Moana v Minister for Immigration and Border Protection

1. Pursuant to r 35.32(d) of the Federal Court Rules 2011, the application for an extension of time and leave to appeal be dismissed with no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 In this matter, the applicant was removed from Australia before his application for an extension of time came on in 2018. The background to the matter is set out in Moana v Minister for Immigration and Border Protection [2019] FCA 659. Mr Drent answered an application for assistance by the Court for pro bono counsel. Today's transcript reveals the attempts by Mr Drent to engage with Mr Moana, who is now in New Zealand, to give him instructions and permit him to act on Mr Moana's behalf. On 30 October 2019, Mr Drent communicated with the court, indicating that he was not able to draw any written submissions because of lack of instructions. Through communications with my chambers, Mr Drent was permitted to cease acting for Mr Moana, and he would appear as amicus curiae. 2 Prior to today, in communication with the respondent's legal representatives, he put the submission that the matter should not go to a substantive hearing today. Mr Horan for the Minister agreed with that. I also agree. Mr Moana has, during the course of the year, apparently had a car accident and has been treated in hospital. It is not clear whether Mr Moana has decided not to pursue his application for an extension of time for leave to appeal, or whether his circumstances have prevailed upon him, such that he is unable to do that. 3 For this reason, and for the administrative convenience of court, what I propose to do is dismiss the application on an interlocutory basis for want of prosecution. The order will be able to be set aside upon application, being an order made in the absence of the applicant, he not having counsel formally representing him here today, as well as on the basis that it is interlocutory. If Mr Moana wishes to re-instigate the application for an extension of time, he should do so with an affidavit to that effect, together with an explanation of the basis for the application, as well as an explanation for the failure to give instructions to Mr Drent. 4 I set out in my earlier reasons the circumstances of the removal of Mr Moana. I raised with Mr Horan today the question of [47] of my previous reasons which were as follows: It is not this Court's place to give the Department advice as to the appropriate steps to take so as to avoid a contempt of Court. The exercise of the protective judicial power of the Commonwealth for those who are within Australia, whether citizens or not, is a central and important aspect of civil society, the democratic process and the Rule of Law. It is not for lawyers or others in the Department to pre-empt the exercise of judicial power by the Court by their own view that a person's application is without merit. Of course, that view can be drawn by officers of the Department. If that view is to form the foundation of a removal from this country of a person who has properly engaged the jurisdiction of the Federal Court of Australia in the exercise of the judicial power of the Commonwealth it is wrong (and may be a contempt of court) to remove that person without the provision of a full and reasonable opportunity in all the circumstances to approach this Court, if that is what the person wishes to do. A person's background, language, intelligence, state of health, as well as the facilities available including information as to the existence (in the correct Court) of a duty judge are parts of, and are relevant to, that opportunity as circumstances that surround it, and they are relevant to the assessment of whether an opportunity is full and reasonable. The officers of the Department, who themselves face the risk of being in contempt of the court, should be in a position to demonstrate with clarity that this applicant (that is, the particular person to be removed) has been afforded a full and reasonable opportunity to seek an injunction to prevent his removal. (Emphasis in original.) 5 It is important that the judicial power of the Commonwealth is not undermined by actions of the Executive. It is also important that the Executive has appropriate flexibility to administer the Migration Act 1958 (Cth). I would emphasise my view that the question is an individual one, and that is that the applicant must have a full and reasonable opportunity to seek an injunction to prevent removal. 6 The circumstances of that will depend upon the individual concerned, with that individual's strengths, weaknesses and vulnerabilities. The applicant may require assistance, and another applicant may not require assistance. It is the men and women of the Department who need to understand this because it will be they of whom questions are asked as to whether they have undermined the judicial power of the Commonwealth. 7 I should not finish without thanking Mr Drent, who answered a request to appear pro bono and then as amicus. The willingness of the Bar to assist the Court in the exercise of judicial power for persons who through their circumstances cannot either afford or are not able to arrange their own representation is of the utmost importance. Mr Drent has the Court's thanks for his assistance in this matter and his assistance in the proper administration of justice. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.