Young v Minister for Home Affairs

[2019] FCCA 429

FEDERAL CIRCUIT COURT OF AUSTRALIA

YOUNG v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 429

Catchwords:
MIGRATION – First respondent seeking removal of the applicant from the Commonwealth of Australia – injunction – balance of convenience – serious issue to be tried – where applicant suffers from a mental infirmity – whether applicant able to meaningfully participate in the visa application process – undertaking – not offered by the first respondent – restraint granted enjoining removal of the applicant from the Commonwealth – expedited hearing.

Applicant: ANDRÉ WAYNE YOUNG

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 464 of 2019

Judgment of: His Honour Judge J D Wilson QC

Hearing date: 20 February 2019

Date of Last Submission: 20 February 2019

Delivered at: Melbourne

Delivered on: 25 February 2019

REPRESENTATION

Solicitors for the Applicant: Victoria Legal Aid

Solicitors for the First Respondent: DLA Piper Australia

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: DLA Piper Australia

ORDERS

1. Until further order, the first respondent is restrained, by himself, his employees, officers, delegates, servants and agents, from removing the applicant from the Commonwealth of Australia.

2. This proceeding is adjourned to 20 March 2019 at 10:15am for final hearing.

3. The applicant file and serve the following 14 days prior to the final hearing –

   (a)any amended application with proper particulars of the grounds the application;

   (b)any affidavits;

   (c)a court book, if any; and

   (d)written submissions.

4. The first respondent file and serve the following seven days prior to the final hearing –

   (a)any affidavits;

   (b)a court book, if any; and

   (c)written submissions.

5. The parties’ costs are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 464 of 2019

ANDRÉ WAYNE YOUNG

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. At 8:30pm on Wednesday 20 February 2019 I made orders following the hearing of an urgent telephone application to restrain the minister from removing the applicant from the Commonwealth of Australia.  The solicitor for the applicant informed me that unless restraining orders were made in accordance with her client’s application, at 7:30am on Thursday 21 February 2019 the applicant would be taken by airplane and removed from the limits of the Commonwealth of Australia.

2. After hearing from the minister’s solicitor as well, I took the view that orders in the nature of an injunction should be made but on the condition that any detriment to the minister by the grant of the orders would be ameliorated by the fast tracking of the hearing of this application for judicial review.  As a result I fixed the hearing of this proceeding for 20 March 2019.

3. These are my reasons for the orders I made on 20 February 2019.  Of necessity, the material on which the applicant relied was scant.  May I at once express my gratitude to Registrar Luxton of the Federal Circuit Court of Australia for his exceptional efficiency in arranging for this application to be heard by a combination of electronic facilities and telephone links significantly outside of normal court hours. 

4. The applicant’s solicitor informed me that the applicant suffered either psychologically or psychiatrically (in either case medically) from a mental infirmity rendering him unable to meaningfully participate in the visa application process, especially at interview stage.  The particulars of his infirmity were not detailed nor was it explained in very great detail how precisely his mental infirmity impacted on specific stages of his interaction with a delegate or later with the tribunal on the hearing of the merits review.  That said, recognising that in an urgent application of this sort the complete factual situation is rarely available, I proceeded on the basis that it was unwise to minutely scrutinise the gist of the applicant’s basis for the relief he sought.

5. On behalf the applicant it was said in the substantive application for judicial review the applicant will argue that his inability to meaningfully participate in the visa process rendered the tribunal hearing jurisdictionally defective.  The applicant’s solicitor submitted that he had raised a serious issue to be tried and that the balance of convenience overwhelmingly favoured the grant of the restraining orders because the applicant would be left without remedy unless the orders were made.

6. The minister was invited by me to consider whether the minister would offer an undertaking not to remove the applicant.  His solicitor was forthright in the minister’s refusal to offer any undertaking.  I raised with the minister’s solicitor whether the applicant’s contention was correct that the time limited for the applicant to apply to this court had not elapsed and therefore the minister was premature in his efforts to remove the applicant.  The minister denied the applicant’s assertions.  That highlighted how a point warranting investigation was raised in this case.

7. So far as the balance of convenience was concerned, I entertain no doubt whatsoever that it favoured the grant of the restraining order, especially in view of the minister’s refusal to offer any form of undertaking.  Unless restrained the applicant will be removed.  It was no answer, as the minister pressed, to contend that the applicant should be removed then for the minister to consider some application made by the applicant when the applicant was offshore.  Nor was it compelling for the minister to argue that the making of the restraining order will precipitate the loss by the minister of travel costs associated with the applicant’s removal.  It seemed to me that the applicant would be put in an impossible position if removed as he would lose – possibly irremediably – the position he currently enjoys to exercise such rights as he has while in Australia.

8. In those circumstances it seemed to me the applicant was able to demonstrate a serious issue to be tried and that the balance of convenience favoured the grant of the injunction.

9. The minister correctly pointed out that he should not be forced to wait for up to three years while this case bubbles up through the list of cases awaiting its turn to be heard.  The trade‑off for the last‑minute application for injunctive relief will be the expedited hearing.  I fixed this proceeding for hearing on 20 March 2019.  All necessary steps such as amendments, submissions and court book must be prepared, filed and served in time to meet that hearing date. 

10. I will reserve costs.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of his Honour Judge J D Wilson QC

Associate: 

Date:       25 February 2019