NWWJ v Minister for Immigration, Citizenship and Multicultural Affairs

Principles for grant of interlocutory injunction 14 In order to determine whether the injunction sought by the applicant should be granted, it was necessary to decide whether: (a) there was a serious question to be tried as to the applicant's entitlement to relief; (b) the applicant was likely to suffer injury for which damages will not be an adequate remedy; and (c) the balance of convenience favoured the granting of an interlocutory injunction. Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] (Gleeson CJ and Crennan J). 15 I was satisfied of the second of these, as if the applicant had been wrongfully removed from Australia to Vietnam, he would have been likely to have suffered injury for which damages would not be an adequate remedy. However for reasons I am about to give, I considered that the applicant had neither established that there was a serious question to be tried as to his entitlement to relief, nor that the balance of convenience favoured the grant of an injunction.

Jurisdiction 16 The Minister submitted that the Federal Court lacked jurisdiction to hear and determine the matter because the relief sought by the applicant was in relation to a decision to remove him from Australia under s 198 of the Migration Act. The Minister submitted that such a decision is a 'migration decision', in relation to which this Court does not have jurisdiction by reason of s 476A of the Migration Act, as it is not a decision in a category listed in s 476A(1)(a)-(d). 17 Section 476A(1) is: Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if: (a) both: (i) the Federal Circuit Court and Family Court of Australia (Division 2) transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 153 of the Federal Circuit and Family Court of Australia Act 2021; and (ii) the Federal Court confirms the transfer under section 32AD of the Federal Court of Australia Act 1976; or (b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or (c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or (d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975. 18 The Minister referred the Court to Chamoun v Commonwealth of Australia [2021] FCA 740. That case concerned an application by a person in immigration detention, Mr Chamoun, for a writ of mandamus compelling the Minister to perform a duty alleged to arise under s 198(1) of the Migration Act to remove Mr Chamoun to another country. The Minister objected to the competency of the application on the basis that s 476A excluded the jurisdiction of this Court, because the application was 'in relation to a migration decision'. Katzmann J agreed and dismissed the application as not competent. 19 To summarise Katzmann J's reasoning, in so far as it is relevant to the present application: (1) On the face of things, the Minister's objection was well founded, as removing or refusing to remove an unlawful non-citizen is a privative clause decision for the purposes of the Migration Act, and therefore a 'migration decision': Chamoun at [21]; relying on M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; (2003) 131 FCR 146 at [88]. (2) A submission that s 39B of the Judiciary Act 1903 (Cth) nevertheless conferred jurisdiction on the Court flew in the face of the opening words of s 476A, which expressly exclude that jurisdiction: Chamoun at [23]-[29]; relying on Mokhlis v Minister for Home Affairs [2020] HCA 30. (3) On the authority of Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [60], the words 'in relation to' in s 476A 'are not words of expansion', meaning that there would be insufficient connection between Mr Chamoun's matter before Katzmann J and any decision, relevantly, under s 501 or the other sections listed in s 476A(1)(c) to confer original jurisdiction on the Court in the matter: Chamoun at [30]-[37]. (4) While s 476A(1) is only concerned with applications for judicial review, and it has been held in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602; [2020] FCAFC 223 at [15] that in s 476A this does not include an application for a writ of habeas corpus, Mr Chamoun was applying for mandamus, which was quintessentially an application for judicial review: Chamoun at [38]-[57]. (5) After considering other arguments not presently relevant, Katzmann J concluded that the application before her for mandamus to compel the performance of an alleged duty to remove Mr Chamoun arising under s 198(1) of the Migration Act was a proceeding in relation to a migration decision that was outside the jurisdiction of the Court by reason of s 476(1). 20 It appeared to me to follow from the application of these principles to the present case that, to the extent that, by seeking an order to 'stop the Deportation', the applicant wished to challenge the decision of an officer of the Department to remove him from Australia under an unspecified subsection of s 198 of the Migration Act, this Court lacks jurisdiction. Subject to two qualifications, then, it appeared to me that this absence of jurisdiction meant that the applicant did not have an arguable case for relief from this Court. 21 The first of those two qualifications is that, as will be seen, it may be that the applicant was also seeking some kind of relief in relation to the decision of the Administrative Appeals Tribunal to affirm the decision of the delegate not to revoke the cancellation of his visa under s 501CA(4)(b)(ii) of the Migration Act. By reason of s 476A(1)(c), the Court would have jurisdiction in relation to a decision of that kind. The second qualification is that the application also seeks a writ of habeas corpus and, as already outlined, an application of that kind is outside the exclusion of jurisdiction effected by s 476(1).

Protection visa 22 I further considered that, to the extent that the applicant's proposed case in this proceeding depended on his assertions that he had new evidence that established that he faced a real risk of harm if he were to be returned to Vietnam, that case would be hopeless even if the Court had jurisdiction to determine it. 23 The reasons why the case is hopeless, in so far as it is brought in any proceeding in this Court, are trite and can be listed without the need to cite authority: (1) Contrary to the assumption inherent in the application for an order that the Minister grant a permanent protection visa to the applicant, this Court has no power to order the Minister to do so. (2) To the extent that the applicant was contending that the new evidence meant the previous decision of the Tribunal to affirm the decision of a delegate of the Minister to refuse a protection visa should be overturned, this is misconceived, because a decision of that kind would only be reviewable for jurisdictional error, and evidence that was not before the Tribunal at the time of its decision could not be used to demonstrate that it had committed an error of that kind. (3) As has been said, an application for an extension of time within which to seek judicial review of the Tribunal's decision was refused in the Circuit Court, so on the face of things an attempt to challenge that decision again is likely to be barred as an abuse of process (at least - the applicability of the doctrines of res judicata and issue estoppel to an application for an extension of time need not be decided here). The applicant did not contend that the Circuit Court committed jurisdictional error in refusing the extension of time, and in any event pointed to no basis on which error could be alleged. (4) Section 48A of the Migration Act bars any further valid application for a protection visa by the applicant, given that he has already had an application for a visa of that kind refused. 24 These points, individually and together, are insuperable obstacles in the way of accepting what appeared to be the applicant's primary submission, that he should be granted a protection visa on the basis of new evidence about what is likely to happen to him if he is returned to Vietnam. 25 That is so even before confronting the fact that the allegations were entirely unsupported by evidence. The applicant must have known since at least the decision of the Full Court in 2020 that he was liable to removal from Australia. And there was no reason to think that the alleged new or further evidence only came into his possession recently. 26 While allowances should be made for the applicant's position as a lay person in detention for whom English is not his first language, I did not consider that these difficulties explained the absence of evidence. Although he requested a Vietnamese interpreter, as I have said he made lengthy oral submissions himself, and these were in quite fluent English. Nor was the lack of evidence explained by the urgency of the application, itself a function of the applicant's unexplained decision to make it at the last minute. So the absence of evidence was another reason why there was no serious case to be tried.

The application for special leave to appeal to the High Court 27 On the applicant's submission that he should not be removed from Australia while he has a pending special leave application in the High Court, the Minister submitted that the balance of convenience does not favour the granting of an injunction because the application for special leave does not concern any decision made in respect of the applicant's entitlement to remain in Australia. The Minister's submission was that even if the application for special leave had merit, the applicant would not then be granted a visa or have his visa reinstated. This was because the decision to cancel his visa was made under s 501(3A) of the Migration Act, which depended on the Minister's delegate reaching a state of satisfaction based on facts that existed at the time that the cancellation decision was made. 28 That submission was correct. Even if the applicant were to succeed in his application for special leave to appeal to the High Court, and in any subsequent appeal, and then in, say, any reheard appeal in the District Court from his conviction (and, yet further, in any retrial), that would not mean that jurisdictional error infected either the decision of the Minister to cancel his visa or, ultimately, the decision of the Tribunal to affirm the decision of the delegate not to revoke the cancellation of the visa. For the question of jurisdictional error must be assessed as at the time that the decision under review was made, on the basis of the circumstances that were presented to the decision maker at that time. See the analysis of Rangiah J in BJT21 v Minister for Home Affairs (No 2) [2022] FCA 24 at [60]-[70] in which his Honour concluded (at [70]) that 'the Court's assessment of whether the state of satisfaction required under s 501(3A) was formed lawfully must be conducted by reference to the circumstances as they existed when the cancellation decision was made'. The same may be said of the absence of a state of satisfaction on the part of the Tribunal under s 501CA(4)(b)(i) of the Migration Act that the applicant passed the character test, or under s 501CA(4)(b)(ii) that there was 'another reason' why the cancellation should be revoked. 29 As a result, there seemed no prospect that success by the applicant on his application for special leave to appeal would have any impact on his status as an unlawful non-citizen liable to be removed from Australia. In so far as his application relied on the existence of the special leave application, then, the balance of convenience did not favour granting the relief he sought. 30 Another way of putting this conclusion is that there was insufficient connection between the substantive proceeding in the High Court, and the interlocutory relief sought in this Court, to justify the grant of that relief. The removal of the applicant from Australia would not necessarily prevent him from pursuing the special leave application to its conclusion. 31 All that assumes in the applicant's favour that there is merit in that application. But in truth, no such merit is apparent. It may be that it is not the proper function of this Court to judge the merits of an application in the High Court, and questions may be raised about the power of this Court to grant an injunction in preservation of a proceeding in the High Court and the appropriateness of doing so. 32 Nevertheless, it can be said that the 'grounds' of the application for special leave are comprised of a stream of outlandish allegations as to the circumstances leading to the applicant's conviction and his treatment since then which, like the protection 'ground' considered above, are entirely unsupported by evidence. That is in circumstances where the decision from which leave to appeal is sought was made over nine months ago. So the applicant has had ample time to put forward evidence in support of his claims, if there had been any evidence. To the extent that the application relied on the special leave application, no serious case to be tried was raised. 33 Further, it is to be recalled that the applicant already unsuccessfully sought judicial review of the Tribunal's decision to affirm the delegate's decision not to revoke the cancellation of his visa. The applicant would therefore face impediments such as res judicata, issue estoppel and abuse of process if he sought to revive that issue in this Court. 34 For those reasons, the existence of the application for special leave to appeal to the High Court provided no proper basis for the grant of an injunction restraining the applicant's removal from Australia.

Habeas corpus 35 As has been mentioned, the applicant referred to the judgment in NZYQ to say that he should not be deported because he had a well-founded fear of persecution if returned to Vietnam. One of the orders the applicant sought was a writ of habeas corpus, and it may be that he sought to rely on NZYQ in support of a claim that his detention was unlawful. 36 If so, that reliance would be misguided, because the nub of the decision in NZYQ is that executive detention of an alien is unconstitutional from the time at which there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future: NZYQ at [55]. In this instance, it could be inferred that at the time of the hearing, it was reasonably practicable to remove the applicant from Australia in the reasonably foreseeable future, because his removal had been arranged to take place shortly after the hearing of the application. Despite making assertions to the effect that he was at risk of harm on return to Vietnam, the applicant adduced no evidence to that effect, and for reasons given above, I did not consider that any urgency flowing from the timing of the application meant that he should be given the benefit of the doubt in that regard. 37 Accordingly, there was no reason to think that the immigration detention of the applicant was unconstitutional, and no other reason apparent from the circumstances as to why it would be unlawful. The applicant had not adduced sufficient evidence to put the lawfulness of his detention in issue. Hence there was no serious case to be tried on that basis to support any injunction preventing the applicant's removal from Australia.

Conclusion 38 None of the grounds that the applicant appeared to advance had any merit or supported a conclusion that it was necessary to preserve the subject matter of any proposed proceeding that an interlocutory injunction against his removal from Australia be granted. His application for that injunction was therefore dismissed, with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.