McRoy v Minister for Home Affairs

[2021] FCA 537

FEDERAL COURT OF AUSTRALIA

McRoy v Minister for Home Affairs [2021] FCA 537  

File number:

QUD 132 of 2021

Judgment of:

LOGAN J

Date of judgment:

28 April 2021

Catchwords:

MIGRATION – where applicant is imminently to be deported – where interim injunction necessary to preserve a status quo – where no question as to the power of the Court to grant such an injunction – injunction granted 

Legislation:

Federal Court of Australia Act 1976 (Cth) s 23

Migration Act 1958 (Cth) s 501

Cases cited:

Jackson v Sterling Industries Ltd (1987) 162 CLR 612

Division:

General Division

Registry:

Queensland

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

7

Date of hearing:

28 April 2021

Solicitor for the Applicant:

Queensland Criminal Law Solicitors

Counsel for the Respondent:

Mr JD Byrnes

Solicitor for the Respondent:

Sparke Helmore

ORDERS

QUD 132 of 2021

BETWEEN:

JAMES DANIEL MCROY

Applicant

AND:

MINISTER FOR HOME AFFAIRS

Respondent

ORDER MADE BY:	LOGAN J
DATE OF ORDER:	28 APRIL 2021

THE COURT ORDERS THAT:

1.Until the close of business on 29 April 2021 or further earlier order, the respondent (Minister) whether by his officers, servants or agents, or otherwise be restrained from deporting the applicant, James Daniel McRoy, from Australia.

2.Pending the hearing and determination of the interlocutory injunction application, the Minister continue the detention of the applicant under the Migration Act 1958 (Cth) in Brisbane at the Brisbane Immigration Transit Accommodation or such other place as the Court may appoint.

3.The hearing of the application for an interlocutory injunction is adjourned until not before 11.00am on 28 April 2021.

4.This order be entered forthwith.

5.The Minister be deemed to have been served with this Order by its having been pronounced orally in Court in the presence of his solicitors.

6.The solicitors for the Minister forthwith communicate this Order to the Minister.

7.The Minister forthwith take steps to ensure officers of his department, servants and agents are made aware of the terms of this Order.

8.Liberty to apply.

9.Costs reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

LOGAN J:

1. Mr James Daniel McRoy (Mr McRoy) is a citizen of New Zealand. He came to Australia as an infant, about one year old. He has resided in Australia for some 33 years. As a result of criminal conduct on his part, which sounded in a sentence of imprisonment for greater than one year imposed by the Supreme Court of Queensland in respect of drug offences, Mr McRoy became amenable to the cancellation of his visa pursuant to s 501 of the Migration Act 1958 (Cth).

2. In December last year, the then Minister for Home Affairs (Minister), the Honourable Peter Dutton MP, decided to cancel Mr McRoy’s visa.  That made him amenable to deportation.  In the events which have transpired since then, that deportation is to occur today at 12.15pm in the afternoon.

3. Late yesterday, an application for an extension of time within which judicially to review the Minister’s decision was filed in Court.  That was supported by an affidavit of Mr McRoy’s solicitor which details facts which are said to be relevant to the granting of an extension of time.  Also annexed to the affidavit is, apparently, material that was before the Minister.

4. On Mr McRoy’s behalf, his solicitor, Mr Burrows, has sought a restraint in respect of the deportation of Mr McRoy.  Mr Byrnes, of counsel, who appeared instructed by Sparke Helmore, did not contest that there exists a jurisdiction on the part of the Court to grant an interlocutory injunction, including, in that regard, an injunction which would at least restrain deportation pending the hearing of whether or not an interlocutory injunction should be granted pending the substantive hearing and determination of an extension of time application.

5. Because of the genuine urgency attending the question of whether deportation should occur today, I caused the case to be listed for directions at 9.30am.  At that time, it became immediately apparent that it would not be possible, prior to 12.15pm, and given another urgent case on the duty list, to hear, much less determine, the application for an interlocutory injunction.

6. There is no doubt that the Court possesses the requisite power to grant an injunction restraining deportation today so as to allow a hearing to occur in respect of the interlocutory injunction and to preserve meaningfully a status quo in respect of such a hearing: see s 23 of the Federal Court of Australia Act 1976 (Cth) and Jackson v Sterling Industries Ltd (1987) 162 CLR 612.

7. It seems to me this is a paradigm case for the granting of an interim injunction which necessarily will be directed merely to preserving a status quo so as to allow a meaningful hearing.  I am conscious also that such a hearing might just possibly entail a need to reflect overnight on the merits of whether or not an interlocutory injunction should be issued. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.

Associate:       

Dated:       20 May 2021