ASE24 v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2024-03-01|Before: Keane JA, White J, Meagher J

The application for the interlocutory injunction contained in paragraph 1 of the orders sought in the Notice of Appeal is refused.
Costs be in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 This application came before me in my capacity as the duty judge. The application arises following a decision of this Court to dismiss an application to stay the involuntary removal of the appellant from Australia: ASE24 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 152, in respect of which the appellant now appeals. In the first instance decision, the judge dealt with both the originating application and an interlocutory application as they sought largely the same relief. 2 The application before me was lodged on 29 February 2024 and required urgent determination as the appellant was due to be deported from Australia on or after the same day, being 29 February 2024. 3 After the lodgement of the notice of appeal and before the matter was scheduled for hearing, the respondent wrote to the Court indicating that the appellant's removal would now not take place before 2 March 2024, thus enabling the Court to deal with the matter on 1 March 2024. 4 The appellant was not legally represented. However, I granted leave for her husband to act as the McKenzie friend. I will refer to him as the McKenzie friend as the appellant has been anonymised. The respondent was represented by the Australian Government Solicitor. 5 On the afternoon of 29 February 2024, the appellant sought an adjournment to seek legal representation. However, that adjournment was refused, given the impending removal date and consequential urgency.

APPLICABLE PRINCIPLES 6 In Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322; [2008] 2 Qd R 453 at [12], Keane JA stated as follows: The decision of this Court in Berry v Green suggests that it is not necessary for an applicant for a stay pending appeal to show "special or exceptional circumstances" which warrant the grant of the stay. Nevertheless, it will not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that judgments of the trial division should not be treated as merely provisional and that a successful party in litigation is entitled to the fruits of its judgment. Generally speaking, courts should not be disposed to delay the enforcement of court orders. The fundamental justification for staying judicial orders pending appeal is to ensure that the orders which might ultimately be made by the courts are fully effective. The power to grant a stay should not be exercised merely because immediate compliance with orders of the court is inconvenient for the party which has been unsuccessful in the litigation. 7 The principles which I respectfully adopt, relevant to the grant of an interlocutory injunction and stay, pending appeal, were helpfully set out by White J in Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 756 at [6] - [9] as follows: Principles concerning interlocutory injunctions The principles relating to the Court's grant of interlocutory injunctions are settled and it is not necessary for the purposes of this application to refer to the authorities in any detail. They were summarised by the Full Court in Samsung Electronics Company Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at paragraphs 52 to 74. An applicant for an interlocutory injunction must identify the legal or equitable rights which it seeks to have determined at the substantive hearing and in respect of which final relief will be sought. When such rights have been identified, the Court has regard to two principal matters: first, whether the applicant has made out a prima facie case in the sense that, if the materials remain as they are on appeal, there is a probability that the applicant will be held entitled to relief and, secondly, whether the balance of convenience favours the granting of the injunction. In many cases that includes consideration of whether damages or other remedies will be an adequate remedy but that is not an issue in the circumstances of the present application. On the hearing of an application for an interlocutory injunction, the Court does not undertake a preliminary trial, or, as in this case, a preliminary hearing of the appeal nor does it make a prediction as the ultimate success or otherwise of the applicant's claim or appeal. It is enough for the applicant to show a sufficient likelihood of success to justify, in the circumstances of the case, the preservation of the status quo pending the trial of the action or as in this case the hearing of the appeal. The two matters which I have just mentioned are not always independent of one another. The more the balance of convenience favours the respondent, and the more serious the consequences for the respondent if an injunction is granted, then the greater the strength of the prima facie case to be established by the applicant. Conversely, if the balance of convenience favours the applicant strongly then the strength of the prima facie case required to support the interlocutory injunction will usually be less. Principles relating to stays pending appeals In many respects, the present application is analogous to an application for a stay of enforcement of a judgment pending an appeal. Accordingly, I consider it appropriate to refer also to the principles governing the Court's exercise of the discretion to grant such a stay: (a) prima facie, a successful party is entitled to the benefit of the judgment which it has obtained and the Court should commence with a presumption that the judgment is correct: Power Flex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66 citing Mahoney JA in Re Middle Harbour Investments Ltd (in liq) (CA (NSW), 15 December 1976, unreported); Citrus Queensland Pty Ltd v Sun State Orchards Pty Ltd [2008] FCA 1867 at 39; and Esco Corporation v PAC Mining Pty Ltd [2008] FCA 1018 at 19. A final judgment is not to be regarded as provisional, contingent or operating only subject to confirmation on appeal. (b) nevertheless, the Court has a broad discretion under rule 36.08 of the Federal Court Rules 2011 (Commonwealth) to grant a stay pending an appeal in an appropriate case: Power Flex at 66‑67; Citrus Queensland at 39. (c) an applicant for a stay should demonstrate that there is a reason or an appropriate case warranting an exercise of the discretion departing from the prima facie position. The mere filing of a notice of appeal is not sufficient: Power Flex at 66; Alexander v Cambridge Credit Corp Limited (Receivers Appointed) (1985) 2 NSWLR 685 at 694; Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322, [2008] 2 Qd R 453 at 12. (d) an applicant for a stay must usually demonstrate that the appeal has at least reasonably arguable prospects of success. The threshold is low and, in order to see whether an appellant has discharged it, the Court makes a preliminary non-speculative assessment: Citrus Queensland at 40. (e) an applicant for the stay should also satisfy the court that the proposed stay is fair to all parties having regard to the balance of convenience (ie, the balance of risks and irremediable harm) and the competing rights of the parties: Alexander v Cambridge Credit at 694; Citrus Queensland at 39 and 47; Esco Corp at 20; and (f) the existence of a real risk that the appeal will be rendered nugatory if the stay is not granted is a substantial factor in favour of granting the stay but it is not conclusive. It is to be weighed against the risk of prejudice to the successful party at first instance if execution of the judgment is stayed: Citrus Queensland at 41; Alexander v Cambridge Credit at 695. 8 I now take those principles into account in the context of the application before me.

JUDGEMENT AT FIRST INSTANCE 9 The first instance judgment set out a comprehensive chronology of the background facts, most of which can be briefly summarised for the purpose of these reasons. 10 The appellant is a citizen of Thailand and claims to be the victim of a property dispute fraudulently brought against her resulting in the loss of her property and a criminal conviction for which she has been sentenced to four years imprisonment. She entered Australia in May 2023 with a view to transiting to Qatar in order to access the Qatar International Court and Dispute Resolution Centre (QICDRC) on the basis that her property claim could be revisited there and resolved in her favour. 11 The appellant was, however, not permitted to board her flight to Doha and, as she did not have a visa for entry into Australia, was, on 17 May 2023, refused immigration clearance pursuant to subparagraph 172(1)(a)(ii) of the Migration Act 1958 (Cth) as she could not present a visa in effect and held by her in accordance with s 166(1)(a) of the Migration Act. The appellant was therefore detained under s 198 of the Migration Act and transferred to immigration detention. 12 Before the appellant could be removed to Thailand, she made an application for a Safe Haven Enterprise Visa (SHEV) on 23 May 2023. The delegate refused to grant that visa and that decision was affirmed by the Administrative Appeals Tribunal (the Tribunal) on 16 November 2023. The appellant has consistently maintained that she does not seek review of the Tribunal's decision and, according to the McKenzie friend in this application, that position has not changed. Thereafter, the following ensued. 13 On 13 December 2023, the appellant wrote to the embassy of Qatar in Canberra setting out her legal claims in considerable detail and stating, "I respectfully request that the State of Qatar grant me an appropriate visa, which will allow me to enter Qatar to attend the Qatar International Court and Dispute Resolution Centre to pursue justice in this case". 14 On 22 December 2023, the appellant obtained a 30-day tourist visa permitting entry into Qatar. The visa was issued electronically. 15 On 29 December 2023, the Acting Inspector Removals in the Australian Border Force sent an email to the appellant which stated: Good afternoon Ms. [REDACTED]. As discussed on 28/12/2023, we have sought information from the State of Qatar about your proposed entry into Qatar upon being removed from Australia on a tourist visa. No information has been received from the Qatar Government approving your movement into Doha as of 29.12.2023 and, as such, your departure on 30.12.2023 will not occur. As per your and Ms Matilda Gee's email, "The returns framework supports non-citizens who choose to return to their country of origin or to a country where they have the right of entry and long-term stay but require assistance to do so." A 30 day tourist visa for Qatar does not constitute a right of residency or long-term stay. Accordingly, it is essential for the department to inform the Qatari authorities of your circumstances and seek their response in order to confirm whether your proposed removal to Qatar under s.198 of the Migration Act 1958 *the Act) is reasonably practicable. I note the below claims: [the applicant] has a genuine concern for her safety and wellbeing if she were to return to Thailand to the extent that she fears persecution and physical harm would be imminent upon her arrival to Thailand. Your claims have been assessed under the protection visa application process. A delegate found that there were no protection obligations owed in respect to Thailand and this finding was affirmed by the Administrative Appeals Tribunal (the Tribunal) on 16 November 2023. The tribunal found that it was "not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to Thailand, there is a real risk the applicant will suffer significant harm as defined in the Act." You continue to be liable for removal to your country of citizenship, Thailand, under s 198 of the Act. You will be notified in due course when arrangements are in place to effect your removal to Thailand. Please refrain from booking any further flights unless you have been advised by the department of a possible departure date for Thailand. Kind regards. (official notice of the decision-making officer, dated 29 December 2023) (emphasis in original) 16 Also on 29 December 2023, Ms Hedges, a Supervisor of the Consular Engagement and Liaison Team of the Australian Border Force emailed the Qatar Embassy seeking advice as follows: Good morning Consular Services, Thank you for confirming the requirement for Thai national, Ms [REDACTED], to obtain a visa prior to arrival into Qatar. Ms [REDACTED] has obtained a 30-day tourist visa for entry prior to 21.03.2024 (please find attached). Ms [REDACTED] has a flight booking to depart Doha on 26 January 2024 for Bangkok. However, we would like to seek legal assistance in Qatar. A letter from Ms. [REDACTED] outlining her details was sent to your office earlier this month, please find attached. Ms [REDACTED] has also booked hotel accommodation at the Green Garden Hotel, although the check-in date will need to be amended. Could you please confirm if Ms [REDACTED] will be allowed to be removed from Australia to Qatar with this tourist visa, given it is only valid for 30 days? Ms [REDACTED] faces a possible three-year exclusion from Australia due to her method of arrival. Appreciate if you can advise whether Ms [REDACTED]'s removal to Qatar will be accepted by Qatari authorities so that travel arrangements can be made to depart Australia. Kind regards 17 Attached to that email was the electronic visa to enter Qatar, issued on 22 December 2023, in favour of the appellant and bearing the number TH663......42. 18 On 31 January 2024, the Consular Engagement and Liaison Team of the Australian Border Force received an email from the Qatar Embassy in Canberra which referred to the attachments to Ms Hedges' email of 29 December 2023, including visa TH663......42. That email states: Good Afternoon Rebecca, Thank you for contact us regards of Ms [REDACTED]. We are still waiting to hear from the Ministry of the State of Qatar when we have any response I'll contact you Thank you again for your patience. 19 On 5 February 2024, the Qatar Embassy in Canberra emailed the Consular Engagement and Liaison Team of the Australian Border Force referring to "Enquiry re entry requirements for Qatar" and stating: Good Afternoon Rebecca We received letter from the Ministry regards your question about Ms [REDACTED] The entry permit issued by Hayya has cancelled and she isn't allowed to enter Qatar Thanks & regards 20 On 14 February 2024, the appellant received a "Notice of Intention to Remove from Australia" from the Australian Border Force. The notice provided that the appellant was to be removed pursuant to s 198 of the Migration Act from Australia to Thailand on or after 29 February 2024. 21 At the hearing at first instance, the appellant tendered an email dated 4 February 2024 which rejected a tourist visa application made by the appellant but bore no reference to visa TH663......42. The appellant's McKenzie friend made submissions that the absence of a specific visa number on the email from the Qatar Embassy in Canberra to the Consular Engagement and Liaison Team of the Australian Border Force on 5 February 2024 and the absence of reasons as to why the appellant could not enter Qatar indicated that it was not conclusive that the appellant could not enter Qatar. Therefore, he said she should be allowed to stay in Australia in order to fully explore whether she could obtain a visa for Qatar and accordingly wished for a stay on her removal from Australia. 22 At first instance, Collier J made the following findings at paragraphs [31] and [32]: In the present case, it is not in dispute that the applicant is an unlawful non-citizen within the meaning of the Migration Act, and is subject to removal pursuant to s 198 of the Migration Act. Second, in the present case, no protection finding was made by the tribunal in respect of the applicant, including in relation to her claimed fear to be removed to Thailand. 23 Further, at [51] - [60]: As of December 2023 when the applicant was seeking visas to enter Qatar, she was in migration detention in Australia as an unlawful non-citizen. Section 198 of the Migration Act was enlivened to require her removal from Australia as soon as reasonably practicable. The applicant claimed that she had visa TH663......42 which would have permitted her removal from Australia to Qatar on 30 December 2023. However, as the official notice of the decision-making officer, dated 29 December 2023 explained, a 30-day tourist visa for Qatar did not constitute a right of residency or long-term stay such that Australian Border Force could be satisfied that removal from Australia to Qatar on the basis of that visa was reasonably practicable. The official notice of the decision-making officer, dated 29 December 2023, explained that the department considered it essential to confirm that the applicant would be granted entry into Qatar before she was removed there from Australia. Seeking such confirmation is consistent with reasonable conduct on the part of the Commonwealth, as explained by Wigney J in BHL19 (No 2) at 171. Given that the only possible basis for removal of the applicant to Qatar in December 2023 was a 30-day tourist visa, I am satisfied that there was evidence before the decision-maker that, unless Australian Border Force received confirmation that the applicant's 30-day tourist visa would permit her removal from Australia to Qatar, it was not reasonably practicable for her to be so removed on 30 December 2023. The reasons provided by the decision-maker in the official notice of the decision-making officer, dated 29 December 2023, explained this - namely the applicant had a 30-day tourist visa with no right of residency or long-term stay in Qatar. The McKenzie friend at the hearing repeatedly submitted that the purposes of the applicant travelling to Qatar was to commence legal proceedings in the QICDRC and that this was disclosed in the applicant's visa application and communication with the Qatar Embassy prior to the issue to the applicant of visa TH663......42. It may well be that a visa was originally granted to the applicant to enter Qatar on the basis that she intended to commence litigation there. However, it appears that, once questions had been put by Australian Border Force to Qatar consular services regarding the removal of the applicant to Qatar, the view of the Qatar consular services changed such that the applicant was then denied entry to Qatar. This refusal of Qatar to permit the removal of the applicant from Australia to Qatar provided a conclusion to the inquiry by Australian Border Force into the reasonable practicability of removing the applicant to Qatar. In other words, it was plainly not reasonably practicable to do so after 5 February 2024. The only reasonably practicable removal of the applicant from Australia was to her country of citizenship, as stated in the notice of intention to remove from Australia. Fourth, to the extent that the applicant has now sought an extension of time to allow for additional steps that she could undertake for the purpose of satisfying a decision-making officer of the Commonwealth that the applicant's removal to Qatar was reasonably practicable, both the email of 5 February 2024 and the email of 4 February 2024 in exhibit 1A strongly suggest that further time granted to the applicant for that purpose would be of no utility. The requirement by the decision-maker of a response from the Qatar Embassy indicating whether the applicant would be permitted to be removed to Doha in Qatar has now been fulfilled and a negative response has been given. No explanation has been provided by the applicant as to how further time given to the applicant would result in a different response from the Qatar authorities, given that her visa has been cancelled and she no longer has a right of entry to Qatar. Fifth, to the extent that the applicant seeks a temporary stay on her removal from Australia to Thailand, no arguments of substance have been advanced by the applicant. This temporary stay appears to relate to the notice of intention to remove from Australia, dated 14 February 2024, informing the applicant that she was scheduled to be removed from Australia to Thailand on or after 29 February 2024. The McKenzie friend made extensive submissions to the effect that the applicant was fearful of being removed to Thailand because of her claims in Thailand concerning alleged fraudulent land deals and appropriations in Thailand and because she had allegedly offended powerful people in Thailand. The McKenzie friend was unable to articulate how lengthy the temporary stay on the applicant's removal would be, other than it being open-ended. When I asked him at the case management hearing on 22 February 2024, the McKenzie friend replied: "I'm sorry, your Honour. We would be asking for a stay until the proceedings are completed in total." (transcript p 5 ll 16-17) The order sought by the applicant is in the nature of an injunction to maintain the status quo while the applicant - whilst the applicant seeks substantial relief. See, for example, ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363. However, the applicant in the present case seeks no other substantive relief for which the status quo could be maintained. She has specifically not sought judicial review of a decision of the tribunal where the tribunal rejected her claims of fears of persecution by "powerful people". The only position the applicant seeks maintained is that she remain in Australia while continuing to explore possible avenues for her voluntary removal to Qatar and potentially to adduce further material by way of unspecified discovery orders - to endeavour to persuade Australian Border Force to remove her to Qatar. As I have already observed however, additional time to do so would not appear to be of any utility. The applicant made submissions concerning the conduct of judicial proceedings involving her both at first instance and on appeal in Thailand. However, the fact that the applicant has been convicted of crimes in Thailand and sentenced to a term of imprisonment which may be enforced if she were to return to Thailand does not constitute a reason for her to claim any form of persecution within the meaning of the Refugee Convention, the ICCPR or the CAT. Clearly the fact that a person may be required to spend time in prison as penalty following conviction for an offence will be the result of non-discriminatory enforcement of a law of general application and does not give rise to persecution under the Refugee Convention because it does not systematic and persecutory conduct pursuant to 91R(1)(c) of the Migration Act. As I have already observed, I am not empowered to revisit the findings of the tribunal concerning events in Thailand of which the applicant complains or of the applicant's alleged fear of persecution should she be removed to Thailand. Finally, in submissions the applicant has sought an order that the Court "allow her to be removed voluntarily to the State of Qatar where she intends to pursue important legal matters in the Qatar International Court and Dispute Resolution Centre, (QICDRC)". The reality, of course, is that this Court can make no such order where, as is plain from the evidence before the Court, the State of Qatar has refused entry to the applicant. (emphasis in original) 24 On those bases, the application was dismissed at first instance.

THE NOTICE OF APPEAL 25 The notice of appeal filed on 29 February 2024 contained the following grounds of appeal: 1. The judge in this case made a finding of fact or facts on an important issue which is not to be supported by the evidence. 2. Evidence adduced by the respondent is provably false, notwithstanding the false evidence, forms a critical point of fact which is central to the Courts decision in this case. 26 The notice of appeal sought the following orders: 1. The applicant requests that the Court stay the voluntary removal of the applicant to Thailand until the applicant's appeal has been heard by the Full Federal Court. 2. The applicant requests that the Court make a correct determination of fact as to the existence or non-existence of the applicant's grant of right to enter the State of Qatar as conferred by the applicant's granted Hayya entry visa number TH663......42. 3. The applicant requests that the Court issue a writ in the nature of mandamus compelling the Commonwealth to conduct definitive inquiry with the Ministry of Foreign Affairs, Qatar Embassy, Canberra or other Qatar authorities as advised by the Qatar executing in determination whether the applicant's right to enter the State of Qatar has been legally withdrawn by the State of Qatar or, in the alternative, that the alleged notice to cancel the applicant's right to enter the State of Qatar has been issued with reference to a false electronic application. Such inquiry should be conducted specifically referencing (1) the applicant's original and only electronic visa application, which has already resulted in the applicant being issued a valid entry visa that confers to the applicant the right to enter the State of Qatar. (2) the applicant's letters of request to the Qatar's Ministry of Foreign Affairs, Qatar Embassy, Canberra, dated 13th and 15th December 2023, respectively. (emphasis in original) 27 As is obvious on its face, the appellant's application for an injunction is contained in the first order sought.

The Appellant's Submissions made by the McKenzie Friend 28 It is first necessary to note that the McKenzie friend advanced many of the same submissions before me as those which he advanced before the judge at first instance. 29 In substance, the McKenzie friend's submissions were that the appellant: (a) does not believe that the notice to refuse her to allow entry into Qatar was properly issued; (b) does not consider that there has been a definitive answer as to whether she can enter Qatar; (c) considers that the Minister is relying on a document which is not apposite in terms of its detail and length, given her letter of 13 December 2023 to the Qatar Embassy, nor is it even necessarily referable to her; (d) says that the operable visa is the tourist visa which was previously issued; (e) considers it is unclear that the tourist visa she was granted has been revoked because the numbers do not match up and they are from a visa platform in Doha rather than the Ministry of Foreign Affairs for Qatar; (f) says that there has been a separate visa application put in by another person, which is the one upon which the respondent has wrongly relied; (g) says that, if an injunction is granted, it will give her time to negotiate a visa for Qatar; (h) says that it is the appellant's right to pursue her property dispute in Qatar which she will win, thereby enabling her to restart her life, have her property returned to her and obtain citizenship in another country altogether, such as Turkey; (i) says that the appellant is entitled to have time to obtain legal advice to assist her in pursuing a visa to enter Qatar; (j) says that, upon entry to Qatar, she will be able to obtain work rights; and (k) says that, without wishing to trespass into the realms of judicial review of the Tribunal's decision, the appellant had genuine, well-founded fears of harm in terms of complementary protection were she to be returned to Thailand. 30 Not all of the submissions advanced by the McKenzie friend were easy to follow nor went to the issues of whether there was a serious question to be tried or the balance of convenience in the matter. However, it should be said that he made every effort to advocate forcefully on behalf of the appellant.

CONSIDERATION 31 As to whether there is a serious question to be tried, it is apparent from the McKenzie friend's submissions and the first instance decision that little has changed since the matter was before her Honour, Justice Collier. I say that because the relief sought today and that at first instance are virtually identical. It may be that the McKenzie friend's argument regarding the email of 4 February 2024 has been refined somewhat in his submissions but those submissions remain unsupported by evidence and it is unclear to me how they add to any argument regarding whether there is a serious question to be tried. 32 It is clear from the paragraphs set out above that her Honour's findings are made on factual grounds. As the Minister submitted and I accept, there is no doubt that the embassy of Qatar responded to the correct visa, as the McKenzie friend would characterise it, as it bears the same number as the one which the McKenzie friend submits was properly issued. 33 In any case, whatever the status of the email of 4 February 2024, as a consequence of the receipt of the later email of 5 February 2024, there is no option to remove the appellant to Qatar. 34 As to the second ground of appeal, there is no evidence that the respondent has put on false evidence. There is nothing to support the McKenzie friend's submission that, given the tone and extent of the appellant's letter of 13 December 2023 to the embassy of Qatar, the response could not be as limited as that contained in the 5 February email. 35 The respondent submitted the appeal is likely to be struck out. It is not for me to express a concluded view with respect to that. However, I do not consider that the appellant has established a reasonably arguable case with respect to either of the grounds of appeal. It is not, therefore, necessary to consider the balance of convenience which, in the respondent's submission, favours the Minister. 36 Notwithstanding that, I note, having been advised that the appellant would not be able to be removed to Qatar, the Minister was obliged to consider whether there is anywhere else to which the appellant could be removed. In this case, it is Thailand. The Tribunal has decided that the appellant is owed neither protection nor complementary protection obligations and, accordingly, there is no constraint upon removing her. Pursuant to section 198(2) of the Migration Act, the detention centre officer is obliged, once satisfied that it is reasonably practicable to remove the appellant voluntarily or involuntarily, then that should be done. 37 For the reasons above, the application made in terms of the relief sought in paragraph 1 of the notice of appeal is refused. 38 As to costs, the costs of today's hearing will be costs in the cause. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher.

Migration Act 1958(Cth)ss 166(1)(a), 172(1)(a)(ii), 198

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