Nahona v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1033
•30 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nahona v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1033
File number(s): PEG 254 of 2023 Judgment of: JUDGE GIVEN Date of judgment: 30 October 2023 Catchwords: MIGRATION – Urgent interlocutory application to restrain removal from Australia – whether existence of judicial review application has automatic effect that it is not reasonably practicable to remove an applicant for purposes of s 198 of the Migration Act 1958 (Cth) such that assessment of reasonable question to be tried is unnecessary – injunction granted Legislation: Migration Act 1958 (Cth) ss 116, 198, 501 Cases cited: AOZ23 v Commonwealth of Australia [2023] FCA 1312
BMH20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 652
BXI23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 660
Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436
CKL21 v The Minister for Home Affairs (2022) 293 FCR 634
FEL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 331
Isley v Minister for Immigration and Border Protection [2018] FCA 632
Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 (2022) 290 FCR 149
SZSPI v Minister for Immigration and Border Protection (2014) FCR 279
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 30 October 2023 Place: Sydney Counsel for the Applicant Mr M Albert Solicitor for the Applicant Lewenberg & Lewenberg Solicitor for the Respondent Mr J Papalia of Australian Government Solicitor ORDERS
PEG 254 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PETER TEKOU NAHONA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
30 OCTOBER 2023
THE COURT ORDERS THAT:
1.The applicant has leave to make the following applications orally in Court:
(a)Application for an injunction restraining his removal from Australia; and
(b)Application for judicial review of a delegate of the respondent made on 28 October 2023 to cancel his visa pursuant to s116(e)(i) of the Migration Act 1958 (Cth) (decision).
2.The Application referred to in Order 1(a) is returnable instanter.
3.Until further order, the Minister for Immigration, Citizenship and Multicultural Affairs by himself, his delegates, his Department, its officers, employees or agents, including members of the Australian Border Force be restrained from removing the applicant from Australia until the determination of his application for judicial review of the decision of a delegate of the Minister made 28 October 2023.
4.The first respondent must file and serve a bundle of relevant documents (Court Book) in electronic form on or by 3 November 2023, which complies with the following requirements:
(a)be in portable document format (pdf);
(b)be capable of being searchable for specified text;
(c)have an index and be paginated;
(d)have each entry in the index bookmarked; and
(e)be set so that when opened:
(f)it displays at 100% zoom; and
(g)the bookmarks menu is displayed.
5.The applicant must file and serve the following documents by 4.00pm (AEDT) on 13 November 2023:
(a)any amended application;
(b)Affidavit evidence on which he wishes to rely; and
(c)a written outline of submissions (not exceeding 10 pages and providing a version of the same in Word format by email to the Chambers of Judge Given on the date of filing) and list of authorities.
6.The first respondent must file and serve the following documents by 4.00pm (AEDT) on 20 November 2023:
(a)Affidavit evidence on which he wishes to rely; and
(b)a written outline of submissions (not exceeding 10 pages and providing a version of the same in Word format by email to the Chambers of Judge Given on the date of filing) and list of authorities.
7.The proceedings are listed for final hearing before Judge Given at 10.15am (AEDT) on 28 November 2023 in Court 13.1, level 13, 80 William Street, Woolloomooloo (including by MS Teams).
8.If the applicant is not represented by a lawyer, then at least 2 days before the hearing referred to in order 7, the first respondent must file and serve an Affidavit pursuant to r 6.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) which evidences:
(a)service of all sealed documents filed in the proceedings for the first respondent, upon the applicant; and
(b)any other correspondence in the proceedings which may be relevant to matters to be raised and/or orders which may be sought at the hearing.
9.The parties are granted liberty to restore on 2 days’ notice.
10.Costs of today are reserved.
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).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)JUDGE GIVEN
Before the Court is an urgent interlocutory application made orally and returnable instanter, by which the applicant, Mr Nahona, seeks to restrain his removal from Australia.
Also made orally before Court, albeit not returnable instanter, is an application for judicial review of a decision (judicial review application) of a delegate of the Minister for Immigration, Citizenship and Multicultural affairs (delegate) to cancel Mr Nahona’s subclass TY-444 visa, pursuant to section 116(1)(e)(i) of the Migration Act 1958 (Cth) (Act). Upon the Court having allowed the making of the judicial review application orally, and despite there not being a proceedings number yet assigned to it, the applicant now has judicial review proceedings on foot in this Court.
The time in Sydney (from where the Court is presently presiding using Microsoft Teams) is 6:55pm (AEDT). The time in Western Australia, where I understand Mr Nahona is presently being transferred from an immigration detention centre to the international airport, is 3:53pm (AWST). I am informed by the solicitor who appears for the Minister that Mr Nahona is presently scheduled to depart Australia on Air New Zealand flight NZ176 at 6:50pm (AWST), which is in approximately two and a half hours’ time.
Upon the Court being notified that an urgent interlocutory application was forthcoming, I listed the matter before me in my capacity as Sydney duty Judge, for an urgent hearing at 6:15pm (AEDT) today. The applicant is represented by Counsel, whom I understand to be in Melbourne. The Minister is represented by a solicitor.
BACKGROUND
There is no Affidavit evidence before me. The only material before the Court is Exhibit “1R”, being a bundle of documents tendered for the Minister which includes the Notice of Intention to Consider Cancellation (NOICC) which was given to Mr Nahona on 28 October 2023 at approximately 5:55pm. From that document, it appears that Mr Nahona arrived at Perth International Airport on 28 October 2023 as the holder of a New Zealand passport. I glean, from other documents in Exhibit “1R” to which I will come shortly, that Mr Nahona has been resident in Australia since 1990, being some 33 years.
Exhibit “1R” indicates that Mr Nahona has family in Australia and described himself as “a family man”. He has a wife, it seems at least one son, and grandchildren, all of whom are in Australia. There are no details before me as to where, why, or for how long Mr Nahona had departed from Australia, such that he was returning. However, it appears he returned home to Perth so that he could continue his residence somewhere in Western Australia.
Attachment “A” to the NOICC details that, upon arrival in Perth, Mr Nahona was detained at the airport. There are no details as to what prompted that detention. Mr Nahona was issued with the NOICC because grounds were said to exist to consider cancellation of his visa on the basis that his presence in Australia is or may be, or would or might be, a risk to the health, safety, or good order of the Australian community or a segment of the Australian community.
During an interview, which appears to have taken place approximately some 18 minutes after the NOICC was issued to him, Mr Nahona made admissions that he was a member of the Wanganui chapter of the “Mighty Mongrel Mob Motorcycle Club” (club), and that his current rank is “member”. Mr Nahona apparently agreed that he has three tattoos which represent the club, including an image of a bulldog which is said to be associated with the club’s insignia.
A baggage examination was undertaken of Mr Nahona’s possessions which apparently yielded his mobile telephone, which is said to confirm that he is a “fully patched” member of the club. I am not sure how the telephone did that. Items of interest to the Australian Border Force located within Mr Nahona’s luggage are said to be:
(a)three rings;
(b)four shirts;
(c)one leather jacket; and
(d)five bandanas.
all of which depict the club insignia.
Other items of interest located by the Australian Border Force officers were found on Mr Nahona’s mobile phone, namely, photos said to be of fully patched club members, which Mr Nahona confirmed were taken in 2023 at his residence in Carramar, Western Australia, and photos of Mr Nahona wearing clothing bearing the club’s insignia.
The NOICC says that numerous law enforcement and international intelligence agencies, including the Australian Criminal Intelligence Commission, classify the club as an organised crime syndicate. The club’s activities in Australia are said to have traditionally included drug trafficking, prostitution, armed robbery, arms trafficking, and murder-for-hire.
Mr Nahona was told that, based on the above it appeared that he may be a current member or an associate of the club, and that the delegate found that his presence in Australia may be a risk to the safety of the Australian community. It was for this reason that grounds were said to exist to warrant considering cancelling Mr Nahona’s visa and he was asked to comment.
When asked in the interview in response to the NOICC, as to reasons why the visa should not be cancelled, Mr Nahona is recorded as having responded:
(a)it’s not an easy thing to walk away from the gang and there can be consequences;
(b)he would “be going down a dark hole” if he goes back to New Zealand;
(c)he wants to be with his wife and his boy lives in Yanchep with his grandkids “and the kids will be devastated”;
(d)he is “more of a family man than a ratbag”; and
(e)he would love to stay in Australia because he loves to work.
In making their decision, the delegate gave significant weight to Mr Nahona’s affiliation with the club.
The delegate acknowledged in the decision that, in terms of the extent of compliance with Mr Nahona’s visa conditions, Mr Nahona had been travelling and residing in Australia since 1990, and there is no evidence of non-compliance with visa conditions since his first arrival. This was given some weight.
The degree of hardship, psychological and emotional hardship because of the visa cancellation was acknowledged, including potentially significant financial loss for Mr Nahona. The delegate assessed that there was no evidence before them to suggest that cancellation would lead to a breach of Australia’s non-refoulement obligations. There was said to be no evidence before the delegate to suggest the visa holder had dependent children in Australia. The emotional hardship to Mr Nahona was considered and given some weight against cancellation.
Mr Nahona was noted as being compliant, which was also given some weight against cancellation.
In terms of the circumstances in which the ground for cancellation arose, this was treated neutrally, and various other matters were also weighed against cancelling the visa.
Overall, however, the decision was made to cancel Mr Nahona’s visa. As such, he became an unlawful non-citizen and, pursuant to s 198 of the Act, the Minister says that he must be removed from Australia as soon as practicable.
INJUNCTION PRINCIPLES
The principles which exercise the discretionary power to issue an injunction, such as that which is sought for Mr Nahona, are well established (Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436) and apply in both private and public law litigation including recently both in this Court and the Federal Court of Australia: see recently AOZ23 v Commonwealth of Australia [2023] FCA 1312 at [13] per Rofe J and BXI23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 660 at [20] per Judge Manousaridis.
The discretion will be exercised if the Court is satisfied that:
(a)there is a serious question to be tried or that the applicant has made out a prima facie case in the sense that if evidence remained as it is at this time, that there was a probability that the action would be such that the applicant might be entitled to the relief;
(b)that the applicant will suffer irreparable injury for which damages will be an insufficient remedy; and
(c)that the balance of convenience favours the granting of the injunction.
The question of whether or not such an injunction should be granted will inevitably turn on its own facts and circumstances: SZSPI v Minister for Immigration and Border Protection (2014) FCR 279 per Allsop CJ, and Mansfield and Besanko JJ, as well as FEL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 331 per Judge Barnes.
Preliminary issue – effect of extant judicial review proceedings
As a starting point, Counsel for the applicant sought to persuade the Court that it was unnecessary to turn to whether there is a serious question to be tried, contending there to be case law, binding on this Court, to the effect that the existence of an extant judicial review application is sufficient as to preclude satisfaction of s 198 of the Act, which imposes a duty on an officer to remove, as soon as reasonably practical, an unlawful non-citizen. The applicant says that once a judicial review application is on foot, it is no longer “reasonably practical” to remove a person for the purposes of s 198.
This principle is said first to arise from the decision of Full Federal Court in Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 (2022) 290 FCR 149 (AZC20) in which Jagot, Mortimer J (as her Honour then was) and Abraham JJ stated the following a [69]:
Once any visa application has been finally determined, as that phrase is defined in ss 5(9) and 5(9A) of the Act, a person in the respondent’s position would be exposed to removal under s 198(6) of the Act, read now with s 197C of the Act. That duty would again remain subject to removal being “reasonably practicable”: for example, depending on whether there is an outstanding judicial review application.
However, it does not appear that their Honours were saying anything more than the existence of a judicial review application being extant is an example of a factor upon which the question of reasonable practicality might turn.
The other case upon which reliance was placed was the decision of Kerr J in Isley v Minister for Immigration and Border Protection [2018] FCA 632 (Isley). In that case, his Honour said the following at [89]:
I infer the officers of the Department responsible for carrying out the duty conferred on them by s 198(2B)(c) have determined that it is not reasonably practicable to remove Mr Isley while he is pursuing his legal right to seek judicial review. They of course are correct to take that view.
I am not satisfied that either of the aforementioned decisions to which I was referred intended to (or does) have the effect that the existence of an extant judicial review application is such that s 198 cannot be satisfied, or that the Court does not need to consider the ordinary principles in exercising its discretion to consider a removal injunction. If it were the case that either of those authorities intended to have such an effect, I would have expected them to say so expressly.
I have also had regard to the Federal Court Migration Practice Note “Removal from Australia of Immigration Detainees who have Proceedings before the Court (MIG-2)” (Practice Note MIG-2) about which, in BMH20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 652, it was said at [51] per Judge Kelly that:
The evident purpose of that Practice Note is to underscore the importance of respecting whether an applicant wishes to remain in Australia until their application for judicial review has been finally determined.
The very existence of Practice Note MIG-2 and the many cases in which applicants have, with extant judicial review applications before the Court, failed to succeed in restraining their removal indicates to me that AZC20 and Isley do not stand for a general proposition that it is now not possible and/or necessary to undertake the task of considering a removal injunction by reference to the ordinary principles which attend urgent interlocutory injunctions. This includes that there are cases which post-date both the decisions of Isley and AZC20 in which persons have been removed, notwithstanding the existence of proceedings. While it can be accepted that in many circumstances it will be desirable that an applicant remain in Australia in order to prosecute a judicial review proceeding, each case should be assessed on its own facts and circumstances. There is no automatic prohibition on removing an applicant based on the existence of proceedings alone, and it is not a sufficient basis to stray from the well-established principles which attend an interlocutory injunction.
Serious question to be tried
Turning then to those principles, the first of them is whether there is a serious question to be tried.
The judicial review application now made before the Court raises one ground of review at present, with a potential second ground foreshadowed before me this evening.
The first ground is that the decision of the delegate to cancel Mr Nahona’s visa under s 116(1)(e)(i) is legally unreasonable.
The second potential ground is said to relate to a precondition to the exercise of the s 116 power. Namely, that there is a specific period of time (albeit that was not further detailed before me) which an applicant is required to be given between receiving the NOICC and any interview that is held with an applicant. The period in this case is said to be 18 minutes.
While the solicitor who appeared for the Minister had some matters to submit in relation to what is the first ground of the orally made judicial review application, nothing has been said in relation to the potential ground, namely the issue of whether or not there was a sufficient period given between the time that Mr Nahona was given the NOICC and the time he was interviewed by a delegate of the Minister.
As neither party was able to address the potential second ground, and while making no criticism in that respect given the very short timeframe in which this application has eventuated, for the purposes of assessing whether there is a serious question to be tried, I will consider ground 1 only.
That ground alleges that the decision to cancel Mr Nahona’s visa is legally unreasonable. Reliance was placed on the decision of CKL21 v The Minister for Home Affairs (2022) 293 FCR 634 (CKL21) per Moshinsky, O’Bryan and Cheeseman JJ. For the applicant, attention was drawn to [64] of CKL21, in which the Full Federal Court observed that a discretionary decision may be reviewed against the standard of reasonableness by reference to the reasons given for a decision, and also by reference to its outcome. However, where reasons are given for the exercise of the discretionary power, the Court would ordinarily look to those reasons to assess the reasonableness of the exercise of power. Emphasis was then also placed on [73] to [74], but specifically to the part of [74] in which the Full Court said, after citing the plurality in Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ, that:
Further, as the above passage of the plurality of Guo indicated, a risk may be so low that it must properly be disregarded. In assessing the likelihood of a future event, the key facts will include the regularity with which the event had occurred in the past, the conditions under which the event occurred in the past, and the likelihood that those conditions have since changed, or other events have intervened to interrupt the cycle of regularity.
This was advanced firstly in support of a submission that the facts of CKL21 which were objectively more serious than the facts of the instant case, in the sense that CKL21 been convicted of murder, whereas the Court was told that Mr Nahona has only one criminal antecedent (or at least that his most criminal antecedent) is a drink driving conviction from many years ago.
While the Court can accept the broad principles discussed in CKL21, namely that statutory powers are conditioned by a requirement to exercise them a way that is legally reasonable, the case was not of specific assistance in a factual sense.
The first reason for that is that the cancellation power in CKL21 was s 501 of the Act not s 116. In CKL21, the applicant’s visa was cancelled after his conviction for murder. By contrast, in the instant case I am told from the Bar table by his Counsel that Mr Nahona’s criminal antecedents are limited to an historic charge for drink driving. Accepting that as being so, I am not specifically assisted by these factual comparisons because, in the present case, the ground for cancellation is not based on Mr Nahona’s criminal record.
Rather, the ground for cancellation appears to be his membership of the club, which is said to be that he was previously a member of the Wanganui chapter in New Zealand and that his current rank (although it is not possible to discern whether by reference to Australia or New Zealand by reference to the attachment “B” of the NOICC), is “member”. The cancellation appears in part to have arisen from items found in his luggage, most of which appear to be apparel, and photographs on his mobile phone which also appear to involve the wearing of certain apparel. There is nothing presently before the Court to suggest that any of the items themselves are prohibited.
This matter has come before the Court almost instantaneously, hence the oral applications that have been made relating to the time between the issuance of the NOICC and the interview. However, to the extent that the ground of the judicial review application that has been made before the Court thus far is sufficiently broad as to alleged legal unreasonableness and having regard to the materials before me in terms of the decision made, I am satisfied there is a serious question to be tried.
Notwithstanding the fact that the decision in CKL21 may not be on all fours with the present factual scenario, it seems to me that having regard to the matters that are set out in the record of decision, in particular the factors which weigh against the cancellation of Mr Nahona’s visa, when balanced with a number of significant factors, which at least at first blush would give rise, and seemed to have given the delegate some reason for pause, I am of the view that there is a serious question to be tried by this Court and which should be properly formulated by reference to case law in relation to whether or not that decision has been made on a legally reasonable basis.
Without having formed any concluded view, nor heard substantively from the respective parties in relation to the extant ground of review, it appears to be sufficiently arguable, based on the limited materials in Exhibit “1R”. This weighs in favour of granting the injunction.
Balance of convenience
Injunctions of the kind sought here are granted primarily for the purpose of preserving the status quo pending the final hearing of any serious question, if established to exist.
The solicitor who appeared for the Minister said in respect of whether or not the balance of convenience favoured the granting of the injunction, and particularly in respect of whether or not Mr Nahona would be able to prosecute his judicial review application from New Zealand. That may, strictly, be so. However, I am satisfied that given that Mr Nahona is presently in Australia and that his family are here, that the balance of convenience between the parties favours Mr Nahona remaining in Australia while his judicial review application is processed through this Court, which can be accommodated quite quickly.
It is true also that by reason of Mr Nahona’s visa having been cancelled, he is detained as an unlawful non-citizen. This is not a matter where Mr Nahona seeks his release from detention, which would be contingent upon the Court actually resolving whether the visa was lawfully cancelled. What he does seek in the interim however, is that he remains in Australia, in detention pending hearing of his judicial review application. That is, in essence, to restrain the Minister (by officers of his Department) from acting pursuant to s 198 of the Act. In circumstances where, depending on the outcome of the judicial review proceedings, s 198 of the Act might have no application, and where his life and family appear to be in Perth, I am of the view that the balance of convenience lies in having Mr Nahona remain in Australia pending the final hearing and determination of these proceedings.
This also weighs in favour of granting the injunction.
Damages
Having regard to the strong family aspects of Mr Nahona’s circumstances and the acknowledgment by the delegate of significant financial loss for Mr Nahona, this is a case where potentially failure to maintain the status quo may give rise to manages which cannot be adequately compensated by damages. There was acknowledgment by the delegate of psychological and emotional hardships. I am satisfied at the moment that, on balance, those matters (for which damages would not likely be an adequate remedy) also warrant Mr Nahona remaining in Australia while his judicial review application is heard and determined.
CONCLUSION
Overall, I am satisfied that each of the factors which arise for consideration in respect of the injunction sought before me favour its grant.
I will so order.
Following enquiries with the respective representatives and, in particular, given that Mr Nahona’s Counsel and solicitors are all located in states on Australia’s eastern seaboard, it seems prudent that the matter (while commenced in the Perth Registry) remain in my docket. I will make a timetable for an expedited hearing of the judicial review proceedings before me, which can take place using Microsoft Teams.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 24 November 2023
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