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[2021] FCA 537
Federal Court of Australia
2021-04-28
Logan J
Original judgment source is linked above.
LOGAN J: 1 Mr James Daniel McRoy (Mr McRoy) is a citizen of New Zealand. He came to Australia as an infant, about one year old. He has resided in Australia for some 33 years. As a result of criminal conduct on his part, which sounded in a sentence of imprisonment for greater than one year imposed by the Supreme Court of Queensland in respect of drug offences, Mr McRoy became amenable to the cancellation of his visa pursuant to s 501 of the Migration Act 1958 (Cth). 2 In December last year, the then Minister for Home Affairs (Minister), the Honourable Peter Dutton MP, decided to cancel Mr McRoy's visa. That made him amenable to deportation. In the events which have transpired since then, that deportation is to occur today at 12.15pm in the afternoon. 3 Late yesterday, an application for an extension of time within which judicially to review the Minister's decision was filed in Court. That was supported by an affidavit of Mr McRoy's solicitor which details facts which are said to be relevant to the granting of an extension of time. Also annexed to the affidavit is, apparently, material that was before the Minister. 4 On Mr McRoy's behalf, his solicitor, Mr Burrows, has sought a restraint in respect of the deportation of Mr McRoy. Mr Byrnes, of counsel, who appeared instructed by Sparke Helmore, did not contest that there exists a jurisdiction on the part of the Court to grant an interlocutory injunction, including, in that regard, an injunction which would at least restrain deportation pending the hearing of whether or not an interlocutory injunction should be granted pending the substantive hearing and determination of an extension of time application. 5 Because of the genuine urgency attending the question of whether deportation should occur today, I caused the case to be listed for directions at 9.30am. At that time, it became immediately apparent that it would not be possible, prior to 12.15pm, and given another urgent case on the duty list, to hear, much less determine, the application for an interlocutory injunction. 6 There is no doubt that the Court possesses the requisite power to grant an injunction restraining deportation today so as to allow a hearing to occur in respect of the interlocutory injunction and to preserve meaningfully a status quo in respect of such a hearing: see s 23 of the Federal Court of Australia Act 1976 (Cth) and Jackson v Sterling Industries Ltd (1987) 162 CLR 612. 7 It seems to me this is a paradigm case for the granting of an interim injunction which necessarily will be directed merely to preserving a status quo so as to allow a meaningful hearing. I am conscious also that such a hearing might just possibly entail a need to reflect overnight on the merits of whether or not an interlocutory injunction should be issued. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.
McRoy
Minister for Home Affairs
(1987) 162 CLR 612