ULUPANO v Minister for Immigration

[2017] FCCA 756

FEDERAL CIRCUIT COURT OF AUSTRALIA

ULUPANO v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 756

Catchwords:
MIGRATION – Application for ex parte injunctive relief – no prima facie case of error within the grounds of s.5 of the Administrative Decisions (Judicial Review) Act – no prima facie case to warrant a grant of an injunction – no jurisdictional error identified – application for an injunction is dismissed.

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, cl.050.212, Schedule 2

Applicant: TOUTAI ULUPANO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 945 of 2017

Judgment of: Judge Street

Hearing date: 29 March 2017

Date of Last Submission: 29 March 2017

Delivered at: Sydney

Delivered on: 29 March 2017

REPRESENTATION

The interlocutory application was heard ex parte.

The Applicant appeared via telephone.

ORDERS

1. Grant leave to the applicant to move for an ex parte injunction forthwith.

2. Dispense with the need for the filing of an application in a case.

3. The application for an injunction is dismissed.

THE COURT NOTES THAT:

The proceedings remain listed for directions on 11 May 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 945 of 2017

TOUTAI ULUPANO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application purportedly within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 March 2017 affirming a decision not to grant the applicant a Bridging E (Class WE) visa.

2. The application in this Court seeks to invoke this Court’s jurisdiction in respect of the decision of the Tribunal, as well as in respect of the notice of refusal of the application for a Bridging E (Class WE) visa dated 7 March 2017. 

Before this Court

1. The application identifies the following alleged grounds:-

   1. that the decision involved an error of law, whether or not the error appears on the record of the decision: s 5 (1) (f) of ADJR Act 1977

   2. taking an irrelevant consideration into account in the exercise of a power: s 5 (2)(b) of ADJR Act 1977

   3. failing to take a relevant consideration into account in the exercise of a power: s 5 (2)(b) of ADJR Act 1977

   4. an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case: s 5 (2)(f) of ADJR Act 1977

2. This application was one for ex parte injunctive relief and was heard by this Court by telephone with the applicant being on the way to the airport. The Court explained to the applicant that it was willing to hear an ex parte application for injunctive relief in relation to the alleged decisions and asked the applicant to explain why the applicant alleged that the Tribunal’s decision was wrong.

3. The Court explained to the applicant that in summary, the Court was considering whether the applicant had a prima facie case that the Tribunal’s decision, or the notice of removal, was unlawful or unfair. The applicant indicated that he understood what was being said by the Court. 

4. The applicant referred to having spoken to a lawyer and having a desire to speak again to the lawyer. As the applicant was on the way to the airport and the application was filed by the applicant and there is no lawyer on the record, the Court declined to adjourn the ex parte injunction application. Given the circumstances, the Court was not satisfied an adjournment was warranted in the interests of the administration of justice. The Court again explained to the applicant that the Court could grant relief if the Court was satisfied that the applicant had a reasonable argument that the Tribunal’s decision was unlawful or unfair. The applicant indicated that he just wanted more time and that he wanted to leave Australia with his family. Nothing said by the applicant identified any arguable basis of jurisdictional error or any arguable case of error of law within the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”).

5. The Court raised with the applicant that the generalised assertions in the grounds failed to identify any particular error and the applicant was given an opportunity to explain why the applicant believed the Tribunal’s decision was wrong, or why the notice to remove the applicant was wrong.

6. The applicant explained again that he was happy to leave the country but that he wanted to do so with his family and that he just wanted more time. The request for more time and the desire to leave with the applicant’s family does not identify any prima facie case to support the granting of an injunction.

7. For the purpose of this urgent ex parte application, the Court has power to grant injunctive relief to preserve the subject matter of the proceedings if satisfied that an appropriate case has been made for such injunctive relief. 

Applicant’s migration history

1. In the present case, the record and notice of decision of the delegate identifies a long migration history in relation to the applicant, who arrived in Australia on 3 August 2008 as the holder of a Tourist Visa Subclass TR 676. That record indicates that the applicant became an unlawful non-citizen on 4 November 2008 and then applied for a bridging visa on 30 March 2010.

2. On 19 November 2010, the applicant applied for protection, which was refused on 13 October 2011. A differently constituted Tribunal that decision on 12 January 2012. The applicant’s bridging visa ceased on 30 June 2012 and the applicant again became an unlawful non-citizen in the community. On 27 July 2013, the applicant was located by police.

3. On 1 August 2013, the applicant made an application for Ministerial Intervention, which was marked “Not considered” on 4 September 2013. On 29 October 2013, the applicant made a second application for protection on the grounds of complementary protection. The applicant was again released into the community and on 23 April 2014, a delegate refused that application. 

4. Between 5 June 2014 and 10 February 2017, the applicant was granted numerous bridging visas on departure grounds. On 11 February 2017, the applicant’s last bridging visa ceased and he became an unlawful person in the community again. On 13 February 2017, the applicant was detained.

5. On 21 February 2017, the applicant lodged a further application for Ministerial Intervention, which was marked “not considered” on 28 February 2017.

6. On 2 March 2017, the applicant lodged a bridging visa application on departure grounds and then requested a withdrawal of that application on 3 March 2017. On 6 March 2017, the applicant lodged a further application for protection on the basis he wished to depart Australia on 7 June 2017. The applicant provided a copy of an itinerary for 7 June 2017 for his departure on Virgin Australia, which would have been at the same time as his family members. The Tribunal made reference to the refusal of that application on 7 March 2017 because the delegate was not satisfied the applicant was making acceptable arrangements to depart Australia. 

The Tribunal

1. The Tribunal referred to the applicant’s application for review lodged on 8 March 2017 and the applicant appeared before the Tribunal to give evidence and present arguments on 14 March 2017. The Tribunal noted that the applicant’s representatives sought a postponement of the hearing on the basis that the representative had only recently been engaged and needed time to digest the material. The Tribunal refused that application for a postponement, but advised the representative that it could renew the application at the hearing. That refusal could not be said to lack an evident and intelligible justification.

2. The applicant’s representative attended the hearing of the applicant and made oral submissions. The representative indicated that rather than renew the application for an adjournment, the representative was content to make written submissions. The Tribunal agreed to that request. The applicant provided a signed agreement to extend the period for finalisation of the review until 22 March 2017.

3. The applicant gave evidence in relation to his background and circumstances. On 22 March 2017, the applicant’s representative provided further submissions in support of the application. The Tribunal identified that the primary criteria includes cl.050.212 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).

4. The Tribunal identified that the issue in the case is whether the applicant meets the primary criteria for a visa. In particular, whether the applicant has made acceptable arrangements to depart Australia. 

5. The Tribunal referred to the applicant’s background. The Tribunal found on the evidence that the applicant does not genuinely intend to depart Australia. That adverse finding, for the reasons given by the Tribunal was open. The Tribunal found that the applicant did not satisfy the criteria for a grant of a Subclass 050 (Bridging (General)) visa and affirmed the decision of the delegate. 

Consideration

1. There is nothing on the face of material produced to identify any prima facie case of jurisdictional error by the Tribunal, nor is it apparent that there is any prima facie case of error within the grounds of s.5 of the ADJR Act identified in the application. Whilst the balance of convenience weighs in favour of the applicant, the Court must be satisfied that there is a reasonably arguable case of jurisdictional error.

2. In the course of the telephone hearing, the applicant requested an interpreter. The Court explained to the applicant that this was an urgent application and that it appeared from what the applicant had said so far that the applicant understood what the Court was saying.  The applicant confirmed that he understood what the Court was saying. The engagement by the applicant in response to the questions from the Court are consistent with the applicant fully understanding the nature of the ex parte application and being able to meaningfully participate in the urgent interlocutory hearing.

3. There is no reasonably arguable case of jurisdictional error or of error under the ADJR Act. I am not satisfied that there is any prima facie case to warrant a grant of an injunction. The applicant was informed that the request for an injunction was refused. The Court made orders granting leave to the applicant to make an ex parte application for an injunction. The Court made an order dispensing with the need for the filing of an application in a case and the Court made an order dismissing the application for an ex parte injunction.

4. The Court explained to the applicant the orders that have been made and that the applicant’s case remained listed for directions on 11 May 2017 at 2.15 pm. The Court explained that it was a matter for the applicant whether the applicant instructed any lawyer to appear on that occasion. The Court also explained the orders that have been made to the security officer present with the applicant on the way to the airport.

Conclusion

1. The application for an injunction is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 April 2017