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[2018] FCA 1852
Federal Court of Australia
2018-11-27
Kenny J
Original judgment source is linked above.
KENNY J: 1 In early February 2018, the applicant, a New Zealand citizen who had entered Australia on 31 May 2012, filed an application for an extension of time (extension of time application) in this Court to challenge the decision of a delegate of the respondent (delegate) to cancel her Special Category (Class TY) (Subclass 444) visa (applicant's visa) or, possibly, the decision of the Administrative Appeals Tribunal that it did not have jurisdiction to review the delegate's decision. As will be seen, it is unnecessary to determine precisely what the applicant was seeking to do. For the following reasons, the application must be dismissed. 2 On 30 December 2016, the applicant's visa was cancelled by the delegate under s 116(1)(e)(i) of the Migration Act 1958 (Cth), on the ground that the applicant was, or may be, a risk to the safety of the Australian community, in light of the fact that she had been convicted of a number of offences (including unlawful assault, threatening to inflict serious injury and possession of a controlled weapon) and there were a number of pending charges (including for armed robbery, possession of a controlled weapon and contravention of a family violence interim intervention order). 3 As a consequence of the cancellation of the applicant's visa, the applicant became an unlawful non-citizen: see Migration Act, ss 13 and 14. As at 30 December 2016, the applicant was imprisoned in the Dame Phyllis Frost Centre, within the migration-zone. 4 Also on 30 December 2016, the applicant was given a notification of visa cancellation under s 116 of the Migration Act. The notice stated that the applicant was entitled to make an application for merits review of the cancellation decision to the Tribunal and that such an application must be given to the Tribunal within the prescribed time frame, namely, 7 days from the date the applicant received the notice. Because the notice was sent to the applicant by email, she was taken to have received the letter at the end of the day it was transmitted. 5 On 10 January 2017, the applicant applied to the Tribunal for review of the delegate's decision. 6 On 11 January 2017 the applicant was served with a notice under s 254 of the Migration Act advising her that she was to be removed from Australia, and that upon her release from prison she would be taken into immigration detention until her removal. On 10 December 2017, upon release from prison, the applicant was taken into immigration detention as an unlawful non-citizen within the migration zone pursuant to s 189 of the Migration Act. She was subsequently detained in the Maribyrnong Immigration Detention Centre. 7 On 3 April 2017 the Tribunal held that it did not have jurisdiction to review the delegate's decision pursuant to s 347(1) of the Migration Act on the basis that the application for review was not a valid application because the applicant had failed to pay the reduced filing fee within a reasonable period (28 days) of the date she was notified of a determination reducing the filing fee under reg 4.13(4) of the Migration Regulations 1994 (Cth). 8 As already stated, the applicant filed an application for an extension of time in early February 2018. The applicant's proposed originating application, which was annexed to her supporting affidavit, sought an injunction preventing the respondent Minister and his officers or agents from acting on the delegate's decision. In her application, the applicant stated that she was unable to read and write English; did not understand the documents that the respondent Minister's Department had given her whilst in custody; did not have any legal advice or help from the State Welfare Department whilst in the control of the State Department of Corrections; and did not understand the paperwork that was given to her and what the consequences and outcome would be if she failed to seek review within the specified time frame. The applicant further deposed that she did not understand the notice of cancellation that had been given to her on 30 December 2016, because she could not read and write English. She deposed that, in consequence, she was unable to comply with the 7 day time limit for filing an application for review of the delegate's decision in the Tribunal. She deposed that as soon as she was given some legal advice and understood what was required of her to remain in Australia, she took steps to file her extension of time application. 9 On 12 February 2018, Chambers staff notified the applicant that the matter was listed for a case management hearing on 28 March 2018 at 9:30 am by posting a letter addressed to the applicant to the Maribyrnong Detention Centre, being the address for service that she had provided. On the same day, Chambers staff sent a copy of that letter by email to the administration section of the Maribyrnong Detention Centre. Sparke Helmore Lawyers, as the Minister's legal representative, filed a notice of address for service on 15 February 2018. On 16 February 2018, Chambers staff sent an email to the Minister's legal representative, Sparke Helmore Lawyers, which also attached a copy of the letter. The email advised that the letter had been sent to the applicant and that Chambers did not have a contact email address for her. 10 On 20 February 2018, the applicant was given notice of the respondent Minister's intention to remove her from Australia. 11 Between 21 February 2018 and 7 March 2018, the applicant lodged four applications for a protection visa. The applicant was advised by the Department that each application was invalid because: the first and fourth applications were not accompanied by the prescribed fee of $35 required by item 1401(2)(a)(ii) of Schedule 1 to the Migration Regulations; and the second and third applications did not meet the requirement in item 1401(3)(a) of Schedule 1 to the Migration Regulations that the applications be made in the manner specified by the Minister in a legislative instrument under reg 2.07(5). The relevant legislative instrument at the time was Migration (IMMI17/051: Arrangements for Protection, Humanitarian and Refugee Visas) Instrument 2017, which specified that protection visa applications must be either lodged online or posted to the Department. The applicant faxed the second and third applications to the Tribunal. 12 On 25 March 2018, Sparke Helmore Lawyers sent an email to the Federal Court Registry in Victoria advising that the applicant was in Maribyrnong Detention Centre. A Registry staff member subsequently sought to make arrangements for the applicant to appear in person for the case management hearing scheduled for 28 March 2018. That staff member was informed that the applicant was no longer in the Maribyrnong Detention Centre and that the applicant had been removed from Australia on 9 March 2018. Registry staff informed Chambers of these developments. Chambers staff contacted the Minister's legal representatives, Sparke Helmore Lawyers, to seek an explanation. At 10:48 am on 26 March 2018, Sparke Helmore Lawyers sent an email to my associate confirming that the applicant had been removed from Australia and requesting that the case management hearing remain listed for 28 March 2018, to allow the Minister to make submissions concerning the matter. 13 On 27 March 2018, the Minister filed a short affidavit affirmed by Ms Ashleigh Allan, a solicitor at Sparke Helmore Lawyers, attesting to the fact that the applicant had departed Australia on 9 March 2018. 14 At the case management hearing on 28 March 2018, the Court sought an explanation from the respondent Minister as to what had happened. Noting that Ms Allan's affidavit lacked any details as to what had occurred, the Court made an order in the following terms: On or before 4.00 pm on 18 April 2018, the respondent file an affidavit or affidavits, by a person or persons with personal and direct knowledge of the facts, setting out the circumstances surrounding the applicant's removal from Australia on 9 March 2018. If a policy was relevant to the removal of the applicant, that policy should be set out in the affidavit or affidavits. 15 The Court also ordered that the Minister file written submissions as to the disposition of the proceeding. 16 In compliance with those orders, on 18 April 2018, the Minister filed written submissions and an affidavit sworn by Eleanor Kaye Spencer, Senior Border Force Officer; an affidavit affirmed by Jamie William Guy Grant, solicitor at Sparke Helmore Lawyers; and an affidavit affirmed by Helen Lewis, then Acting Assistant Director, National Allocation and Finalisation Team 5, Humanitarian Programme Operations, Department of Home Affairs.
Statutory framework 17 Before considering the matter further, it is convenient to outline part of the statutory framework. 18 Pursuant to s 198(5) of the Migration Act, an officer must remove as soon as reasonably practicable an unlawful non-citizen who is a detainee and has neither applied for a substantive visa in accordance with s 195(1) nor applied under s 137K for revocation of the cancellation of a substantive visa. 19 At the relevant time s 153 of the Migration Act, which concerns the removal of a non-citizen, was in the following terms: (1) Subject to subsection (2), if: (a) this Act requires the removal or deportation of a non-citizen; and (b) there is no criminal justice stay certificate or criminal justice stay warrant about the non-citizen; any other law, or anything done under any other law, of the Commonwealth or a State (whether passed or made before or after the commencement of this section), not being an Act passed after that commencement expressed to be exempt from this section, does not prevent the removal or deportation. (2) Subsection (1) does not permit the removal or deportation of a non-citizen if that removal or deportation would be in breach of an order of the High Court, the Federal Court or the Federal Circuit Court. 20 Section 256 then provided for persons in immigration detention to have access to certain facilities. It stated: Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention. 21 Making an application for judicial review does not affect the operation of a decision: see s 481.
Consideration 22 The Full Court in in SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140; 233 FCR 279 had occasion to consider a similar circumstance. The applicant in that case had unsuccessfully sought judicial review in the Federal Circuit Court in connection with his unsuccessful application for a protection visa. He sought to appeal out of time to this Court but was removed from Australia before the Court had had an opportunity to deal with the matter. 23 As the Full Court observed in SZSPI (at [40]): The intersection of the exercise of judicial power in respect of an application pending before the Court, and the exercise of executive power under the Act may, in many cases, be both of importance and delicate. Any policy or practice of the Department that has the effect of impeding or prejudicing persons seeking orders from the Court in respect of statutory or other rights to remain in this country would raise deep questions of a Constitutional character, even if such a policy or practice appeared to be founded on a reading of a statutory provision. We leave to one side the law of contempt. To avoid such difficult questions and any question of contempt, as a minimum, persons who have an application before the Court should be given a reasonable time and relevant facilities to seek advice and make any relevant application for injunctive relief. So much is recognised by the Act in s 256. If a reasonable opportunity is given to the person in detention for the making of such application, it may, in any given case, not be inappropriate for the removal of that person to occur. The individual circumstances of a case would need to be examined. … 24 Whether there has been a reasonable time and a reasonable opportunity to bring legal proceedings to prevent removal will depend on the circumstances of the particular case. The Full Court stated (at [46]): [W]here it has been demonstrably shown that a person has had a reasonable opportunity to obtain legal advice and injunctive relief if desired, the removal of an applicant from Australia with a subsisting and pending application, such as an application for an extension of time in which to file a notice of appeal, may not raise either questions of contempt, or Constitutional issues concerning the intersection of judicial and executive power … . Such a conclusion would be able to be reached by a Court if it were demonstrated that the person was aware of her or his ability to approach the Court to prevent deportation until disposition of any application and that the person had been given a reasonable opportunity and reasonable facilities to seek advice about and, if desired, make such an application. 25 Whilst the Full Court in SZSPI was "not positively persuaded that such a reasonable opportunity was given" to the applicant, in the circumstances of the case the Court was unable to "conclude that the applicant did not have a reasonable opportunity, in light of the apparent availability of a migration agent": see at [47]. Accordingly, in that case the Full Court dismissed the applicant's application for an extension of time in which to appeal against a decision of the Federal Circuit Court on the basis that the then absence from Australia of the applicant for a protection visa made his application moot: see at [48]. The Court did not address the matter on its merits. 26 As explained below, particularly having regard to the evidence of Ms Spencer, I would reach the same conclusion in this case. 27 In her affidavit Ms Spencer deposed that the applicant had signed a request on 24 October 2017, as contemplated by s 198(1) of the Migration Act, to be voluntarily removed from Australia and that the applicant had remained cooperative throughout the process, but that the applicant's removal had been treated as involuntary, in light of her protection visa applications referred to at [11] above and her application to this Court. 28 Ms Spencer also deposed that, while detained in the Maribyrnong Immigration Detention Centre, the applicant had shared 24 hour access to landline phones and internet, and had access, if she wished, to a personal mobile phone other than a smart phone. Ms Spencer also said that, as an immigration detainee, the applicant had a Status Resolution Case Manager assigned to her, whose role was to ensure that the applicant was aware of her immigration pathway and status, and that she was progressing to an immigration outcome. 29 Ms Spencer stated that in December 2017 she was instructed to remove the applicant from Australia on the basis that she was a detainee who had not applied for a substantive visa. Thereafter, Ms Spencer assumed responsibility and oversaw the applicant's removal. Ms Spencer said that the process of effecting removals was governed by the Department's policy entitled "Policies and Advice Manual - Compliance and Case Resolution, Case Resolution, Returns and Removals, Removal from Australia" (the policy). A copy of the policy was annexed to her affidavit. 30 Ms Spencer deposed that she personally served the applicant with a notice of intention to remove her from Australia on 20 February 2018, which was some 16 days before her removal. Shortly thereafter, Ms Spencer realised that she had put the wrong removal power on the notice and, as a result, she subsequently forwarded an amended notice of removal to the applicant's Status Resolution Case Manager to serve on the applicant that afternoon. The notice advised the applicant that arrangements had been made for her removal from Australia to New Zealand on 9 March 2018, and described the relevant arrangements, the grounds for her removal, and the consequences of her removal. The notice invited the applicant to discuss any issue she may wish to raise about the process with her Status Resolution Case Manager or Ms Spencer. Ms Spencer deposed that, although she had subsequently discussed with the applicant general aspects of her removal from time to time, she did not recall the applicant raising the issue of an injunction or court order to restrain her removal. 31 At the same time as she served the notice of intention to remove, Ms Spencer said that she also served the applicant with an accompanying letter, notifying her that, although the proceeding in this Court had been filed in early February 2018, the Minister intended to proceed with her removal on 9 March 2018 unless the Minister was restrained from doing so by an interlocutory injunction or court order (SZSPI Letter). The SZSPI Letter stated in bold type: If you wish the Court to consider any application for an interlocutory injunction to prevent your removal from Australia, you need to contact the Court and ask that your matter be listed urgently. The SZSPI Letter advised the applicant that further information could be obtained from the Court, a legal representative or her Status Resolution Case Manager. It provided contact details for the Victorian Registry of the Federal Court. 32 Ms Spencer deposed that she explained the content of the notice of intention to remove and the SZSPI Letter to the applicant at the time of service. Ms Spencer also deposed that she encouraged the applicant to contact the Court, and that the applicant told her that she would do so. 33 According to Ms Spencer's affidavit, by 9 March 2018, the Department had received no notice of any interlocutory injunction, court order or criminal justice stay warrant restraining the Department from removing the applicant. The Department's records also indicated that there was no extant valid application for a substantive visa lodged by the applicant. Accordingly, and in accordance with the policy, the applicant was removed from Australia. 34 The Minister submitted, and I accept, that Ms Spencer, as the officer responsible for the applicant's removal, had regard to and followed the policy during the process. The relevant aspects of the policy were substantially the same as the policy considered in SZSPI. It may be accepted that the fact that an applicant has instituted proceedings in a court seeking, directly or indirectly, to challenge a decision on which removal may depend does not prevent the removal of that applicant in accordance with s 198 of the Migration Act. As, however, McKerracher J noted in DZAEH v Minister for Immigration and Border Protection [2016] FCA 178 at [8]: … the decision of the Full Court in SZSPI … emphasised the importance of affording parties a real and meaningful opportunity to approach the Court and seek to invoke the exercise of judicial power under Ch III. 35 In the circumstances set out by Ms Spencer, I accept that the applicant was given a reasonable time to approach the Court to seek an injunction to restrain her removal. 36 Even if the applicant could not read the advice in the SZSPI Letter, Ms Spencer's evidence was that she explained to the applicant that she should contact the Court, and that the applicant had indicated to Ms Spencer that she would do so. There is no reason to not accept Ms Spencer's evidence, even though there is nothing to show that the applicant subsequently approached the Court. In any event, there would appear to have been no obstacle to the applicant applying to the Court in the 16 day period between receiving the Minister's notice of intention to remove her on 20 February 2018 and her removal on 9 March 2018. The applicant had access to various means of communicating with the Court, or of obtaining legal or other advice and assistance. It would also appear that there was some assistance available to her within the Maribyrnong Detention Centre, via her Status Resolution Case Manager and Ms Spencer. Furthermore, as Ms Lewis' affidavit shows, in this period the applicant chose to make a number of protection visa applications as a means of avoiding her anticipated removal, a course which indicates that the applicant had some understanding of the process. 37 In these circumstances, the Court cannot conclude that the applicant did not have a reasonable opportunity to apply for injunctive relief or to obtain legal advice. The application for an extension of time should be dismissed as moot in the absence of the applicant from Australia. This is not the occasion to consider the Minister's further submissions regarding the competency of the applicant's application. Accordingly, the order of the Court will be that the application be dismissed. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.
Rouxelle
Minister for Immigration and Border Protection