FEDERAL COURT OF AUSTRALIA

BJA18 v Minister for Home Affairs [2018] FCA 440

ORDERS

THE COURT ORDERS THAT:

1.    The application filed on 19 March 2018 be dismissed.

2.    The applicant is to pay the respondent’s costs of the application.

3.    The application be amended by substituting an appropriate pseudonym for the applicant’s name for the purposes of s 91X of the Migration Act 1958 (Cth).

4.    To the extent that the applicant’s name was used in the course of the hearing on 20 March 2018, the publication of his name be prohibited pursuant to s 91X of the Act.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT (Delivered ex tempore, revised from transcript)

WIGNEY J:

1    The applicant is a citizen of Lebanon. He came to Australia in 2007 as the holder of a Prospective spouse (subclass 300) visa. Unfortunately for him, his numerous attempts to obtain a visa that would permit him to remain permanently in Australia have been unsuccessful. He is currently an unlawful non-citizen and is in immigration detention. On 15 March 2018, he was notified that he was to be removed from Australia pursuant to s 198(6) of the Migration Act 1958 (Cth).

2    In this application, the applicant seeks an urgent interlocutory injunction restraining the Minister for Home Affairs, or any officer of the Minister’s Department, from removing him from Australia. The Minister opposes the application.

background

3    The relevant background, so far as it is able to be gleaned from the evidence that has been adduced on this application, is as follows.

4    The applicant was born in Lebanon on 5 February 1978. On 4 October 2006, he lodged a prospective spouse visa in Lebanon. He was granted that visa on 28 February 2007. The applicant arrived in Australia on 27 March 2007 as a provisional resident pursuant to the prospective spouse visa. On 17 November 2007, the applicant married an Australian citizen and, on 30 November 2007, he lodged a visa application on the basis of that marriage. On 13 February 2008, the applicant left his wife. On 31 December 2009, the applicant’s application for a partner visa was refused by a delegate of the Minister. On 6 January 2010, the applicant lodged a review application in the (then) Migration Review Tribunal (MRT) for review of the delegate’s decision. The MRT affirmed the delegate’s decision on 31 May 2010.

5    About six months later, the applicant lodged an application for a Protection (class XA) visa. Unfortunately for the applicant, that protection visa application was refused by a delegate of the Minister on 8 November 2011. In the meantime, on 28 May 2011, the applicant met another woman, who he subsequently married on 12 November 2011. Shortly thereafter, the applicant applied to the (then) Refugee Review Tribunal (RRT) for review of the delegate’s decision to refuse his protection visa application. On 5 April 2012, the RRT affirmed the delegate’s decision to refuse to grant the applicant a protection visa. That refusal prompted the applicant to make a request for the intervention of the Minister pursuant to s 417 of the Act. On 30 December 2012, the applicant and his then wife had a daughter. On 5 November 2013, the applicant was notified that the Minister had chosen not to intervene in his case.

6    That, however, was not the end of the applicant’s attempts to obtain a visa in Australia. On 19 September 2014, he applied for a medical treatment (class UB) visa on account of his medical needs. On 22 September 2014, a delegate of the Minister rejected that application. On 19 November 2014, the MRT affirmed the decision of the delegate in relation to that visa application. Sometime in early 2015, the applicant applied for judicial review of the MRT’s decision in the Federal Circuit Court of Australia. The applicant appears to have been granted a bridging visa in light of his application for judicial review. On 28 November 2017, however, the Circuit Court dismissed the applicant’s application for an extension of time within which to bring the judicial review application.

7    About six weeks later, on 16 January 2018, the applicant was detained in the Villawood Immigration Detention Facility. On 23 February 2018, the applicant made another application to the Minister for intervention and waiver of the “bar” in s 48 of the Act that prevents non-citizens in the “migration zone” (basically, Australia) who have been refused a visa from applying for certain substantive visas. On 27 February 2018, the Minister’s Department wrote to the applicant, notifying him that his s 48 request did not meet the guidelines for a referral to the Minister as it was a repeat request.

8    On 15 March 2018, the applicant was notified that he would be removed from Australia tomorrow, that is, Wednesday, 21 March 2018.

9    It will be readily apparent from the above summary that there are no current proceedings in this Court, or the Circuit Court, in relation to any of the migration decisions previously made in relation to the applicant. The applicant’s originating application that was filed yesterday states that his application is made pursuant to s 476A of the Act. However, as has just been noted, there is no extant migration decision in respect of the applicant that would enliven the Court’s jurisdiction under s 476A of the Act. The Court accordingly does not have jurisdiction under s 476A of the Act in relation to this matter. The Court has, however, proceeded on the basis that it has jurisdiction under s 39B of the Judiciary Act 1903 (Cth) in respect of the threatened conduct by an officer or officers of the Commonwealth to remove the applicant from Australia.

application – grounds and submissions

10    The originating application stated that the grounds of the applicant’s application were as follows (as drafted):

1.    The best interest of my Australian daughter Yasmin El Bodn born 30 December 2012.

2.    Awaiting the outcome of my Application under Migration Act concerning my medical treatment visa

11    The applicant relied on an affidavit sworn by him in support of his application. He also made lengthy oral submissions. Paragraph 5 of the applicant’s affidavit set out what appeared to be the essence of his case. It stated as follows (as drafted):

I am the father of an Australian daughter Yasmin El Bodn born 30 December 2012 and my relationship with my daughter is very close and my deportation from Australia would affect my daughter emotionally, physically and psychologically and I wish to remain in Australia on a permanent basis for the benefit of my daughter who really loves me and I love her and my daughter is very much attached to me.

12    The applicant’s affidavit also annexes a number of documents, including, perhaps most relevantly, a copy of his s 48 request to the Minister dated 23 February 2018. In his oral submissions, the applicant referred at some length to the circumstances in which he came to be in Australia. He referred to his introduction to his wife, the difficulties which he subsequently had with her behaviour and the ultimate breakdown of his first marriage. He also referred to the difficulties he had then encountered with the relatives of his wife, who he said were members of the Hezbollah militia. He said that they had threatened his life. For that reason, he said that he feared returning to Lebanon. It may be inferred that this formed the reason, or at least part of the reason, for his unsuccessful protection visa application.

13    The applicant also referred to meeting his second wife and the birth of his daughter. He noted that his second marriage had also been unsuccessful. He emphasised in strong terms, however, that he wanted to maintain a relationship with his daughter. He said that he had since applied for custody of his daughter in proceedings in the Family Court of Australia. It would also appear that, at least prior to him going into immigration detention, he had regular contact with his daughter. Amongst other things, he took her swimming and shopping and formed a close bond with her. Unfortunately for him, however, that was no longer possible once he was detained in immigration detention. His daughter’s mother was, apparently, no longer allowing him regular access to his daughter.

14    The applicant made it abundantly clear that he wanted to remain in Australia to fight for custody of his daughter. He was concerned for his daughter’s welfare and wanted to continue to have a close relationship with her. He believed, in all the circumstances, that the immigration laws were unfair and that the Minister was treating him unfairly in seeking to remove him from Australia.

15    While the applicant’s case is a sad case indeed, regrettably, it does not provide him with a proper basis for the relief he seeks in this application.

16    It should be noted in this context that much of what the applicant told the Court was also advised to the Minister in support of the applicant’s request for Ministerial intervention. As has already been noted, however, the Minister refused to intervene. That decision is not reviewable by the Court.

17    Section 198(6) of the Act provides as follows:

(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.

18    Section 198(6) clearly applies to the applicant’s circumstances. He has applied for a number of substantive visas. Each application, however, has been unsuccessful. His review applications have also been unsuccessful, as has a judicial review application in the Circuit Court in relation to the most recent visa refusal decision. He has most recently applied to the Minister to remove the “bar” imposed by s 48 of the Act that would allow him to make a further application for a substantive visa. That application was also refused.

19    The upshot of this is that s 198(6) provides that an officer must remove the applicant from Australia. There is no relevant discretion. As there is no discretion, even if the applicant showed compelling circumstances, there would be no proper basis for the Court to intervene to restrain the Minister or officers of his Department from removing the applicant from Australia.

20    The grounds of the applicant’s application, accordingly, have no merit. As for ground one, even accepting that the best interests of the applicant’s daughter would be served if he remained in Australia, there is no basis for the Court to intervene in his removal from Australia.

21    As for the second ground, it would appear that the applicant’s avenues in respect of his medical treatment visa have effectively been exhausted.

conclusion and disposition

22    The applicant has been unable to show that he has a reasonably arguable case for the relief he seeks. In those circumstances, his application must be dismissed with costs.

23    It should finally be noted that the applicant commenced these proceedings in his own name. As he was a former applicant for a protection visa, an order should be made pursuant to s 91X of the Act, amending his application so that his name is replaced by an appropriate pseudonym. To the extent that the applicant’s name has been mentioned in the course of the hearing, a confidentiality order should be made preventing the publication of his name to protect his identity.

Associate:

Dated:    3 April 2018