Cayzer v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 On 30 October 2014 the applicant sought an urgent ex parte hearing of an application for an interlocutory injunction to prevent the applicant's detention pursuant to s 189(1) of the Migration Act 1958 (Cth). By his counsel Mr Melick SC he informed the Court that he had been given notice to surrender himself into custody of officers of the Department of Immigration and Border Protection the following morning and that were he to fail to do so he would be arrested. The applicant claimed not to be amenable to removal from Australia because he was an Australian citizen. It was urged that the facts of his case were not relevantly distinguishable from those which had led the High Court in Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 to prevent the deportation of a British subject. It is not necessary to repeat the facts and contentions said to support that application: they are summarised shortly in the reasons I published for granting the interlocutory injunction that was sought: Cayzer v Minister for Immigration and Border Protection [2014] FCA 1166. I made orders restraining the applicant's detention upon conditions, inter alia, that the applicant file an originating application within 14 days, that the Minister be notified and, because the orders had been made ex parte without the opportunity to controvert the basis upon which they had been sought, granted the Minister have leave, on short notice, to apply to dissolve the injunction. 2 On 13 November 2014 the applicant both filed an originating application and gave notice of a constitutional matter pursuant to s 78B of the Judiciary Act 1903 (Cth). 3 On 12 November 2014 the respondent, pursuant to the leave granted, applied to dissolve the injunction. That application came before the Court on 21 November 2014. Both parties were represented by senior counsel. After hearing submissions and upon receiving the undertakings referred to below I indicated that I was satisfied that the order sought by the respondent should be made. I therefore dissolved the injunction I had earlier granted and advised the parties that I would provide written reasons for my decision as soon as possible. These are those reasons. 4 As Mr Lloyd SC who appeared for the Minister correctly submitted the onus of establishing the basis for the continuance of an interim injunction granted on an ex parte basis remained with the party seeking ongoing relief. 5 In Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Gummow and Hayne JJ, with whom the Gleeson CJ and Crennan J agreed explained at [71] that the decision of American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 in which Lord Diplock had stated that 'unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider [the balance of convenience]' does not accord with Australian doctrine and should not be followed. 6 Their Honours restated that the relevant principles for Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618: [65] The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second enquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal: "How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks." (citations omitted) 7 Thus ABC v O'Neill explicitly reconfirms what had been said by Kitto J in Beecham to the effect that how strong the probability needs to be depends on the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the order sought. Cases subsequent to Beecham in this Court have therefore proceeded on the basis that 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 Federated Furnishing Trades Society of Australasia (No 1) [1985] FCA 19; (1985) 5 FCR 464 at 472 (Woodward J, Smithers and Sweeney JJ agreeing). Other courts have also approached the exercise of the discretion to issue or not issue an interlocutory injunction upon the same principle. 8 What then of the strength of the applicant's case and his prospects of success at trial in so far as that can be judged at this time - accepting that at this early interlocutory stage there are quite limited materials before the Court, the parties have had neither time nor opportunity to present full argument and any assessment must necessarily be impressionistic and conditional? 9 In these proceedings the applicant would appear to have no prospect of succeeding at trial on the primary ground he asserts; that he is a citizen of Australia. At least in this court, that outcome appears foreclosed by reason of the decision of the High Court in Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28. Moreover the minority in Shaw cannot be taken to have concluded that a person in the position of the applicant was an Australian citizen: their disagreement with the majority was to the effect that a person might be a non-citizen, yet for other reasons not be subject to the 'aliens' power. In my opinion the applicant's prospects of succeeding on the basis he is a citizen are so negligible that they can be disregarded. 10 The applicant also claims relief on the basis that he is not an alien - the more difficult and contentious issue that divided the High Court in Nolan v Minister for Immigration and Ethnic Affairs [1988] HCA 45; (1988) 165 CLR 178, Patterson and Shaw. 11 Mr Lloyd correctly observed that the Court was not referred to Shaw by counsel for the applicant when applying ex parte for the injunction that was granted. Mr Lloyd submitted that Shaw overruled Patterson and whatever the position might be if the High Court was to be asked to grant leave to reopen the issue such an argument cannot succeed in this Court. 12 Mr Lloyd is plainly correct that as far as is relevant to these proceedings Shaw effectively overruled Patterson. This court is bound to apply the law as determined by the High Court in Shaw. 13 However, the headnote in Shaw reveals that the then failed applicant 'was not eligible to vote in Australia'. This circumstance is also referred to by Gleeson CJ, Gummow and Hayne JJ at [3], and Callinan J at [176]. There appears in the High Court to have been only passing reference to and no argument directed at the circumstance of a British subject who not only had resided in Australia for a long period but who also had lawfully participated in its civic affairs as an elector. 14 Mr Cayzer has filed a notice of a Constitutional matter under s 78B of the Judiciary Act 1903 (Cth). At paragraph 5 of the facts stated in that notice he states: The Applicant was enrolled to vote when he attained the legal voting age and he voted in both Federal and Tasmanian State and Council elections, he also ran for office as a candidate in a Clarence City Council election. 15 Section 93 of the Commonwealth Electoral Act 1918 (Cth) provides, inter-alia, that all persons who have attained the age of 18 years and who are Australian citizens or persons (other than Australian citizens) who would, if the relevant citizenship law had continued in force, be British subjects within the meaning of that relevant citizenship law and whose names were immediately before 26 January 1984 on the roll for a division shall be entitled to enrolment. 16 Although the proposition was not fully developed by his counsel, assuming that at trial the applicant could establish that he was validly enrolled to vote and had voted, it would appear open to the applicant to seek to distinguish Shaw. 17 It could be contended that different constitutional considerations relating to s 24 of the Constitution applying to such a person require a different outcome than that reached in Shaw. Only persons who are within the description of 'the people of the Commonwealth' may be enrolled to vote and, if such a person does vote, he or she could not possibly answer the description of an alien for constitutional purposes. There is nothing in that set of propositions the acceptance of which would appear to be expressly prohibited by the doctrine of stare decisis. 18 But for two passages in Shaw I would have concluded that the applicant had a prima facie case sufficiently strong to satisfy the threshold established in Beecham for the grant of interlocutory relief without my having to consider the issues relating to a doubtful claim referred to in Bullock. 19 However, in Shaw Gleeson CJ, Gummow and Hayne JJ (Heydon J agreeing), in a passage clearly intended to finally and unambiguously resolve a dispute which had divided the High Court in Nolan, Patterson and Shaw stated at [32]: This case should be taken as determining that the aliens power has reached all those persons who entered this country after the commencement of the Citizenship Act on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised. 20 That conclusion appears to admit of no qualifications. While those remarks travel beyond the circumstances in the Stated Case and thus technically may be said to be obiter, they were made deliberately with the view of finally determining the law. 21 In an earlier passage at [16] their Honours had noted the 'certain advantages' British subjects had under other statutes, including those dealing with the franchise and the issue of passports. 22 Given that the issue of the franchise was mentioned, even if not the subject of argument, the unqualified statement of the law expressed by Gleeson CJ, Gummow and Hayne JJ and supported by Heydon J, self-evidently would constrain a trial judge in this court from readily accepting an argument distinguishing Shaw. I do not suggest that such an argument would be foredoomed - but it is difficult at this early stage to view its prospects, in this court, as other than doubtful. 23 For completeness I note that on 21 November 2014, the morning of the Court hearing the respondent's application to set aside the injunction, Mr Melick filed an amended originating application adding a ground challenging the Minister's decision to revoke his client's (deemed) visa on unreasonableness grounds. No argument was pressed at the hearing on that basis and for that reason I express no view on its merits other than to note that to the extent the applicant has the onus of establishing the basis for the continuance of an interim injunction granted on an ex parte basis such a basis was not made out. 24 Accepting those conclusions, the circumstances facing Mr Cayzer, in view of the authorities, would not permit a judge of this Court to grant interlocutory injunctive relief unless there was a marked balance of convenience in favour of it. In the particular circumstances of the applicant's case where it is not disputed that Mr Cayzer had committed a serious crime such that, subject to the issues agitated above, the respondent was entitled to consider whether or not to revoke his visa pursuant to s 501 of the Migration Act 1958 I was therefore satisfied that I should dissolve the injunction I had previously granted ex parte unless there would be a real risk that the applicant's practical capacity to instruct counsel to bring these, or other proceedings as he may be advised to undertake, promptly to trial would be lost. 25 For that reason confining consideration to the applicant's detention does not fully explain what was at stake. The applicant's mandatory detention was not in itself an end the Minister sought: it was just a step towards the applicant's removal from Australia as an alleged unlawful non-citizen. The applicant for his part had sought an injunction to prevent his being taken into detention at least in part to prevent the legal machinery for his removal becoming engaged. The threat of removal faced by the applicant was more significant than the consequences of his detention at least in respect of these proceedings. Detention per se would not prevent the applicant instructing his counsel to pursue his asserted legal rights. But should the applicant be removed from Australia (at least as I apprehend his personal resources to be from the Minister's decision record - from which it would appear that upon his arrival in the United Kingdom Mr Cayzer would have no job, no accommodation, no links and little if any money) his practical capacity to continue this, or any other litigation, to vindicate his asserted right to remain in Australia as a non-alien would be greatly diminished; if not rendered completely illusory. Mr Lloyd very properly did not dispute that the applicant should be entitled to remain in Australia to pursue his asserted constitutional cause. 26 Mr Lloyd accordingly sought instructions regarding what undertakings, if any, he might proffer to the Court as a condition of the injunction being dissolved. 27 Mr Lloyd informed the Court that as counsel he gave the undertaking that the Minister would not remove the applicant from Australia while he has either the current amended originating application on foot or an alternative proceeding in the High Court, so long as the applicant sought to prosecute one or other of them with due efficiency. 28 It may be noted that the undertaking given by Mr Lloyd refers not only to these proceedings but also to proceedings which might be commenced by the applicant in the original jurisdiction of the High Court of Australia. That arose because Mr Melick informed the Court that because the issues he would wish to canvas would necessarily involve analysis of the scope of the binding authority of Shaw he was contemplating whether it would be more appropriate to have the matter brought directly to the attention of the High Court of Australia. Mr Lloyd accordingly accepted that that ought also be within the contemplation of his undertaking. 29 It can be accepted that the applicant will suffer as a result of his being detained but I was satisfied that the terms of the undertaking protected his capacity, in so far as the applicant may wish to exercise it, to pursue his asserted legal rights notwithstanding his detention. Guided by the authorities discussed above I accepted Mr Lloyd's undertaking as sufficient to preserve the applicant's most important interests and exercised my discretion to dissolve the injunction. 30 To complete my reasons I should refer briefly to a further submission made by Mr Lloyd on behalf of the respondent. At the commencement of the hearing for the dissolution of the injunction counsel for the Minister referred the Court to two cases not mentioned in the written submissions the respondent had earlier filed in the proceedings. 31 Mr Lloyd submitted that s 196(4) of the Migration Act 1958 (Cth) either directly, or as a matter of implication removes the power of the Court to issue an injunction that would prevent the Minister from detaining a person under s 189 as equally as it does to prevent a person from being released from detention. That conclusion was said to flow from the approach taken by McKerracher J in Durani v Minister for Immigration and Border Protection [2013] FCA 1264; (2013) 139 ALD 235 and the earlier decision of the Full Court in Ongel v Minister for Immigration and Multicultural Affairs [2003] FCAFC 239. 32 Mr Melick did not contest those submissions; moreover in the course of argument he accepted both that Durani was persuasive and that the Court was bound by Ongel to set aside the injunction. 33 Notwithstanding the argument of counsel, in my opinion the issues that would require further exploration before assenting to the proposition in the terms advanced by Mr Lloyd include (a) s 196(4) does not expressly apply to prevent the grant of an injunction prior to a person's detention; (b) there may be a question as to whether the status quo in respect of a person yet to be detained is equivalent to that of a person already detained; and (c) to the extent that detention of a person pursuant to s 189(1) of the Migration Act 1958 (Cth) is lawful only if an officer 'knows or reasonably suspects' that the person 'is an unlawful non-citizen' whether the instruction to a court not to release such a person might give rise to circumstances of the kind discussed by Lord Atkin in Liversidge v Anderson [1942] AC 206 if the challenge is made to the very existence of that jurisdictional fact. 34 I did not consider a judge of this Court would necessarily be bound by Durani or Ongel because their facts are not closely analogous and neither of those judgments required the resolution of those particular questions. 35 However as I reached my decision to set aside the injunction on the grounds set out above rather than on the basis of s 196(4) it was not necessary for me to further consider those questions. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.