DZAEH v Minister for Immigration and Border Protection

1. The applicant not be removed from Australia pursuant to s 198 of Migration Act 1958 (Cth) until further order.
2. Costs be reserved.
3. The applicant file and serve any further materials in support of its interlocutory application by 3 March 2016 at 4.00pm.
4. Any materials in response by the first respondent including any application to set aside the injunction be filed by 10 March 2016 at 4.00pm.
5. Any interlocutory application to set aside the injunction be listed on a date to be fixed thereafter. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCKERRACHER J: 1 The Court received notification this afternoon from the applicant, who had, in turn, received information that she was to be removed from Australia at 2 pm tomorrow (24 February 2016) by and at the instance of the first respondent, the Minister, pursuant to the statutory obligations under s 198 of the Migration Act 1958 (Cth). Subsequent information received by the Court from the Australian Government Solicitor was to the effect that the removal of the applicant was to take place shortly after midnight tonight. This has been confirmed in Court this evening by Mr Macliver, counsel for the Minister. The Court is presently sitting in the early evening, a few hours before the deportation would take effect. 2 This is, in effect, an urgent oral application for a stay. The applicant appears by telephone from a detention centre. Her bilingual solicitor (who is not on the record) also appears by phone from Sydney. An interpreter is also present. As it happens, the applicant speaks English very well. 3 The unusual and significant feature of this case is that the applicant has already, on two previous occasions, sought and ultimately failed in restraining her removal from Australia: see DZAEH v Minister for Immigration and Border Protection [2016] FCA 54; DZAEH v Minister for Immigration and Border Protection [2016] FCA 83. Further, the grounds being advanced in the present application appear, so far as I can understand from the argument which has been urgently assembled, to be the same or similar to grounds advanced in connection with the two previous applications. This presents, in my view, a real difficulty for the applicant. The applicant has had a period of time, albeit brief, to bring on this application to restrain her removal. One difference with the present application is that the proposed removal is imminent (within a few hours). 4 Those matters have to be seen against the fact that the applicant presently has, in effect, two sets of proceedings on foot in this Court. One is an application for leave to appeal from one of the refusals to restrain her departure, that being the decision of Barker J in DZAEH [2016] FCA 54, in which his Honour expressed doubt as to whether he had jurisdiction both to grant the form of relief sought and to entertain the originating application. The other is an originating proceeding in the Court's original jurisdiction, which is listed for a case management hearing on 8 March 2016. 5 The applicant has also had the benefit of a hearing with due deliberation by Besanko J who initially granted a stay against removal, essentially on the basis of the inadequacy of the opportunity to consider the materials and arguments. However, after hearing and considering argument, his Honour subsequently discharged those orders for reasons which have also been published in DZAEH [2016] FCA 83. 6 In this matter, whilst little may turn on it in the end, both the application for leave to appeal from the decision of Barker J and, indeed, the primary proceeding from which that leave to appeal application is to be heard, seek to rely upon s 39B of the Judiciary Act 1903 (Cth). This may well be the basis upon which his Honour expressed doubt as to any jurisdiction he may have. His Honour's view may very well be correct. 7 But the simple fact of the matter this evening is that, through no one's real delay, so far as I can see, there is but a few hours before the removal of the applicant would take effect and no real time to properly martial adequate arguments either for the applicant or the Minister. 8 One matter which I do have to take into account is the decision of the Full Court in SZSPI v Minister for Immigration and Border Protection (2014) 233 FCR 279, which emphasised the importance of affording parties a real and meaningful opportunity to approach the Court and seek to invoke the exercise of judicial power under Ch III. This will not mean that removal can never take place 'whilesoever any application remains pending in the Court' (see SZSPI (at [20])). But the question of what balance is to be struck, having regard to the obligation under the Migration Act for removal to occur as soon as reasonably practicable, may depend upon a more detailed analysis than is available at present in the limited time available. 9 I am particularly mindful in all of this that, if relief is not granted, the possibility of reversing the position would appear to be remote and negligible. As against that, it may well be that the Minister's arguments which have been referred to today prevail in the not too distant future, in which case the impact upon the public and the government will not be as significant as the impact on the applicant if relief, at least of a temporary nature, is not granted (cf Tait v The Queen (1962) 108 CLR 620, see particularly at 624 per Dixon CJ). 10 For those reasons, while expressing very limited views as to the merits of the application, but recognising that there are two proceedings on foot in the Court which the applicant has not fully had the opportunity to pursue, it seems to me that this is a case in which the applicant's removal from Australia should be restrained, albeit for a potentially limited period of time. 11 I will make these orders: