DXO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. Until the hearing and determination of the originating application, or further earlier order, the first respondent personally and by his servants, officers or agents, or otherwise, be restrained from removing the applicant from Australia.
2. The proceeding be adjourned for case management to 9.30am (AEST), 1 February 2022 or such other date that the Court may appoint after consultation with the parties.
3. Liberty to apply.
4. The costs of and incidental to the interlocutory application be the applicant's costs in the proceedings in any event. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 The applicant is a citizen of Pakistan. On 14 March 2021, he jumped from a ship. Upon his alighting in Australian territory, he was taken into immigration detention. There was undoubtedly a basis for this in that the applicant had no visa issued under the Migration Act 1958 (Cth) (the Act) permitting his entry into Australia. He was therefore and remains an unlawful non-citizen. 2 The applicant applied, or at least sought to apply, under the Migration Act for a protection visa. The Act places a bar on applications made by persons in the applicant's circumstances. He is an unauthorised maritime arrival in terms of s 46A of the Act. By s 46A(1) and (2), an application by such a person for such a visa is not valid unless, materially, the Minister, acting personally, determines that it is in the public interest to permit the application for the visa to be made. By s 46A(7), the Minister does not have a duty to consider whether to exercise that power in respect of any unauthorised maritime arrival. 3 The applicant has sought, more than once, for his application to be placed before the Minister. More than once, officers of the Minister's department - materially, including the second respondent - have declined to do this. At least until this morning, the solicitors for the applicant and counsel, in settling the originating application, acted on the premise that particular administrative documents, apparently official, annexed to the affidavit of the applicant's solicitor, Mr Madigan, governed the duty to be undertaken by civil servants within the Minister's department in cases such as the present. 4 Tendered this morning were guidelines issued by the Minister under s 46A in respect of procedures to be followed in relation to requests for cases to be placed before the Minister. In relation to s 46A of the Act, the precise relationship between those guidelines and the procedural documents annexed to Mr Madigan's affidavit is, on the present state of the evidence, just not known. On the assumption that the procedural documents annexed to Mr Madigan's affidavit did have some role to play in the making of decisions communicated to the applicant by his solicitors in relation to his visa application, those procedures entailed a directive that cases where the claim for protection was plausible should be transmitted to the Minister. 5 A claim for a protection visa is now governed by statute rather than any express incorporation by reference of the terms of the Refugee Convention. Nonetheless, what was said by the High Court in, notably, Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, especially by McHugh J, at 429, still has relevance. The real risk test in s 36(2)(aa) has been said by a Full Court of this Court in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505to impose the same standard as the real chance test in s 36(2)(a) of the Act. 6 It is not necessary this morning to detail the claim for protection made by the applicant, only to appreciate that, if the procedures as set out in the document annexed to Mr Madigan's affidavit are applicable, there was an expectation on the part of the Minister that applications which were plausible should be transmitted to the Minister. In effect, the Minister's apparent expectation was that cases where there was plausibly raised a case for, in effect, a real chance should be transmitted. 7 The applicant here claimed to have engaged in particular political activity in Pakistan and still to adhere to the particular political party concerned. There was some country information in the possession of the Minister's department which, on its face, suggested those who adhered to that particular political party were under a particular threat. 8 An assessment of plausibility in respect of a real chance is a very difficult task indeed, but it is the task apparently consigned to officers by the Minister if the documents annexed to Mr Madigan's affidavit are applicable. It is no part of my role today to reach any concluded view about that, only to determine whether or not there exists a serious question to be tried, and where the balance of convenience lies in terms of the claim for interlocutory injunctive relief restraining an apparently imminent removal of the applicant from Australia, pending the hearing and determination of the application. 9 The very existence of jurisdiction in a case such as the present to grant any substantive relief is moot. The root authority which would support the existence of such a jurisdiction is Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438 (Jabbour). In that case, at [89], [91] and [102] in particular, Robertson J outlines why it is he concluded that a jurisdiction to review a decision by an officer of the Minister's department not to refer a protection visa application affected by s 46A existed. Another judge of this Court, also sitting in the original jurisdiction, has expressed concurrence with the view expressed in Jabbour and done so more than once: see Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457, at [22], and CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825, at [43]. 10 On the other hand, and again in the original jurisdiction, O'Callaghan J expressed doubt as to the existence of the jurisdiction sought to be invoked by the applicant: see Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 791 (Davis). I was informed this morning that Davis is presently the subject of an appeal to a Full Court, which has been heard and is the subject now of a reserved judgment. In that appeal, the Minister submitted that Jabbour was wrongly decided. 11 Section 46A undoubtedly provides the backdrop to this case, but the case is directly concerned not with s 46A but rather with the duties, if any, which must be undertaken by civil servants in accordance with ministerially approved procedures. 12 Our Constitution, by s 61 and s 64, creates a scheme for the exercise of executive power. That scheme envisages that the Governor-General, as the Queen's representative, will consign to those the Constitution terms the Queen's Ministers of State for the Commonwealth the administration of the exercise of executive power, either as granted by statute or otherwise. It would be antithetical to that scheme of government for civil servants to be able to act outside imperatives lawfully given in the administration of an act by a Minister. At least, such an argument, in my view, warrants consideration at trial. It is, in my view, raised in this case if truly there is, on the correct understanding of the evidence, a procedure which carries with it an imperative direction by the Minister to civil servants to place particular cases before the Minister for the Minister to decide whether or not to exercise a power. 13 Obviously enough, the removal of the applicant from Australia would, for all practical purposes, bring the endeavour he has made to obtain a protection visa to an end. Overwhelmingly, the balance of convenience favours the granting of an interlocutory injunction. In circumstances where it is arguable as to whether or not jurisdiction exists, and in turn whether or not there has been a departure from ministerially prescribed duties, it seems to me that the applicant has a sufficient case to warrant the granting of interlocutory injunctive relief. I emphasise that that assessment involves no concluded view at all as to whether the applicant - or, for that matter, the Minister - will succeed at trial, only that, having regard to what is said in Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57 (Australian Broadcasting Commission v O'Neill), there is a sufficient case established to warrant the granting of interlocutory injunctive relief. 14 I should add, as well, it seems inherently likely that it will be possible no later than the end of March to hear this case substantively. Each party assesses the case to entail no more than one day's hearing time. 15 Application has also been made on behalf of the applicant for an order that the costs of and incidental to the application for an interlocutory injunction be the applicant's costs in the proceedings in any event. The exercise of the discretionary power in respect of the awarding of costs pursuant to s 43 of the Federal Court of Australia Act (1976) (Cth) (Federal Court of Australia Act) is not materially fettered. Trite though it may be, it falls to be exercised in the circumstances of a given case. 16 There are authorities, and I was taken to them on behalf of the Minister, which support a proposition that in relation to an interlocutory application for an injunction, the usual consequence as to costs is that if the applicant or plaintiff succeeds in securing such an injunction, costs are made costs in the cause or sometimes the applicant or plaintiff's costs in the cause. On the other hand, if an applicant or plaintiff fails in an application for interlocutory injunctive relief, usually, the applicant or plaintiff would be ordered to pay costs. The rationale for this was expressed by Chief Judge Young in Eq, in Australian Securities and Investments Commission v Krecichwost (2008) 72 NSWLR 498, at 500 - 501, as follows: This is because all the success of the plaintiff in the interlocutory application means is that the plaintiff has demonstrated a case for preserving the status quo, not that it is necessarily successful in the litigation and that it is fair to wait to see the success of the litigation before dealing with the costs of the interlocutory application. 17 Similar sentiments were voiced in His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Incorporated (No 2) [2007] NSWCA 142, at [21]. However, in voicing those sentiments, the Court of Appeal acknowledged - as one must in relation to an unfettered discretion, with respect - each case must depend upon its own facts. In Kickers International SA v Paul Kettle Agencies Ltd & Anor [1990] FSR 436, at 438 - 439, Hoffmann J, as his lordship then was, stated: … [T]he fact that the merits have not been investigated, or not fully investigated, does not necessarily mean that the court cannot dispose finally of interlocutory costs. The question cannot be settled simply by reference to the practice: it must be answered on the facts of the individual case. Would it be unfair in this case for the defendants to have the costs of the motion even if they lost at the trial? On balance I do not think that it would. Although I cannot decide the merits, I can form a view on whether the plaintiff, on the material that is produced and what it must have known about the defendants, was justified in launching the motion… Thus it seems to me that in making a costs order at the interlocutory stage, there are two risks of injustice which have to be balanced against each other. On the one hand, a final order might award a party costs which, upon full consideration at the trial, he would not have been given. On the other hand, failure to make a final order might have the practical effect of depriving a party of some or all of the costs which he should in fairness have recovered. I think it is possible that in the past the courts may have been more impressed by the first risk than by the second. 18 The subject of the awarding of costs in relation to interlocutory injunctive proceedings was explored in some detail by Stanley J in Benson v Seven Network (Operations) Ltd [2015] SASC 185, a case to which my attention was helpfully drawn by Mr McGlade, who appeared for the Minister. 19 When all is said and done, however, the position as stated by Chief Judge Young is but at most a prima facie position, as the judgment of the New South Wales Court of Appeal makes pellucid. In this particular case, a triable issue, in my view, ought to have been patent from the existence of a reserved judgment of a Full Court of this Court in relation to whether or not jurisdiction existed, and the existence of different views on that subject in the court's original jurisdiction. 20 Yet further, as was made patent by a tender this morning of the guidelines found now in exhibit 1, a triable issue exists in any event as to exactly what governed the making of the decisions which are subject of the invoked jurisdiction. In turn, a triable issue existed - patently, in my view - as to the nature and extent, if any, of the obligation of officers of the Minister's department to comply with directions apparently given by the Minister for the administration of the department. Yet further, the aspect of removal made it pellucid that in circumstances where triable issues existed, a balance of convenience would favour the granting of interlocutory injunctive relief. 21 Especially that was so in relation to a case which was inherently likely to be one which, in the ordinary course of this Court's exercise of its jurisdiction, could be heard in one day, probably no later than March 2022. In these circumstances, and particularly in present times, having regard to the duties imposed on parties to litigation by s 37N and s 37M of the Federal Court of Australia Act, the case was one where one might have expected there to have been an undertaking proffered by the Minister in relation to removal. That is so, notwithstanding the existence of a statutory duty in s 198 of the Act, because it is uncontroversial that notwithstanding the existence of that statutory duty, this Court possesses power to grant interlocutory injunctive relief. 22 In short, my view is firmly that today has been necessary in the sense that the applicant, in the face of an absence of an undertaking, had to press a claim for interlocutory injunctive relief, but unnecessary in the sense that, for the reasons which I have given, one might have expected such an undertaking, however reluctantly in terms of internal administration, to have been nonetheless proffered by the Minister, taking into account the considerations found in Australian Broadcasting Commission v O'Neill and the duties which fall on parties to litigation under the Federal Court of Australia Act. 23 In these circumstances, it appears to me that the case is one where a decision in respect of costs is best to be made by the judge who has heard that application. Further, the case is one where, in my view, the just order in respect of costs should be that the costs of and incidental to the application for an interlocutory injunction be the applicant's costs in the proceedings in any event. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.