Huynh v Administrative Appeals Tribunal

REASONS FOR JUDGMENT 1 On 23 November 2011, Mr Hoai Han Huynh made an application to the court for an extension of time in which to make an application to the court to appeal against a decision of the Administrative Appeals Tribunal (the "Tribunal") handed down on 25 October 2010. The primary judge (Edmonds J) refused the application because he was not satisfied that the only proposed ground of review put forward by Mr Huynh had any prospects of success: Huynh v Minister for Immigration & Citizenship [2011] FCA 1333 at [23]-[26]. The effect of his Honour's reasons is that he rejected a submission that the Tribunal failed to have regard, as a primary consideration, to Article 23(1) of the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 2 His Honour found that Article 23 does not impose an obligation on Australia to the Applicant's mother, who has been granted refugee status, to permit or maintain her family as a family unit. His Honour went on to say at [26] that, in any event, the Tribunal did have regard to the matter of family ties and other related considerations, but it did so under the head of "other considerations" rather than primary considerations. His Honour cited the authority of Bennett J in Mordechai v Minister for Immigration and Citizenship [2011] FCA 986 at [58]-[60] for the proposition that this did not involve any error of law on the part of the Tribunal. 3 On 17 January 2012, Mr Huynh filed an application for leave to appeal to the court against the order of Edmonds J and an interlocutory application seeking to restrain the Minister from acting on the judgment of Edmonds J. 4 The matter comes before me as a matter of urgency this morning because the Minister proposes to carry out the obligation imposed under s 198 of the Migration Act 1958 (Cth) ("Migration Act") to remove Mr Huynh from Australia tomorrow. The Minister has filed a notice of objection to competency of the application. I'm satisfied that the application for leave to appeal to me is not competent. This is because the application heard by the primary judge was for a review under s 476A(1)(b) of the Migration Act and the effect of s 476A(3) is that an appeal may not be brought to the Federal Court from a judgment of the Federal Court that makes or refuses to make an order under s 477A(2) of the Migration Act. 5 However, in the course of argument this morning, Mr Huynh sought an injunction restraining the Minister from exercising the power to remove him from Australia. I pointed out to him that I do not have any jurisdiction in the application for leave to appeal or for an extension of time within which to do so. However, it seems to me that the High Court would have original jurisdiction to hear the matter on an application for a constitutional writ to quash the decision of the Minister's delegate or the decision of the Administrative Appeals Tribunal. I note that an appeal may not be brought to the High Court from the judgment of Edmonds J by reason of the provisions of s 476A(4) but that does not preclude the High Court from the exercise of its original jurisdiction. 6 Mr Huynh is not legally represented and he has not yet brought nor has he sought to bring any proceeding in the High Court. However, he gave an undertaking to this court this morning to do all things necessary to file an application in the original jurisdiction of the High Court. Subject to what I will say shortly, it seems to me that in the circumstances which arise, I do have power to grant an interlocutory injunction to enable Mr Huynh to seek to commence proceedings in the High Court. 7 In view of the Minister's position that he proposes to remove Mr Huynh from the jurisdiction unless an injunction is granted against the Minister, the situation seems to be one where I have power to grant an injunction to preserve the subject matter of the possible proceeding in the High Court, which would otherwise be rendered nugatory. Ms Baggett, who appears for the Minister opposes the grant of interlocutory injunctive relief. I recognise the force of the matters which she put but in view of the urgency of the matter, it seems to me that, notwithstanding the doubts to which I am about to refer as to my power or jurisdiction to grant an injunction, I ought to do so provided that the injunction is granted for a very short period. 8 The first submission put by Ms Baggett is that any application to the High Court for the issue of a constitutional writ is now out of time. Mr Huynh would therefore need to satisfy the High Court that it is in the interest of justice to extend time. Ms Baggett observes that Edmonds J found that it was not in the interests of justice because there are no real prospects of success in an appeal to a Full Court of the Federal Court. Nevertheless, it seems to me that a question may arise in the High Court because it is at least possible that the failure of the Tribunal to consider the matter of family ties as a primary consideration constitutes jurisdictional error. 9 Edmonds J recognised that the Tribunal had considered those matters under the heading of "Other Considerations" and relied upon the decision of Bennett J in support of the proposition that doing so does not involve any error of law on the part of the Tribunal. I accept that his Honour's analysis and the decision of Bennett J do not, on their face, disclose any error of law but the situation which arises today is one of urgency for the reasons that I have mentioned. In those circumstances I am of the view that, consistent with the relevant authorities, I can take into account the position of the Applicant and the effect upon him of being deported from Australia tomorrow, which should be weighed against the difficulty in identifying what may otherwise be required to constitute a "prima facie" case. 10 The second objection raised by Ms Baggett, is that I do not have jurisdiction to grant injunctive relief. She has referred me to s 25(2B)(ab) of the Federal Court of Australia Act 1976 (Cth) which gives a single judge the power to make an interlocutory order pending, or after, the determination of an appeal to the court. As Ms Baggett points out, the interlocutory injunction which is sought today is not to be granted "after the determination of an appeal". There is considerable force in this submission but bearing in mind the urgency of the situation and the fact that I did not have the opportunity to consider authorities on the question, I am prepared to come to a preliminary view that I do have power under s 25(2B)(ab) because the words "after the determination of an appeal" may be broad enough to extend to the determination of an application for leave to appeal or for an extension of time to do so. 11 The third submission put by Ms Baggett is that there is no serious question to be tried in this court. She points to the decision of Edmonds J in that regard. She submits the only relevant power that I have is to preserve the subject matter of an appeal in this court and that the decision of Edmonds J puts an end to that issue. Again, there is some force in this submission but it seems to me that it is at least arguable that the question which arises is whether there is a serious question to be tried in the High Court and that I do have power to grant an interim order to preserve the subject matter of that appeal. 12 The last submission made by Ms Baggett is that the Migration Act imposes an end point on migration proceedings. The effect of the submission is that there are time limits and procedures in the Migration Act which are intended to ensure that matters such as this do not drift indefinitely. Ms Baggett points to the provisions of s 198(1) of the Migration Act and the words "as soon as reasonably practicable". However, I do not consider that those words impose an obligation on the Minister to remove Mr Huynh tomorrow. In my view, the grant of an injunction for a period of two weeks would not be inconsistent with the obligation to remove an unlawful non-citizen as soon as reasonably practicable. I accept that Mr Huynh has delayed in bringing his application before the Federal Court. Indeed, the application for leave to appeal is itself out of time and I would have needed to extend time for the application if I had jurisdiction to entertain such an application. 13 As I have said, notwithstanding the forceful submissions made by Ms Baggett, for the reasons set out above, I think that it is a proper exercise of jurisdiction for me to grant an injunction restraining the Minister from exercising, for a period of two weeks, the power to remove Mr Huynh from Australia and I will make that order. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.