Vivi v Minister for Immigration and Border Protection

1. The applicant's interlocutory application dated 7 November 2017 be dismissed. THE COURT NOTES THAT:
2. The respondent by his legal representative undertakes that in the event that the Minister's decision is vitiated by the High Court's decision in Falzon (S31/2017), it will not pursue the costs of the applicant's deportation. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BURLEY J: 1 The present application is by Mr Vivi, who seeks an urgent interlocutory injunction restraining the Minister for Immigration and Border Protection from taking steps to deport him against his will to Tonga this afternoon. 2 In considering whether or not to grant the application in broad terms one considers any delay in bringing the application, the question of the strength of the case that is underlying it and questions of balance of convenience. 3 The chronology of events can be shortly expressed. The applicant was notified that his visa was going to be cancelled on 13 March 2016. He applied for a review of that decision, and an adverse decision was made by the Assistant Minister on 11 July 2017, which was communicated to the applicant on 12 July 2017. In the period between then and notification of the Minister's intention to deport Mr Vivi, no formal papers were lodged with the Federal Court, and notification to Mr Vivi of the intention forcibly to deport was given on 7 or 8 November, six or seven days ago. 4 Since that date, Mr Vivi has made attempts to file papers, it seems, but, ultimately, documents were filed with the Federal Court today, being 14 November and the day upon which he is to depart. Indeed, as I understand it, Mr Vivi is due to depart within minutes of now, which is 5.45 pm Eastern Standard Time. 5 Mr Vivi has not provided an adequate explanation for the delay. He has indicated that there are impediments to communicating from Christmas Island, where he was in detention, but, nevertheless, whilst there he was able to make enquiries seeking to obtain pro bono legal assistance in July or August and he was notified by letter on 10 August 2017 that such assistance was not available to him. Since that date, he has sought legal assistance from another organisation, who indicated to him that it required funds in order for him to receive their assistance. Regrettably for Mr Vivi, he has no funds available to him. In those circumstances, it was necessary for Mr Vivi to take matters into his own hands, but he has failed to do so until the last possible moment. 6 On the question of arguable case, Mr Vivi was unable to provide any substantive submissions as to the reason why the Minister's decision was infected by jurisdictional error. He did, quite understandably, raise questions going to the merits of the case, including the fact that he arrived in Australia as one year old and has close social and personal ties with Australia, including with his family and young children who reside in Australia. 7 However, I have briefly, in the time available, been able to review the decision and observed that the matters which Mr Vivi draws attention to are all matters which fall under the heading of a merits review of the Minister's decision and not within the umbrella of a jurisdictional error. No jurisdictional error is apparent to me. 8 The case before the High Court, of Falzon v Minister for Immigration and Border Protection (S31/2017) (Falzon), represents a challenge to the validity of s 501(3A) of the Migration Act 1958 (Cth) (Act). That case is being heard in the High Court today, but, as matters currently stand, s 501(3A) of the Act remains law, unless and until it is vitiated by a decision of the High Court. 9 Turning to the balance of convenience, the Minister places emphasis on the costs of the deportation, the public interest in giving effect to the decision of the Minister and makes submission that Mr Vivi will be able to prosecute his challenge to the decision of the Minister from Tonga, should he wish to do so. In that context, the Minister proffered an undertaking that, in the event that the Falzon case vitiates the decision of the Minister, then he will waive the deportation costs to which Mr Vivi would be subject to upon his deportation. 10 Having regard to the matters to which I have mentioned and other matters which have arisen through the materials presented in this application, and which will be apparent from the transcript, I am unable to grant the interlocutory injunction sought by Mr Vivi, with the consequence that the application must be dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.