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[2023] FCA 1206
Federal Court of Australia
2023-09-25
Bromwich J
Original judgment source is linked above.
BROMWICH J: 1 The applicant is a citizen of India who is in his mid-30s. He has been in Australia since April 2012. He has not held a valid visa since June 2019, and has been detained in immigration detention as an unlawful non-citizen since then, as required by s 189(1) of the Migration Act 1958 (Cth). Section 196(1)(a) of the Migration Act requires him to be kept in immigration detention until he is removed from Australia under s 198. The applicant's removal from Australia is scheduled to take place on 27 September 2023, after initially being scheduled to take place sometime from 15 September and later from 25 September. 2 There is no longer any proceeding or judicial process on foot concerning a visa, the applicant having in the past applied for, been refused or had cancelled, various visas. All that remains is a request for ministerial intervention. The only issues before this Court arise from a 24 July 2023 notice of intention to remove the applicant from Australia. 3 By an interlocutory application filed on 15 September 2023, the applicant seeks an injunction to prevent his removal from Australia taking place. An initial hearing of the application took place on 20 September 2023, at which time the applicant was not legally represented. I heard submissions for the Minister opposing the grant of an injunction. The applicant was then able to secure representation by his prior direct access counsel via a telephone call made during a pause in the hearing, but not until 2.15 pm on 25 September 2023. The respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, did not oppose the hearing being adjourned to that time. The hearing resumed at that time. 4 The injunction application is brought in an appeal proceeding by which the applicant seeks an extension of time and leave to appeal from a decision of a judge of Division 2 of the Federal Circuit and Family Court of Australia (Federal Circuit Court). On 15 August 2023, the primary judge refused the applicant an injunction to prevent him from being removed from Australia: CHV20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 721 (PJ). The applicant is therefore seeking an injunction pending seeking to appeal from the refusal of the injunction by the primary judge. 5 Whether there is a serious question to be tried is an aspect of the present injunction application that is in substance much the same as the principal basis advanced for the granting of an extension of time and leave to appeal in this case, namely the prospects of success of an appeal from the primary judge's decision. The delay in bringing that application, being some 11 or 12 days late while in detention, was not likely to stand in the way of an extension of time if the prospective appeal had sufficient merit. 6 The main basis for seeking an injunction from the primary judge was an assertion that the removal decision was made for an improper purpose, alleged to be an attempt to silence him as a self-described outspoken critic of the treatment of asylum seekers and aliens, by deporting him before he had an opportunity to have his complaints to the Australian Federal Police and the Australian Human Rights Commission heard. Her Honour was not satisfied that the applicant had discharged the evidentiary burden required to satisfy her that the Minister's decision to remove the applicant from Australia was made for any improper purpose, especially in light of the statutory scheme requiring his removal: see PJ[39]-[43]. Her Honour also refused an application for a writ of habeas corpus upon the applicant's counsel's concession that, as an unlawful non-citizen, he was required to be detained. Her Honour therefore concluded that there was no serious question to be tried and that the balance of convenience favoured the refusal of the injunction. 7 The applicant relies upon three signed documents dated 11 September 2023, 22 September 2023 and 25 September 2023, each in the form of an affidavit. None of these purported affidavits are sworn, affirmed or even witnessed, which is understandable given that he is in immigration detention. Accordingly, each is in substance an unwitnessed statement by the applicant. The Minister did not object to those three documents being tendered as statements, subject to relevance and any evidentiary limitations on assertions made being able to be relied upon as evidence of the truth. Each was admitted into evidence upon that basis. 8 In his 11 September 2023 statement, the applicant says that he: (a) initiated this appeal proceeding from the decision of the primary judge; (b) was given what he describes as a deportation order on 24 July 2023; (c) applied to the primary judge for an injunction, and that the application was dismissed on 15 August 2023; (d) asserts that her Honour erred in finding that his deportation was not for an improper purpose; (e) complains that he has not once had his case assessed by the Minister since the change of government in May 2022; (f) says he has a ministerial intervention application in process and that his last ministerial intervention request was not referred to the Minister; (g) makes passing reference by name only to the High Court decision in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10, now reported at (2023) 408 ALR 381; (h) says that when he was given the deportation order he was told by the Australian Border Force that he would be notified about the outcome of his Ministerial intervention request before the deportation process went any further; and (i) says that he was given what he describes as another deportation order on 6 September 2023. 9 In his 22 September 2023 statement, the applicant: (a) provides a chronology of his arrival in Australia on a student visa on April 2007 when he was under 18 years of age, applying for a permanent resident visa (class 886, general skilled migration program) and being granted a bridging visa which he held for 7 years from November 2009 until September 2016; (b) describes being fined and disqualified from driving for 12 months in July 2012 because of driving with a high range proscribed concentration of alcohol; (c) describes being charged in October 2015 with the numerous summary offences for which he received a range of sentences, including fines, community service, and good behaviour bonds, none of which triggered automatic visa cancellation under s 501 of the Migration Act; (d) says that in November 2015, his migration agent contacted the Minister's Department asking why a decision had not been made on his visa application, was asked to provide a medical report and AFP clearance and provided both, but was given a notice of intention to cancel his bridging visa and asked to comment, which he did; (e) says that in August 2016, a delegate of the Minister refused his application for a permanent visa under s 501(1) of the Migration Act; (f) says that in September 2016, his bridging visa was cancelled and he was taken into immigration detention; (g) says that in November 2016, the Administrative Appeals Tribunal remitted the matter back to the Minister's Department for reconsideration on the issue of the likelihood of him reoffending, that he was released from detention, and that he provided a psychologist's report; (h) says that in July 2017, the Minister (apparently in person) refused to grant him a visa, and he was again taken into immigration detention, the Minister's decision was quashed by a judge of this Court in January 2018 and he was released from immigration detention, that judge's decision was overturned by a Full Court in September 2018, he was again taken into immigration detention in June 2019, and the High Court refused special leave to appeal in February 2020; (i) says that in February 2020, he applied for a protection visa, which was refused in March 2020, a decision that was affirmed by the Tribunal and an application for judicial review dismissed by a judge of the then Federal Circuit Court of Australia, who recommended ministerial intervention, which was finalised as "not referred"; (j) says that in March 2022, he signed a request for removal from Australia, but withdrew that in in June 2022 and applied for Ministerial intervention, which in August 2022 was finalised as "not referred"; (k) says that in April 2023 he made another Ministerial intervention request after meeting the Minister when the Minister was visiting the Christmas Island detention centre, which is still pending; (l) criticises the Department's delays in dealing with his case and refers to the factual findings made by the Minister in refusing to grant him a visa in July 2017; (m) asserts that he deserved Ministerial intervention; (n) asserts that if he is deported, he will be the first person deported under s 501 without a prison sentence, but does not provide any basis for that assertion, and makes comments as to the merits of him remaining in Australia, including the lack of seriousness of his offending, his time in detention as a deterrent against further offending and his ties to the community; (o) refers to what has happened in other cases; (p) makes various human rights claims and refers to Australia's international obligations under the International Covenant on Civil and Political Rights (ICCPR); (q) makes a range of assertions as to the merits of him remaining in Australia; and (r) complains about the findings made by the primary judge at PJ[47], to which may be added J[46], [48] and [49], asserting that it is impossible for him to pursue his complaint with the AHRC if he is deported and saying that even though the Minister cannot be compelled to exercise his power of intervention, he can still do so: Balance of convenience [46] If the injunction is not granted the applicant will be removed from Australia. There is nothing before me to support a conclusion that the applicant can obtain a valid visa and therefore not be an unlawful non-citizen subject to removal under s 198(6) of the Act. [47] There is no obligation on the Minister to consider whether or not to exercise his personal and non-compellable powers to intervene. There is nothing before me to suggest that the applicant will not be able to pursue his claim with AHRC or that he will not be entitled to relief should he be removed from Australia. [48] I accept the Minister's submission that the Court should give weight to the public interest involved in the due administration of the Act, particularly where s198(6) "imposed an obligation on departmental officers to remove the appellants from Australia": ALY15 v Minister for Immigration and Border Protection [2017] FCA 281 at [12]. [49] Given my views above, in the foregoing circumstances I find that there is no serious question to be tried and that the balance of convenience lies against the grant of an interlocutory injunction. 10 In his 25 September 2023 statement, the applicant says that he focusses on the three elements involved in obtaining an interlocutory injunction: (a) as to the serious question to be tried, he asserts that the deportation is for an improper purpose, said to be silencing his allegations of sexual assault by SERCO staff on Christmas Island, with the timing of the notice of removal (referred to as the notice of deportation) being "linked" to his allegations being investigated by the Australian Federal Police (who are alleged to be "dragging their feet"), the government seeking to hide adverse publicity about unlawful non-citizens in detention, particularly off-shore detention, and him having "unfinished business" in pursuing this and in seeking ministerial intervention on his claim for a humanitarian approach to detainees since the change of government; (b) as to balance of convenience, he asserts that this lies with him remaining in Australia in detention, being no bar to proceedings in Australia, and him having no links to India since 2012, having made a life in Australia, and his parents having moved to Melbourne to live with his brother, which he would also like to do, and there being no inconvenience to the Minister; and (c) as to an undertaking as to damages, he does not have the means due to being in immigration detention. 11 It may be observed that very little of what is said in any of the applicant's three statements point to any error in the decision of the primary judge, and to the extent that any reference is made to her Honour's judgment it is in the nature of disagreement with the conclusions reached, rather than identification of error. 12 The applicant also relies upon an affidavit of a solicitor for the Minister affirmed 31 July 2023 that was apparently read before the primary judge, which details the applicant's migration history and produces various records, including a notice of intention to remove him from Australia, which the applicant signed upon receipt and dated 24 July 2023. For completeness, that affidavit was also tendered and admitted into evidence. 13 The Minister submits (as put orally on 20 September 2023 and confirmed on 25 September 2023): (a) no argument was run before the primary judge as a basis for granting final relief or as part of the substantive argument beyond those that were advanced as to improper purpose and habeas corpus; (b) the applicant did not contend before the primary judge that he could not be removed from Australia because he had lodged the complaint with the Australian Human Rights Commission nor that he had made an application for ministerial intervention, which meant that cases in which the argument as to ministerial intervention had been run, based upon Davis, such as MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 989 (Feutrill J), were distinguishable, noting that the applicant was represented by counsel before her Honour; (c) there is no factual substratum in this case to enable an argument to be advanced in reliance upon Davis, even if the difficulty of this not having been run before the primary judge could be overcome; (d) the claim of improper purpose made before the primary judge failed on a factual basis, with the factual propositions underpinning that conclusion were recorded by her Honour as not being in dispute (at PJ[21]): There was no dispute between the parties that currently the applicant does not hold a valid visa. The applicant ceased to hold a visa from 14 June 2019. From that date, the applicant was an unlawful non-citizen within the meaning of s 14 of the Act. Accordingly, the applicant remains in immigration detention as s 189(1) operates to require that the applicant be kept in immigration detention and s 196(1)(a) requires him to be kept in immigration detention until he is removed from Australia under s 198. (e) what that ultimately meant for the applicant is that, because none of those issues were in dispute, and, critically, the issue of the s 198(6) obligation and the need to perform that was not in dispute, the primary judge accepted the submission in the context of the balance of convenience that there was a strong public interest in the due administration of the Migration Act: see PJ[48] reproduced above; (f) leave to appeal was required because of the applicant being in substantially the same position as in MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877 at [18]-[22] (Colvin J), such that the liberty of the subject exception for needing leave in s 24(1C) of the Federal Court of Australia Act 1976 (Cth) did not apply; while a claim for habeas corpus was made in this case, it was effectively conceded it could not succeed; (g) the principal barrier standing in the way of any reasonable prospect of success is not delay in bringing the application for leave to appeal, but rather the absence of any arguable case for the grant of leave to appeal; (h) the application for leave to appeal concerns not any substantive claim, such as a challenge from a visa decision, because all of those avenues have been exhausted (as the applicant's 22 September 2023 statement summarised above makes tolerably clear), but rather only the question of an injunction to restrain removal - no more is sought than an injunction to permit an appeal process to take place against the refusal of an injunction; (i) It follows that the same question in substance is before this Court as was before the primary judge, as to whether there was a serious question to be tried on the powers bestowed and duties imposed under the Migration Act and the balance of convenience. 14 The applicant submits in writing via his counsel: (a) that there is a serious question to be tried, namely whether he can make out a prima facie case that the deportation (that is removal) decision was made for an improper purpose; (b) that the balance of convenience lies with the applicant remaining in Australia, rather than being flown back to a country he has not been to for 17 years; and (c) that there was an improper purpose to the notice of intention to remove and the exercise of the power of removal, repeating the substance of the argument advanced before the primary judge, but not identifying any error on the part of her Honour. 15 Counsel for the applicant developed the argument as to error on the part of the primary judge as follows: (a) an assertion that the primary judge erred in the assessment of the serious question to be tried by applying the civil standard of proof to the existence of an improper purpose where her Honour referred, at PJ[38] to an onus and at PJ[39] to not being satisfied that the applicant has discharged that onus; and (b) an assertion that the primary judge erred in finding that the balance of convenience did not favour granting the injunction sought.
Consideration 16 Whether the error asserted as to the primary judge applying the civil standard of proof is arguable requires consideration of her Honour's reasons at PJ[32]-[43]. It is clear that at PJ[32] the primary judge correctly stated the absence of any need to show that the applicant is likely to succeed in his substantive application. The assessment of the argument advanced as to improper purpose at PJ[34]-[43] must be read in that light, rather than just considering PJ[38]-[39] in isolation and out of context. In context, her Honour was considering whether, to use her own words at PJ[32], there was a sufficient likelihood of success on the allegation of improper purpose to justify the grant of an injunction to preserve the status quo of the applicant remaining in Australia pending a final hearing. That in turn required consideration of whether it was likely that the applicant would be able to demonstrate that there was such an improper purpose, being the test that would have to be met at a final hearing on that issue. Her Honour observed at PJ[41] that the simple fact of the lodging of a complaint goes nowhere to establish that the power and obligation to remove was being exercised for an improper purpose. Her Honour further observed at PJ[43] that there was nothing before her to suggest that the decision to remove was for some purpose other than the lawful purpose of the obligation contained in s 198(6) of the Migration Act. I am unable to accept that, read fairly, the primary judge was imposing a standard of proof of the balance of probabilities of success on the assertion of an improper purpose. 17 In relation to the balance of probabilities, the primary judge noted at PJ[46]-[47] that there was nothing to support a conclusion that the applicant could obtain a valid visa and therefore not be an unlawful non-citizen subject to removal under s 198(6) of the Migration Act, that there was no obligation on the Minister to consider whether or not to exercise his personal and non-compellable powers to intervene, and that there was nothing to suggest that the applicant would not be able to pursue his complaint with the AHRC or that he would not be entitled to relief if he was removed. Her Honour therefore accepted the Minister's submission that she should give weight to the public interest in the due administration of the Migration Act, especially given that s 198(6) imposed an obligation on departmental officers to remove the applicant, citing authority for that proposition. The allegation of error rises no higher than suggesting that a different conclusion could have been reached in the exercise of the discretion to grant or refuse the injunction sought. 18 I am not satisfied that the applicant has demonstrated that he has any reasonably arguable case for the grant of leave to appeal, nor on the appeal that he seeks to bring, nor that the balance of convenience favours the refusal of an injunction. In particular, there is no proper basis for doubting the primary judge's conclusion that there was no evidence sufficient to make it likely that he would be able to establish any improper purpose behind the decision to remove him from Australia in accordance with the Migration Act. The case for an improper purpose rose no higher than a correlation between the complaints that the applicant had made and that decision. The applicant has not shown himself to be in any different position from anyone else who is an unlawful non-citizen by reason of not holding a valid visa, who has exhausted all visa and related legal challenges, and who is required to be in immigration detention and required to be removed from Australia as soon as practicable.
Conclusion 19 The applicant's interlocutory application seeking to restrain his removal from Australia must be refused with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.
CHV20
Minister for Immigration, Citizenship and Multicultural Affairs