ALY15 v Minister for Immigration and Border Protection

1. The interlocutory application for an injunction to restrain the applicants' removal from Australia be refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JESSUP J: 1 On 1 March 2017, the Federal Circuit Court dismissed the application of the appellants, a father and son of Chinese nationality, for judicial review of a decision made, adversely to them, by an officer in the Department of Immigration and Border Protection ("the department") under the International Treaties Obligations Assessment ("ITOA") process following the data breach which was the subject of the judgment of the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901. On 6 March 2017, the appellants appealed against the judgment of the Federal Circuit Court. On 14 March 2017, they applied for an interlocutory injunction to restrain their removal from Australia pending the hearing and determination of their appeal. On 16 March 2017, I refused that application. These are my reasons for having done so. 2 The appellants apprehend that, unless restrained, the department will shortly arrange for their removal. I approached the present application on the supposition that that apprehension was well-founded. Indeed, counsel for the Minister assured me that the appellants' circumstances brought them within the terms of s 198(6) of the Migration Act 1958 (Cth) ("the Act"), which relevantly 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) …; 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. 3 In Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 at [6] French J identified three situations in which someone who had failed at first instance might seek interlocutory relief pending appeal. The third situation is relevant in the present case, namely, that in which "[a] judgment is given which dismisses an application for relief on the part of the unsuccessful party". What his Honour said about such a case ([2000] FCA 87 at [15]) applies likewise to the present case (notwithstanding that, unlike his Honour, I am exercising the appellate jurisdiction of the court): The order sought by the applicants in this case is in the nature of an interlocutory injunction. In the ordinary course it is a necessary condition of the grant of such an injunction that the applicant demonstrate a serious case to be tried and that the balance of convenience favours imposition of the restraint. These requirements apply with equal force to a case, such as the present, where the restraint is sought effectively to prevent a party from exercising what have been found to be its rights after trial of an action - Hollier v Australian Maritime Safety Authority (Fed Court, unrep, 27/4/98, Sundberg J). It is to be remembered also that the strength of the case and the assessment of where the balance of convenience lies are interdependent - Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472. Where the applicant's case has been tried and found wanting there may nevertheless be a serious case to be tried on appeal. However, the Court's assessment of the strength of that case will be influenced by the fact that there has been an adverse judgment at first instance. It is relevant to the balance of convenience that the appeal may be nugatory if the restraint is not granted. It is also relevant that the successful party will be prejudiced if impeded in the exercise of its judicially vindicated rights. The factors relevant to the grant of an interlocutory injunction under s 23 pending appeal are similar to those applicable under s 29, O 37 and O 52, but capable of expression in terms of the considerations usually applied to the grant of interlocutory relief. I approached the present application by reference to that framework. 4 Since the judgment in Stirling, the High Court has made it clear that an applicant for an interlocutory injunction is required to establish a prima facie case in the sense of "a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial": Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, 68 [19] and 82 [65]. Applied to the present forensic context, the principle may be taken to refer to a sufficient likelihood of success in what must be the appellants' task on appeal, namely, the demonstration of error on the part of the primary Judge. 5 In his reasons of 1 March 2017 (published on 6 March 2017), the primary Judge identified the nature of the appellants' then application in the following terms: The application to this court was made in a template form that has been used in a number of other applications to the court. The template grounds of review have been considered in detail in at least two other decisions: CDM16 v Minister for Immigration & Anor [2016] FCCA 2758 and AKD15 v Minister for Immigration & Ors [2016] FCCA 2740, decisions by Judge Driver and Judge Street respectively. 6 Dealing with the appellants' case as such, his Honour said: 5. In the ITOA process the applicants asserted that the information released in the data breach would be accessed by the Chinese authorities and, as a result, they would be treated as political dissidents. They further claimed that the information may have been accessed by criminal syndicates or terrorists and they would be targeted as a result. They claimed they were at risk of being denied employment on return to China and their ability to travel to other countries would be compromised. They said that they were already of interest to the Chinese authorities. 6. The ITOA process assumed disclosure to the Chinese authorities and the officer undertaking the process concluded that there was no evidence to support the asserted claim of the applicants that they feared serious or significant harm on their return to China. In other words, it was found that Australia's non-refoulement obligations were not engaged in this particular case. The process adopted in the ITOA appears to be relevantly identical or at least not dissimilar in any relevant way to the process considered by the High Court in SZSSJ v Minister for Immigration and Border Protection [2016] HCA 29, (2016) 90 ALJR 901, 334 ALR 653 where the High Court held that the ITOA process in that case was not affected by procedural unfairness and that the ITOA decision was valid. 7. It appears to be that the same result must occur in this case. 7 In their Notice of Appeal, the only ground stated by the appellants was that they would "provide grounds when the judgment is published". That was, of course, a reference to the fact that the primary Judge delivered his reasons orally, and it was only some five days later that the printed version of the reasons was published. By the time of the hearing of the present interlocutory application, no grounds of appeal had been provided. Furthermore, no grounds were then provided. I accept that that may have been explicable by reference to the appellants' expectation that it was only their application for an interlocutory injunction, not their appeal as such, that would be dealt with on 16 March 2017. That was, of course, a reasonable expectation, but, not being legally advised, the appellants did not realise that the court's assessment of that application would necessarily take into account the apparent strength of their case on appeal. So one might understand the position in which the appellants found themselves. 8 However, it was the appellants who chose to challenge the judgment of the Federal Circuit Court, and it was they who sought to restrain the Minister and the department from carrying out his, and its, statutory function under s 198(6) of the Act. The Minister was entirely within his rights to require the appellants to establish an entitlement to the interlocutory injunction which they sought according to conventional tests. During an adjournment of about 40 minutes in the hearing on 16 March 2017, the appellants had the opportunity, with the assistance of an interpreter, to review the reasons of the primary Judge. Neither before nor after that adjournment did they seek to put in contest the proposition that the only apparent legal basis for their proceeding in the Federal Circuit Court was that which had been determined, adversely to the position which they took, by the High Court in SZSSJ. Indeed, having been reminded that the focus of the court's attention would be on the question whether the Federal Circuit Court had made a mistake, they did not come to terms with that question in any way that might have assisted their application for an interlocutory injunction. 9 The reasons of the primary Judge were brief (extending to 9 paragraphs only), and made it clear that, to the extent that the appellants relied on a denial of procedural fairness, their complaint was answered by SZSSJ, and that, otherwise, their complaint was answered by the reasons of the Federal Circuit Court itself in CDM16 and AKD15. On the hearing of the present interlocutory application, the appellants took direct issue with neither of these propositions. Even allowing for the fact that they were unrepresented, there was nothing in what they put to the court - and, as mentioned above, they provided no grounds - such as might have cast even the slightest doubt on the correctness of those two conclusions on the part of his Honour. 10 I took the view, therefore, that the appellants had not demonstrated the existence of a prima facie case of error on the part of the primary Judge. 11 At the discretionary level, counsel for the Minister rightly accepted that the rejection of the interlocutory application would in all likelihood mean that there was no impediment to the appellants being removed from Australia. That would be a serious outcome, albeit that there was no evidentiary basis upon which to accept the appellants' forebodings as to the severity of the harm to which they would be subjected on their return to China. In the present context, it is sufficient to say that the appellants' removal from Australia would have the practical, if not the legal, effect of rendering their appeal nugatory. 12 On the other hand, while not asserting that her client would suffer prejudice in the sense in which the word is often used in conventional civil litigation, counsel for the Minister relied on the public interest involved in the due administration of the Act, particularly where s 198(6) imposed an obligation on departmental officers to remove the appellants from Australia. There being no suggestion that this subsection was not applicable in the circumstances of the appellants, the grant of an interlocutory injunction would have the effect of requiring the Minister to direct his officers to proceed in defiance of it. These were significant discretionary considerations of which I took account. 13 In a situation in which there were discretionary considerations of some force cutting both ways, the stand-out problem for the appellants was their failure to demonstrate the existence of a prima facie case of error on the part of the primary Judge. They fell well short in establishing the grounds for the making of an interlocutory injunction to restrain their removal from Australia. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.