Spurr v Minister for Immigration
[2018] FCCA 1090
•4 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SPURR v MINISTER FOR IMMIGRATION | [2018] FCCA 1090 |
| Catchwords: MIGRATION – Injunction sought to prevent removal from Australia – whether Court has jurisdiction – whether migration decision – whether jurisdictional error – usual principles for issuing injunctions. |
| Legislation: Constitution, s.75(v), Ch.III Migration Act 1958 (Cth), ss.5, 5E, 198, 338(4), 474, 476 Migration Regulations 1994 (Cth), reg.2.12 ,050.212, 050.411 |
| Cases cited: 1706221 (Refugee) [2018] AATA 212 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; (2006) 229 ALR 457; (2006) 80 ALJR 1672; [2006] HCA 46 Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465; (2006) 97 ALD 68; (2006) 236 ALR 99; [2006] FCA 1368 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 SZSPI v Minister for Immigration and Border Protection (2014) 233 FCR 279; (2014) 144 ALD 232; (2014) 317 ALR 1; [2014] FCAFC 140 |
| Applicant: | MARK EDWARD GALL SPURR |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 158 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 16 April 2018 |
| Date of Last Submission: | 16 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 4 May 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms S Oliver |
| Solicitors for the Respondent: | Spark Helmore Lawyers |
ORDERS
The application be dismissed.
Order 1 of the Court’s orders of 16 April 2018 be set aside.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 158 of 2018
| MARK EDWARD GALL SPURR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
On 16 March 2018, Mark Edward Gall Spurr was served with a Notice of Intention to Remove [him] from Australia pursuant to s.198(5) of the Migration Act 1958 (Cth) (the “Act”).
By application filed 26 March 2018, amended on 11 April 2018, Mr Spurr sought the following final orders:
a)an order quashing the decision of the Minister for Immigration and Border Protection (the “Minister”) to remove him from Australia; and
b)injunctive relief restraining the Minister from removing him from Australia.
Synopsis
For the reasons that follow, the Court finds that Mr Spurr’s application does identify a migration decision over which this Court has jurisdiction. That decision is not, however, affected by jurisdictional error. Nor does his application disclose sufficient grounds for injunctive relief of the sort requested by Mr Spurr.
Accordingly, the Court dismisses Mr Spurr’s application.
Evidence
The following evidence was before the Court:
a)a chronology filed by the Minister;
b)the affidavit of Ashley David Burgess affirmed on 27 March 2018 (the “Burgess Affidavit”);
c)miscellaneous documents lodged by Mr Spurr; and
d)the affidavit of Mr Spurr sworn on 10 April 2018.
Background
Having reviewed all of the material before it, the Court adopts the procedural and factual background to these proceedings outlined by the Minister at paragraph 3(a) to 3(f) in his outline of submissions dated 6 April 2018. These background facts are, relevantly, as follows.
Mr Spurr, a citizen of Canada, arrived in Australia on 3 June 2006 as the holder of an Electronic Travel Authority (Visitor) (subclass 976) visa. That visa expired on 3 September 2006 (annexure ADB-3 to Burgess Affidavit).
On 18 October 2006, Mr Spurr, while holding a bridging visa and onshore in Australia, applied for a Regional Sponsored Migration Scheme (Full) (BW857) visa. That application was refused by a delegate of the Minister on 2 July 2007 (annexure ADB-3 to Burgess Affidavit).
On 30 July 2007, Mr Spurr lodged an application with the Migration Review Tribunal (“MRT”), as it was then, to review the delegate’s decision. The MRT affirmed the delegate’s decision on 7 May 2008 (Chronology, pg2).
Mr Spurr later sought an extension of time to seek review of the MRT’s decision by the (then) Federal Magistrates Court. On 17 December 2010, the Federal Magistrates Court refused to grant Mr Spurr an extension of time (annexure ADB-2 to Burgess Affidavit).
The effect of that decision is that Mr Spurr is now subject to the bar in s.48 of the Act. He can only apply for visas of the kind specified in regulation 2.12 of the Migration Regulations 1994 (Cth) (the “Regulations”) while he remains in Australia.
On 14 November 2008, Mr Spurr applied for a Protection Visa (Class XA) whilst onshore in Australia. That application was refused on 15 December 2008.
The Refugee Review Tribunal, as it was then, affirmed that decision on 14 April 2009. Mr Spurr later sought an extension of time to seek review of that decision by the Federal Magistrates Court.
On 30 October 2009, the Federal Magistrates Court refused to grant Mr Spurr an extension of time (Annexure ADB-1 to Burgess Affidavit).
The effect of this decision is that Mr Spurr is now subject to the bar in s.48A of the Act, such that he cannot make any further applications for a protection visa whilst in Australia.
Since August 2006 Mr Spurr has held numerous bridging visas. On 14 January 2011, his 29th application for a further bridging visa was refused by the Department of Home Affairs (the “Department”) (Annexure ADB-4 to Burgess Affidavit).
Mr Spurr remained in the community from December 2010 as an unlawful non-citizen until he was detained on 17 December 2017 (after he made a complaint to the Police and was identified as being an unlawful non-citizen) (Annexure ADB-3 to Burgess Affidavit).
On 22 December 2017, Mr Spurr made his 30th application for a bridging visa (Bridging Visa E). That application was refused by the Department on 22 December 2017. Mr Spurr applied to the Administrative Appeals Tribunal (the “AAT”) for review of the Department’s decision to refuse his 30th application for a bridging visa. The AAT dismissed the application on the basis that it did not have jurisdiction because the “timeframe [was] not met” (Chronology, pg4).
On 27 February 2018, Mr Spurr made his 31st application for a bridging visa (Bridging Visa E). That application was refused by the Department on 1 March 2018 on the basis that Mr Spurr did not meet any of the requirements of Schedule 2, subclause 050.212(2), (3), (3A), (4) (4AA), (4AAA), (4AB), (5), (5A), (5B), (6), (6AA),(6A), (6B), (7), (8) or (9) of the Regulations (Annexure ADB-3 to Burgess Affidavit). Mr Spurr sought review of that decision by the AAT on 1 March 2018.
The application for review of that decision is currently pending before the AAT. This means that Mr Spurr currently has no application before this Court in relation to any AAT decision or matter. In effect, Mr Spurr wants to stay in Australia until his most recent visa application is heard by the AAT.
Mr Spurr has been in detention since he was detained on 17 December 2017.
On 16 March 2018, Mr Spurr was issued with a Notice of Intention to Remove (the “Notice”) advising him that he was liable for removal from Australia under s.198(5) of the Act. The Notice anticipated that he would be removed from Australia on Sunday, 25 March 2018.
On 24 March 2018, in response to the Notice, Mr Spurr made an urgent oral application to this Court seeking to restrain the Minister from removing him from Australia. This application was heard on the same day by Judge Riley in Melbourne. Her Honour made orders restraining Mr Spurr’s removal, allowing Mr Spurr to file a substantive application and affidavit in support and listing the matter for hearing before Judge Kendall.
On 27 March 2018, Judge Kendall heard the matter. Judge Kendall determined that the hearing could not proceed on the day because Mr Spurr had not been given enough time to read the Minister’s documents and prepare submissions. As a consequence, Judge Kendall made orders adjourning the hearing of the matter, restraining Mr Spurr’s removal and allowing the parties to file any affidavits or written submissions.
On 10 April 2018, Mr Spurr filed an Amended Application.
On 11 April 2018, Mr Spurr filed an affidavit in support. Mr Spurr did not provide the Court with any written submissions; instead, he appeared in person at the final hearing on 16 April 2018 and gave oral submissions.
Judicial Review Application
Ultimately, Mr Spurr is seeking judicial review of the Minister’s decision to remove him from Australia pursuant to s.198(5) of the Act. He also seeks an injunction preventing his removal from Australia.
In support of his Amended Application, Mr Spurr relied on the following two grounds of review:
1. The removal/deportation of the Applicant party by the respondent party during review proceedings at The Administrative Appeals Tribunal would be a malicious abuse of process to gain an overwhelming tactical advantage in those proceedings and pervert the course of justice.
2. The removal/deportation of the Applicant by the respondent, a Minister of the Crown in the Executive branch of Government, interfering in the operation in The Constitution Ch. III Judiciary review proceedings that the Executive Branch is a party to, would violate the Separation of Powers guaranteed in The Constitution.
Neither of Mr Spurr’s grounds of review was particularised. Importantly, his application does not articulate how the decision to remove him from Australia was affected by jurisdictional error. Nor does he detail why he should be given injunctive relief.
Mr Spurr filed an affidavit, sworn 10 April 2018, which stated: “Attached are the Annexures marked 1-25 in support of affidavit”. It was unclear which annexures Mr Spurr sought to rely upon. Having reviewed Mr Spurr’s affidavit, it is evident that most of the documents annexed are irrelevant to this matter.
In relation to Ground 1 of his Amended Application, Mr Spurr made oral submissions during the proceedings that a bridging visa can only be issued to an applicant while they are in Australia. He explained that, because of this, his application before the AAT would be prejudiced if he was removed from Australia. Mr Spurr tendered (and sought to rely on) the case of 1706221 (Refugee) [2018] AATA 212 in support of this argument.
In response to this submission, counsel for the Minister submitted that the regulations relating to the relevant bridging visa are set out under reg.050.212 of the Regulations. She argued that there is nothing under that regulation stopping the issue of a bridging visa where an applicant is no longer in Australia. She conceded that reg.050.411 of the Regulations (as they relate to the circumstances applicable to the granting of a visa) requires an applicant be in Australia and that if Mr Spurr were successful in his application before the AAT he may be disadvantaged if removed from Australia. However, counsel argued that Mr Spurr does not have a substantive visa application pending and is subject to the bars under the s.48 and s.48A of the Act. She said that, because of this, Mr Spurr is unable to meet the requirements for the bridging visa he has applied for, the refusal of which is the subject of his application before the AAT.
The Court agrees and notes further that Mr Spurr is not disadvantaged if he is required to appear before the AAT by video link from Canada. This is discussed further below.
Ground 2 of Mr Spurr’s application lacks clarity. It arguably suggests that the Minister should be prohibited from removing him from Australia because to do so would offend Chapter III of the Constitution. This is presumably based on the notion that the judicial power of the Commonwealth can only be vested in Ch III courts.
The Court cannot see how Mr Spurr’s removal from Australia subverts the Court’s ability to deal with this matter. This is particularly so given the High Court’s decision in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 in relation to privative clause decisions. In that case, Gaudron, McHugh, Gummow, Kirby and Hayne JJ stated:
[74] As previously indicated, it was argued on behalf of the plaintiff that s 474(1)(c) of the Act is directly inconsistent with s 75(v) of the Constitution. However, s 474(1)(c) cannot be read in isolation from the definition of “privative clause decision” in s 474(2). That definition relevantly confines “privative clause decision[s]”to decisions “made, proposed to be made, or required to be made ... under this Act”.
[75] When regard is had to the phrase “under this Act” in s 474(2) of the Act, the words of that sub-section are not apt to refer either to decisions purportedly made under the Act or, as some of the submissions made on behalf of the Commonwealth might suggest, to decisions of the kind that might be made under the Act. Moreover, if the words of the sub-section were to be construed in either of those ways, s 474(1)(c) would be in direct conflict with s 75(v) of the Constitution and, thus, invalid. Further, they would confer authority on a non-judicial decision-maker of the Commonwealth to determine conclusively the limits of its own jurisdiction and, thus, at least in some cases, infringe the mandate implicit in the text of Ch III of the Constitution that the judicial power of the Commonwealth be exercised only by the courts named and referred to in s 71.
[76] Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression “decision[s] ... made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598 at 606 [51] per Gaudron and Gummow JJ, 608 [63] per McHugh J, 624-625 [152] per Hayne J; 187 ALR 117 at 129, 131, 154-155. Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties”(see R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248 per Dixon J. See also Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 632 per Gaudron and Gummow JJ) or to observe “inviolable limitations or restraints” (R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 at 419 per Mason ACJ and Brennan J), the decision in question cannot properly be described in the terms used in s 474(2) as “a decision ... made under this Act” and is, thus, not a “privative clause decision” as defined in ss 474(2) and (3) of the Act (see Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 635 per Gaudron and Gummow JJ) .
[77] To say that a decision that involves jurisdictional error is not “a decision ... made under [the] Act” is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction.
[78] The effect of s 474 is to require an examination of limitations and restraints found in the Act. There will follow the necessity, if s 474 is constitutionally valid and if proceedings are brought by the plaintiff in accordance with the draft Order Nisi, to determine, in those proceedings, whether, as a result of the reconciliation process, the decision of the Tribunal does or does not involve jurisdictional error and, accordingly, whether it is or is not a “privative clause decision” as defined in s 474(2) of the Act.
As is explained in greater detail below, the Minister is required under s.198(5) of the Act to remove Mr Spurr from Australia. This involves the discharge of a non-discretionary statutory duty and cannot be seen to be an abuse of process. Nor is it apparent how this duty violates Chapter III of the Constitution given the jurisdiction conferred on the Court by s.476 of the Act to review privative clause decisions.
In the Court’s opinion this argument is without merit and is not addressed in any more detail in these reasons for judgement.
Mr Spurr’s Other Claims
During the proceedings before this Court Mr Spurr made further oral submissions in support of his application. These submissions related to issues not articulated in either his Application or his Amended Application. For completeness the Court will address these submissions as follows.
Mr Spurr submitted that he feared returning to Canada because he was being pursued by Mexican authorities. These claims formed the basis of his application for a Protection Visa made in November 2008. As noted at paragraphs 12 and 13 above, that application was refused and the decision to refuse affirmed by the Refugee Review Tribunal. Arguably, by raising this issue during these proceedings Mr Spurr is inviting the Court to engage in merits review, something it cannot do: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Further, there is simply no evidence to substantiate this claim. The Refugee Review Tribunal clearly rejected Mr Spurr’s concerns and that matter is not re-litigated here.
Mr Spurr also raised the issue of the time limits imposed by s.195 of the Act on a detainee’s ability to apply for a visa. In relation to this submission the Court notes:
a)Mr Spurr was detained on 17 December 2017 and the time limits imposed by s.195 of the Act have elapsed;
b)he is subject to the bars in ss.48 and 48A of the Act; and
c)he is unable to make a further protection visa application or apply for a visa other than those provided for in reg.2.12 of the Regulations.
Accordingly, s.195 of the Act has no discernible bearing on these proceedings or the application currently before the AAT. The Court has, therefore, not addressed this claim in any more detail in these reasons for judgment.
Minister’s Submissions in Relation to the Court’s Jurisdiction
In opposition to Mr Spurr’s application the Minister submitted that Mr Spurr’s application does not identify a “migration decision” which the Court has jurisdiction to review.
In relation to the issue, the Minister submitted as follows at paragraphs 15 and 16 in written submissions dated 6 April 2018:
15. There are two decisions that could possibly give rise to jurisdiction in this case:
(a)Firstly, there is the decision of a delegate of the Respondent dated 28 February 2018 which refused the Applicant’s application for a Bridging Visa E which had been made on 27 February 2018. However, this is a primary decision, and therefore not a migration decision that the Court has jurisdiction to review. The decision is a primary decision, as it is a decision to which Part 5 of the Act applies (see section 338(4)(a)). The Applicant has a valid application for review of that decision pending before the Administrative Appeals Tribunal.
(b) Secondly, there is the “decision” to remove the Applicant from Australia pursuant to section 198(5) of the Act. It is this “decision” that the Applicant seeks review of in his Application served on 3 April 2018. However, this is not a privative clause decision, because it is not “a decision of an administrative character”. The removal of a person from Australia under section 198(5) occurs as a result of operation of law, rather than as the result of an administrative decision (Lewai v Minister for Immigration and Multicultural Affairs [2001] FCA 1309 at [14]). As the criteria in section 198(5) of the Act apply to the Applicant, the Respondent is compelled to remove the Applicant from Australia as soon as it reasonably [sic] practicable. The Respondent has no discretion in relation to the removal of the Applicant pursuant to section 198.
16. Whilst the Applicant has not identified a migration decision that falls within the jurisdiction of the Court to review, the Respondent notes that the Full Federal Court in SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143 found that, having regard to the extended definition of decision in section 474(3)(h) of the Act (which defines a decision as including a reference to “conduct preparatory to the making of a decision”) and the definition in section 474(2) of a privative clause decision, the Federal Circuit Court had erred when it found that it did not have jurisdiction in that particular case (at [40]). The Court found that the Department had in that case, since at least 12 March 2014, been engaged in “conduct that is preparatory to a decision” which is required to be made under the Act, namely whether or not the applicant is to be removed from Australia under section 198(6) of the Act, and that conduct gave rise to the Court’s jurisdiction. The Court may take a similar view as to its jurisdiction in the present case, if the Court is satisfied that there has been “conduct that is preparatory to a decision” that would give rise to jurisdiction in the present case.
Issues
It is not in dispute that Mr Spurr satisfies the criteria of s.198(5) of the Act for removal from Australia “as soon as reasonably practicable”. As a consequence, on or around 16 March 2018 the Minister decided to remove Mr Spurr because it was determined that it was reasonably practicable to do so. Mr Spurr was notified of that decision by way of the relevant Notice.
Counsel for the Minister argued that the decision to remove Mr Spurr from Australia was not a “migration decision” that this Court has jurisdiction to review. Counsel also argued that even if the Court found it did have jurisdiction to hear the matter, it should not grant the relief sought by Mr Spurr because there was not a serious issue to be tried and the balance of convenience lay with the Minister.
Accordingly, the Court must determine whether the Minister’s decision to remove Mr Spurr from Australia pursuant to s.198(5) of the Act is a decision that enlivens the Court’s jurisdiction. This will involve an examination of whether the Minister’s decision is a “migration decision” for the purposes of the Act.
If the Court finds that the Minister’s decision is a decision which gives it jurisdiction, the Court must then turn to the issue of whether the Minister’s decision was affected by jurisdictional error.
The Court must also determine whether there is a serious question to be tried and if the balance of convenience favours the granting of the injunction: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65].
Relevant Legislative Framework
Relevantly, s.198(5) of the Act provides:
An officer must remove as soon as reasonably practicable an unlawful noncitizen if the non-citizen:
(a) is a detainee; and
(b) neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;
regardless of whether the non-citizen has made a valid application for a bridging visa.
Section 15 of the Federal Circuit Court of Australia Act 1999 (Cth) (the “FCCA Act”) gives this Court the power, in relation to matters in which it has jurisdiction, to make orders it thinks appropriate.
Section 476(1) of the Act outlines the Court’s jurisdiction in relation to migration decisions as follows:
(1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
Section 5 of the Act defines “migration decision” as:
a)a privative clause decision; or
b)a purported privative clause decision; or
c)a non-privative clause decision; or
d)an AAT Act migration decision.
Subsection 474(2) of the Act defines “privative clause decision” as follows:
(2) In this section:
“privative clause decision” means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
Section 5E of the Act provides:
5E Meaning of purported privative clause decision
(1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.
(2) In this section, decision includes anything listed in subsection 474(3).
Section 474(3) of the Act provides that reference to a decision in relation to s.474 includes a reference to:
a)granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
d)imposing, or refusing to remove, a condition or restriction;
e)making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
f)retaining, or refusing to deliver up, an article;
g)doing or refusing to do any other act or thing;
h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
i)a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
j)a failure or refusal to make a decision.
Section 476(2) of the Act limits the Court’s jurisdiction in relation to migration decisions as follows:
(2) The Federal Circuit Court has no jurisdiction in relation to the following decisions:
(a)a primary decision;
(b)a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c)a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA;
(d)a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
Section 476(4) of the Act defines “primary decision” as follows:
(4) In this section:
“primary decision” means a privative clause decision or purported privative clause decision:
(a)that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b)that would have been so reviewable if an application for such review had been made within a specified period; or
(c)that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).
Consideration
Jurisdiction
It was submitted on the Minister’s behalf (see paragraph 43 above) that, because the Minister is compelled by s.198(5) of the Act to remove Mr Spurr from Australia, then the decision to remove him is not a “privative clause decision” because it is not a decision of “an administrative character”.
The Minister relied on the case of Lewai v Minister for Immigration & Multicultural Affairs [2001] FCA 1309 at [14] in support of the submission that the removal of a person from Australia under s.198(5) of the Act occurs as a result of operation of law, rather than as a result of decision of an “administrative character”.
The Court does not accept that the decision of the Minister (i.e., that it was reasonably practicable to remove Mr Spurr from Australia) was not a decision of an administrative character.
In coming to this conclusion the Court has considered the jurisprudence relating to s.198 of the Act and notes that much of the case law involves removals pursuant to s.198(6). Despite this, both s.198(5) and s.198(6) of the Act impose an obligation to remove a person from Australia ‘as soon as reasonably practicable’ once that individual satisfies the relevant criteria of the respective section. On this basis, the case law relating to s.198(6) of the Act has a strong bearing on the matter currently before this Court.
As it relates to the jurisdiction of this Court to hear Mr Spurr’s application, the Court notes the comments made by the Full Court in M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131. In that case their Honours noted (at [88]) that removing or refusing to remove an unlawful non-citizen under s.198(6) of the Act constitutes a “privative clause decision” for the purposes of the Act.
Their Honours noted that there is no reference to s.198 in s.474(4) or s.474(5) of the Act. These sections expressly set out what types of decision are not privative clause decisions. Section 474(3)(g) provides that a reference in s.474 to a “decision” includes a reference to “doing or refusing to do any ... act or thing”. Removing or refusing to remove an unlawful non-citizen under s.198(6) is, by virtue of s.474(3)(g), a “decision” and, as such, a “privative clause decision” within the meaning of s 474(2).
The Court also notes as follows:
a)In WAJZ, WAKA, WAGF, WAKB, WAKE and WADX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 1332 (WAJZ) French J (as he then was) stated (at [70]):
The definition of ‘privative clause decision’ includes proposing to do an act under the Act. So proposing to remove a person from Australia under s 198(6) is a privative clause decision, albeit it involves the discharge of a non-discretionary statutory duty.
b)In Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368[1] Besanko J stated (at [38]):
[1]The Court notes that Beyazkilinc was not followed by Bromberg J in Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483. At [436] his Honour was of the opinion that the conclusion made in Beyazkilinc that an injunction may not issue in respect of a claim against the Minister in tort was wrong. Despite this, the Court notes that Bromberg J did not impugn the finding in Beyazkilinc that the proposed removal of the applicant from Australia was a privative clause decision.
In my opinion, the proposed removal of the applicant from Australia pursuant to s 198(6) of the Migration Act is a privative clause decision within s 474 of the Act.
c)In relation to the removal of a person from Australia under s.198(5) of the Act, the Full Court said in Li v Minister for Immigration & Multicultural Affairs [2002] FCAFC 181 (at [1]):
However, I would prefer to base refusal of leave on the ground that the decision to remove the applicant was a privative clause decision within the meaning of subs474(2) of the Migration Act 1958 (Cth) and is therefore, by virtue of sub-s 474(1), not subject to challenge, appeal, review or being quashed or called in question in this court. The same result follows if the relevant decision was the act of preparation for actual removal (sub-s 474(3)(g)).
d)In Lui v Minister for Immigration and Anor [2007] FMCA 867 (Lui), Wilson FM observed (at [19]) that it was strongly arguable that the decision of an officer of the Department pursuant to s.198(5) of the Act was a privative clause decision.
e)In AKR15 v Minister For Immigration and Ors [2015] FCCA 1734, Judge Smith said (at [58]):
Further, it is not beyond argument that any decision whether to remove a detainee under s 198 will require consideration of whether or not the Minister is considering the exercise of his powers. This says nothing about the strength of such arguments; however, it is sufficient in my view to raise the jurisdiction of this court…
f)In Asaad v Minister for Immigration and Citizenship [2008] FCA 1039 the Federal Court determined that the decision that it was reasonably practicable to remove the applicant from Australia was a decision of an administrative character. Tamberlin J concluded (at [17]) that:
…s 5E of the Act provides that a purported privative clause decision is a decision purportedly made, proposed to be made, or required to be made under the Act, which would be a privative clause decision except for the fact that there was a failure to exercise jurisdiction or an excess of jurisdiction when the decision was made. The word “decision”, as it is defined in s 474(3), includes a determination as to whether it is reasonably practicable to remove a person pursuant to s 198(6). Moreover, in light of s 5E of the Act, if the decision under s 198(6) is affected by error (whether by not determining a jurisdictional fact or by some other means), it still “purports” to be a decision and thus is properly described as a “purported privative clause decision”. In other words, a decision of administrative character for the purposes of s 474(2) of the Act will have been made, or at least purportedly made. In this case, the decision of an administrative character is the decision that it is reasonably practicable to remove Mr Asaad from Australia.
g)In SZSSJ v Minister for Immigration & Border Protection [2014] FCAFC 143 Perram, Jagot and Griffiths JJ of the Full Court of the Federal Court concluded (at [38]) that, having regard to the extended definition of “decision” in s.474(3)(h) of the Act and the definition of a “privative clause decision” in s.474(2) of the Act, this Court had jurisdiction in respect of the proceedings because the Department’s conduct in respect of the International Treaties Obligations Assessment process, and its earlier conduct from at least 12 March 2014, were properly viewed as conduct preparatory to the making of the decision which was required under s.198(6) of the Act. This bears out the ultimate conclusion that the privative clause decision was the decision required under s.198(6) of the Act.
Having regard to the jurisprudence at paragraphs 63 to 65 above, the Court is satisfied that the decision that it is “reasonably practicable to remove” Mr Spurr from Australia is a “migration decision” for the purposes of these proceedings because it is a “privative clause decision”. It is a “privative clause decision” because it is a decision of “an administrative character” made under the Act: s.474(2) of the Act. This is a decision that is reviewable by this Court.
Accordingly, the Court has jurisdiction to hear Mr Spurr’s application and must now turn its mind to whether the decision that it was “reasonably practicable” to remove Mr Spurr from Australia was affected by jurisdictional error.
Jurisdictional error
The ways in which a decision maker can fall into jurisdictional error were outlined by the High Court in Craig v State of South Australia (1995) 184 CLR 163 (Craig) and include:
a)identifying the wrong issue or asking the wrong question;
b)ignoring relevant material; and
c)relying on irrelevant material.
McHugh, Gummow and Hayne JJ reflected on Craig (above) in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, stating, relevantly (at [82]), as follows:
It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal):
… falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
Despite being given an opportunity to do so, Mr Spurr has not particularised his claims or articulated his grounds of review in any meaningful way. Neither of his grounds of review discloses how the decision to remove him was affected by jurisdictional error of a type described in Craig. They do not identify an error of law. Nor do they explain why injunctive relief should be granted.
Even if Mr Spurr were able to remedy the evident shortcomings in his grounds of review there is no relevant evidence before the Court to persuade it that the decision to remove him was affected by jurisdictional error. Specifically, there is simply nothing before this Court to suggest that in making the decision that it was “reasonably practicable” to remove Mr Spurr from Australia, the Minister:
a)ignored relevant material;
b)relied on irrelevant material; or
c)identified the wrong issue or asked the wrong question.
On the evidence, the Court is satisfied that the decision that it was “reasonably practicable to remove” Mr Spurr from Australia was not affected by jurisdictional error.
This finding does not affect the Court’s jurisdiction to hear this matter (s.5E of the Act) but does have a significant impact on whether the Court should grant the injunctive relief sought by Mr Spurr.
Injunctive Relief
As noted above, s.15 of the FCCA Act allows the Court to make orders in relation to matters in which it has jurisdiction of such kind as it deems appropriate.
In relation to the granting of an injunction the Court must determine whether there is a serious question to be tried and whether the balance of convenience favours the granting of the injunction: Australian Broadcasting Corporation v O’Neill [2006] HCA 46 at [65].
(i) Balance of Convenience
As it relates to this issue, the Court notes Mr Spurr’s relevant migration history as follows:
a)Mr Spurr’s immigration history demonstrates that he has been in Australia since 3 June 2006 (a period of over 10 years) without being the holder of a valid substantive visa. He is now subject to the bars in ss.48 and 48A of the Act, and there is no relevant substantive visa that he can now apply for whilst onshore in Australia;
b)between August 2006 and January 2011, from time to time, Mr Spurr was the holder of short-term temporary bridging visas. At other times, he was an unlawful non-citizen. In that particular period, he applied for a total of 28 bridging visas;
c)for over six years, between December 2010 and 17 December 2017, Mr Spurr was in the community as an unlawful non-citizen and he made no attempt to apply for a visa and obtain a lawful right to reside in Australia;
d)Mr Spurr is not a disadvantaged applicant. He is from an English speaking, first-world country. Further, he is experienced in Australian migration law, having submitted numerous visa applications, a number of requests for Ministerial intervention, and he has participated in four hearings before Tribunals and the Federal Magistrates Court; and
e)whilst Mr Spurr does have two legal proceedings currently on foot in Australia (the Federal Circuit Court (Family Law Division) and the AAT) both jurisdictions provide avenues for a party to participate in their proceedings by audio or video link. Therefore, his removal will not prevent him from participating in those proceedings. Nor will he be prejudiced if required to do so.
In relation to the balance of convenience, counsel for the Minister submitted as follows:
25.In Arkan v Minister for Immigration and Multicultural Affairs [2000] FCA 1134, the applicants (at [2] per Tamberlin J):
(a)arrived on a visitor visa;
(b)made a Protection Visa application which was refused by a delegate and on review by the Tribunal;
(c)made requests for Ministerial intervention; and
(d)were ultimately detained as unlawful non-citizens and their application for a Bridging Visa E was refused.
26.Tamberlin J declined to restrain the Minister from removing the applicants in that case from Australia, finding that the balance of convenience lay with the Minister. In that respect, Tamberlin J gave weight to the long history of the applicants’ stay in Australia, that they had taken almost every available avenue to challenge decisions of the Minister and the Department, and that they had significant periods in Australia as unlawful non- citizens (at [13]). Further, given that the bridging visa required them to arrange for their departure, Tamberlin J saw little utility in granting an injunction to enable them to arrange their own departure.
27.In Lewai v Minister for Immigration and Multicultural Affairs [2001] FCA 1309, Hely J followed Arkan, and declined to restrain the Minister from removing the applicant in circumstances where the applicant had made numerous visa applications, had had a number of bridging visas, and had been an unlawful non-citizen ([1]-[5]). Hely J emphasised that section 198 obliged the Department to remove the applicant as soon as reasonably practicably (at [13]).
28.The Respondent submits that the balance of convenience in this case lays with the Respondent, particularly having regard to the Applicant’s immigration history.
At its very highest, Ground 1 of Mr Spurr’s application might be considered a procedural fairness argument. Broadly, he argues that the Minister will gain an advantage over him at the pending AAT hearing if he is removed from Australia.
If returned to Canada Mr Spurr will appear at the AAT by video link. While not ideal, appearances of this sort are not uncommon. The Court does not consider that this procedure imposes any disadvantage on Mr Spurr or that he is being treated unfairly.
Further, it is well settled that the existence of other court or tribunal proceedings does not prevent Mr Spurr’s removal under s.198 of the Act: SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140, at [46]. This also applies to civil proceedings: Li v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 667 at [25]-[27]. In Li at [27], the Court observed that there was nothing to suggest that the applicant in that case could not pursue his claims from outside Australia.
While Mr Spurr may experience some challenges in progressing his application before the AAT if removed to Canada the Court ultimately agrees with the Minister’s submission that the balance of convenience in this case lies with the Minister.
This favours the refusal of injunctive relief.
(ii) Serious Question to be Tried
As correctly pointed out by counsel for the Minister, the serious question to be tried pertains to the judicial review application:
21. The Respondent contends that the application for review before the AAT is not the application to which regard is to be had for the purposes of determining whether there is a serious question to be tried. For completeness, however, the Respondent contends that there is no serious question to be tried in the application for review before the AAT. That is because the AAT is reviewing a decision to refuse a bridging visa and not a substantive visa. Even if the Applicant was successful in the review before the AAT (which, it is submitted is unlikely given the Applicant does not met any of the requirements of clause 050.212 of the Regulations), he could only be granted a nonsubstantive bridging visa. The decision will not alter that situation that the Applicant is now barred from applying for any relevant substantive visa whilst onshore in Australia.
The Court agrees with the Minister’s submission that the application for review before the AAT is not the application to which regard is to be had for the purposes of determining whether there is a serious question to be tried.
Mr Spurr did not provide any submissions in this regard other than to rely on his grounds of review in his Amended Application.
In order to show that there is a serious question to be tried, Mr Spurr must establish that there would be a reasonable prospect of success in obtaining the relief he seeks. Here he would need to establish that there was a reasonable prospect of establishing jurisdictional error on the part of the relevant decision maker: Lui per Wilson FM (at [19]).
Having regard to the paragraphs 67 to 71 above, the Court is satisfied that there is no serious question to be tried in these proceedings because there is simply no evidence that the decision to remove Mr Spurr from Australia was affected by jurisdictional error of any sort. Mr Spurr’s prospects of success are, accordingly, nil.
Conclusions and Orders
The Court concludes that:
a)the decision to remove Mr Spurr pursuant to s.198(5) of the Act is a “migration decision” under the Act;
b)there was no jurisdictional error or other error apparent in the exercise of the powers and duties under the Act in relation to the decision to remove Mr Spurr from Australia;
c)there is no serious question to be tried in relation to the injunctive relief sought by Mr Spurr; and
d)the balance of convenience does not favour injunctive relief.
Accordingly, Mr Spurr’s application is dismissed and order 1 of the Court’s orders of 16 April 2018 restraining the Minister from removing or deporting Mr Spurr from the Commonwealth of Australia is set aside.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 4 May 2018
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