DKN20 v Minister for Home Affairs

Federal Court of Australia|2022-08-23|Before: Mr P, Smith J

This matter be transferred to the Federal Circuit and Family Court of Australia pursuant to r 27.11 of the Federal Court Rules 2011 (Cth).
Costs be in the cause of the proceedings in the Federal Circuit and Family Court of Australia. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BANKS-SMITH: 1 By this application, the applicant sought orders that the Minister for Home Affairs stop the applicant's involuntary deportation to Morocco, and give the applicant another opportunity to lodge a protection visa application. The application was filed on 22 August 2022 and listed for hearing before me this morning. It is apparent that the applicant has received notice that he is to be deported later this evening. 2 For the reasons that follow, it became apparent during the hearing that there were issues properly raised by counsel for the Minister as to the jurisdiction of this Court to grant the relief sought, and that it was more appropriate that the matter be dealt with by the Federal Circuit and Family Court of Australia (FCFCOA). Accordingly, and having regard to the urgency of the application, I made an order under r 27.11 of the Federal Court Rules 2011 (Cth) transferring the matter forthwith. Registry was immediately contacted by my chambers so that the FCFCOA could be informed of the pending urgent application. I indicated short reasons would follow.

Prior refusal of protection visa, grant of partner visa, cancellation of visa 3 These facts are taken primarily from the affidavit of Ms Scott filed on behalf of the Minister in this application, and supported by the various published reasons attached. The applicant is a citizen of Morocco. A protection visa application made in 2007 was refused. A review of that refusal decision by the then Refugee Review Tribunal resulted in the refusal decision being affirmed. 4 An application for judicial review of the Refugee Review Tribunal's decision in the then Federal Magistrate's Court was dismissed for non-appearance. 5 In November 2009, the applicant lodged an application for Ministerial Intervention pursuant to s 417 of the Migration Act 1958 (Cth). The request was finalised as 'inappropriate to consider'. 6 In August 2011 the applicant was granted a Permanent Partner visa (Subclass 801). 7 On 18 November 2017, the applicant's visa was cancelled under s 501(3A) of the Act. A delegate of the respondent refused to revoke the cancellation. 8 The applicant applied for merits review in the Administrative Appeals Tribunal (Tribunal). On 3 April 2020, the Tribunal affirmed the delegate's decision. 9 The applicant applied for judicial review of the Tribunal's decision in the Federal Court of Australia. The application was dismissed: DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158. The applicant appealed from that decision. 10 On 19 January 2021, the applicant was referred for Ministerial Intervention assessment against s 197AB and s 195A of the Act. 11 On 8 June 2021 the Full Court of the Federal Court dismissed the applicant's appeal: DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97; (2021) 285 FCR 1 (Full Court decision). 12 On 21 June 2021, the referral under s 197AB and s 195A of the Act was finalised as 'Not Referred'. According to Ms Scott's affidavit, a 'Not Referred' outcome means that the referral was considered within the Department of Home Affairs but was not referred to the Minister for consideration of whether to exercise either of the non-delegable powers in s 197AB or s 195A. 13 On 13 September 2021, the applicant sought an extension of time to seek leave to appeal from the Full Court decision in the High Court of Australia. On 9 December 2021, the High Court refused special leave.

This application 14 The applicant is self-represented. I bear that in mind in setting out the limited content of his affidavit, filed in support of his application. The applicant set out only the following: 1. I am the applicant and I am authorised to make this affidavit on my behalf. 2. I applied for a protection visa before and I am still in fear of my life. During the ordeal I got married and managed to acquire a different visa. 3. The Minister at the time and my legal team cordially agreed to withdraw the court proceedings in relation to my protection visa claim so that I could be granted a spousal visa. 4. My marriage collapsed and I became a 501. This created a Catch 22 situation for me. I cannot re-apply for another protection visa. 5. The Minister's delegates forged my signature to illegally obtain my travel document. 6. They asked my embassy if I was in danger because I was trying to lodge another protection. This alone is going to get me in trouble with the authorities back home. 15 There was no evidence before me that the applicant had initiated any request for the Minister to determine under s 48B that he could bring a further protection visa application despite the terms of s 48A of the Act (which, expressed in general terms, prevents any further application for a protection visa). Section 48B(6) provides that there is no duty on the part of the Minister to consider whether or not to exercise the power to make a determination that s 48A does not apply to a particular non-citizen.

Issues faced by the applicant on this application 16 As counsel for the Minister submitted, it was apparent that the relief sought was such that this Court did not have jurisdiction, having regard to its limited jurisdiction under s 476A of the Act. Furthermore, even assuming that this Court might have jurisdiction relating to any refusal of the Minister to determine under s 48B of the Act that s 48A should not apply to the applicant (noting Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; (2021) 288 FCR 23, special leave granted), then there remained a serious question as to the prospect of there being any grant of injunctive relief, having regard to removal obligations under s 198(1) and the effect of s 197C. Section 197C provides that for the purpose of s 198(1), it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

Proposed course 17 Although counsel for the Minister had no instructions that the Minister or Australian Border Force officers might delay the applicant's pending deportation until resolution of the application in this Court, he properly pointed to the potential to transfer the proceeding to the FCFCOA, to which s 476A does not apply. In the urgent circumstances of this application, I accept that such a course is in the interests of the applicant, in that it better places him in a position where he might pursue the relief he seeks. In saying this, I do not purport to say anything about the prospects of success of his application in the FCFCOA. 18 A transfer order was made accordingly. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.

Migration Act 1958(Cth)ss 48A, 48B, 195A, 197AB, 197C, 198, 417, 476A, 501

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