MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 594
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 594
File number: PEG 129 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 6 July 2023 Catchwords: MIGRATION – application for urgent interlocutory injunction to restrain Minister for removing applicant from Australia – applicant in detention – non-finalisation of applicant’s application for Ministerial intervention – whether serious question to be tried – where balance of convenience lies – application dismissed
PRACTICE AND PROCEDURE – application for leave to rely on amended application provided at hearing
Legislation: Constitution s 75
Migration Act 1958 (Cth) ss 5, 48, 48A, 116, 189, 195A 196, 197AB, 197C, 198, 200, 351, 417, 474, 476
Migration Regulations 1994 (Cth) reg 2.43
Cases cited: APF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 182
Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 870
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10
Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433
Mokhlis v Minister for Home Affairs (2020) 382 ALR 1; [2020] HCA 30
Morrison v Minister for Immigration and Citizenship [2007] FCA 723
WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of hearing: 5 July 2023 Place: Perth Counsel for the Applicant: Mr A Krohn (direct brief) Counsel for the Respondents: Ms C Taggart Solicitor for the Respondents: Australian Government Solicitors ORDERS
PEG 129 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MZAPC
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
THE RELEVANT OFFICERS ACTING UNDER S 198 OF THE MIGRATION ACT
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
6 July 2023
THE COURT ORDERS THAT:
1.The applicant has leave to rely on the amended application provided to the Court at the hearing on 5 July 2023.
2.The application for an interlocutory injunction is dismissed.
3.The reasons for judgment in relation to these orders be published later today from chambers.
4.The applicant is to pay the respondents’ costs of and incidental to the application for an interlocutory injunction fixed in the amount of $4,189.38.
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 LADHAMS:
INTRODUCTION
The applicant is a citizen of India who has been in Australia since 2006. He arrived on a student visa and has since made applications for other substantive visas, including a protection visa. He has no Court or Tribunal proceedings pending in relation to either of those visa applications.
The applicant is scheduled to be removed from Australia pursuant to s 198(6) of the Migration Act 1958 (Cth) (Migration Act) on 6 July 2023. Between 18 June 2023 and 4 July 2023, the applicant made requests to the Minister to exercise his personal, non-compellable powers in ss 48B, 195A, 197AB, 351 and 417 of the Migration Act in favour of the applicant to allow the applicant to be granted or apply for further visas so that he can remain in Australia.
The applicant filed an urgent application in this Court on 5 July 2023 and he seeks an interlocutory injunction to prevent the Minister from removing him from Australia until his requests for the Minister to exercise the powers under ss 48B, 195A and 197AB of the Migration Act, and any related visa applications and related legal proceedings, have been determined. I heard that application on 5 July 2023, gave the parties a brief opportunity to make further written submissions (which neither party exercised), and made the following orders on 6 July 2023:
(1)The applicant has leave to rely on the amended application provided to the Court at the hearing on 5 July 2023.
(2)The application for an interlocutory injunction is dismissed.
(3)The reasons for judgment in relation to these orders be published later today from chambers.
(4)The applicant is to pay the respondents’ costs of and incidental to the application for an interlocutory injunction fixed in the amount of $4,189.38.
These are my reasons for the orders made.
APPLICATION TO THIS COURT
The application, which was filed on 5 July 2023, came before me for hearing on an urgent basis and was heard on the same day it was filed.
The application as filed
The applicant sought the following interlocutory relief in the application:
1.An order to abbreviate the time for service of this application.
2.An order or directions for an expedited hearing.
3.An injunction or order to prohibit or restrain the Respondents personally or by their delegates, officers, servants or agents from taking any steps to remove the Applicant from Australia until his requests for the Minister to exercise his power under section 48B, 195A and 197AB, and until any applications by him for a visa, have been finally determined including the final determination of any related legal proceedings.
4.Liberty to apply.
5.Such other orders as the Court thinks appropriate.
In the application as filed, the applicant sought the following final orders:
1.An order or an injunction or a writ of prohibition to prevent and restrain the Respondents, personally or by their delegates officers, servants or agents, from removing the Applicant from Australia until his requests for the Minister to exercise his power under section 48B, 195A and 197AB, and until any applications by him for a visa, have been finally determined including the final determination of any related legal proceedings.
2.An order that the First Respondent pay the Applicant’s costs of and incidental to the application.
3.Such further or other orders as the Court thinks appropriate.
The sole ground relied on by the applicant in support of his application is in the following terms:
The proposed removal of the Applicant is beyond the executive power of the Commonwealth and unlawful.
Particulars
(a)The Applicant has pending requests for the Minister to exercise his power under section 48B, 195A and 197AB of the Migration Act 1958. These requests can be dealt with by the Minister only personally and not be any delegate. It is beyond the executive power of the Commonwealth for the Respondents, whether personally or by the action of any delegate, officer, servant or agent to remove the Applicant while those requests are pending and not finally determined, including by any related legal proceedings, as those requests and the Minister’s exercise of power would be frustrated by such removal. (Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (M32 & S81-2002) [2023] HCA 10)
(b)If the Applicant has a pending application for a visa, it is unlawful for the Respondents to take any steps to remove him, as this is prohibited by section 198(5A) of the Migration Act 1958.
Oral application for leave to file an amended application
Both parties filed written submissions in the hour before the application came before the Court. Counsel for the respondents confirmed that she did not have the benefit of reviewing the applicant’s submissions at the time the respondents’ submissions were prepared. Further, the respondents advanced a submission that the Court did not have jurisdiction in relation to this matter, but the applicant did not address the Court’s jurisdiction in his submissions.
When the matter came before the Court, I stood the matter down briefly to give each party the opportunity to consider the documents that had just been filed. I also indicated to Counsel for the applicant that I would need to hear from him in relation to the Court’s jurisdiction.
When the hearing resumed, the applicant sought leave to file an amended application. In the proposed amended application, there were no proposed changes to the interlocutory relief sought, but there were changes proposed to the final orders sought by the applicant and the ground of application.
The final orders sought by the applicant in the proposed amended application are:
1.A writ of certiorari or an order to quash or set aside the decision of the Second Respondent(s) made in or about June 2023 to remove the Applicant from Australia under section 198(6) of the Migration Act 1958 (“the Act”).
2.Further or in the alternative to order 1, a writ of prohibition or an order to prohibit the respondents from relying on or giving effect to the decision of the Second Respondent(s) made in or about June 2023 to remove the Applicant from Australia under section 198(6) of the Migration Act 1958 (“the Act”).
3.An order or an injunction or a writ of prohibition to prevent or restrain the Respondents, personally or by their delegates officers, servants or agents, from removing the Applicant from Australia until his requests for the Minister to exercise his power under section 48B, 195A and 197AB, and until any applications by him for a visa, have been finally determined including the final determination of any related legal proceedings.
4.An order that the First Respondent pay the Applicant’s costs of and incidental to the application.
5.Such further or other orders as the Court thinks appropriate.
The following changes are proposed to the ground, with no proposed changes to the particulars:
The decision by the Second Respondents made in or about June 2023 to remove the Applicant and the proposed removal of the Applicant are beyond the executive power of the Commonwealth of Australia and unlawful.
The respondents oppose the applicant being granted leave to rely on the proposed amended application.
In large part, the respondents’ submissions in opposition to the applicant being granted leave to rely on the proposed amended application are based on the merit of the case and the need in effect for the Court to order or compel the Minister to exercise his non-compellable powers.
I have decided to grant leave to the applicant to rely on the amended application.
First, the proposed amendments substantially resolve an ambiguity in the application as filed which potentially impacted the Court’s jurisdiction to determine the application. In the application as filed, there was some ambiguity as to whether the ‘migration decision’ the subject of the final orders sought was the decision to remove the applicant pursuant to s 198(6) of the Migration Act, or any decision to be made in relation to the applicant’s requests to the Minister to exercise his personal and non-compellable powers. The latter is beyond the Court’s jurisdiction, because s 476(2)(d) of the Migration Act expressly provides that the Court does not have jurisdiction in relation to a privative clause decision or purported privative clause decision mentioned in s 474(7). The decisions mentioned in s 474(7) include decisions of the Minister not to exercise, or not to consider the exercise of, the Minister’s powers under ss 48B, 195A, 197AB, 351 or 417.
The amended application clarifies that the migration decision in relation to which the applicant seeks final relief includes the decision to remove him under s 198(6) of the Migration Act. There was some discussion at the hearing as to whether the decision to remove the applicant from Australia pursuant to s 198(6) of the Migration Act was in fact a decision that can be the subject of an application to this Court. The upshot of that discussion is that both parties accept that this is migration decision within the meaning of s 474(2) of the Migration Act. The respondents referred the Court to Mokhlis v Minister for Home Affairs (2020) 382 ALR 1; [2020] HCA 30, in which Edelman J accepted at [12]-[13] that a decision required to be made under s 198(1) of the Migration Act involving the act of removing an unlawful non-citizen as soon as reasonably practicable after the person requests to be removed is a migration decision, and can be the subject of an application within the High Court’s jurisdiction under s 75(v) of the Constitution and this Court’s jurisdiction under s 476 of the Migration Act. By analogy, I accept that a decision required to be made under s 198(6) of the Migration Act to remove the applicant as soon as reasonably practicable is a migration decision and can be the subject matter of an application invoking the Court’s jurisdiction under s 476 of the Migration Act.
That the proposed amendment removes, in whole or in part, an ambiguity that was relevant to whether the Court had jurisdiction in this matter, is a matter in favour of granting leave to the applicant to amend the application.
The respondents’ main opposition to the amended application largely goes to the merits of the proposed amended application and whether the Court can grant all of the relief sought. In the circumstances of this case, I would not refuse to grant leave to the applicant to amend the application based on any perceived lack of merit. The respondents have expressed some valid concerns as to whether the Court can grant the relief sought by the applicant. However, the most contentious orders sought are those that are also sought in the original application as filed.
Finally, there are no case management issues that would make it inappropriate to allow the amendment. The applicant sought to amend the application on the same day that the original application was filed. The application was listed on an urgent basis and there was therefore limited opportunity to give notice to the respondents of the proposed amendments. Notwithstanding this, Counsel for the respondents ably responded to the proposed amendments in her oral submissions, and I offered the parties an opportunity, albeit on a very short time frame, to provide further written submissions if there was any issue that caused them surprise.
Clarification of orders sought
The relief sought by the applicant in the application refers to the requests made by the applicant to the Minister to exercise his powers under ss 48B, 195A and 197AB of the Migration Act. In their submissions and affidavits, the parties also refer to requests for the Minister to exercise his powers under ss 351 and 417 of the Migration Act.
At the hearing, Counsel for the applicant clarified that the injunction sought is also until the requests for the Minister to exercise his powers under ss 351 and 417 are finalised in some way, although he conceded that there is probably no scope for s 351 to apply in practice.
For the purposes of considering the application for an interlocutory injunction, I am prepared to proceed on the basis that the application for relief includes an application for an injunction or writ of prohibition to prevent removal until the requests for the Minister to exercise his powers under ss 351 and 417 of the Migration Act are finalised. For the purposes of considering the application for an injunction, the principles and issues that arise are substantially the same in relation to each of the five powers the applicant has asked the Minister to exercise.
Of course the applicant may wish to seek leave to amend the application to clarify the final relief sought if this matter proceeds to a final hearing.
Evidence before the Court
The evidence before the Court comprises:
(a)an affidavit deposed by the applicant and filed on 5 July 2023; and
(b)an affidavit of Centaine Alexandra Mumford affirmed on 5 July 2023 and filed on behalf of the Minister.
FACTS RELATING TO VISA APPLICATIONS, DECISIONS AND REQUESTS FOR MINISTERIAL INTERVENTION
The applicant is a citizen of India who arrived in Australia in 2006 as the holder of a student visa. Since ceasing to hold a student visa, the applicant held a series of bridging visas, until his bridging visa was cancelled in November 2015 after the applicant was arrested and charged with criminal offences. The applicant was sentenced to a term of imprisonment and has been held in immigration detention since his release from prison in June 2016. He is an unlawful non-citizen.
The applicant applied for a permanent visa in August 2007 (described in his affidavit as a ‘General Skilled Migration Visa’ and described in an annexure to his affidavit as a ‘subclass 880, Skilled Independent Overseas Student (Residence) visa’). A delegate of the Minister refused to grant the applicant this visa on 18 April 2012. The applicant lodged an application for review by the Tribunal on 16 May 2012, but the Tribunal found that it did not have jurisdiction because the application was made out of time. In early 2013 the applicant applied to the Federal Circuit Court for an extension of time to seek judicial review of the Tribunal’s decision and that application was dismissed by the Court on 13 September 2013.
The applicant applied for a protection visa on 29 January 2014. A delegate of the Minister made a decision not to grant the applicant a protection visa on 4 June 2014. The applicant sought review of that decision by the Refugee Review Tribunal and the Tribunal affirmed the delegate’s decision on 4 November 2014. The applicant applied for judicial review of the Tribunal decision and this application was dismissed by the Federal Circuit Court on 17 May 2016. Subsequent appeals by the applicant to the Federal Court and the High Court were unsuccessful.
Following the applicant’s arrest on criminal changes in November 2015, the applicant’s bridging visa was cancelled pursuant to s 116(1)(g) of the Migration Act and reg 2.43(1)(p)(ii) of the Migration Regulations 1994 (Cth) (Regulations) on 11 November 2015.
On 25 May 2022 the applicant was re-notified of the decision to cancel his visa. He sought review of the decision by the Administrative Appeals Tribunal and on 15 July 2022 the Tribunal affirmed the delegate’s decision. On 12 August 2022 the applicant filed an application to this Court seeking judicial review of the Tribunal decision. The applicant discontinued this proceeding by filing a Notice of Discontinuance dated 2 February 2023.
The applicant does not currently have any visa applications on foot. Ms Mumford deposed that she understands that there are statutory bars pursuant to ss 48 and 48A of the Migration Act which prevent the applicant from making further visa applications while he is within the migration zone, absent Ministerial intervention. The applicant has not in his submissions to this Court suggested that he has any right to apply for a further visa within the migration zone.
On 21 June 2023 the Department of Home Affairs notified the applicant of its intention to remove him from Australia on 6 July 2023.
Between 18 June and 4 July 2023 the applicant has made the following requests to the Minister, which I will refer to collectively as requests for Ministerial intervention:
(a)On 18 June 2023 the applicant asked the Minister to exercise his power under ss 351 and 417 of the Migration Act. The request was made in respect of the Tribunal’s decision that it did not have jurisdiction to conduct a review of the delegate’s decision refusing to grant the applicant a ‘subclass 880, Skilled Independent Overseas Student (Residence) visa’, on the basis that the late lodging of the application was the fault of the applicant’s migration agent, who the applicant later found out was not properly registered, and based on the length of time the applicant has lived in Australia and his chronic depression and anxiety. The applicant deposed that he was informed by his case manager that he did not meet the guidelines as his application to the Tribunal was lodged out of time.
(b)On 18 June 2023 the applicant asked the Minister to exercise his power under s 48B of the Migration Act so that the applicant could make a second application for a protection visa. The applicant claimed that strong and compelling circumstances had arisen since his application for a protection visa was refused, because he has borrowed around $100,000 from loan sharks to pay legal fees in relation to his criminal and immigration matters, at an interest rate of 10% and a further 5% interest if the basic minimum payment is not made. The applicant has not repaid any of the money and claims that he has been threatened lots of time while in detention and he would be forced to pay upon his release from detention or be killed if he returns to India.
(c)On 3 July 2023 the applicant asked the Minister to exercise his power under ss 195A and 197AB of the Migration Act to grant the applicant a visa and to make a residence determination. The applicant referred in this request to the length of time he has been in Australia, his remorse and rehabilitation following his criminal conviction, his mental health, his belief that he engages Australia’s complementary protection obligations and that his removal to India would breach Australia’s non-refoulement obligations, his inability to support himself and to cope if returned to India and that he has a fiancé from Sydney whose family will support him if he is released into the community.
(d)On 4 July 2023 the applicant asked the Minister to exercise his power under ss 417 and351 of the Migration Act, referring to the decision to refuse to grant him a protection visa, his belief that he engages Australia’s complementary protection obligations, the length of time he has spent in Australia, his mental health, the absence of any International Treaty Obligation Assessment conducted by the Department since his protection claims were assessed eight years ago and his fiancé from Sydney.
The evidence before the Court suggests that these requests for Ministerial intervention (or at least some of them) have been acknowledged, but that the Minister has not made a decision or taken any procedural steps in relation to the requests.
RELEVANT LEGISLATION REGARDING REMOVAL OF THE APPLICANT FROM AUSTRALIA AND THE APPLICANT’S REQUESTS FOR MINISTERIAL INTERVENTION
Section 198(6) of the Migration Act is the source of the obligation to remove the applicant in the present case. That subsection provides:
An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c) one of the following applies:
(i)the grant of the visa has been refused and the application has been finally determined;
(ii) the visa cannot be granted; and
(d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
In the present case, the applicant is a detainee and his applications for substantive visas have been refused and finally determined within the meaning of s 5(9) and (9A) of the Migration Act. As discussed above, the applicant has made no further application for a substantive visa.
The applicant asked the Minister to exercise his powers under ss 48B, 195A, 197AB, 351 and 417 of the Migration Act. These powers can be briefly explained as follows.
Subsection 48B needs to be understood in the context of s 48A, which operates to prevent a non-citizen who has previously made an application for a protection visa from making a further application for a protection visa while in the migration zone. Section 48B(1) allows the Minister, if he thinks it is in the public interest to do so, to determine that s 48A does not apply to prevent an application for a protection visa being made by the non-citizen in the period starting when written notice of the decision under s 48B(1) is given and ending at the end of the seventh working day after the notice is given.
Section 195A(2) of the Migration Act allows the Minister, if he thinks it is in the public interest to do so, to grant to a person who is in immigration detention under s 189, a visa of a particular class, whether or not the person has applied for the visa.
Section 197AB of the Migration Act allows the Minister, if he thinks it is in the public interest to do so, to make a residence determination to the effect that a specified person who is detained under s 189 of the Migration Act is to reside at a particular place, instead of being detained at an immigration detention centre. While a residence determination is in force, and subject to some exceptions, the Migration Act and Regulations apply to the person covered by the determination and who is residing at the place specified in the determination as if the person were being kept in immigration detention at that place in accordance with s 189.
Section 351(1) of the Migration Act allows the Minister, if he thinks that it is in the public interest to do so, to substitute for a decision of the Tribunal made under s 349 (in relation to a Part 5-reviewable decision)[1] another decision that is more favourable to the applicant.
[1] The term ‘Part 5-reviewable decision’ is defined in s 338 of the Migration Act and includes various types of decisions, other than most decisions relating to protection visa refusals.
Section 417(1) of the Migration Act allows the Minister, if he thinks that it is in the public interest to do so, to substitute for a decision made under s 415 (in relation to a Part 7-reviewable decision)[2] another decision that is more favourable to the applicant.
[2] The term ‘Part 7-reviewable decision’ is defined in s 411 of the Migration Act and includes some types of decision relating to protection visa applications.
Each of the powers in ss 48B(1), 195A(2), 351(1) and 417(1) may only be exercised by the Minister personally: ss 48B(2), 195A(5), 351(3) and 417(3). The Minister does not have a duty to consider whether to exercise the relevant powers whether requested to do so by the applicant or by any other person, or in any other circumstances: ss 48B(6), 195A(4), 351(7) and 417(7). Based on these provisions, the powers are frequently referred to as personal and non-compellable powers of the Minister.
The High Court has considered the Minister’s personal and non-compellable powers in a number of cases, most recently in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 408 ALR 381; [2023] HCA 10 (Davis). The Court confirmed that Minister exercises the personal and non-compellable powers ‘by personally making the first or both of two distinct sequential statutory decisions neither of which the Minister is obliged to make’. The first decision is a procedural decision to either consider or to not consider whether it is in the public interest to exercise the relevant power. The second decision is a substantive decision to either think that it is in the public interest to exercise the power and to do so, or to not think that it is in the public interest to exercise the relevant power and not to do so: see Davis at [14] per Kiefel CJ, Gageler and Gleeson JJ.
CONSIDERATION OF APPLICATION FOR INTERLOCUTORY INJUNCTION
Form of order sought
An interlocutory injunction is ordinarily sought to preserve the status quo pending the resolution of a substantive matter to be determined by the Court: Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [15] (Gleeson CJ), [64] (Gummow and Hayne JJ), [162] (Kirby J) . The interlocutory injunction sought by the applicant does not seek to restrain the Minister from removing the applicant until his substantive judicial review application is determined. Rather, it seeks to restrain the Minister from removing him until such time as his various requests for Ministerial intervention ‘have been finally determined’.
I have significant concerns as to whether, if I was satisfied it was appropriate to grant an interlocutory injunction, this would be the most appropriate interlocutory injunction to grant. This is because the Minister has no obligation to make either the procedural decision or the substantive decision, as described in Davis (see [45] above), in relation to the applicant’s requests and the Court has no power to order the Minister to ‘finally determine’ or take any other action in relation to the requests. I have some concerns about the appropriateness of making an interlocutory injunction that is not in any way tied to the resolution of the proceeding before the Court or any matter within the Court’s power to make orders.
If I was minded to grant the injunction, I would give consideration to granting an injunction in a different form. When I expressed my concerns to Counsel for the applicant, he suggested that the injunction could operate until further order of the Court. This may be one possibility. However, it is not necessary to resolve this issue because I have decided not to grant any interlocutory injunction.
Relevant principles
In considering whether to exercise the discretion to grant an interlocutory injunction, it is appropriate for the Court to consider:
(a)whether there is a serious question to be tried, which requires the applicant to show that there is a sufficient likelihood that he will succeed at the final hearing to justify the preservation of the status quo pending the final hearing; and
(b)whether the inconvenience or injury that the applicant would suffer if the injunction is refused outweighs or is outweighed by the inconvenience or injury the Minister would suffer if the injunction is granted: see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 (O’Neill) at [65].
The two limbs of the test for the grant of an interlocutory injunction are interrelated. This was explained in Morrison v Minister for Immigration and Citizenship [2007] FCA 723, where French J (as his Honour then was) said at [22]:
… In order to grant interlocutory relief to restrain his removal, pending a substantive application, I would have to have regard both to the possibility that he has some case to argue in relation to the decision to cancel his visa and secondly that the balance of convenience lies in favour of an interim order. These two requirements are inter-dependent. Of course, the stronger the case that there is an arguable error on the part of the Minister, the less the balance of convenience need lie in favour of the applicant in order to justify the grant of relief…
and in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 870, where Thawley J said at [13]:
Consideration of the two main inquiries cannot be conducted completely independently of each other, because “an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even” and “[a] more doubtful claim (which nevertheless raises ‘a serious question to be tried’) may still attract interlocutory relief if there is a marked balance of convenience in favour of it”: Bullock v The Federated Furnishing Trades Society of Australasia (No 1) [1985] FCA 19; (1985) 5 FCR 464 at 472 per Woodward J (Smithers and Sweeney JJ agreeing at 467 and 469 respectively); see also ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363at [28] (Charlesworth J).
Is there a serious question to be tried?
The serious question to be tried must relate to the final relief sought in the application and the ground of application.
In deciding whether there is a serious question to be tried, the applicant does not need to show that he is likely to succeed in his substantive application. Rather, he needs to establish that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the final hearing: see O’Neill at [65].
The central question in relation to the substantive application and the final relief sought is whether the decision to remove the applicant pursuant to s 198(6) of the Migration Act, and the proposed removal of the applicant, is unlawful in circumstances where the applicant now has pending requests for Ministerial intervention.
The main reasons advanced by the applicant as to why the Court should find that there is a serious question to be tried in relation to the lawfulness of removal while there are pending applications for Ministerial intervention are that:
(a)the removal of the applicant is beyond the executive power of the Commonwealth because it would foreclose the possibility of the Minister considering his public interest powers;
(b)the duty to remove a non-citizen under s 198(6) of the Migration Act is not a duty to remove immediately but a duty to remove ‘as soon as reasonably practicable’, and a range of factors should be taken into account in making an assessment of what is reasonably practicable including any pending requests to the Minister for the exercise of his public interest powers;
(c)in any event, it is unlawful to remove an applicant while there are pending requests for Ministerial intervention.
I consider these main arguments, and the respondents’ submissions in response, in turn.
The applicant’s submission that it is beyond the executive power of the Commonwealth to act in a way that forecloses the possibility of the Minister considering his public interest powers is based on the High Court’s judgment in Davis. In that case, the High Court considered a situation where departmental officers assessed requests for Ministerial intervention and did not bring to the Minister’s attention requests which the departmental officers did not consider to be in the public interest. This practice was described at [31] as ‘a purported exercise of executive power which gives conclusive effect to an anterior consideration of the public interest undertaken by a departmental officer outside, but for the purposes of, the statutory power’ (in s 351) and was found to be unauthorised. The applicant submitted that the present case shows another way that the Minister’s powers can be interfered with, namely that removal under s 198 while requests are pending would render the exercise of the Minister’s powers futile.
I accept that it is possible that the applicant’s removal from Australia may be taken into account if the Minister chooses to make the procedural or the substantive decisions identified in Davis, and may impact on whether and how the Minister decides to consider the exercise of the powers. However, this is materially different from the situation considered in Davis, which essentially involved departmental officers purporting to conclusively exercise the personal power of the Minister. Removing the applicant from Australia is not an exercise of the Minister’s personal and non-compellable powers and would not amount to departmental officers conclusively exercising the personal powers of the Minister.
I then turn to the applicant’s submission that the duty to remove a non-citizen under s 198(6) of the Migration Act is not a duty to remove immediately, but a duty to remove ‘as soon as reasonably practicable’. The applicant submitted that in determining what is reasonably practicable a range of factors must be taken into account including pending requests to the Minister for the exercise of his public interest powers. On the other hand, the Minister referred to WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 (WAIS), where French J (as his Honour then was) said at [58]:
The term “as soon as reasonably practicable” in s 198 is an evaluative term which is to be assessed by reference to all the circumstances of the case. What is reasonable is to be determined, inter alia, by reference to the practical difficulties that may lie in the way of making arrangements for removal which involve the cooperation of other countries whether in respect of the particular applicant or generally in relation to the class of applicants of which he is a part. Provided arrangements are being sought generically or specifically by reference to the applicant with reasonable expedition it is difficult to see how delays beyond the control of the Minister and his officers can be taken into account in determining what period for removal falls outside the scope of the term “as soon as reasonably practicable” in s 198.
I accept that there may some questions as to the precise scope of what might be taken into account in determining what is reasonably practicable, but this of itself does not give rise to a serious question to be tried, and there is no basis for concluding, based on the text, scope and purpose of s 198(6) that whether there were any pending requests for Ministerial intervention is a mandatory relevant consideration.
At the hearing I expressly asked Counsel for the applicant to explain the basis for his submission that even without the words ‘as soon as reasonably practicable’ in s 198(6), it would be unlawful to remove an applicant while there are pending requests for Ministerial intervention. Counsel for the applicant submitted that the time and manner of removal are discretionary decisions which must be made in a legally reasonable and lawful way and it would not be lawful to remove an applicant while there is a pending request.
These submissions do not demonstrate that there is a serious question to be tried. I accept the Minister’s submission to the effect that the applicant’s proposed construction is not consistent with the text of s 198(6) or its apparent context and purpose within the Migration Act. The applicant’s proposed construction also appears to be inconsistent with recent Federal Court authority, including the recent judgment of Rofe J in Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433, where her Honour said at [23]:
…As noted by counsel for the Minister, an outstanding application for ministerial intervention does not prohibit the Department from removing an individual pursuant to s 198(5) of the Act. Even if the substantive relief was granted by the Court at a future date, the applicant would not have a basis to avoid removal and would have no legal right to remain in Australia. The Minister’s obligation under s 198(5) to remove an unlawful non-citizen persists despite any unresolved application for ministerial intervention.
Although that judgment considered the obligation in s 198(5) rather than the obligation in s 198(6), her Honour’s comments are apposite to the obligation in s 198(6).
I make the following observations regarding the text and context of s 198(6).
Section 198(6) of the Migration Act clearly imposes an obligation to remove an unlawful non-citizen as soon as reasonably practicable if all of the circumstances set out within that paragraph exist. There is nothing in the text of that provision to suggest in any way that the obligation to remove can only be exercised if there are no pending requests for Ministerial intervention. Further, such a construction would be inconsistent with other provisions of the Migration Act. It is inconsistent with the clear words of the provisions conferring the Minister’s personal and non-compellable intervention powers, which make clear that the Minister does not have a duty to consider whether to exercise the relevant powers whether requested to do so by the applicant or by any other person, or in any other circumstances. Taking into account those provisions, the effect of the applicant’s preferred construction would be that officers of the Department can only perform their duty under s 198(6) if the Minister considers the exercise of a power that he has no duty to consider.
Further, to the extent that the applicant relies on the assertions in his requests for Ministerial intervention that Australia owes him protection obligations, I accept the respondents’ submission that s 197C shows an intention that, for the purposes of the exercise the duty under s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of the applicant. Section 197C makes clear that:
(a)for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of the applicant: s 197C(1) of the Migration Act; and
(b)the duty in s 198 to remove the applicant as soon as reasonably practicable arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of him: s 197C(2) of the Migration Act.
A further effect of the applicant’s preferred construction referred to by Counsel for the respondents’ also shows that the applicant’s preferred construction is not consistent with the context of s 198 within the Migration Act. One reason why, in the respondents’ submissions, the practical effect of the applicant’s preferred construction would be to compel the Minister to consider the exercise of a power that he cannot be compelled to consider, is that if the applicant is granted the injunctive relief that he seeks and the Minister does not consider whether or not he wishes to exercise his personal and non-compellable powers, the applicant would face a period of indefinite detention. This submission takes into account s 196(1) of the Migration Act which requires a person detained under s 189 to be kept in immigration detention until the person is removed from Australia under ss 198 or 199, deported under s 200, granted a visa, or taken to a regional processing country.
Counsel for the respondents also submitted that the applicant’s preferred construction would allow for an applicant to frustrate the obligation in s 198 by making a rolling series of requests for Ministerial intervention. To the extent that the applicant submits that the duty in s 198(6) cannot lawfully be carried out while there are any pending requests for Ministerial intervention, I accept that his preferred construction may allow for this possibility.
In oral submissions, Counsel for the respondents emphasised that the practical effect of granting relief to the applicant would be to compel the Minister to consider the possible exercise of powers that he cannot be compelled to consider. I accept that granting an injunction or issuing a writ of prohibition to prevent the respondents from removing the applicant until his outstanding requests for Ministerial intervention are finalised in some way would in practice, be likely to have this effect, if the possibility of of indefinite detention is to be avoided (see [66] above). This also weighs against the applicant’s preferred construction. In response to the Minister’s submissions in this regard, Counsel for the applicant referred to previous practices of the Department and ways in which the requests for Ministerial intervention may transition from pending to finalised. I have no information before me as to the current practices of the Minister and Department, following the judgment in Davis. In any event, those submissions are directed to how the Minister’s powers might be exercised, and do not inform the question of whether it is unlawful to remove the applicant while there are pending requests for Ministerial intervention.
The need to avoid making orders that have the effect of compelling the Minister to consider the possible exercise a non-compellable power goes not only to the question of whether the applicant’s ground raises a serious question to be tried, but also to whether the applicant can demonstrate an arguable entitlement to the final relief sought.
There are three final points that should be made for completeness in relation to the discussion of whether there is a serious question to be tried.
First, it can be seen from the application that the relief and grounds refer to the Minister’s power under s 197AB of the Migration Act. The parties did not address this power in their submissions and no attempt has been made to demonstrate that there is a serious question to be tried in relation to the power in s 197AB. It is difficult to see how a request for a residence determination in favour of the applicant could have any impact on the obligation in s 198(6) to remove the applicant from Australia. In the circumstances, I am not satisfied that there is a serious question to be tried in relation to the reference to the power in s 197AB of the Migration Act.
Second, much of the discussion above relates to particular (a) of the ground of application. Particular (b) does not appear to have been directly addressed by the parties. That particular asserts that where an applicant has a pending application for a visa, it is unlawful for the respondents to take steps to remove the applicant as that is prohibited by s 198(5A) of the Migration Act. This particular cannot give rise to a serious question to be tried because:
(a)on the evidence before the Court, the applicant does not have any pending application for a protection visa (which is the type of visa referred to in s 198(5A)) so there is no scope for the operation of s 198(5A); and
(b)on its face, s 198(5A) operates ‘despite subsection (5)’ whereas the source of the obligation to remove the applicant in the present case is s 198(6).
Third, the applicant submitted that the fact that there are competing arguments raised in relation to the ground manifestly shows that there is a serious question to be tried. I do not accept this submission. I requested submissions in relation to the Court’s jurisdiction and the appropriate orders for it to make because these questions are clearly important to the exercise of judicial power and the answers were not self-evident from the application. They do not show that there is a serious question to be tried. Further, that there are a number of submissions advanced in opposition to the applicant’s proposed construction shows nothing more than that the Minister considered that there were multiple reasons why there is no serious question to be tried.
For all of these reasons, I am not satisfied that there is a serious question to be tried, either in relation to the ground as pleaded or the applicant’s entitlement to the relief he seeks.
Where does the balance of convenience lie?
The applicant’s submission that the balance of convenience lies in his favour is based on the following premises:
(a)there is grave prejudice to him if the injunction is not granted, because he will be deprived of the possibility of having his (new) claims to engage Australia’s protection obligations being considered, which may involve the Minister seeking an international treaties obligation assessment or granting the applicant a visa;
(b)removing him while his requests for Ministerial intervention remain pending would render those pending requests futile;
(c)if removed to India, he faces a fear of harm, including death, arising from his inability to survive on the streets in India and from the threat of extortion and from criminal persons who seek enormous sums of money from him;
(d)he has medical conditions and a relationship with a woman in Australia;
(e)if the injunction is not granted there is prejudice to the public interest because the Minister’s public interest powers would be frustrated;
(f)the applicant has been in detention for seven years, but was given less than a month’s notice of his pending removal.
I accept that if the injunction is not granted, and the applicant is removed from Australia, this is something that might be taken into account if the Minister makes a procedural decision to consider the exercise any of his personal and non-compellable powers, and if he decides to consider the possible exercise of those discretions, in the substantive decision in relation to whether those powers should be exercised in the applicant’s favour. However, this needs to be viewed in the context where there is no obligation on the Minister to consider whether or not to exercise his personal and non-compellable powers, and any submission regarding the public interest in the Minister’s exercise of his personal and non-compellable powers should also be viewed in this context. In other words, the consideration of the Ministerial intervention requests and the possibility of an exercise in the applicant’s favour are possibilities only and not something to which the applicant is entitled to.
I also accept that the applicant may be returned to India in circumstances where his most recent claim to be entitled to protection has not been assessed, but s 197C of the Migration Act makes clear that the duty to remove the applicant under s 198 arises irrespective of whether there has been an assessment of Australia’s non-refoulement obligations.
I accept that there is some prejudice to the applicant if the injunction is not granted.
However, I also accept that the public interest in the proper administration of the Migration Act is a matter that weighs against the balance of convenience favouring the applicant. I accept the Minister’s submission that the clear legislative intent of s 198 of the Migration Act would be frustrated by granting an interlocutory injunction and the grant of the interlocutory injunction would have the effect of requiring the Minister to direct his officers to proceed in defiance of s 198 of the Migration Act. As Judge Lucev said in APF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 182 at [24]:
…Importantly, in the circumstances of this case, there is also the statutory provisions of s 198 of the Migration Act. The public interest in the proper administration of the Migration Act is a further reason why the balance of convenience lies against granting the granting of an injunction. This is particularly so in circumstances where s 198(6) of the Migration Act imposes an obligation on officers of the Department of Immigration and Border Protection to remove an unlawful non-citizen from Australia, with the granting of an interlocutory injunction having the effect of requiring the Minister to direct his officers to proceed in defiance of that section: see also ALY15 v Minister for Immigration and Border Protection [2017] FCA 281 at [12]. The proper administration of the Migration Act is a factor that should be taken into account in deciding where the balance of convenience lies.
There are therefore balance of convenience considerations that lie both in favour of and against the grant of the interlocutory injunction.
Given my views expressed above in relation to the serious question to be tried, and the interrelated nature of the serious question to be tried and the balance of convenience, on balance I have determined not to exercise my discretion to grant the interlocutory injunction. The lack of any serious question to be tried outweighs the competing balance of convenience considerations.
CONCLUSION
The application for an interlocutory injunction is therefore dismissed.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 6 July 2023
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