Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v CPJ16

1. The applicant's interlocutory application for a stay of the decision of the second respondent dated 18 September 2019 is dismissed with costs.
2. The applicant is to file and serve a Court Book on or before 31 October 2019.
3. The applicant is to file and serve an outline of submissions (of no more than 10 pages) on or before 8 November 2019.
4. The matter is referred to the National Operations Registry for allocation to a judge's docket, with recommendations that the matter: (a) and matter NSD1141/2019 be allocated to the same docket; (b) be listed for case management at the earliest opportunity after 8 November 2019; and (c) be afforded such expedition as is practical in the circumstances. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

STEWART J: 1 The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs has filed an application under s 476A(1)(b) of the Migration Act 1958 (Cth) to quash a decision of the Administrative Appeals Tribunal (the second respondent). Pending a decision in his application, the Minister applies for a stay of the Tribunal's decision. This judgment deals only with the Minister's application for a stay which was made orally before me as Duty Judge. 2 The decision of the Tribunal which the Minister wishes to stay is in the following terms: 1. The reviewable decision, being the decision of a delegate of the Minister for Home Affairs dated 7 September 2018 to refuse the applicant's Protection (Class XA) visa, is set aside. 2. In substitution, it is decided that the application for a Protection (Class A) visa be remitted to the Minister for reconsideration in accordance with section 65 of the Migration Act 1958 (Cth) with a direction that the applicant is not to be refused the visa under section 501(1) of the Act. 3 The first respondent, whom I shall refer to as the respondent as she is the only active respondent, has been in immigration detention for more than four years. She was born in New Zealand and applied for a protection visa. The Migration and Refugee Division of the Tribunal held that protection obligations are owed in respect of her because she fears that if she is returned to New Zealand a gang will attempt to murder her. The protection visa was, however, refused by a delegate of the Minister under s 501 of the Act on character grounds. It is that decision that was set aside by the Tribunal. 4 The application for an interim stay of the decision of the Tribunal came before Rares J last week, albeit formally in the context of a related matter (NSD1141/2019) being an application brought by the respondent before me. I was told by counsel that his Honour was satisfied that the usual requirements for a stay were met in that there was a reasonable argument that there would be some prejudice if there was no stay, but his Honour considered that the Minister should give an undertaking as to damages. As counsel did not have instructions to give such an undertaking, his Honour declined to stay the decision of the Tribunal. I was told that his Honour also indicated that the stay application could be renewed in the context of the present application once filed. 5 Before me, counsel for the Minister advised that she had instructions not to give the usual undertaking for damages but wished instead to make submissions to the effect that no such undertaking should be required. 6 The stay application had already been made and denied on the basis that a stay would not be granted other than on the usual undertaking as to damages. On the renewed application, there was no change in circumstances to justify such a renewal - the only change is that previously counsel had no instructions to give the undertaking and before me she had instructions not to give the undertaking. To have to re-hear and re-decide the stay application that had already been heard and decided only days earlier on materially the same facts and circumstances would be unduly burdensome on the respondent and inefficient for and burdensome on the Court. In those circumstances, in the exercise of my discretion I decline to stay the Tribunal's decision. 7 In case I have misunderstood the basis for the decision of Rares J not to grant the stay, I will nevertheless go on to consider whether or not I would otherwise accede to the stay application. This is notwithstanding the inefficiency and burden identified above. 8 I accept that the Minister's articulated grounds for quashing the decision of the Tribunal are legally coherent and that they have some prospects of success. There is some complexity to the matter such that I am not in a position to assess the merits of the review in any further detail, particularly in the absence of legal representation on behalf of the respondent. 9 The Minister accepts that the consequence of the stay may be that the process of decision on the respondent's application for a protection visa will be delayed. In the meanwhile, the respondent will remain in immigration detention. On the hypothesis that the review application fails and the respondent is ultimately granted a visa and for that reason released from immigration detention, the possible delay in her being granted a visa caused by the stay would result in her having been in immigration detention for the duration of that delay when she would not otherwise have been there. That is a very powerful reason - going to the heart of her right to liberty - weighing against the granting of a stay. The Minister also accepts that a litigant is generally entitled to the fruits of a contested decision in their favour even pending its appeal or review. 10 As against that, the Minister says that he does not accept that he needs a stay of the decision and applies for one only out of an abundance of caution. That is a particularly weak reason to weigh in the balance. By not accepting that he needs a stay of the decision, and at the same time applying for a stay, the Minister appears to be seeking to have it both ways - to be able to contend that he is not bound to immediately act on the Tribunal's decision and at the same time ensure that he does not have to. 11 In those circumstances, I am not satisfied that the balance of convenience favours the granting of the stay and I would dismiss the application on that basis. 12 Finally, I will consider the Minister's submissions as to why an undertaking for damages should not be required. The submissions were made on the basis that the stay is akin to an interlocutory injunction which would in the ordinary course attract the obligation to give the usual damages undertaking. 13 The Minister submitted that the present case falls within an exception to the usual requirement to give a damages undertaking. That exception, it was submitted, is that, relevantly, the Minister will not be required to give such an undertaking when he is seeking to vindicate public rights, or to enforce the law, as opposed to in cases of the enforcement of proprietary or contractual rights. 14 The Minister referred to Commonwealth of Australia v John Fairfax & Sons Ltd [1980] HCA 44; 147 CLR 39 in which Mason J required the Commonwealth to give a damages undertaking where it sought injunctions restraining the publication by the defendants of the contents of a book on the basis of infringement of copyright. His Honour reasoned (at 59) that as the Crown in right of the Commonwealth is not immune from suit or from liability in damages, there is no reason why a distinction should be drawn between the Commonwealth, at least when it seeks an interim injunction to protect a proprietary or private right, and a private citizen - the court should in each case require an undertaking as to damages as a condition of granting an interlocutory injunction. Reference was made to F. Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, to which I will return. 15 The Minister also referred to Australian Competition & Consumer Commission v Giraffe World Australia Pty Ltd [1998] FCA 819; 84 FCR 512 in which Lindgren J held (at 539C-E) that where a Mareva injunction is sought by the ACCC in aid of the rights of private individuals, and it has no duty to apply for injunctive relief, there is no reason why it should not be required to give the usual undertaking as to damages as a condition of the continuation of the Mareva relief. His Honour also referred to Hoffmann-La Roche. 16 In Hoffmann-La Roche the House of Lords upheld the Court of Appeal on the point that the Secretary was not required to give a damages undertaking where he sought the particular interim injunction that he sought in that case. Statutory orders had been made by the Secretary directing the appellants to reduce the price of certain patented tranquilizing drugs. The appellants declared that they would not obey the orders, and brought proceedings to set the orders aside. Pending the outcome of that challenge, the Secretary sought an interim injunction restraining the appellants from charging more than what the orders permitted. 17 Lord Reid reasoned (at 341C-E) that if it had been a case where the Crown was asserting a proprietary right, the ordinary rule would apply and there would be no interlocutory injunction unless the Crown chose to give the usual undertaking. That is because dealing with alleged breaches of the law is a function of the Crown entirely different in character from its function in protecting its proprietary rights. The injunction is a flexible procedure followed instead of a prosecution, which would not have attracted a damages undertaking in the same way that a person who is prosecuted and found not guilty generally has no legal claim against the prosecutor. 18 Lord Diplock (at 363B) said that the case fell into a category that has no counterpart in "ordinary litigation between subject and subject"; it is what may conveniently be called a "law enforcement action" in which civil proceedings brought by the Crown to restrain a subject from breaking a law whether breach is harmful to the public or some section of it but does not necessarily affect any proprietary or contractual rights of the Crown. Its purpose is to enforce or to protect jus publicum. 19 The Minister in the present case sought to bring his stay application within the above exception by categorising it as raising a public law question about the operation of the Act and about the lawful way in which the visa process operates. It was submitted that the Minister is simply seeking to uphold the Act and that this is purely public interest litigation in that it is about the way in which non-citizens are allowed entry and stay in Australia. 20 I am not persuaded that the present case comes within the Hoffmann-La Roche exception. The respondent has the benefit of a decision by the Tribunal in her favour. The Minister seeks to suspend the operation of that decision pending his application to quash it. Whilst in doing so he seeks to "enforce the law" in as much as he contends that the decision is contrary to the law, that contention is yet to be upheld and in the interim - quite unlike the control orders in Hoffmann-La Roche - the contention has no force of law. The decision of the Tribunal, on the other hand, exists in fact and has legal effect until such time as it is set aside. 21 For those reasons, this case is also different from cases where a manifestation of the Commonwealth has sought injunctive orders pursuant to its statutory duty and has not been required to give a damages undertaking: Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd [2016] FCA 976; 244 FCR 538 at [58] per Beach J; Australian Communications and Media Authority v Mobilegate Ltd [2009] FCA 539; 256 ALR 85 at [18]-[22] per Logan J; Australian Securities and Investments Commission v ACN 102 556 098 Pty Ltd [2003] NSWSC 1253; 48 ACSR 350 at [6]-[9] per Barrett J. 22 I am also not persuaded that if the decision of the Tribunal so vexes the Minister that he feels that he cannot act on it pending the review, he does not have it within his power to issue another visa to the respondent which will enable her to be released from immigration detention pending the review. Such release would obviate the need for a damages undertaking. In that regard, whilst there are doubtless character concerns at play, the Tribunal - after many days of hearing that included the evidence of several witnesses - was not satisfied that there is a risk that if the respondent was released into the community she would engage in criminal conduct. Aside from risk of reoffending, this case is certainly at the lower end of the "bad character" spectrum. 23 The Minister's application for a stay of the decision of the Tribunal must therefore be dismissed, and he should pay the costs of the application. 24 Other matters, which are of a programming nature, that were debated before me are dealt with in the orders that I make. It was common ground that in view of the respondent's continuing detention, the matter deserves significant expedition. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stewart.