AOZ23 v Commonwealth of Australia

SNADEN J: 1 By an originating application dated 6 March 2023, the applicant moves the court for various forms of declaratory and prerogative relief related to attempts that he has made to stave off his pending deportation from Australia. Contained within that application is a claim for interlocutory injunctive relief, by which he seeks orders to prevent his removal from being effected until after his substantive application is determined. 2 The background facts germane to the application may briefly be stated. The applicant arrived in Australia from his native Sri Lanka in 2013. Not long thereafter, he made an application for a protection visa under the Migration Act 1958 (Cth) (the "Act"). Following lengthy processes of review and appeal - the particulars of which needn't here be rehearsed - that application was unsuccessful. The applicant is presently subject to immigration detention. On Wednesday, 1 March 2023, he received notice that arrangements were afoot to have him removed from Australia. That notice indicated that his removal would take place on or after Wednesday, 8 March 2023. In fact it is scheduled to take place today (8 March 2023) at 4:30pm (AEST). 3 On Friday, 3 March 2023, the applicant's representatives made a request that the second respondent (hereafter, the "Minister") issue to him a notice under s 48B of the Act. That request (hereafter, the "s 48B Request") was made by correspondence bearing that date, which was conveyed by email to the Minister and to another address, namely "international.obligations@homeaffairs.gov.au". 4 By the s 48B Request, the applicant (or his representatives) sought to establish bases upon which it was said that he should be at liberty to make a further application for a protection visa under the Act. By operation of s 48A of the Act, it is necessary in order that he might do so that he should first obtain from the Minister a notice issued under s 48B. 5 On Tuesday, 7 March 2023, a representative of the third respondent (to which I will refer, perhaps unfairly inclusively, as the "Department") gave notice to the applicant that his s 48B Request would not be referred to the Minister for his consideration. That decision (hereafter, the "Non-referral") was said to be made in accordance with guidelines apparently issued to Department staff by the Minister and known as the "Minister's Guidelines - s48A cases and requests for s48B Ministerial Intervention" (hereafter, the "Guidelines"). 6 For obvious reasons, the applicant's claim for interlocutory relief was the subject of urgent consideration by the court. In support of it, the applicant read two affidavits affirmed by his solicitor, Ms Paola Ramirez: one on Monday, 6 March 2023 and the other on Tuesday, 7 March 2023. By way of opposition, the respondents read an affidavit affirmed by their solicitor, Mr Stanley Ho Chung Mak, on Tuesday, 7 March 2023. 7 At the hearing that took place on Tuesday, 7 March 2023, the applicant was given leave to file an amended originating application. It is convenient to set out the relief to which that application is directed: 1. A declaration that the decision of the [t]hird [r]espondent not to refer the [a]pplicant's s 48B Request dated 3 March 2023 to the [s]econd [r]espondent was not made according to law. 2. An order requiring the [t]hird [r]espondent to refer the [a]pplicant's request for the [s]econd [r]espondent to exercise his power in section 48B of the Migration Act 1958 (Cth) (the Request) to the [s]econd [r]espondent. 3. An injunction restraining, or an order prohibiting, the [t]hird [r]espondent from deciding that the Request does not meet the [s]econd [r]espondent's guidelines titled 'The ministerial intervention power under s 48B of the Migration Act 1958' (the Guidelines). 4. Alternatively to (2) or (3), an order in the nature of mandamus requiring the [t]hird [r]espondent to reconsider whether to refer the s 48B Request to the [s]econd [r]espondent according to law. 5. A declaration that it is not reasonably practicable to remove the [a]pplicant while his s 48B Request is being actively considered: a. by the [t]hird [r]espondent for referral to the [s]econd [r]espondent, or b. by the [s]econd [r]espondent. 6. In the alternative, a declaration that the Guidelines are invalid. 7. The [r]espondents pay the [a]pplicant's costs. 8. Such further or other order as the Court thinks fit. 8 It might be noted that that amended originating application was drawn before the applicant received notice that his s 48B Request would not be referred for ministerial consideration. The third species of relief sought is likely now redundant. Nothing presently turns on that. 9 I turn, then, to consider the immediate application, namely for urgent interim injunctive relief to restrain the applicant's removal from Australia until the substantive matter may be heard. 10 The principles that guide the court's discretion to grant or decline interim injunctive relief are notorious and may briefly be stated. In order to qualify for the relief that he seeks, the applicant must demonstrate that he has a prima facie case and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, 81-84 (Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed). 11 When considering the grant of an interlocutory injunction, the question of whether there is a serious question (or a prima facie case) should not be considered in isolation from the balance of convenience: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238, 261 [67] (Dowsett, Forster and Yates JJ). 12 An apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it: Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464, 472 (Woodward J, with whom Smithers and Sweeney JJ relevantly agreed). 13 It is convenient to address the two considerations in reverse order. It is, I think, very plain that the balance of convenience here strongly favours the granting of interim injunctive relief. At play for the applicant is his ability to remain in Australia and seek protection. Although there is undoubted inconvenience for them in the event that injunctive relief were to be granted (including in the form of having to retain the applicant in detention at public expense and the need to alter arrangements that have no doubt involved at least some administrative effort), the respondents very properly accept that the balance of convenience favours a grant of injunctive relief. 14 I turn, then, to the question of whether the applicant enjoys a prima facie case for the relief claimed. By his amended originating application, the applicant seeks to challenge the decision of the third respondent not to refer for the consideration of the second respondent his s 48B Request. He submits - or, at the trial, will submit - that that decision was a product of jurisdictional error in that it was not made according to law. Alternatively (perhaps relatedly), he submits that the Guidelines themselves are invalid (and that declaratory relief to that effect should ensue so as to require the third respondent to refer the s 48B Request for ministerial consideration). 15 It is necessary to say something about the Guidelines and the applicant's s 48B Request. As best as may presently be deduced, the Guidelines are a set of written instructions that have been issued by or on behalf of the Minister to Department staff, and that identify the Minister's expectation (perhaps amongst others) as to what kinds of requests for ministerial intervention under s 48B of the Act should be referred for his consideration. 16 Relevantly, the Guidelines provide as follows: 1. New information or significant changes in circumstances I wish to consider my public interest power where there are exceptional circumstances that justify considering new information or where significant changes in circumstances have occurred subsequent to a PV refusal decision. I consider the following circumstances to be exceptional: • The person is making a plausible claim that the information was not known to them, or did not exist, at the time of the PV application. • The information was not raised at the time of the PV application for compelling and compassionate reasons. An example of this may be that the person experienced family violence which resulted in them not disclosing the full nature of their protection claims in the original application. • Plausible protection claims have been made as a result of changed conditions in the person's country of origin. The new information provided must be supported by country information. New information may be a new protection claim or new information about a claim that was previously made. 2. New information must relate to Australia's non-refoulement obligations In order for new information to be referred to me for consideration, the new information must relate to Australia's non-refoulement obligations… 17 The applicant's s 48B Request sought to meet those requirements by raising new information that had not been ventilated in his unsuccessful protection visa application. On the basis of his having done so, it is (or will be) said that the Non-referral was made contrary to the requirements of the Guidelines and in a way that bespeaks legal unreasonableness (of the kind recognised in authorities such as Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647-648 [130]-[131] (hereafter, "SZMDS"; Crennan and Bell JJ)). That is not an issue that falls for determination now. Presently, the issue for the court's consideration is whether there is a serious question as to whether the Non-referral was legally unreasonable and, if so, whether it might be the subject of relief on judicial review. 18 Again, I shall address those questions in reverse order. Ordinarily, I would require some persuading that the Non-referral might be vulnerable to relief on judicial review. The Guidelines are (or appear to be) just that: they don't appear to have any status under any enactment and serve merely to guide the making of non-statutory decisions about what should or should not warrant the attention of the Minister. Decisions about what should or should not be referred to the Minister for his or her consideration are not decisions that are made in the exercise of any jurisdiction conferred by statute. I confess some difficulty in understanding how a person purporting to make a decision consistently with or in reliance upon the Guidelines might thereby act contrary to or in excess of any such jurisdiction, such that some form of relief might lie on judicial review. 19 Fortunately, that is also not a question that need now be decided. I shall explain my hesitation shortly; but it appears to be the case that this court has accepted that decisions such as the Non-referral might be made the subject of such relief: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 23, 27 [3], 31-35 [27]-[39], 37 [46] (Kenny J, with whom Besanko J at 37 [50], Griffiths J at 50 [96], Mortimer J at 54 [118(a)], 64-66 [166]-[174] and Charlesworth J at 86-90 [292]-[307] relevantly agreed; hereafter, "Davis"). Plainly, it is arguable - and, indeed, it would appear established - that that is so. 20 Attention should turn, then, to whether the Non-referral was legally unreasonable (or, more precisely, whether it is seriously arguable that it was). By written submissions provided ahead of the hearing of the application for interlocutory relief, counsel for the applicant relied upon the fact that the Non-referral was not the subject of any written reasons for decision. As it happens (and unbeknownst to the applicant or his advisers much prior to that hearing), it was; and a copy of those reasons was provided as an attachment to Mr Mak's affidavit. I have read them. It is not necessary that I should conclude whether they suffice to establish that the Non-referral was attended by legal unreasonableness of the kind recognised by the authorities (including SZMDS). It suffices to say that I am satisfied that they might. 21 The s 48B Request raised for the Minister's consideration a range of matters that would appear to qualify as the kinds of "exceptional" circumstances that, by the Guidelines, the Minister indicated a desire to consider. They included matters not previously advanced in support of his previous protection visa application. It is not necessary that I should particularise them in these reasons; it suffices simply to acknowledge that the s 48B Request appeared to advance matters of that nature and that the Department's refusal, nonetheless, to refer it for ministerial consideration could, in that circumstance, be impugned as legally unreasonable. That is so even in the face of the reasons that were offered in justification of that course (which also needn't here be particularised). Although it seems likely that such case as there is is not especially strong, I am satisfied nonetheless that a case might be made on that score. Something more should be said of Davis. In the short time available to the court, it has not been possible to afford that judgment a level of attention commensurate with its length and complexity. Nonetheless, it is apparent that the court was there concerned with the question of whether a non-statutory administrative decision might be vulnerable to relief on judicial review, including on the basis that it was attended by legal unreasonableness. The court apparently split on that question but a majority held that it could be: Davis, 79-82 [253]-[270] (Charlesworth J, with whom Kenny J at 34-35 [36]-[39] and Griffiths J at 47-48 [87] agreed; contra Besanko J at 37-38 [52]-[53] and Mortimer J at 55-56 [121]-[122]). 22 Thereafter, Davis was the subject of a successful application for special leave to appeal to the High Court. The appeal has been heard and the court's decision is reserved. This court was taken to the submissions that were advanced in that appeal on behalf of the appellant and it is apparent that one of the issues raised for determination concerns the very point raised above (namely, the vulnerability of non-statutory decision making to relief on judicial review). 23 As here, there was a second ground argued in Davis for the consideration of the High Court: namely, that guidelines upon which the decision in that matter was purportedly based were invalid (with the consequence that the relevant decision maker ought to have decided to refer for ministerial consideration the request there in issue). Before the full court of this court, Mr Davis was, by majority, refused leave to argue that contention; but at least one judge (Mortimer J) considered it to be sufficiently arguable to warrant that leave and it appears to be a live issue before the High Court. Looked at through that lens, I am satisfied that there is a prima facie case to be made: as to which, see AZU19 v Commonwealth [2022] FCA 1495, [11] (Kenny J). 24 In the circumstances, the interests of justice warrant the grant of the interim injunctive relief that is sought. The applicant also seeks an order that the proceeding be adjourned until after the High Court rules on the appeal in Davis. That is not a matter that the court should deal with on an urgent basis. It can be the subject of discussion with the judge to whose docket the matter is ultimately allocated. 25 The respondents contend that, in the event that injunctive relief is granted (as it will be), the question of costs should be reserved for later consideration. The applicant presses for an order that the respondents should pay his costs. It is the usual practice to order that the costs of an application for an interlocutory injunction be reserved: Perdaman Chemicals and Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 3] [2011] WASCA 203(S), [11] (Martin CJ, Newnes and Murphy JJA); O'Keefe Nominees Pty Ltd v BP Australia (No 2) (1995) 55 FCR 591, 598-599 (Spender J); The Owners - Strata Plan No 87231 v 3A Composites GmbH (No 4) [2020] FCA 1573, [10] (Wigney J). I consider that the appropriate course to take. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.