POTIER v Minister for Immigration

[2015] FCCA 3362

FEDERAL CIRCUIT COURT OF AUSTRALIA

POTIER v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3362

Catchwords:
MIGRATION – Interlocutory application for injunctive relief – subclass 050 Bridging visa – whether the Administrative Appeals Tribunal erred in finding that it did not have jurisdiction – whether application for review was made out of time – whether the applicant met the relevant criteria for grant of a bridging visa by virtue of an attempt to obtain a criminal justice stay warrant – whether the objects of the Act were followed in seeking to remove the applicant from Australia – concurrent hearings in the Federal Court on a substantially similar factual basis – no basis for injunctive relief identified – interlocutory application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.4, 198, 347(1)(b), 476, 501

Migration Regulations 2001, regs.4.10, 4.11, Schedule 2, cl.050.212

Applicant: MALCOLM POTIER

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3396 of 2015

Judgment of: Judge Street

Hearing date: 15 December 2015

Date of Last Submission: 15 December 2015

Delivered at: Sydney

Delivered on: 15 December 2015

REPRESENTATION

Counsel for the Applicant: Mr D Brezniak

Solicitors for the First Respondent: Mr A Markus
Australian Government Solicitors

ORDERS

1. The application for an interlocutory injunction is dismissed.

2. The applicant’s legal representative attend to the electronic filing and service of an originating application consistent with the application made to this Court in relation to the decision of the AAT dated 17 November 2015 by 4:00 pm Friday 18 December 2015.

3. The issue of costs is reserved.

4. The matter may be relisted on 2 days’ notice by either party to the legal representative.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3396 of 2015

MALCOLM POTIER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an urgent interlocutory application for injunctive relief to restrain the deportation of the applicant. Mr Brezniak, counsel for the applicant seeks to rely upon this Court’s jurisdiction invoked through s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 17 November 2015 holding that the Tribunal did not have jurisdiction in the matter. The reasons of the Tribunal identified the requirements in respect of a person in detention to make an application for review within two days in accordance with s.347(1)(b) and reg.4.10.

2. Regulation 4.11 provides as follows:

   (1)  An application for review by the Tribunal must be given to the Tribunal by:

   (a) leaving it with an officer of the Tribunal at a registry of the Tribunal, or with a person specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975 ; or

   (b)  sending the application by pre-paid post to a registry of the Tribunal; or

   (c) having the application delivered by post, or by hand, to an address specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975 ; or

   (d) faxing the application to a fax number specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975 ; or

   (e) transmitting it to a registry of the Tribunal by other electronic means specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975 .

   (2)  An application made to the Tribunal in accordance with paragraph (1)(a) or (b) is taken to have been received by the Tribunal at the time the Tribunal receives it.

   (3)  An application made to the Tribunal in accordance with paragraph (1)(c) is taken to have been received by the Tribunal at the time it is received at the relevant address.

   (4)  An application made to the Tribunal in accordance with paragraph (1)(d) is taken to have been received by the Tribunal at the time it is received at the relevant fax number.

   (5)  An application made to the Tribunal in accordance with paragraph (1)(e) is taken to have been received by the Tribunal at the time the Tribunal receives it.

3. In the present case the Tribunal found that the application had not been received until 9 November 2015.  The relevant two days in this case expired on 6 November 2015.  For the purposes of this application, I accept that the issue of whether the application was lodged within the two workings days is a jurisdictional fact. Evidence was adduced by the applicant purporting to explain circumstances in which the applicant contended that notification was in fact given to the Tribunal on 6 November.

4. The explanation by the applicant in relation to how lodgement was made on 6 November 2015 is less than satisfactory.  The applicant apparently had some unidentified and unexplained medical issue, by reason of which he purported to delegate the task of transmitting what he knew to be a critical timeframe for service of the document to a third party.  It is not apparent from the affidavit of the applicant that the applicant was ever given any basis on 6 November to conclude that the document had been lodged on that date. A diary note was tendered that I find is inconsistent with the assertion by the applicant that the application was faxed to the Tribunal on 6 November 2015.

5. Annexed to the applicant’s affidavit was a facsimile report printed out on 15 November 2015, apparently provided to the applicant as a result of communications made subsequent to the Tribunal raising with the applicant the issue of jurisdiction. The document does not prove transmission of the application to the Tribunal. The applicant’s evidence, in my opinion, falls well short of establishing a prima facie case in relation to the lodgement of the application within the two days required under s.347(1)(b) and reg.4.10.

6. I am not satisfied that there is any arguable case, let alone a prima facie case, of jurisdictional error by the Tribunal in identifying that it did not have jurisdiction. On the material before the Court, the application was not received by the Tribunal until 9 November 2015.

7. I accept the first respondent’s submission that reg.4.11(4) makes clear that the application must in fact be received by the Tribunal in order to properly found the Tribunal’s jurisdiction.  I should add that even if there had been a prima facie case relating to potential jurisdiction by the Tribunal to reconsider the delegate’s decision, this is not a case where there appears to be any seriously arguable prospect of the applicant being able to make out the requirements for a bridging visa.  The delegate identified that the applicant failed to meet the criteria for the grant of a subclass 050 bridging visa under cl.050.212.  I was informed that the applicant wished to contend that the criteria in that regard could somehow be met because of an endeavour by the applicant to obtain a criminal justice stay warrant.

8. On 3 December 2015 the Court of Appeal dismissed an application for leave to appeal in relation to the applicant’s pursuit of a criminal justice stay warrant.  In the course of that decision the Court identified that the applicant had been tried and convicted of two counts of solicit to murder.  The applicant’s appeal to the Court of Criminal Appeal against conviction and an application for special leave to appeal to the High Court have been dismissed.  The circumstances are that the applicant has served the sentence in relation to those two offences.  However, whilst in custody the applicant was charged for the third time with a new offence of solicit to murder and was convicted and has been given a further sentence, which has not yet been served. 

9. The appeal against conviction on the third offence of solicit to murder was dismissed by the Court of Criminal Appeal and there has been filed an application for special leave that has not yet been determined.  The proceedings by the applicant contesting his third conviction in relation to solicit to murder does not give rise to any criteria being fulfilled under cl.050.212.  The special leave proceedings in the High Court of Australia is not a basis upon which the applicant could succeed in obtaining any bridging visa. To the extent that the applicant is pursuing proceedings for a criminal justice stay warrant, those proceedings have been unsuccessful at first instance and unsuccessful in the Court of Appeal and, on the face of that decision there is no basis to conclude that there is any real prospect of a grant of special leave being made in favour of the applicant.

10. I should add that the existence of other proceedings in another court are not a basis ordinarily upon which interlocutory relief will be granted by this Court.  This Court’s powers to grant interlocutory relief depend upon the invocation of the substantive jurisdiction of this Court.  Even assuming that there is an arguable application for special leave in the High Court of Australia either against the third conviction or on the refusal of the criminal justice stay warrant, that is not a basis that gives rise to a prima facie case for a granting of interlocutory relief in this Court.

11. The applicant in the present case has been the subject of steps being taken as required by law pursuant to s.198 of the Migration Act 1958 for the removal of the applicant from Australia, the applicant being an unlawful non-citizen. The objects of the Act are identified in s.4, and the purpose of the Migration Act 1958 includes the protection of Australian citizens.  The delegate identified in the delegate’s decision dated 3 November 2015 that the background of the applicant was such that one would be obliged to refer the applicant for consideration of refusal of the visa on character grounds given the applicant’s criminal convictions.

12. Section 501 of the Migration Act 1958 identifies character grounds as being a reason why a visa may be refused or cancelled. No issue was raised in the present case of any excess of power under s.198 in relation to the removal of the applicant from Australia as an unlawful non-citizen. Taking into account, as a matter of balance of convenience, the public interest in the protection of Australian citizens, this is not a case where the Court is persuaded that the balance of convenience weighs in favour of granting any interlocutory relief.

13. I have taken into account the possibility of an arguable case being raised in relation to the refusal of the jurisdiction of the Tribunal and/or the possibility of an arguable issue being raised in the application for a special leave. None of those matters outweigh the important public interest in the protection of Australian citizens and the lawful removal of the applicant as an unlawful non-citizen under s.198 in the present case. I have also taken into account the invocation of this Court’s jurisdiction in relation to the decision of the Tribunal.

14. The lodging of applications for review and the commencement of proceedings are not of themselves grounds upon which the removal of a person who is an unlawful non-citizen under s.198 should be the subject of interlocutory injunctive relief. For the reasons I have given, no prima facie case to support injunctive relief has been made out in the present circumstances. Further, for the above reasons the balance of convenience weighs against the grant of any interlocutory injunction.

15. It is appropriate to also make reference to the fact that there have been other proceedings taken in the last few days by the applicant, it appears, in the Federal Court of Australia substantially seeking the same relief to the effect of restraining the removal of the applicant from Australia.  The Court does not have the benefit of the reasons for decision in those cases but it was identified that an application at first instance had been refused by Markovic J on the grounds of a want of jurisdiction and that an application for leave to appeal had been refused by Perram J on the grounds that there was no error in the decision of the learned Justice at first instance.

16. It was suggested by the applicant’s counsel that remarks were made by Perram J as to the potential existence of a cogent argument that might support the grant for relief in some other forum.  Nothing said by counsel for the applicant identified, in my opinion, any cogent basis upon which it could be said there should be a grant of interlocutory relief in the present case. 

17. It is necessary for the representative of the applicant to file and serve a proper initiating process consistent with the Court rules reflecting the substance of the application that was brought urgently before this Court in respect of the decision of the Tribunal of 17 November 2015. 

18. The application for an interlocutory injunction is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 18 December 2015