DLJ18 v Minister for Home Affairs

1. In the absence of further order, the Minister is restrained from removing the Applicant from Australia on or prior to 5.00pm on 15 January 2019.
2. Liberty is reserved to apply to the Duty Judge on 48 hours' notice in writing.
3. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 The Applicant in the present proceeding, identified by the pseudonym DLJ18, is a citizen of the People's Republic of China. He arrived in Australia in August 2003. 2 In May 2016, his visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth). The occasion for the exercise of that power arose by reason of his conviction of "aggravated break and enter and commit serious indictable offence - armed" and two counts of "Assault with act of indecency". Another two counts of "Assault with act of indecency" and two counts of "Assault occasioning actual bodily harm" were taken into account in sentencing. The convictions related to offences involving the physical and sexual assault of two female victims. 3 In May 2018, the Minister for Home Affairs ("Minister") decided not to revoke the decision to cancel the visa. 4 An application to review the Minister's decision was dismissed in November 2018: DLJ18 v Minister for Home Affairs [2018] FCA 1650. 5 DLJ18 has now received a Notice of Intention to Remove from Australia ("Notice"). The anticipated date of his removal is 27 December 2018. As best as can be presently determined, DLJ18 was given a copy of that Notice on or about 20 December 2018. 6 The Applicant has now filed an Application for an Extension of Time and a Draft Notice of Appeal. The Application is supported by two affidavits which do little more than annex the Notice. The two proposed Grounds of Appeal provide as follows (without alteration): 1. Australia do owe non-refoulement obligation to the applicant, based on to be as former visa subclass 866 (protection visa) holder. 2. Section 501CA(4) of the Migration Act 1958, Minister should revoke the decision of cancelation of my visa. The Applicant has also filed an Urgent Application before Start of a Proceeding seeking an "injunction of deportation". Presumably the Applicant now seeks an order restraining the Minister from effecting his removal from Australia on 27 December 2018 and such other orders as are necessary to enable him to prosecute a further appeal. The matter now comes before the Court as a duty matter. 7 DLJ18 appeared by way of a video link from Western Australia, where he is presently in immigration detention. The Minister appeared by way of his solicitor. The Minister, it may be noted, was only served with the present Application about two hours ago. 8 In the absence of any provision to the contrary, r 36.03 of the Federal Court Rules 2011 (Cth) provides that any appeal is to be filed within 21 days. That period has long expired. 9 Albeit with considerable misgiving, it is considered that the Minister should be restrained from taking any further action to effect the removal of the Applicant from Australia until 5.00pm on 15 January 2019. 10 The misgiving arises for either of two reasons, namely: that there is presently available no evidence whatsoever of the Applicant seeking advice or attempting to seek advice in respect to the judgment of the primary Judge and no evidence that the Applicant gave any consideration to challenging the decision at that point of time when judgment was delivered. The Applicant seems only to have been spurred into action by receipt of the Notice; and that there is no self-evident error in the reasons of the primary Judge. In the proceeding at first instance, the Applicant was represented by Counsel and relied upon two grounds of review, namely an allegation that the Minister's decision was "legally unreasonable" and that the Minister had "failed to complete the exercise of his jurisdiction". The primary Judge addressed each of those two grounds and rejected both. To the extent that the Applicant now wishes to rely upon an argument founded upon Australia's non-refoulement obligations, no such argument was relied upon before the primary Judge. To the extent that the Applicant now wishes to rely upon a decision of the Full Court given after judgment in his own case, namely Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198, that decision seems to be readily distinguishable. 11 Any application for an extension of time, on the materials presently available, accordingly, faces considerable difficulties. 12 But it is nonetheless considered that the Minister should be restrained from taking any action to secure the removal of the Applicant from Australia by reason of: the fact that the Minister only gave the Applicant comparatively little notice of the intention to effect his removal - the Notice having only been given some three to four days ago; and the fact that the Applicant should be given an adequate opportunity to properly collate and present such evidence and other arguments as may be of assistance in his quest to seek to further challenge the Minister's May 2018 decision and the decision of the primary Judge. It is also not without relevance to note that: there is presently available no explanation as to why the Notice was only given to the Applicant on about 20 December 2018 and not at some time more proximate to (for example) the expiration of the appeal period; and the Minister should also be afforded an opportunity to properly respond to the Application now sought to be made. Although it is readily recognised that any attempt on the part of the Applicant to further challenge the Minister's decision and the judgment of the primary Judge should have been made at a far earlier point of time, to effect his removal two days after Christmas day and after having given him notice of the intention to do so only three to four days before Christmas has all the hallmarks of unfairness. The making of an application for an extension of time is an application DLJ18 is entitled to make. He should be afforded an adequate opportunity in which to do so. The Minister suffers no prejudice in being restrained from effecting the Applicant's removal until 15 January 2019 other than what he presently submits is the prejudice of being required to defend an application without merit. 13 In the absence of any further order being made, it is thus concluded that an order should be made restraining the Minister from effecting the removal of the Applicant from Australia prior to 5.00pm on 15 January 2019. That is a sufficient period of time within which the Applicant can, if he so wishes, collate any such further materials as he may wish to rely upon and to serve those materials upon the Minister. No order will be made for the time within which he should do so, although any delay on his part in doing so may assume relevance to the Duty Judge who next considers any further application on or about 15 January 2019 or some other date. If the Minister wishes to rely upon any materials, it is anticipated that such materials should be provided to the Applicant by no later than 9 January 2019.