ZRTY v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 548
•18 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ZRTY v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 548
File number(s): SYG 602 of 2024 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 18 June 2024 Catchwords: MIGRATION – where applicant applies for an injunction restraining the Minister from removing the applicant from Australia up to a date that is eight days after the date on which the Administrative Appeals Tribunal determines an application for review the applicant made of a decision a delegate of the Minister made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) not to revoke a decision to cancel a bridging visa the applicant held – where the applicant applies for no other relief – whether question whether the injunction is to be granted is to be determined by reference to the power to grant injunctions conferred by s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) or whether it is to be determined by reference to the principles that govern the granting of an injunction against an officer of the Commonwealth under s 75(v) of the Constitution – question is to be determined by reference to the principles that govern the grant of an injunction under s 75(v) of the Constitution – principle by reference to which an injunction may be granted under s 75(v) of the Constitution is that it is necessary to ensure that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them – whether in seeking to remove the applicant from Australia the Minister or any of his officers have exceeded or will exceed power or have otherwise acted or will otherwise act unlawfully – application dismissed. Legislation: Constitution s 75(v)
Administrative Appeals Tribunal Act 1975 (Cth) ss 39(1), 43(1)
Evidence Act 1995 (Cth) ss 59, 69
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 139, 140
Federal Court of Australia Act 1976 (Cth) s 23
Judiciary Act 1903 (Cth) s 32
Migration Act 1958 (Cth) ss 5(1), 189(1), 196(1)(a), 198, 474, 476(1), 500(1)(ba), 501(3A), 501C(4), 501CA(4), 501E
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, Pt 2
Migration Regulations 1994 (Cth) Sch 2, cl 030.511
Cases cited: ABC v Lenah Game Meats Pty Ltd [2001] HCA 63
Kwok v Minister for Immigration and Multicultural Affairs [2001] FCA 1444
Lacey v Attorney-General of Queensland [2011] HCA 10
Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529
Smethurst v Australian Federal Police (2020) 272 CLR 177; [2020] HCA 14
Spurr v Minister for Immigration [2018] FCCA 1090
Uthayachandra Sellamuthu v Minister for Immigration & Multicultural Affairs [1998] FCA 1423
ZRTY v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 315
Division: General Number of paragraphs: 71 Date of hearing: 31 May 2024 Place: Sydney Counsel for the Applicant: Mr L Karp Solicitor for the Applicant: Legal Aid NSW Counsel for the Respondent: Ms R Francois Solicitor for the Respondent: Clayton Utz ORDERS
SYG 602 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ZRTY
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
18 JUNE 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the respondent’s costs set in the amount of $8,371.30.
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).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for an injunction to restrain the respondent (Minister) from removing the applicant from Australia until a date that is eight days after the date on which the Administrative Appeals Tribunal (Tribunal) determines an application for review (review proceeding) the applicant has made to the Tribunal. The ground on which the applicant applies for the injunction is that, unless it is granted, the applicant will be effectively denied his legal right to pursue the review proceeding.
The Minister opposes the application on three grounds. First, the application for the injunction does not fall within the jurisdiction s 476(1) of the Migration Act 1958 (Cth) (Migration Act) confers on this Court. Second, the asserted right in aid of which the applicant seeks the injunction is not an equitable or legal wrong that is capable of being protected by an injunction. Third, even if the Court has jurisdiction to entertain the application, and the asserted right in aid of which the applicant seeks the injunction is capable of being protected by an injunction, the evidence on which the applicant relies does not establish that the asserted right is liable to be affected such as to warrant the grant of an injunction.
Before I consider the competing submissions, it will be necessary, first, to describe the background out of which the proceeding has arisen; second, set out the relevant provisions of the Migration Act that deal with removal of unlawful non-citizens that have been engaged by the circumstances of this case; and, third, identify some of the admissible evidence that is relevant to revealing the applicant’s mental condition.
BACKGROUND
The applicant was born in Italy in 2000, and is therefore an Italian citizen.[1] The applicant’s parents, however, are Moroccan and, for that reason, the applicant is also a citizen of Morocco.
[1] I repeat here much of what I said in ZRTY v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 315, at [2]-[12]
The applicant entered Australia on 18 November 2018 holding a working holiday visa subclass 417 (Working visa).
In March 2020, after the Working visa expired, the applicant applied for a protection visa, and on 31 August 2020 he was granted a Subclass 030 Bridging Visa C (Bridging visa). The granting of the Bridging visa was subject to the terms contained in Subclass 030 of Schedule 2 (Schedule 2) to the Migration Regulations 1994 (Cth), cl 030.511 of which relevantly provides:
(1)In the case of a visa granted to a non-citizen who has applied for a substantive visa – bridging visa:
(a) coming into effect:
(i) on grant; or
(ii)when the substantive visa (if any) held by the holder cease; and
(b) permitting the holder to remain in Australia until:
. . . .
(v)if the holder withdraws his or her application for a substantive visa or an application to the Tribunal – 35 days after the withdrawal . . .
On 9 November 2020 a delegate of the Minister cancelled the Bridging visa pursuant to s 501(3A) of the Migration Act. The delegate made the decision because the applicant was convicted in September 2020 in the Local Court of New South Wales of a number of offences for which he was sentenced to an aggregate term of one year imprisonment. The applicant’s mother was the victim in each of these offences.
The delegate’s cancellation of the Bridging visa engaged s 501E of the Migration Act, which relevantly provides:
(1)A person is not allowed to make an application for a visa, or have an application for a visa made on the person's behalf, at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if:
(a)at an earlier time during that period, the Minister made a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and
(b)the decision was neither set aside nor revoked before the application time.
. . . .
(2)Subsection (1) does not prevent a person, at the application time, from making an application for:
(a)a protection visa; or
(b)a visa specified in the regulations for the purposes of this subsection.
On 21 January 2021 the applicant was served with notice of the cancellation of the Bridging visa and, on 16 February 2021, through his agent, the applicant sent an email to the Minister’s Department attaching a request for revocation of the cancellation in which the applicant identified the following matters as constituting reasons for revocation:[2]
I SUFFER WITH MENTAL HEALTH ISSUES; AT THE TIME OF THE OFFENDING I WAS SUFFERING WITH THESE CONDITIONS ALSO.
AT THE TIME OF OFFENDING IMPACTED MY DECISION-MAKING PROCESS WHICH RESULTED IN BREACHING THE AVO.
I AM REQUIRED TO REMAIN IN AUSTRALIA IN ORDER TO CONTINUE RECEIVING TREATMENT AND MEDICATION FOR MENTAL HEALTH ISSUES; MY MOTHER IS THE ONLY CLOSE MEMBER OF MY FAMILY UNIT, AND SHE RESIDES IN AUSTRALIA ON A STUDENT VISA.
I HAVE NO RELATIONSHIP WITH MY FATHER WHO RESIDES IN ITLAY [sic]. FURTHER, ALTHOUGH I HAVE A SISTER IN ITALY, SHE RESIDES IN TEMPORARY AND SUPPORTED HOUSING MEANING THAT SHOULD I RETURN TO ITALY, I WILL HAVE NO HOME TO GO TO AND NO ONE TO SUPPORT /ASSIST ME WITH MY MENTAL HEALTH ISSUES.
[2] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529, at [12]
In the section headed “personal circumstances” the applicant stated:[3]
DUE TO A HISTORY OF FAMILY VIOLENCE MY MOTHER WISHES FOR ME TO REMAIN IN AUSTRALIA AS MY FATHER IN ITALY WILL LIKELY CAUSE ME HARM SHOULD I RETURN. IF I DO RETURN TO ITALY, I WILL HAVE NO PLACE TO LIVE.
[3] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529, at [13]
On 8 February 2022, pursuant to s 501CA(4) of the Migration Act, a delegate of the Minister decided not to revoke the cancellation.
On 16 February 2022, the applicant applied to the Tribunal pursuant to s 500(1)(ba) of the Migration Act, which provides that applications may be made to the Tribunal for review of “decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa”. The powers of the Tribunal on a review are provided for by s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act):
For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
Having made the application, s 39(1) of the AAT Act obliged the Tribunal to “ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents”.
On 22 April 2022 the Tribunal set aside the delegate’s decision, and remitted the matter to the delegate for further consideration. The Minister, however, applied to the Federal Court of Australia for constitutional writs directed to the Tribunal. On 16 December 2022 the Federal Court quashed the Tribunal’s decision, and remitted the matter to the Tribunal for determination of the application for review before it according to law.[4]
[4] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529
On 10 February 2023 the NSW Civil & Administrative Tribunal made an order (Guardianship Order) that the applicant’s mother and the Public Guardian be appointed guardians of the applicant. The Guardianship Order is limited to the functions specified in the order. These included the Public Guardian having the function to “make decisions for [the applicant] in relation to access to legal services”.
On 23 August 2023 the applicant withdrew his application for a protection visa. That meant that, had the Minister not cancelled the Bridging visa, then, by operation of cl 030.511(b)(v) of Schedule 2, the Bridging visa would have ceased effect 35 days after 23 August 2023, namely, on 27 September 2023.
On 21 February 2024 the Tribunal sent an email to the applicant and the Minister requesting the parties provide to the Tribunal their available dates in April and May 2024. Mr Grosart, the lawyer for the applicant, has deposed that he expects the matter will be listed for hearing before the Tribunal in April or May or, given the passage of time, in June 2024.
On 3 April 2024 the Minister’s Department provided to the applicant a document headed “Notice of Intention to Remove from Australia”, which included the following:
I wish to advise you that you are liable for removal from Australia under the following provision of the Migration Act 1958:
s198 (5)
Arrangements have been made for your removal. It is anticipated that you will be removed from Australia on or after Wednesday 10 April 2024. The Department will monitor these arrangements until your departure to ensure your removal can be effected as intended, including confirming that valid travel documentation is available, that you are medically fit to travel and that you do not have any outstanding legal matters impacting on your removal.
If you wish to raise any matter relevant to the Department’s ability to remove you, please discuss this with your case manager or removal officer. An information sheet on the removal process is attached for your reference.
Subsection 198(5) of the Migration Act provides:
An officer must remove as soon as reasonably practicable an unlawful non‑citizen 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 195 of the Migration Act provides:
(1) A detainee may apply for a visa:
(a)within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b)if he or she informs an officer in writing within those 2 working days of his or her intention to so apply—within the next 5 working days after those 2 working days.
(2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.
On 8 April 2024 the applicant filed an application for an interlocutory judgment and on 10 April 2024, after having heard that application on 9 April 2024, I dismissed the application.[5]
[5] ZRTY v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 315
In his affidavit made on 1 May 2024 Mr Grosart says that the applicant’s mother has instructed him that she wishes to sponsor the applicant for a “child visa” (Child Visa). Counsel for the Minister objected to my receiving this evidence for a hearsay purpose; and I do not propose to read this part of Mr Grosart’s affidavit as evidence of the truth Mr Grosart intends to represent. Mr Grosart has annexed to his affidavit, however, two unsigned but otherwise completed forms. One form is titled “Sponsorship for a child to migrate to Australia”. The form includes the name of the applicant’s mother as sponsor, and the name of the applicant as the “child”. The second form is titled “Application for migration to Australia by a child”. It identifies the applicant as the child.
It is open to infer on the basis of these forms that they have been completed by the applicant’s mother, and that she has done so for the purpose of submitting them to the Minister. Further, it is common ground that the sponsor of a child for a Child Visa cannot apply for such sponsorship unless the child is able to apply for the Child Visa; but s 501E of the Migration Act bars the applicant (who would be the “child” for the purpose of the application for a Child Visa) from applying in Australia for any visa, including a Child Visa, but that bar will be lifted if the applicant succeeds in his application for review before the Tribunal. In these circumstances, it is open to infer that it is for these reasons or, at least, for reasons that include these reasons, that the forms annexed to Mr Grosart’s affidavit are not signed.
POWERS OF REMOVAL
The applicant is in immigration detention; and he is in detention because of s 189(1) of the Migration Act, which provides:
If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
Section 196 of the Migration Act specifies the time for which an unlawful non-citizen must be kept in immigration detention. Relevant to the case before me is s 196(1)(a) of the Migration Act, which provides that an unlawful non-citizen detained under s 189 “must be kept in immigration detention until . . . he or she is removed from Australia under section 198 or 199”. Section 198 specifies a number of different times by which an officer must remove an unlawful non-citizen from immigration detention. Relevant to the applicant is s 198(2B) of the Migration Act, which provides:
An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a)a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and
(b)since the delegate's decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
(c)in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate's decision--either:
(i)the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii)the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate's decision.
Construed literally, the obligation s 198(2B) of the Migration Act imposes on an officer to remove arises even though the unlawful non-citizen has applied to the Tribunal for review of the Minister’s decision not to revoke the delegate’s decision.
EVIDENCE OF APPLICANT’S MENTAL CONDITION
There is a reasonably substantial volume of documents in evidence that relate or refer to the applicant’s mental condition.[6] I admitted the documents into evidence on the basis that I would exclude representations and opinions contained in them to the extent they fall within the hearsay rule provided for by s 59 of the Evidence Act 1995 (Cth) and are not subject to any of the exceptions provided for by that Act, and in particular the exception provided by s 69.
[6] The documents are contained in exhibit RB to the affidavit of Mr Grosart made on 8 April 2024. I omitted to formally mark those documents as an exhibit at the time I read Mr Grosart’s affidavit; but I had already marked the exhibit as “Exhibit RB” at the hearing of the interlocutory injunction on 9 April 2024.
Counsel for the applicant relies on a number of items of evidence which he submitted were relevant to the applicant’s mental condition.
(a)First, there is a “MH Discharge/Transfer Summary Final Report” bearing a “[r]esult date” of 19 February 2020.[7] Under the heading “Background”, it is stated that the applicant “has a history of drug-induced psychosis, with a several week admission to . . . in Nov/Dec of 2019 in the context of methamphetamine use”, at which time the applicant was “noted to be grandiose, agitated and aggressive”; the applicant “was eventually discharged . . . but has NOT been compliant with his medications”.[8] Under the heading “Progress” it is stated that the applicant had recommenced a particular medication, and was started on another medication; he “continued to be agitated, intimidating, posturing, and heavily pre-occupied with discharge”, and manifested other behaviours which, after treatment, subsided.[9] Under the heading “Risks”, the following is stated:[10]
On discharge, [the applicant] is mentally stable and future oriented. His acute risk of harm to self and others appears low. Longitudinally, these risk[s] are chronically high in the context of his past history of mental health admissions, drug use, and lack of compliance with medications. These risks will escalate in the context of symptom relapse, and are not likely to be improved by further inpatient admission at this time. They are best managed in the community with ongoing mental health follow up and support. [The applicant] is encouraged to engage with the community mental health team on discharge.
(b)Second, there is a report that was issued on 20 April 2020 which relates to the applicant’s admission to a mental health facility from 16 to 20 April 2020.[11] Under the heading “Reason for admission” it is noted that during the interview the applicant “was highly agitated and we became concerned for the mother’s safety”; the applicant “was scheduled for a brief period of observation”.[12] In a section headed “Formulation/Clinical Impression” there is included “drug induced psychosis aggression”.[13]
(c)Third, there is a document titled “MH Current Assessment” having a “Result date” of 23 September 2020.[14] It includes as a current assessment “Acute drug intoxication”.[15] The document records that about a week before the applicant went into custody due to aggravated behaviour “targeted against the parents”; and also about a week before the applicant was picked up by police for “disinhibited, inappropriate behaviours and displaying altered mental state”.[16] The document further records the author suspects the applicant presented again “in the context of drug use”.[17]
(d)Fourth, there is a report that relates to the applicant’s admission to a facility on 28 February 2020.[18]
(e)Fifth, there is a letter issued by Health South Western Sydney Local Health District which reports on the applicant’s having been admitted to Liverpool MHDU (that is, high dependency unit) in November 2021.[19] It states the applicant is well known to “Liverpool MHS, with three past admissions . . . in 2019 & 2020”; and that, on the occasion to which the letter refers, the applicant had been brought by security personal at a detention centre “due to concerns of delusional and experience of auditory hallucinations and non-compliance with oral medication”. The letter continued that the applicant was scheduled due to the experiences the letter identifies; and it concluded that the applicant’s “unique and complex experience of mental illness requires ongoing treatment for [the applicant] to foster his own personal recovery”.[20]
[7] Exhibit RB, pages 213-217, at page 216
[8] Exhibit RB, page 214
[9] Exhibit RB, page 214
[10] Exhibit RB, page 215
[11] Exhibit RB, pages 218-222
[12] Exhibit RB, page 220
[13] Exhibit RB, page 221
[14] Exhibit RB, page 223
[15] Exhibit RB, page 223
[16] Exhibit RB, page 223
[17] Exhibit RB, page 224
[18] Exhibit RB, page 226
[19] Exhibit RB, page 575
[20] Exhibit RB, page 576
Counsel for the applicant also referred to the following statements the applicant made in his application for a protection visa (errors in original):[21]
My father used to hit me when I was young because of his bad personality and always fighting with my mom, especially when she dosent give him money. He continued hittin me and throw me in the street when my mom come to Australia.
If I go back, my father thretean to kill me, and I have developed nightmare because of his beaaviour and attitude. If I die here better than return to Italy. I have developed bad abbits with using prescribed drugs and I was admitted to four mental [illegible] hospital for one month in November and the second time one month in January.
GROUND OF APPLICATION AND PARTIES’ SUBMISSIONS
[21] Exhibit RB, page 732
Ground of application
The applicant relies on one ground of application:
The respondent has sought to remove the applicant from Australia before the finalisation of his application to the Administrative Appeals Tribunal for review of the decision not to revoke the cancelation of his Bridging visa, effectively denying the applicant's right, under s. 500(l)(ba) of the Migration Act to have that decision reviewed.
Particulars
(a) The applicant's Bridging Visa was cancelled under s. 50l(3A) of the Migration Act on 9 November 2020.
(b) The applicant sought to have the cancellation of his Bridging Visa revoked under s. 501CA(4) of the Migration Act.
(c) The Minister by his delegate refused to revoke the cancellation of his visa.
(d) The applicant has sought review of that refusal at the Administrative Appeals Tribunal, as was his right under s. 500(l)(ba) of the Migration Act.
(e) The applicant would be effectively incapable of prosecuting the review proceedings were he to be removed from Australia.
(f) The Minister’s removal from Australia would thus deny the applicant his legal right to have the decision of the delegate reviewed by the Administrative Appeals Tribunal.
Applicant’s submissions
The applicant submits this case “is brought for final relief to preserve the subject matter of a dispute involving the parties in a different forum – that of the Tribunal – on a final basis, and to protect the legal right of the applicant to participate in the review and have it determined”.[22]
[22] Applicant’s Outline of Submissions, [7]
The applicant’s counsel acknowledges he is not aware of any case that is precisely on point. Counsel for the applicant relies,[23] however, on the following passage from the judgment of Gaudron J in ABC v Lenah Game Meats Pty Ltd:[24]
In recent times, the word “injunction” has come to be used to mean any order by which a court commands a person to do or refrain from doing some particular act. Thus, it has come to be used in connection with orders of that kind that are specifically authorised by statute. It has also been used to describe orders which a court makes to protect its own processes such as an asset preservation order (sometimes called a “Mareva injunction”) and some anti-suit injunctions. Leaving those matters to one side, however, an injunction is a curial remedy. Because it is a remedy, it is axiomatic that it can only issue to protect an equitable or legal right or, which is often the same thing, to prevent an equitable or legal wrong. So to say, is simply to emphasise that the function of courts is to do justice according to law.
[23] Applicant’s Outline of Submissions, [8]
[24] ABC v Lenah Game Meats Pty Ltd [2001] HCA 63, at [60]
Counsel for the applicant also relies on two judgments that referred to an injunction having been granted to restrain a person’s being removed from Australia pending that person’s lodging an application for a protection visa. The first is the reasons for judgment of Hely J in Uthayachandra Sellamuthu v Minister for Immigration & Multicultural Affairs,[25] on the basis of which his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (RRT) affirming the decision of a delegate of the Minister not to grant the visa applicant a protection visa. His Honour’s reasons for judgment included the following:
The applicant is a citizen of Sri Lanka. On 19 April 1998 he arrived in Australia, travelling without a passport and without a visa. He was refused immigration clearance and detained at the Immigration Detention Centre ("IDC"), Villawood.
Arrangements were made to return the applicant to Sri Lanka, but on 21 April 1998 an injunction was granted restraining his deportation to Sri Lanka, upon the basis that an application for a protection visa would be made by the close of business on the following day. The applicant was taken from the airport back to IDC Villawood.
[25] Uthayachandra Sellamuthu v Minister for Immigration & Multicultural Affairs [1998] FCA 1423
The second judgment to which counsel for the applicant referred is that of Tamberlin J in Kwok v Minister for Immigration and Multicultural Affairs.[26] That case considered an application for review of decisions made under the Freedom of Information Act 1982 (Cth), but in setting out the background to the proceeding, Tamberlin J said:[27]
On Saturday 6 January 2001, an injunction was granted by a Judge of this Court to prevent the applicant being removed from Australia that day, pending her lodging an application for a protection visa. This was lodged on 8 January 2001.
[26] Kwok v Minister for Immigration and Multicultural Affairs [2001] FCA 1444
[27] Kwok v Minister for Immigration and Multicultural Affairs [2001] FCA 1444, at [4]
Counsel for the applicant submits these cases show that “injunctions have issued to restrain the Minister from removing a person from Australia in aid of the person’s intention to pursue a legal right”.[28]
[28] Applicant’s Outline of Submissions, [12]
The applicant submits that the right in aid of which he applies for an injunction is the legal right he has under s 500(1)(ba) of the Migration Act and s 39 of the AAT Act, and that the removal of the applicant from Australia would undermine the Tribunal’s process. The matters on which the applicant relies are those identified in paragraph 34 of the reasons for judgment I published on 10 April 2024 (Interlocutory Findings):[29]
In the event the applicant wishes to take this matter further, it is appropriate to record what I would have found had I been satisfied the applicant identified a legal, statutory, or equitable right which is to be determined at the trial of the proceeding that he has commenced in this Court. I would have found that the evidence satisfied me that the applicant suffers from acute mental and other conditions; that he is receiving care in the detention facility at which he is currently held; that he is receiving support from his mother; that, although his father is in Italy, the applicant and his father are estranged; there is no prospect of the applicant receiving any assistance from his father if the applicant were to return to Italy; and whatever assistance and support the applicant would be able to secure in Italy on his return, that would be substantially inferior to the support and care he is currently receiving, and this would substantially reduce the capacity he otherwise would have to pursue his rights before the Tribunal if the applicant remained in Australia, pending the determination of his application for review before the Tribunal.
[29] ZRTY v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 315
I do not understand counsel for the applicant to submit that the Interlocutory Findings are binding on the parties; and I would not in any event consider them to be binding, given that I made them in an application for an interlocutory injunction. I do take counsel for the applicant to submit, however, that the admissible evidence is sufficient to justify my making findings to the effect of the Interlocutory Findings.
Finally I should mention what I should logically have noted at the outset; and that relates to jurisdiction. In his counsel’s written submissions the applicant, relying on the judgment of Judge Kendall in Spurr v Minister for Immigration, submits this Court has jurisdiction to entertain the applicant’s claim for an injunction.[30] In Spurr, the relevant “migration decision” to which the application for relief related was the decision made under s 198 of the Migration Act to remove Mr Spurr from Australia.
[30] Spurr v Minister for Immigration [2018] FCCA 1090, at [66]
The Minister’s submissions
In his written submissions the Minister makes the following submissions:
(a)The power this Court has to grant an injunction does not extend to preserving the subject matter of a dispute or proceeding that is not before it.[31]
(b)Even if the power so extended, the applicant is required to show that the conduct that is sought to be enjoined by the injunction he seeks would be an unlawful act; but the applicant does not so submit, and in any event, the applicant has not identified any basis for submitting that the Minister’s exercise of the power to remove the applicant from Australia would be unlawful. Stated shortly, the applicant has not identified any equitable or legal wrong the Minister would commit if an officer were to proceed to remove the applicant from Australia.[32]
(c)Not only has the applicant not identified that the Minister’s removing the applicant would be unlawful; s 198(2B) of the Migration Act mandates that it be done. In those circumstances, the mere fact that a person has commenced a proceeding for an injunction would not be enough by itself to justify the granting of an injunction.[33]
(d)Even if the evidence supported the Interlocutory Findings, it is not apparent how the applicant’s removal from Australia would deprive him of his right to participate in the Tribunal proceeding.[34]
[31] Respondent’s Outline of Submissions, [7]
[32] Respondent’s Outline of Submissions, [16]
[33] Respondent’s Outline of Submissions, [17], referring to Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34, at [126]
[34] Respondent’s Outline of Submissions, [26]
As I noted at the beginning of these reasons, the Minister also submits this Court does not have jurisdiction to hear the application for an injunction.
Questions arising
The following questions arise:
(a)Does the applicant’s claim for an injunction fall within the jurisdiction s 476 of the Migration Act confers on this Court?
(b)Assuming (a) is answered in the affirmative, what is the nature and scope of the jurisdiction? This question arises because the only jurisdiction the applicant engages is the jurisdiction the High Court has to grant an injunction under s 75(v) of the Constitution in relation to a “migration decision”.
(c)Given the nature and scope of the jurisdiction the applicant has engaged, has the applicant established an entitlement to the injunction he claims?
JURISDICTION
The jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) (this Court) in relation to matters arising under the Migration Act is conferred by s 476(1), which provides:
Subject to this section, the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
Subsection 476(1) of the Migration Act, therefore, contains two elements. The first is that there must be a “migration decision”. The second is that the jurisdiction s 476(1) confers on this Court in relation to a “migration decision” is that which the High Court would have in relation to the “migration decision” under s 75(v) of the Constitution.
The expression “migration decision” is defined in s 5(1) of the Migration Act to mean, among other things, “a privative clause decision”; or “a purported privative clause decision”; or a “non-privative clause decision”. The expression “privative clause decision” is defined in s 474(2) to mean:
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).
Subsection 474(3) of the Migration Act provides that a reference in s 474 to “a decision” includes a reference to the following:
(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.
The applicant’s claim for an injunction is directed to restraining the Minister and his officers from taking action to remove the applicant from Australia, as mandated by s 198(2B) of the Migration Act. That action constitutes the “doing” of an act within the meaning of s 474(3)(g) of the Migration Act; and it is an act done or purportedly done under the Migration Act. Thus, to the extent the application before me is directed to the removal of the applicant from Australia pursuant to s 198(2B) of the Migration Act, the applicant’s claim for an injunction relates to a “migration decision”; and, being a claim for an injunction, it is a matter in relation to which the High Court would have jurisdiction under s 75(v) of the Constitution.
SCOPE OF JURISDICTION UNDER S 75(V) OF THE CONSTITUTION
The jurisdiction s 476(1) of the Migration Act confers on this Court in relation to “migration decisions” is limited by the requirement that it must be the same jurisdiction as the High Court has in relation to “migration decisions” under s 75(v) of the Constitution. Placitum (v) of s 75 of the Constitution provides that the High Court shall have original jurisdiction in “all matters” “in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth”. The only relief the applicant seeks is an injunction. The nature and extent of the jurisdiction this Court may exercise in relation to the applicant’s claim, therefore, is limited by the principles that govern the grant of an injunction under s 75(v) of the Constitution (constitutional injunction).
Jurisdiction and power
The applicant and the Minister, however, have not proceeded in this way; they have proceeded on the basis that, assuming the Court has jurisdiction in relation to the applicant’s claim for an injunction, the question whether the applicant is entitled to the injunction is to be determined by reference to the principles that govern the exercise of the power to grant an injunction conferred by s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act). That section provides:
The Federal Circuit and Family Court of Australia (Division 2) has power, in relation to matters in which it has jurisdiction, to:
(a)make orders of such kinds, including interlocutory orders, as the Court considers appropriate; and
(b)issue, or direct the issue of, writs of such kinds as the Court considers appropriate.
Section 140 of the FCFC Act embodies the substance of s 25(8) of the Supreme Court of Judicature Act 1873 (Eng), which conferred on the newly created High Court of Justice the power to grant injunctions “in all cases in which it shall appear to the Court to be just or convenient that such Order should be made”. That power, however, “has been held to extend only as far as the powers formerly exercised by courts of equity and later by courts of law pursuant to s 79 of the Common Law Procedure Act 1854 (Eng)”.[35]
[35] Smethurst v Australian Federal Police (2020) 272 CLR 177, at page 238; [2020] HCA 14, at [146] (Nettle J)
In proceeding the way they have, the parties have perhaps overlooked “the distinction between jurisdiction and power”.[36] That which gives this Court jurisdiction over the applicant’s claims for an injunction is the applicant’s claiming a constitutional injunction. The jurisdiction of the Court in relation to the applicant’s claims for final relief, therefore, cannot extend beyond the principles that govern the granting of a constitutional injunction. The position might have been different if, in addition to claiming a constitutional injunction, the applicant had claimed a writ of prohibition or a writ of mandamus. In those circumstances, this Court would have had jurisdiction over the matter, and the power conferred by s 140 of the FCFC Act to grant an injunction would have been available, if otherwise appropriate, as part of the armoury of powers the Court would have had to exercise its jurisdiction according to the dictates of s 139 of the FCFC Act.[37] The position may also have been different if, in addition to claiming the constitutional injunction, the applicant had also applied for an interlocutory injunction in aid of its application for a constitutional injunction. An application for an interlocutory injunction would have been based on s 140 of the FCFC Act.
[36] Lacey v Attorney-General of Queensland [2011] HCA 10, at [48]: “The distinction between jurisdiction and power has been made repeatedly by this Court. . . .The power given to the Court may inform the characterisation of its jurisdiction but does not necessarily define its content”.
[37] Which provides: “In every matter before the Federal Circuit and Family Court of Australia (Division 2), the Court must grant, either (a) absolutely; or (b) on such terms and conditions as the Court thinks just; all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible: (c) all matters in controversy between the parties may be completely and finally determined; and (d) all multiplicity of proceedings concerning any of those matters may be avoided”.
The distinction between a constitutional injunction and an injunction under s 140 of the FCFC Act may be illustrated by the circumstances in Smethurst v Australian Federal Police.[38] In that case, the Australian Federal Police (AFP), acting under an unlawful warrant, transferred to a device the AFP controlled information that had been stored on a mobile telephone; and the owner of the mobile telephone applied in the original jurisdiction of the High Court for writs of prohibition and mandamus in relation to the decision to issue the unlawful warrant, and for a mandatory injunction compelling the AFP to deliver up or destroy the material seized. As the Solicitor-General submitted,[39] by applying for writs of prohibition and mandamus the High Court’s jurisdiction was properly invoked and, that being the case, the High Court had the power to grant an injunction, pursuant to s 32 of the Judiciary Act 1903 (Cth),[40] rather than a constitutional injunction. As the Solicitor-General further submitted, given the High Court had jurisdiction, it was “unnecessary to address the unresolved question whether the Court would have jurisdiction under s 75(v) in an application that sought only an injunction with respect to a non-jurisdictional error”.[41]
[38] Smethurst v Australian Federal Police (2020) 272 CLR 177; [2020] HCA 14
[39] Smethurst v Australian Federal Police (2020) 272 CLR 177, at page 191
[40] Section 32 of the Judiciary Act 1903 (Cth) is equivalent to s 139 of the FCFC Act.
[41] Smethurst v Australian Federal Police (2020) 272 CLR 177, at page 191
The circumstances that arose in Smethurst do not arise in the application before me because, as I have noted, the only jurisdiction the applicant’s claim for an injunction has engaged is the jurisdiction the High Court would have under s 75(v) of the Constitution to grant a constitutional injunction. It is therefore necessary to consider the scope of the constitutional injunction, a question the High Court considered in Smethurst.
Scope of Constitutional injunction – the judgments in Smethurst
At the hearing in Smethurst, the parties did not suggest that the jurisdiction given by s 75(v) of the Constitution is to be exercised by the High Court other than in accordance with the principles by which injunctions are usually granted. After the hearing, however, the High Court invited further submissions on whether the officers of the AFP having acted in excess of statutory power provides “a sufficient juridical basis for the issuing of an injunction under s 75(v) and whether that provision affects the discretionary arguments put by the parties”.[42] The parties filed further submissions, in response to which the Justices of the High Court made a number of observations about the scope of the power under s 75(v) of the Constitution to grant an injunction.
[42] Smethurst v Australian Federal Police (2020) 272 CLR 177, at pages 218-219; [2020] HCA 14, at [91], [92]
The plurality said:[43]
Section 75(v) is an irremovable source of jurisdiction and power. Its purposes are clear. It was included in the Constitution “to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power”. It is a means of assuring [that all] officers obey the law and neither exceed nor neglect any jurisdiction which the law confers on them. These purposes do not speak to the operation of s 75(v) for which the plaintiffs contend.
The remedy of injunction under s 75(v) remains essentially an equitable type of remedy. It may not be subject to the same limitations as are the constitutional writs but, as Gaudron J has observed “[i]n the field of public law, equitable remedies are subject to the same considerations, including discretionary considerations, as apply in any other field”.
[43] Smethurst v Australian Federal Police (2020) 272 CLR 177, at page 221; [2020] HCA 14, at [97], [98]
Nettle J noted that, although s 75(v) of the Constitution “is not constrained by the principles of jurisdictional error that limit the issue of the constitutional writs of mandamus and prohibition”, “for the most part . . . the Court’s power to grant s 75(v) injunctive relief, like the Court’s power to grant any other kind of relief, is defined by s 32 of the Judiciary Act”.[44] His Honour concluded:[45]
The starting point in this matter is, therefore, that this Court’s power under s 32 of the Judiciary Act to grant injunctive relief in the exercise of its original jurisdiction – whether under s 75(v) of the Constitution or otherwise – is defined by doctrines of equity as they have developed over time, and by the settled construction of the 1854 Act empowering courts of law to grant injunctions in lieu of damages.
[44] Smethurst v Australian Federal Police (2020) 272 CLR 177, at pages 236-237; [2020] HCA 14, at [144]
[45] Smethurst v Australian Federal Police (2020) 272 CLR 177, at page 238; [2020] HCA 14, at [146]
Gageler J said:[46]
Section 75(v) of the Constitution confers original jurisdiction on the High Court in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. . . . Necessarily encompassed within it is therefore constitutional power to issue each of the “constitutional remedies” for which it provides: the “constitutional writs” and the “constitutional injunction”.
Underlying that conferral of jurisdiction and concomitant power are two traditional conceptions. Together they are aspects of the rule of law, which forms an assumption of the Constitution. One is that the holder of a constitutional or statutory office cannot do anything in an official capacity except that which is authorised by the Constitution or by statute. The other is that the holder of a constitutional or statutory office is bound by the common law when doing anything in an official capacity except to the extent that non-compliance with the common law is specifically authorised or excused by statute.
The jurisdiction conferred by s 75(v) of the Constitution to issue a constitutional injunction against a constitutional or statutory officer of the Commonwealth can arise for exercise in two corresponding categories of matter. One is where the officer does or threatens to do something in an official capacity that is beyond constitutional or statutory authority. There an injunction can issue in the exercise of judicial discretion to vindicate the limitation on constitutional or statutory authority. The other is where the officer does or threatens to do something in an official capacity to infringe a common law right. There an injunction can issue in the exercise of judicial discretion to vindicate the common law right. The two categories are not mutually exclusive. Nor can they be taken necessarily to exhaust the jurisdiction.
[46] Smethurst v Australian Federal Police (2020) 272 CLR 177, at pages 224-225; [2020] HCA 14, at [110]-[112] (footnotes omitted)
Gageler J further noted that:[47]
Just as the exercise of power to issue a constitutional writ of mandamus or prohibition is informed without being confined by principles which historically informed the issue of a writ of mandamus or prohibition by a court administering the common law, so the exercise of power to issue a constitutional injunction is informed without being confined by principles which historically informed the issue of an injunction by a court administering equity. Noteworthy in that respect is that courts administering equity had by the end of the nineteenth century become accustomed to issuing injunctions against public officers and public authorities, where common law remedies were unavailable or inadequate to “meet the justice of the case”, in categories which included tortious infringement of a common law or statutory right and want or excess of statutory authority.
[47] Smethurst v Australian Federal Police (2020) 272 CLR 177, at pages 225-226; [2020] HCA 14, at [113] (footnotes omitted)
Gordon J said:[48]
Section 75(v) was included in the Constitution “to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power”. Reference to injunction in s 75(v) is part of the constitutional means for achieving that purpose. The reference to injunction also makes it constitutionally certain that there is a jurisdiction to remedy the consequences that follow for others from officers of the Commonwealth having exceeded federal power. It is the excess of power (that an officer of the Commonwealth has acted or threatens to act in excess of power), not any separately identified right, that warrants the grant of an injunction to remedy, so far as can be, the consequences brought about by that excess. That is, the availability of injunction, in cases of excess of federal power, is not confined by reference to practices or principles developed by the English courts of equity in relation to the grant of injunction. Indeed, “[a]ny automatic transposition of such principles runs the risk of denying the evident constitutional purpose that relief should be available to restrain excess of federal power and to enforce performance of federal public duties”.
[48] Smethurst v Australian Federal Police (2020) 272 CLR 177, at pages 251-251; [2020] HCA 14, at [181] (footnotes omitted)
Although the Justices in Smethurst differed to some degree about the principles that should govern the grant of a constitutional injunction, there was uniformity in what the Justices said about the purposes for which a constitutional injunction may issue; and that is, to use the words of the plurality, to assure that all “officers obey the law and neither exceed nor neglect any jurisdiction which the law confers on them”.[49] Thus, a necessary, although not sufficient, condition, for the grant of a constitutional injunction to restrain conduct in which it is reasonably apprehended an officer of the Commonwealth will engage, is that the conduct will exceed the power purportedly pursuant to which the officer proposes to engage in the conduct, or the conduct will otherwise be unlawful.
[49] Smethurst v Australian Federal Police (2020) 272 CLR 177, at page 221; [2020] HCA 14, at [97]
IS THE APPLICANT ENTITLED TO AN INJUNCTION?
The applicant does not expressly contend that the conduct the applicant seeks to enjoin by the injunction he claims is not authorised by s 198(2B) of the Migration Act, or by any other removal power provided under the Migration Act; and the applicant does not expressly contend that the Minister or any of his officers, by seeking to remove the applicant from Australia, have engaged in, or are threatening to engage in any unlawful or unauthorised conduct. For that reason alone, the applicant has not demonstrated any basis on which a constitutional injunction can be granted to restrain the Minister or his officers from removing the applicant from Australia.
The circumstances in which the applicant applies for an injunction may be contrasted with the two cases to which the parties referred. The first is Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC,[50] where a majority of the Full Federal Court upheld the primary judge’s granting of an interlocutory injunction. That injunction, however, was granted in aid of claims for declaratory relief and for constitutional writs based on a claim that the Minister made an error of law, and exceeded the executive power of the Commonwealth. In other words, the injunction MZAPC sought was not a constitutional injunction, but an interlocutory injunction granted pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth).[51] The second case is Spurr where, again, an interlocutory injunction was granted in aid of Mr Spurr’s application for final relief that claimed the decision to remove Mr Spurr was infected by jurisdictional error.[52]
[50] Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34
[51] Section 23 of the Federal Court of Australia Act 1976 (Cth) is the equivalent provisions to s 140 of the FCFC Act.
[52] Spurr v Minister for Immigration [2018] FCCA 1090, at [2], and [66]
It is the case, however, that the applicant contends that, if the Minister were to remove the applicant from Australia, the Minister would “deny the applicant his legal right to have the decision of the delegate reviewed by the Administrative Appeals Tribunal”.[53] That contention, if correct, would imply that the Minister would be acting unlawfully; and that is because it would be impossible to envisage that the Minister’s or his officer’s conduct in seeking to remove the applicant from Australia would be lawful if the effect of that conduct would be to deny rights the applicant has under the Migration Act and the AAT Act to pursue the review proceeding. There are, however, at least two difficulties with drawing any such implication in the circumstances of this case. First the applicant does not in terms allege that the Minister’s or his officer’s conduct in seeking to remove the applicant from Australia is beyond power, or is or would otherwise be unlawful. A conclusion of unlawful behaviour should not be left to implication, with the nature of the unlawful behaviour not being clearly articulated.
[53] Paragraph (f) of the particulars to the ground of application.
Second, and in any event, the applicant has not articulated how his removal from Australia would deny the applicant the rights he has to pursue the review proceeding, even if it be assumed that, as the applicant contends, he “would be effectively incapable of prosecuting the review proceedings were he to be removed from Australia”. The applicant’s being incapable, because of his changed circumstances, to prosecute the review proceeding cannot by itself alter the legal right the applicant has to prosecute the review proceeding. He will have the same right to prosecute the review proceeding whether he remains in Australia or if he is returned to Italy.
What in truth the applicant claims is a right to an adjustment of the laws that would otherwise apply to him to take into account the mental and other conditions from which he suffers. In other words, the applicant claims a right that the power of removal under s 198(2B) of the Migration Act (or of any other power of removal that may apply to him) is, or ought to be, modified in its application to him to take into account the claimed fact that, because of his mental and other conditions, the applicant will be unable to properly exercise, or exercise at all, the right he has to prosecute the review proceeding if he is removed to Italy. The applicant has not identified the basis for any such right.
What of the injunctions that had been apparently granted in Uthayachandra Sellamuthu and in Kwok? Very little can be made of these cases, because there appear to be no reasons for judgment, or no published reasons for judgment on the basis on which the injunctions were granted. Thus, it is not apparent in relation to what final claim for relief the injunctions were granted; and it is in any event not apparent on what basis the injunctions were granted.
I have so far assumed that if the applicant were returned to Italy he “would be effectively incapable of prosecuting the review proceedings were he to be removed from Australia”. Is that established on the evidence?
At the hearing I asked counsel what is it about the applicant’s being in Australia, as compared to his being in Italy, that would enhance his ability to participate in the review proceeding, and in what way that enhancement would occur. Counsel submitted as follows:[54]
[A]t the moment he is in immigration detention. He is receiving some assistance, some medical assistance. And admissions to hospital when he does go on medication clearly improves him. The admissible evidence . . . is that his father will not support him in Italy. In fact his father is violent and dismissive of him. If he doesn’t have support in Italy and there’s no evidence of any other support that he may have in Italy, he is going to, almost certainly – and your Honour can draw this conclusion from the evidence – go back onto drugs and be incapable of forming coherent thoughts.
Now, without being able to form coherent thoughts, being grandiose, obstructive and so on; he is simply not going to be able to participate in the hearing. . . . So the difference between here and in Italy is that he has support here. There’s no evidence that he has support in Italy. If he succumbs to his schizophrenia and other behaviours in Italy, quite clearly he won’t be able to form coherent thoughts.
[54] T22.40-T23.10
There is no question the applicant suffers from serious conditions that affect his ability to make rational decisions. The evidence reveals, however, that it is the availability of mental health services, and the provision of appropriate medications, that seem to have some stabilising effect on the applicant; but the evidence does not permit me to make any finding about the extent to which, and the circumstances in which, the applicant would be able to access mental health services, including medications, in Italy. Further, although it may be inferred that the applicant’s mother initiated the applicant’s obtaining the relevant mental health services in Australia, or has at least assisted the applicant in doing so, there is no evidence about the extent to which the applicant’s mother, being an Italian citizen, would be able, while in Australia, to assist the applicant in Italy to access mental health services, including medications. Also relevant are the findings that are available to be made, and which I make, that the applicant’s mother has been assisting the applicant in the exercise of his rights to prosecute the review proceeding, and that she will continue to provide such assistance, even if the applicant were to be returned to Italy.
I am satisfied that the applicant’s ability, if in Italy, to exercise his rights in the review proceeding will be less than his ability to exercise those rights if he remains in Australia. Given, however, the absence of the evidence to which I refer in the previous paragraph, and my finding that the applicant’s mother will continue to assist the applicant in the exercise of his right to prosecute the review proceeding, I am not satisfied that the applicant’s being removed to Italy will remove or substantially impair his ability to exercise his rights in the review proceeding.
DISPOSITION AND COSTS
I propose to order that the proceeding be dismissed.
The parties agreed that costs should follow the event, and that the costs should be set in the amount provided for by Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), that amount being $8,371.30. I will therefore order that the applicant pay the Minister’s costs set in the amount of $8,371.30.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 18 June 2024
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