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[2022] FCA 160
Federal Court of Australia
2022-03-01
Mortimer J
Original judgment source is linked above.
MORTIMER J 1 The first respondent, the Minister, has applied for this proceeding to be dismissed pursuant to (alternatively) s 20(5)(c) or s 20(5)(d)(ii) of the Federal Court of Australia Act 1976 (Cth). 2 The applicant, Mr Murphy, in his early to mid-40's, and is a citizen of both New Zealand and the United Kingdom. Mr Murphy was born in the UK, but since he was three years old, he has lived variously in New Zealand, the UK and then since 2002 in Australia. 3 Mr Murphy's visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth), and his request for the visa cancellation to be revoked had been unsuccessful at first instance and on review before the Administrative Appeals Tribunal. The Tribunal's decision was handed down on 12 October 2021. Mr Murphy did not apply for judicial review to this Court within the prescribed time, but on 21 January 2022 he lodged an application an extension of time in which to bring proceedings challenging the Tribunal's decision. 4 In that application he explained that at the time of the Tribunal's review and decision, he was in custody in Port Phillip Prison in Victoria and there was no-one to assist him. He explained he was not very well educated, had no internet access, and had no one to turn to for advice. He explained he was moved to immigration detention at the Melbourne Immigration Transit Accommodation on 5 January 2022, and it was after this time that he had an opportunity to speak with some individuals who could assist him. There is nothing implausible in Mr Murphy's explanation of that sequence of events. 5 The Minister lodged a notice of address of service on 2 February 2022. 6 Once the matter was docketed, on 17 February 2022, the Court sent the parties a communication about next steps in the proceeding, including that Mr Murphy would, in accordance with the Court's usual practice, be referred for pro bono legal assistance. 7 The Minister's legal representative, Mr Hillyard from Sparke Helmore Lawyers, replied the following day, informing the Court: In light of the indication that the Court intends to refer the applicant in these proceedings for pro bono legal assistance, we wish to bring to the Court's attention that, on 8 February 2022, the applicant in this matter was voluntarily removed from Australia. We are intending to file evidence to that effect but have been awaiting a signed notice of discontinuance that the applicant indicated that he had posted to us but which we have not yet received. However, in light of the matter having been assigned to her Honour's docket, we will proceed to file the evidence in its current state. We will be sure to send a copy to her Honour's Chambers once it is returned from the Registry. 8 To this point there had been no communications from Mr Murphy himself to the Court. As foreshadowed, on 18 February 2022, the Minister lodged an affidavit of Mr Hillyard, explaining how Mr Murphy came to leave Australia, and exhibiting a number of documents. 9 The Court convened a case management hearing on 23 February 2022, of which Mr Murphy was given notice by email, including notice of the appropriate Microsoft Teams link. He was reminded about the CMH by email several times, but he neither responded to those reminders nor appeared at the case management hearing. The Minister's legal representative appeared, and made an oral application for the proceeding to be dismissed and for Mr Murphy to pay the Minister's legal costs fixed in the lump sum of $1000. 10 From the evidence before the Court, I find the following chronology of events occurred. 11 On 1 February 2022, just over a week after he had lodged a proceeding in this Court, and a day before the Minister's lawyers came onto the Court's record, the applicant signed an Australian Border Force form titled "Request for Removal from Australia". The request was stated on the form to be made of "the Department of Home Affairs/Australian Border Force", and to be made "in accordance with" s 198(1) of the Migration Act. Section 198(1) provides: An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed. 12 There is a signature and a hand printed name, date, and description of citizenship, all of which I infer are in Mr Murphy's handwriting. The rest of the document is typewritten and it is unclear who filled that part of the document out. 13 One of the statements to which the answer "Yes" is typed is the following: If I have outstanding visa applications, requests or legal proceedings, I understand, that if I choose not to withdraw them, consideration of my claims may be dismissed by the department or relevant review bodies (including the courts) once I am removed from Australia. (Original emphasis.) 14 It appears that Mr Hillyard was informed by the Australian Border Force, or some person with the relevant Department, about this event. I infer that because the next day, 2 February 2022, Mr Hillyard sent an email to Mr Murphy, attaching correspondence and inviting Mr Murphy to discuss it with him if he would like to. In the letter itself, Mr Hillyard noted that he had been instructed that Mr Murphy was due to depart Australia on 8 February 2022. 15 This letter was sent by Mr Hillyard, purporting to act on behalf of the Minister, on the same day that Mr Hillyard's firm lodged a notice of acting for the Minister. 16 The letter stated: In those circumstances, we would be grateful if you could please advise whether you wish to proceed with your current Court application. If you do not wish to proceed, you should finalise the matter by filing a Notice of Discontinuance to bring the matter to an end. A blank Notice of Discontinuance is provided together with this correspondence, which you could complete and file if you wish. Please note that if you wish to proceed with your application: • We will write to the Court confirming your voluntary removal following your departure. • It will be a matter for you to make arrangements with the Court to facilitate your appearance at any court listing in your proceedings. In the event that you fail to appear at any listing in these proceedings, the Minister will seek for your matter to be dismissed and that you pay the Minister's legal costs of the proceedings. • You are also required, pursuant to rule 11.01 (1) of the Federal Court Rules to provide an address of a place within Australia at which documents in the proceeding may be posted. We request that you file a notice of address for service providing such details as soon as possible. In the event that you are unsuccessful in your application, the Minister will seek an order that you pay the Minister's legal costs. A cost order would give rise to a debt to the Commonwealth. If you have any queries, or we can otherwise assist with any of the above, please contact us. 17 On the same day, Mr Murphy sent a reply email to Mr Hillyard: Nah I'm done you win. 18 Quite properly, Mr Hillyard followed up the same day (2 February 2022) to confirm his understanding that this email meant Mr Murphy did not want to continue his court proceeding, and asking him to complete the notice of discontinuance. 19 Mr Murphy replied by email on 5 February 2022: I'm sending you the hard copy today I received it last night. Thank you all the best 20 I infer the "hard copy" was a printed copy of the notice of discontinuance. Mr Hillyard has deposed that the Minister has not received that document. Nor has such a document been filed with the Court. 21 On 8 February 2022 Mr Murphy left Australia and travelled to the United Kingdom. 22 After the matter was listed for case management hearing, my Chambers sent an email to Mr Hillyard and to Mr Murphy about that case management hearing. Mr Murphy did not reply to Chambers, but he did reply to the Minister, and the Minister adduced that email in evidence to support the dismissal application. Mr Murphy's email stated: I'm in the UK mate. I left last week. It's over stop wasting tax payers money Kind regards Matthew Murphy
Resolution 23 There are aspects of the administration of the Migration Act in relation to the removal of non-citizens that remain opaque, even though the manner of that administration has consequences for proceedings before this Court. 24 How a person in Mr Murphy's position comes to sign and date a form that has, I infer, been filled out for him by someone else, but which represents a 180 degree turn from his previous position so far as the Court is concerned, is not explained. Nor is it explained how he came to sign this form when approximately a week beforehand he had applied for an extension of time with a detailed explanation of why he wanted that extension to challenge the Tribunal's decision. 25 Mr Murphy's removal was arranged, and his departure effected, at speed, within six days of him signing the request form, despite the fact the Court otherwise sees regularly that people are held in detention for years pending removal. 26 In Broad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 840 at [9]-[20], I discussed some of the applicable authorities, and made some observations about the way the Minister and the Minister's legal representatives deal with these kinds of circumstances. I adhere to those views. The circumstances where a person voluntarily seeks removal should be distinguished from involuntary removals. 27 When an applicant in a proceeding in this Court expresses a desire to request removal, the Minister could notify the Court in a way that would facilitate the Court calling, remotely, a case management hearing. Then the person affected could speak directly to the Court. There would be a transcript of what an applicant said, and whatever needed to be done by way of orders in the proceeding could be done more directly and efficiently. The Court could be confident about the person's informed decision and what the person intended should occur about the proceeding because, as the Minister pointed out in the letter to Mr Murphy, just because a person is removed, they do not have to discontinue their proceeding. 28 There may be reasons affected individuals wish to continue a proceeding. Whether or not conditions should be imposed on them if they seek to do so is not a matter for the Minister, but for the Court. Affected individuals should not be pressured into discontinuing their proceedings, any more than they should be pressured into leaving Australia, especially where there might be, at the least, an apprehended conflict of interest between the administration of the removal provisions in the Migration Act and the defence of proceedings in this Court by the Minister. 29 Instead of this low cost, efficient option of allowing an individual who seeks voluntary removal to speak directly to the Court and inform the Court of their intentions, thus allowing the Court to understand what informed choices the person has made and what the appropriate orders might be, the Court continues to be presented with a fait accompli. 30 As in this case, that means Chambers spend time and resources chasing the affected individual and communicating with the Minister. It means the Minister's legal representatives spend time and resources trying to communicate with a person who has by this stage left the country, and often relaying communications to the Court. The affected individual is distracted because, understandably, they have other things on their minds because they are being removed, straight out of immigration detention, to a country they usually have not been to for a very long time. Their communications can be sporadic and vague, if they occur at all, and it can be objectively difficult to decide what a person wants to do with their proceeding. 31 On the other hand, while a person remains in immigration detention, with facilities for a remote hearing, all issues could be resolved in one short case management hearing. It is difficult to understand why this course is not taken. 32 Eventually, in this particular proceeding, it has been made clear by Mr Murphy that he has given up on his proceeding. His last email is sufficiently clear on that point. This distinguishes the present situation from that in Broad, where there was less certainty about Mr Broad's intentions. 33 Therefore, I accept it is appropriate for the proceeding to be dismissed, pursuant to s 20(5)(c), on the basis that Mr Murphy does not intend to prosecute his application for an extension of time. 34 I refuse the Minister's application for costs. At the time when the Minister or the Minister's legal representatives were communicating with Mr Murphy about discontinuing the proceeding, the Minister's lawyers were not even on the Court's record. Once they came onto the Court's record, costs were largely incurred because of Mr Murphy's swift removal by Departmental officers and the need for multiple communications, instead of him simply being asked at an oral hearing what he intended to do with the proceeding, and orders being able to be made at that hearing. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.
Murphy
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs