AHF18 v Minister for Immigration, Citizenship and Multicultural Affairs

1. The interlocutory application dated 4 June 2023 be dismissed.
2. The applicant pay the respondent's costs as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 These are my reasons for dismissing an interlocutory application by which the applicant sought an injunction against the respondent, the Commonwealth, to restrain him from being removed from Australia. After hearing from the parties on the afternoon of 5 June 2024 and the morning of 6 June 2024, I dismissed the interlocutory application with costs, providing a brief outline of what the substance of my reasons would be. I understand that the applicant was due to be removed from Australia on a flight leaving Sydney on the night of 6 June 2024. 2 For over 19 years, since March 2005 the applicant had been either in prison on remand, serving prison sentences for serious drug importation and related offences, or in immigration detention. Since March 2005, the applicant has spent only 10 months not in prison or immigration detention, between March 2012 and January 2013. The applicant's last visa was cancelled on character grounds in January 2013; several protection visa applications have been refused. His challenge to the last of those refusals failed at the last available curial hurdle in this Court in October 2023: AHF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1283. 3 The applicant had pending an application under s 48B(1) of the Migration Act 1958 (Cth) for the Minister for Immigration, Citizenship and Multicultural Affairs to exercise his personal and non-compellable power to lift the restriction in s 48A on making a further application for a protection visa. That pending application does not give rise to any identified cause of action. 4 In a notice of intention to remove the applicant from Australia, he was advised that he would be removed on or after 6 June 2024. The power intended to be exercised to achieve this is in s 198(6) of the Migration Act 1958 (Cth), which provides as follows: An officer must remove as soon as reasonably practicable an unlawful non-citizen if: (a) the non-citizen is a detainee; and (b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and (c) one of the following applies: (i) the grant of the visa has been refused and the application has been finally determined; (ii) the visa cannot be granted; and (d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone. 5 The applicant did not dispute that the criteria enlivening the duty to remove him from Australia in s 198(6)(a), (b), (c)(i) and (d) are met: he is a non-citizen detainee, he had in the past made a valid application for a substantive visa that could have been granted to him when he was in the migration zone, the grant of the visa has been refused and the application finally determined and he has not made another valid application for a substantive visa that can be granted while he remains in the migration zone. The sole basis the applicant advances for the grant of the injunction is that he contends that his poor health and his need for medical treatment in Australia means that, in terms of the chapeau to s 198(6), it is not "reasonably practicable" to remove him from Australia. 6 The applicant relied upon evidence that rises no higher than having serious long-term illnesses that are, it may be accepted for present purposes, better treated in Australia than in his country of origin. There was no suggestion that his medical condition precluded him being conveyed safely on an aeroplane to his country of origin. The Commonwealth relied on evidence of removal processes used to assess the applicant's fitness to travel that demonstrates sufficiently for present purposes that there is no impediment to such travel, and certainly no health reason precluding air travel. Those documents include an assessment, based on an examination of the applicant's medical records, that he was fit to travel. The notice of intention to remove the applicant from Australia advises him that the Department will monitor the arrangements for his removal until his departure to ensure this can be effected as intended, including, inter alia, confirming that he is "medically fit to travel". 7 Counsel for the applicant at one stage on the first hearing day conceded that there was no medical reason precluding air travel by the applicant, although he did attempt to resile from that to some extent upon the basis of further medical evidence furnished overnight. The additional evidence was not sufficient to satisfy me that there was any medical condition that would preclude air travel of a duration sufficient for the applicant to be returned to his country of origin. 8 The Commonwealth relied upon the decision of Besanko J in Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368; 155 FCR 465, which concerned an interlocutory application seeking to restrain the Commonwealth from removing a non-citizen from Australia under s 198(6). I have carefully read Beyazkilinc and consider that it was correctly decided and that I should follow it, including by reason of the binding and compelling High Court and Full Court authority followed and applied by his Honour. The applicant did not suggest Beyazkilinc was not correctly decided, a proper stance to take in light of the strength of his Honour's reasoning and conclusions. 9 The following captures the substance of the submissions made by the Commonwealth for refusing to grant the injunction, any of which, if accepted, was fatal to the application: (a) s 474(1) of the Migration Act 1958 (Cth) provides: A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (b) s 474(2) of the Migration Act provides that, in s 474: 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). (I note for completeness that s 198 is not among the provisions referred to in the table to s 474(4), and is not a provision specified in a regulation as provided for in s 474(5)). (c) s 474(3) provides that a reference in s 474 of a decision 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. (emphasis added) (d) in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; 131 FCR 146 (Goldberg, Weinberg and Kenny JJ) said in obiter in part of [88], quoted in Beyazkilinc at [34] and followed by Besanko J at [35]: 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). (e) in any event, I note that s 198(6), by its terms, was "a decision of an administrative character … required to be made" to remove the applicant from Australia once the criteria in paragraphs (a) to (d) had been met, as soon as it was reasonably practicable to do so in accordance with the chapeau, as is the situation in this case; (f) it follows that, as was found in Beyazkilinc at [39], the administrative decision mandated by s 198(6) and made in relation to the applicant was a privative clause decision; (g) the making of a s 198(6) decision to remove a non-citizen from Australia does not involve any jurisdictional fact, precluding that as a means of establishing jurisdictional error so as to prevent the privative clause from applying: Beyazkilinc at [40]-[42]; (h) while there remains the possibility in a given case that such a decision will not fall within s 474 by reason of a jurisdictional error in making it, rendering it only a purported privative clause decision, no such basis for jurisdictional error was identified: see the reasoning in Beyazkilinc at [44]; and (i) this Court has a limited original jurisdiction in relation to migration decisions by reason of s 476A of the Migration Act, which does not extend to decisions made under s 198(6): see Beyazkilinc at [51]. 10 I accepted each of the above reasons, especially the ultimate reason of this Court expressly having no jurisdiction per the terms of s 476A. I therefore concluded that this Court lacked jurisdiction to entertain the applicant's interlocutory application for an injunction. 11 For completeness, even if this Court had jurisdiction, the application for the injunction would have failed. That is because, in the absence of a medical condition that precluded travel to effect removal, the applicant's health was not an impediment to his removal, following the pre-s 476A decision in NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292; 133 FCR 506 (Wilcox, Lindgren and Bennett JJ) at [41]-[53]; see also [55]-[59]. 12 It is for the reasons above that I dismissed the applicant's interlocutory application seeking an injunction to restrain his removal from Australia, with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.