citizenship.
As a result of the 2007 decision, Mr Makarov was granted a Class AQ Subclass 150 Former Citizen (Permanent) Visa. This visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Migration Act”) on a date not apparent from the evidence. Following representations made to the relevant Minister by Mr Makarov (or on his behalf), the Minister personally decided on 1 May 2018 (“the 2018 decision”) not to revoke the cancellation of Mr Makarov’s visa. It is as a result of that decision that the respondents say that Mr Makarov is liable to be removed from Australia.
On 11 November 2019 Mr Makarov lodged an application for review of the 2007 decision with the Administrative Appeals Tribunal (“the Tribunal”) together with a request for an extension of time and a request for a stay order under s 41 of the Administrative Appeals Tribunal Act 1975 (Cth). As counsel for Mr Makarov explained the matter to me, the request for a stay order relates not to the decision to deport Mr Makarov, but to the 2007 decision. That is to say, Mr Makarov will ask the Tribunal to make a stay order in respect of the 2007 decision revoking his Australian citizenship. The hearing of the application for the stay order is to occur on 20 November 2019, ie. the day after Mr Makarov is scheduled to be deported. The consequences of any such stay order could be far reaching. Assuming the Tribunal has the power to grant such a stay order, it is difficult to see how, if it were made, the Minister would be entitled to keep Mr Makarov in immigration detention.
The originating application filed by Mr Makarov in this Court seeks an order quashing the 2007 decision. It also includes a claim for interlocutory relief in the terms previously set out. Mr Makarov contends that the 2007 decision is liable to be set-aside on the basis that it was based upon a misunderstanding of Ukraine’s citizenship laws. He says that the correct position was, contrary to the advice given to the Minister at the time, that Mr Makarov’s Ukrainian citizenship would cease the moment he was granted Australian citizenship.
The evidence before me includes declarations made by persons who appear to have expertise in Ukrainian law and who state that Mr Makarov’s Ukrainian citizenship ceased when he acquired his Australian citizenship. These include a declaration by Dr Litvinov that refers to a 2001 Ukraine law that he says applied so as to automatically deprive Mr Makarov of his Ukrainian citizenship when he acquired his Australian citizenship.
It is apparent that the challenge to the validity of the 2007 decision to revoke Mr Makarov’s Australian citizenship raises a narrow issue of fact relating to the impact of Mr Makarov’s Australian citizenship on his Ukrainian citizenship. It was not suggested by the respondents that no serious question to be tried arises in respect of that issue. However, it was submitted that Mr Makarov’s application for relief faces a very significant difficulty given that the decision to revoke his citizenship was made more than 12 years ago.
The delay in challenging the 2007 decision is very substantial. It is true that Mr Makarov had commenced serving his sentence about 18 months prior the 2007 decision. As previously mentioned, he was not released from imprisonment until late last year. However, the evidence suggests that this did not prevent him making submissions to the relevant Minister prior to the 2007 decision and again prior to the 2018 decision. There is no evidence to suggest that Mr Makarov’s imprisonment prevented him from taking steps to challenge the 2007 decision before now.
I am satisfied that Mr Makarov has a prima facie case for the relief he seeks although, given the delay, I would not regard it as strong.
There are a number of considerations relevant to the discretion to grant the interlocutory relief sought that I should specifically mention.
The respondents have made clear in submissions that it is highly unlikely that Mr Makarov would be granted a visa to enable him to return to Australian so that he may be present at any hearing of his proceedings. Submissions made on Mr Makarov’s behalf suggested that the use of a video link would be inconvenient given the time difference between Australia and Ukraine. However, it was not suggested that Mr Makarov would not be able to participate by video link, and, given the limited nature of his challenge to the 2007 decision, it is in any event not immediately apparent what relevant evidence it would be open to him to give. The fact that he may be required to participate in proceedings by video link does not appear to me to be a significant factor when deciding whether to grant the interlocutory relief sought.
The respondents have arranged what was referred to in their submissions as a travel document issued by the Ukrainian authorities on 7 November 2019 which will expire on 6 December 2019. The fact that it will expire on that date was said by them to be significant but there is no evidence to suggest that another such document could not be obtained in the event that Mr Makarov’s removal was delayed. This is another matter to which I attach little weight.
I think the most significant matter weighing in favour of granting interlocutory relief is the potential hardship to Mr Makarov if he is returned to Ukraine in circumstances where, if the evidence to which I have referred is correct, Mr Makarov no longer enjoys Ukrainian citizenship. I accept that the evidence says nothing at all about the difficulties that this may create for him. Nevertheless, I think it may be inferred, in the absence of evidence to the contrary, that citizenship in Ukraine carries with it important rights including the right to obtain a passport. While it may be open to Mr Makarov to apply to reinstate his Ukrainian citizenship, there is nothing to indicate how long such an application would take, or whether it would even be possible for him to do so in circumstances where Mr Makarov continues to maintain his entitlement to Australian citizenship and his legal challenge to the 2007 decision.
According to the Minister, Mr Makarov is an “unlawful non-citizen” as defined by s 14 of the Migration Act in relation to whom the provisions of s 196 of the Migration Act apply. It follows that, unless he returns to Ukraine, he is likely to remain in immigration detention for some considerable time until his proceedings are finally determined or he is granted a temporary visa authorising his release. Whether or not Mr Makarov should be granted a temporary visa will be a matter for the relevant Minister to decide.
In all the circumstances I think the balance of convenience weighs slightly in favour of granting Mr Makarov interlocutory relief in an appropriate form. In my view there should be an interlocutory injunction restraining his removal from Australia until his proceeding in this Court and his application to the Tribunal are determined.
The form of the injunction proposed by Mr Makarov is in my opinion too broad. The interlocutory application was argued on the basis that what was sought was, in substance, an order preventing the respondents from removing Mr Makarov from Australia. The order I make will be limited accordingly. Costs of the interlocutory application will be reserved.
Orders accordingly.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 18 November 2019
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