Tanioria v Commonwealth of Australia

the present application 8 In support of his application for interlocutory relief the applicant relies on an affidavit sworn by his solicitor, Nicole Kennedy, who deposes to the following matters: (1) on 2 September 2016 Ms Kennedy wrote to the Commonwealth's solicitors. In that letter she noted that her client's High Court proceeding had been finalised and stated that: We note that our client is now subject to removal from Australia under the Migration Act 1958 however in our view any step that your client may take towards that end would frustrate the current proceedings in the Federal Court. Accordingly, we seek an undertaking from your client that it will give our client and this office at least 7 days' notice of any intention to remove our client from Australia in order that we can make an application to the Court for interlocutory relief preventing your client from taking those steps. (2) in response Ms Kennedy received a letter from the Commonwealth's solicitors on 9 September 2016 which relevantly informed her that it was not their client's usual practice to offer formal undertakings, that their client's usual policy is to provide seven days' notice of any proposed removal and that, as the applicant did not have valid travel documents, he could not be removed but that his suitability for removal would be considered once such documents were available; (3) on 11 October 2016 Ms Kennedy again wrote to the Commonwealth's solicitors noting that the applicant had received a notice of intention to remove him from Australia and that his removal would frustrate the proceedings; (4) on 12 October 2016 the Commonwealth's solicitors responded stating, among other things, that the Commonwealth did not accept the assertion that the applicant's removal from Australia would frustrate these proceedings; (5) Ms Kennedy says the applicant has informed her that the notice of the intention to remove has caused him and his family anxiety and distress; (6) Ms Kennedy says that she had been informed that the applicant's partner had recently obtained advice that the applicant may be eligible to make an application for a subclass 820 or 801 visa and that she had made attempts to make an application on the applicant's behalf on the immigration website but had been confronted with difficulties in lodging that application and intended to attend the offices of the Department of Immigration and Border Protection to attempt to lodge the application. 9 At the hearing I was informed by counsel for the applicant that the applicant's partner's attempt to lodge an application for a substantive visa had not succeeded and that there was no available option to apply for a substantive visa. 10 A copy of the notice of intention to remove from Australia which was provided to the applicant was in evidence before me. Among other things, it informs the applicant that he is liable for removal from Australia under s 198(6) of the Migration Act, that arrangements have been made for his removal and that it is anticipated that he will be removed from Australia on Monday, 24 October 2016. 11 Also in evidence before me was the decision made by the Minister pursuant to s 501 of the Migration Act to cancel the applicant's visa.

relevant legal principles 12 The Court's jurisdiction to make the orders sought by the applicant is found in s 23 of the Federal Court Act which relevantly provides that the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders. 13 The principles relating to a grant of interlocutory relief by the Court are well settled. In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 a majority of the High Court (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ) said at [35] that: The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked. The Federal Court had jurisdiction to make interlocutory orders to prevent frustration of its process in the present proceeding. (citations omitted) 14 In order to grant an interlocutory injunction the Court must generally be satisfied that there is a serious question to be tried and that the balance of convenience favours the grant of the injunction: see MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201 (MZZLD) at [8] (per Murphy J). In MZZLD his Honour also observed at [9] that the two limbs of the test are not considered in isolation and that the balance of convenience is "to be assessed in the context of the strength of the prima facie case". 15 For reasons that are explained below, the question of the balance of convenience is in issue between the parties. Determination of the balance of convenience and justice requires the Court to weigh the potential harm to the applicant, if no injunction issues, against the potential harm to the respondents if an injunction was granted. In MZZLD at [8] Murphy J said of this factor that an applicant was required to satisfy the Court that the inconvenience or injury which he or she would be likely to suffer if an injunction were refused outweighs the injury a respondent would suffer if it were granted. The exercise of weighing the respective prejudice to the parties includes, among the discretionary considerations, an assessment of whether the applicant will suffer irreparable harm for which damages will not be adequate compensation. That question, while an important factor, is not determinative, and involves an assessment by the Court as to whether the applicant would, in all material respects, be in as good a position if he were confined to his damages remedy, as he would be in if an injunction were granted: see Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238, 259-260 [61]-[63]. 16 It is also of assistance to set out s 198(6) of the Migration Act, being the section pursuant to which, subject to any order of this Court, the applicant would be removed from Australia. It provides: 198. Removal from Australia of unlawful non‑citizens (6) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if: (a) the non‑citizen is a detainee; and (b) the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and (c) one of the following applies: (i) the grant of the visa has been refused and the application has been finally determined; (ii) the visa cannot be granted; and (d) the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

consideration 17 The applicant seeks the order restraining his removal on two bases: first, to preserve the subject matter of the proceedings and on the basis that his removal would frustrate the Court's processes; in the alternative, on the basis that there is a serious question to be tried and the balance of convenience is in his favour. 18 Because of the applications for summary judgment that have been filed but not yet heard and determined by the Court, and so as not to circumvent the hearing of those applications, counsel for the Commonwealth submitted that, for the purposes only of this application, the Court would assume that there was a serious question to be tried. As a result the Commonwealth made no submissions on that issue. Its position is that the applicant has not demonstrated to the Court that the status quo should be preserved in order that the Court's processes not be frustrated and that the balance of convenience does not weigh in favour of an injunction. Insofar as the concession is made, counsel for the Commonwealth submitted that it is made at the minimum level for the Court to be satisfied that there is a serious question to be tried.

Will removal of the applicant frustrate the proceedings? 19 The applicant submitted that his removal would frustrate the proceedings. He submitted this was so because if he were removed, those parts of his case in which he seeks a writ of habeas corpus or, in the alternative, an injunction or, if an injunction is not available, equitable compensation, would be frustrated. This he contended was, because in order to obtain that relief, he needs to continue to be detained. He further submitted that, if removed, he would be deprived of his ability to seek vindication and, if successful, be vindicated in that way. 20 I note here that the applicant submitted that his claims for damages for false imprisonment and conversion are not of the same nature and that there is no suggestion that the Court would exercise its power to grant an injunction because to remove him from the jurisdiction would frustrate the proceedings in relation to those claims. 21 The applicant submitted that if removed, he loses the option now available to him of seeking particular forms of remedy from the Court: namely an order in the nature of habeas corpus for his release from VIDC or alternatively from Blaxland at VIDC, injunctions restraining Serco from detaining the applicant at VIDC; restraining the Commonwealth and Serco from detaining the applicant at Blaxland and restraining the restraints on the applicant's residual liberty while detained at VIDC and, if injunctive relief is not available, the claims for equitable compensation. 22 The applicant submitted that, if removed, the only available relief would be the declaratory relief sought and damages. However, the applicant contended, relying on the judgment in Ruddock v Taylor (2005) 222 CLR 612 (Ruddock v Taylor), that if he is successful and the Court makes a declaration that his detention is unlawful then damages are only available for the period for which that unlawful conduct continues after such a declaration is made and that he cannot claim damages for any alleged unlawful conduct that occurred in the past. 23 The applicant also relied on the judgment in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 (SZQRB) to demonstrate that the Court would grant an interlocutory injunction to preserve the status quo and the subject matter of the litigation in circumstances where in that case the only relief the applicant was entitled to was declaratory relief and not relief which went to his immigration status. 24 The Commonwealth submitted that it is only in exceptional circumstances that the Court has held that it has the power to restrain the removal of a non-citizen where removal would frustrate the Court's processes but that there is no occasion to exercise this extraordinary jurisdiction in this case. The Commonwealth submitted that this was because: first, the applicant's causes of action allege that his detention is unlawful and that, rather than frustrating the proceedings, removal would, consistent with the purpose for which the proceedings were commenced, bring his detention to an end; secondly, the applicant's removal would not destroy the subject matter of the proceedings because any claim for damages or a declaration would survive the applicant's removal; thirdly, the proceedings do not involve any challenge to the applicant's visa status and that, given the effect of ss 189 and 196(3) of the Migration Act, no relief in these proceedings would result in the applicant being released into the community. It was further submitted that the injunction sought would delay the inevitable; fourthly, the applicant alleges that his detention is unlawful and that the Commonwealth is vicariously liable for that detention. In those circumstances the Commonwealth submitted that it seeks to resolve the issue of detention by removing the applicant but, if the applicant's interlocutory application is successful, the Commonwealth would be required by the Court to perpetuate the alleged unlawful detention and put itself at risk of further damages if, in fact, the detention is held to be unlawful; and finally, there was no evidence to suggest that the applicant could not prosecute the proceedings from Fiji and that the applicant's continued presence in Australia was not necessary for the determination of the proceedings in circumstances where the Commonwealth contended that the proceedings principally raise legal contentions, extensive evidence will not be required, credit is unlikely to be a significant issue in the proceedings and there is thus no reason why the applicant's evidence could not be given by video link. 25 It is common ground that the applicant is an unlawful non-citizen who has exhausted all avenues of appeal in relation to his status. The applicant accepts that, at present, he is unable to apply for any substanitve visa. The current proceedings do not concern his immigration status but are a private proceeding for relief arising from the applicant's alleged unlawful and continuing detention. The obligation to remove under s 198 of the Migration Act has crystallised. 26 The injunction which the applicant now seeks is said to arise in circumstances where the Court's processes will be frustrated if it is not granted. But I do not accept that would be the case. The applicant's principal submission is that he will lose the opportunity to claim the range of relief he presently seeks if the injunction is not granted and will thereby lose the right to be vindicated, if he is successful in obtaining that relief. However, while the applicant's removal will mean that the applicant is no longer able to seek some of the relief presently contemplated by his amended originating application, namely that associated with release from or preventing his current detention, it will not bring an end to or frustrate the proceedings. The applicant will still be able to prosecute his proceedings but his claims for relief will be limited to seeking declarations and damages and, in relation to the alleged conversion of his property, an order restraining the retention of his property. 27 In Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 90 ALJR 297 French CJ, Kiefel and Nettle JJ held at [23] that, notwithstanding a change in administrative arrangements for persons detained on Nauru which affected the plaintiff's claims for relief, the declaration sought by the plaintiff "would resolve the question as to the lawfulness of the Commonwealth's conduct with respect to the plaintiff's detention and whether such conduct was authorised by Commonwealth law". Their Honours held that was not a hypothetical question and would determine the question of whether the Commonwealth was at liberty to repeat the conduct if things changed on Nauru. The same could be said of the applicant's case. Removal will affect his clams for relief but, notwithstanding that change in circumstances, it is still open to him to seek declaratory relief, which would resolve the question of the lawfulness of the alleged conduct which he pleads against the Commonwealth and Serco, and damages. 28 The applicant submitted that, in the case of the claims for unlawful detention at VIDC and at Baxter and for the deprivation of his residual liberty, damages would not be available for past conduct if the breaches were made out. The applicant made that submission on the basis of Ruddock v Taylor. I accept the submission made by counsel for the Commonwealth that in Ruddock v Taylor the High Court held that detention would be lawful not only where a person is an unlawful non-citizen but where the relevant officer reasonably suspects a person to be an unlawful non-citizen. The applicant's case alleging unlawful detention does not raise the same issues. Further there does not appear to be anything in the High Court's judgment in Ruddock v Taylor that would foreclose a claim for past damages for an allegation of unlawful detention. The question seems to be an open one. 29 To the extent the applicant relied on SZQRB in my view it can be distinguished. SZQRB had been unsuccessful in an assessment of his refugee status under the Refugee Status Assessment (RSA) process and on a subsequent independent merits review (IMR). SZQRB applied to the Federal Magistrate's court (as it then was) for review of the IMR decision. That application was subsequently dismissed and no appeal was brought at that time. An International Treaties Obligation Assessment was then completed for SZQRB in which it was concluded that SZQRB could be returned to Afghanistan and a pre-removal clearance was prepared. On 28 August 2012 SZQRB's bridging visa expired and he was detained the following day and given notice of his removal. 30 The decision the subject of complaint was made on 21 September 2012 and related to the exercise by the Minister of a non compellable power. The decision was made in knowledge that SZQRB was scheduled to be removed from Australia on 23 September 2012. On 22 September 2012, SZQRB commenced proceedings in the Federal Magistrates Court seeking, among other things, an order quashing the decision of the Minister made on 21 September 2012. In that proceeding SZQRB also sought an interlocutory injunction restraining the Minister from removing him from Australia before the hearing and determination of his substantive proceeding and the expiration of any period in which an appeal could be lodged. The Federal Magistrate granted the injunction. 31 Two applications came before a Full Court of this Court (Lander, Besanko, Gordon, Fick and Jagot JJ): one was an application by the Minister for leave to appeal from the interlocutory injunction granted by the Federal Magistrate and the other was SZQRB's substantive proceeding seeking, among others, an order that the Minister's decision made on 21 September 2012 be quashed. In relation to SZQRB's substantive proceeding Lander and Gordon JJ noted at [200] that the courts will not grant the constitutional writ of mandamus to direct the Minister to exercise a non compellable power and because mandamus does not lie, the courts will not issue a writ of certiorari but their Honours pointed out that declarations that an RSA or IMR is flawed may be granted. 32 In relation to the Minister's application for leave to appeal Lander and Gordon JJ held that the Federal Magistrate erred in granting the injunction for the reasons she gave but refused the Minister's application for leave to appeal because, in their view, SZQRB was entitled to an injunction of the kind ordered but for different reasons: at [285]-[286]. Those reasons, which are set out at [279]-[280], are as follows: 279 There are circumstances where it would be appropriate to make an interlocutory injunction where no final order of that kind is sought. An interlocutory injunction could be made to preserve the subject matter of the proceeding pending the hearing of the proceeding. 280 The jurisdiction to make such an order derives from the Court's inherent or implied jurisdiction to enable it to discharge its duties as a Court by preserving its processes and by preserving the subject matter of the proceeding before the Court. It is a power usually exercised by the grant of a stay pending the hearing of an appeal: Tait v The Queen (1962) 108 CLR 620 at 623-4; Re Marks and Federated Ironworkers' Association (1981) 34 ALR 208. 33 But while in SZQRB the relief to which the applicant was entitled was declaratory and did not directly affect his visa status it was a proceeding in relation to a decision that was made concerning his return to Afghanistan. SZQRB's removal in circumstances where the Court was considering a decision by the Minister which dealt with a consideration of material that led to his return would understandably frustrate the Court's processes and, in those circumstances, the Court would make an order to preserve the subject matter of the proceeding. That is not the case here. The applicant's proceedings do not in any way, directly or indirectly, affect his visa status. They are, as already observed, proceedings for relief and damages arising out of his continued detention. 34 I would finally note that the applicant offered an undertaking should the Court grant an injunction not to seek damages in relation to the claims for false imprisonment beyond the date any such order was made. The same undertaking was not proffered in relation to the claims for equitable compensation for the alleged unlawful detention. While such an undertaking goes a part of the way to meeting the Commonwealth's concern about an order restraining removal exposing the Commonwealth to potentially higher damages, it does not meet that concern entirely. Further, in light of the matters set out above, it does not provide a compelling reason to grant the injunction on the basis of protecting the Court's processes.

The alternative basis - serious question to be tried and the balance of convenience 35 As noted above I have been asked to assume that there is a serious question to be tried, albeit at the lowest threshold. On this alternative basis then I am left to consider the balance of convenience. 36 The applicant submitted that the balance of convenience would favour the grant of an injunction. He submitted that was so because: (1) there is a status quo that needs to be preserved in relation to the whole of the claim. Counsel for the applicant submitted that, at his election, the applicant has asked not to be removed and, notwithstanding that the result is that his detention is prolonged, he does so because he is then in a position to seek all of the relief now claimed and to be vindicated by the remedies he seeks; (2) there are day to day inconveniences. The applicant submitted that the Commonwealth acknowledged in the Minister's decision cancelling his visa pursuant to s 501 of the Migration Act that services in Fiji are not equivalent to those available in Australia. As a result, the applicant submitted that the day to day running of his case, as opposed to the hearing, would need to be effected from a foreign jurisdiction in circumstances where there is still a significant amount of the case that needs to be prepared, that instructions would need to be given by video link or telephone, making that process substantially more difficult and that, unlike other foreign parties who choose to bring proceedings and to run them from a foreign jurisdiction, this state of affairs is being imposed on the applicant; (3) there would be an unfair advantage to the Commonwealth if he was removed from the jurisdiction because it would make the applicant's ability to prepare the case harder. 37 The applicant also submitted that the status of the applicant as an unlawful non-citizen cannot be determinative. He submitted that the power in s 198 of the Migration Act is contingent and not mandatory because that section relevantly provides at subs (6) that an officer must remove "as soon as reasonably practicable" an unlawful non-citizen who meets the requirements set out in that subsection. There is no issue between the parties that the applicant meets those requirements but, because of the existence of these proceedings, the applicant submitted that it is not reasonably practicable for him to be removed. 38 The Commonwealth submitted that the balance of convenience did not favour the grant of an injunction restraining the applicant's removal because: (1) any delay in the applicant's removal will be at the expense of the Commonwealth and the applicant had not proffered an undertaking as to damages and even if it was proffered there is no evidence that it would be of any worth. Accordingly the Commonwealth contended that it was likely to suffer irreparable damage by reason of any restraint; (2) the applications for visas referred to by Ms Kennedy that the applicant's partner was seeking to make on his behalf could not be made because of the operation of s 501E of the Migration Act and reg 2.12AA of the Migration Regulations 1994 (Cth) - they were not of the type expressly permitted by those provisions; (3) the applicant's continued presence in Australia is not necessary for the determination of the proceedings as the applicant's claims depend principally on legal contentions and will not require him to give extensive evidence, it is unlikely that the applicant's credit will be a significant issue in the proceedings, except perhaps on the conversion claim, and thus it would not be inappropriate for the applicant to give his evidence by video link. The Commonwealth undertakes to meet the cost of any video link connection; and (4) it is not unusual for instructions to be given and conferences held by telephone and there is no evidence before the Court that the applicant would be unable to continue to prosecute the proceedings from Fiji. 39 In determining whether the balance of convenience favours the grant of an injunction I must undertake a weighing up exercise. To that end the prejudice that the Commonwealth points to is the cost of deferring the removal which, it was submitted, had been arranged. In the course of the hearing, counsel for the applicant informed the Court that the applicant would give the usual undertaking as to damages in the form set out in Practice Note CM 14. There is no evidence about the value of that undertaking. Indeed the applicant's counsel informed the Court that the applicant's economic circumstances are a consequence of his current position. 40 I turn then to consider the matters raised by the applicant. 41 As I have already observed above, I do not think that there is a need to preserve the status quo in order for the applicant to be able to pursue his proceedings. He will still be able to pursue his claims albeit he will no longer be entitled to claim all of the relief he currently seeks. To the extent that the applicant raises the preservation of the status quo and preserving the subject matter of the proceeding as a matter that weighs in his favour on the balance of convenience I am not persuaded that it does. This is so even taking into account the applicant's undertaking that he will not pursue damages, should the order sought be made, beyond the date of the order in relation to claims other than those seeking equitable compensation. 42 In relation to the convenience and ability to run the proceedings, in my opinion, it is not unusual for a party to instruct lawyers from a different location by electronic means, including telephone and video conference facilities. I do not think that this factor weighs heavily in favour of the applicant. However, the giving of evidence is in a different category. The Commonwealth's unchallenged submission was that the applicant's claims depend principally on legal contentions. Defences have not yet been filed so it is not apparent what is in issue and it is not known to what extent the applicant will need to give evidence and whether there will be any requirement to make credit findings. However, in light of the nature of the claims I accept that there are unlikely to be significant areas of factual dispute. 43 In Li v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 667 Sackville J refused an application for an injunction restraining the applicant's removal. The applicant had commenced proceedings against the detention centre provider and the Minister alleging breach of duty owed to him and for damages sustained while in immigration detention. The applicant argued that, among other things, his ongoing claim for damages was a reason for the Court to grant the injunction. Sackville J rejected this argument and was not satisfied that the applicant would be unable to prosecute his proceeding. His Honour found that the applicant's legal advisers had ample opportunity to obtain instructions and that, while he had not yet given evidence, oral evidence could be given by video link. The same could occur in this proceeding, to the extent the applicant is required to give evidence. Further I note that the Commonwealth has undertaken to meet the costs of any video link that may be required. 44 I do not accept that the Commonwealth would have an unfair advantage if the applicant is removed because it will make the preparation of his case harder. As I have already observed, the available technology should mean that the applicant is able to give instructions. There is no suggestion that, because of his removal, the applicant will be deprived of his legal representation. If the applicant's residence in another country means that he requires more time to take steps in the proceedings that can be accommodated by appropriate timetabling. 45 In my opinion the applicant has not demonstrated that the inconvenience or injury he would suffer outweighs the injury to the Commonwealth. The issue was finely balanced. But, in my opinion the factors raised do not amount to any injury that would be suffered by the applicant. I accept that there may be some inconvenience to him but that is not of a nature that causes me to alter my view. This is not a case where one can easily assess whether the applicant will suffer irreparable harm if left to pursue a case for declarations and damages only. The applicant would say he will because he will not be able to seek vindication in the terms of the relief currently sought for some of his claims. But the applicant is not left in a position where he cannot pursue his proceedings to their finality and, having carefully considered the matter, I am of the view that he will not suffer irreparable harm, in the sense of not being able to pursue his proceedings, if the injunction is not granted. In considering where the balance of convenience lies I have assumed there is a serious question to be tried.

disposition 46 As a result of the conclusions to which I have come I will make orders that the applicant's interlocutory application filed on 12 October 2016 be dismissed and that the applicant pay the respondents' costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.