FEDERAL COURT OF AUSTRALIA

SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

REASONS FOR JUDGMENT

THE COURT

Brief background: the applicant deported

1    On 3 June 2014, the applicant, a Tamil citizen of Sri Lanka, filed an application for an extension of time to file a notice of appeal against orders of a judge of the Federal Circuit Court that provided for the dismissal of his application for relief in respect of a decision of an independent protection assessor made in September 2012.

2    On the morning of Wednesday 25 June 2014, the applicant, who had been in immigration detention since 10 June 2014, was involuntarily removed from Australia.

3    On the afternoon of Thursday the previous week, 19 June 2014, between 2.40 pm and 3.30 pm, the applicant was told that he would be removed the following Wednesday. At 4.48 pm, a solicitor acting for the respondent sent an email to the Court, addressed only to “nswdr@fedcourt.gov.au”, with a copy to an email address given by the applicant on his application for an extension of time. The former address is a generic email address of the New South Wales District Registry of the Federal Court. The email stated the following:

Dear Registry

I refer to the above matter, which has yet to be allocated a docket.

I represent the first respondent, and will file a notice of appearance as soon as possible.

I am instructed by my client that the applicant is scheduled for involuntary removal to Sri Lanka on 25 June 2014. The applicant has been advised of this today.

Regards

…

4    On the following day, 20 June 2014, at 8.48 am, a court employee in the New South Wales District Registry informed the solicitor by email (with a copy to the applicant’s email address) that the “NSW Appeals Unit” had been forwarded the “request” and “they will get back to you shortly.” (There was no request, as the terms of the solicitor’s email reveal.)

5    On Thursday, 26 June 2014 at 11.07 am, the National Appeals Registrar, who is located in Melbourne, sent an email to the solicitor (copied to the applicant’s email address) asking whether the applicant had been removed, and if he had, asking for a short affidavit attesting to that fact “so that the Court can consider any future action in respect of the court file”. The National Appeals Registrar was then informed by the solicitor that the applicant had indeed been deported.

6    The matter was listed on 18 July 2014 before a judge who sought an explanation as to what had happened. Over the then objection of the respondent, that judge made an order in the following terms:

On or before 4.00 pm on 1 August 2014, the first respondent is to 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 involuntary removal from Australia on 25 June 2014. If a policy was relevant to the involuntary removal of the applicant, that policy should be set out in the affidavit or affidavits.

(The objection was that the Court had no “jurisdiction” to require an explanation. At the hearing of the application, senior counsel for the respondent disavowed, correctly, such a position, whether expressed in terms of jurisdiction or power.)

7    Thereafter, two affidavits of Mr Peter Dwyer were filed (being sworn on 1 August 2014 and 26 September 2014). Mr Dwyer is the Director of the Enforcement and Citizenship Litigation Section in the Litigation Branch of the Department of Immigration and Border Protection.

8    The application was set down for hearing before a Full Court on 30 September 2014. One reason for the composition of a Full Court (cf s 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth)) was a concern as to what had happened and whether or not the exercise of judicial power by the Court invoked by the application had been undermined.

9    During August and September 2014, the Court (through the National Appeals Registrar) sought to contact the applicant in Sri Lanka at an address obtained from perusal of the file, being an address also supplied to the Court by the Minister’s representative. No response was received by the Court from the applicant.

The hearing on 30 September 2014

10    The application was called on for hearing on 30 September. There was no appearance for the applicant. The respondent applied for the application to be dismissed either on its merits or as now moot by reason of the applicant’s absence from Australia and the consequent lack of prosecution of the application.

The statutory framework

11    Before saying something more about the facts (which, when examined in a little more detail, bear a somewhat different complexion to those stated in bald form above) it is appropriate to say something about the statutory framework.

12    By the Migration Act 1958 (Cth) (the Act), s 198(8), an officer must remove as soon as reasonably practicable an unlawful non-citizen who is a detainee and Subdivision AJ of Div 3 of Part 2 of the Act applies to the non-citizen as he had not left Australia after his temporary safe haven visa had lapsed and the Minister has not given a notice under s 91L(1) to the non-citizen. The applicant could not make a valid visa application under s 46A, because he requested the Department to undertake a Protection Obligation Evaluation under the regime established by the Minister: see Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319, and that evaluation was adverse to him. The Minister did not, following that evaluation, decide under s 46(2) to permit him to apply for a substantive visa.

13    Section 153 concerns the removal of a person, and is in the following terms:

153    Removal or deportation not contempt etc. if no stay certificate or warrant

(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.

14    Section 256 provides for persons in immigration detention to have access to certain facilities. It is in the following terms:

256    Person in immigration detention may have access to certain advice, facilities etc.

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.

15    By s 481 of the Act, the making of an application for judicial review does not affect the operation of a decision.

16    It was accepted by the Minister, correctly in our view, that the affording of “all reasonable facilities” in s 256 incorporated having a reasonable time for doing the things referred to in that section. The statutory duty in s 256 thus effectively amounts to an entitlement of a detainee such as the applicant to be given a reasonable time and reasonable facilities to obtain legal advice and take proceedings preventing removal or deportation.

17    There have been a number of cases that have considered the situation where the Minister has sought to remove from Australia a person who has pending litigation of some kind. Senior counsel referred to the following: Attorney-General (NSW) v Ray (No 3) (1989) 90 ALR 263; Ex parte De Braic [1971] HCA 15; 124 CLR 162; Laremont v Minister for Immigration and Ethnic Affairs [1985] FCA 602; Singh-Dhillon v Mahoney [1986] FCA 334 (AustLII Reference); Mahoney v Singh-Dhillon (1987) 71 ALR 395; Lewis v Minister for Immigration, Local Government and Ethnic Affairs (1988) 89 FLR 218; Kopiev v Minister for Immigration and Multicultural Affairs [2000] FCA 1831; Lewai v Minister for Immigration and Multicultural Affairs [2001] FCA 1309; Li v Minister for Immigration and Multicultural Affairs [2001] FCA 1414; NAEX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1633; P1/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1029; SBBG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1315; BZACY v Minister for Immigration and Border Protection [2014] FCA 10; SZTUO v Minister for Immigration and Border Protection [2014] FCCA 104; Tchoylak v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 302; M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; Morrison v Minister for Immigration and Citizenship [2007] FCA 723; and Re Minister for Immigration and Multicultural Affairs; Ex parte SE (1998) 158 ALR 735 on the question of the words “as soon as reasonably practicable” (per Hayne J).

18    It is unnecessary to discuss these cases other than to make one comment about the reasons in Tchoylak 111 FCR 302. In that case, Hill, Carr and Weinberg JJ said the following at [52] and [53]:

52    The respondent has offered an apology to the Court and, it may be inferred, to the applicant, for what has occurred. There is no suggestion, in the present case, that the applicant’s removal from Australia was the result of anything other than a series of misunderstandings on the part of officers within the Department. That, of course, is little comfort to the applicant.

53    The respondent must take responsibility for ensuring that no one is removed from this country while there are proceedings pending in this Court challenging the validity of that removal. We do not accept that any of the various subsections of s 198 of the Act, which impose a duty in the circumstances there specified to remove a non-citizen “as soon as reasonably practicable” can be invoked by the respondent to justify what occurred in the present case.

19    The reference to the apologies in [52] and the breadth of language used in [53] can be well understood upon even brief perusal of the facts in that case. The applicant had been removed three weeks before the hearing of his appeal, that had been listed for hearing prior to his removal.

20    To the extent that [53] may be read as meaning that no removal can take place whilesoever any application remains pending in the Court, it is too wide, and is contrary to s 153 (assuming that section’s Constitutional validity).

21    It is unnecessary for the disposition of this matter to explore the proper limits of s 198 in the context of ss 153, 256 and 481.

The circumstances here in more detail and the policy of the Department

22    Some further detail about the applicant’s circumstances and some history as to the development of the Minister’s and Department’s procedures must be set out to ameliorate what might otherwise be conclusions to be drawn from the bald facts set out above.

23    The applicant is a Tamil born in Jaffna in November 1990. He arrived in Australia by boat on 1 December 2011. He applied for a protection obligation evaluation on 21 January 2012. This was referred to an independent protection assessor. In May 2012, the applicant was granted a temporary safe haven visa under s 195A of the Act. On 27 September 2012, the assessor recommended that the applicant not be recognised as a person to whom Australia has protection obligations, providing a 32 page statement of reasons for the recommendation. The applicant sought judicial review of the assessor’s decision in the Federal Circuit Court by application filed on 20 February 2013. The matter was heard and determined ex tempore on 23 April 2014 by a judge of that Court dismissing the application. The settled reasons of the judge were dated 5 May 2014.

24    The applicant’s visa expired in September 2013. He remained at large in the community until 10 June 2014. He was, however, in contact with his case officer from time to time. In January 2014, in a discussion with his case officer, he was told that if his judicial review application failed, he would be required to leave Australia. After the Federal Circuit Court decision, the applicant discussed his circumstances with his case officer and told her that he was seeking the assistance of a lawyer. On 26 May 2014, the case officer told the applicant that if he was late with his court filing, he had to start making arrangements to leave Australia. The applicant said he understood this. On 3 June, the case officer spoke to the applicant and said that he was out of time with his application; that he was now expected to leave Australia; and that he may be detained for the purposes of removal. The applicant then filed on that same day (3 June) an application for an extension of time to file a notice of appeal. On 4 June, the applicant told his case officer that he had filed the application for an extension of time. The case officer said to him that, because of the nature of the application, he was viewed as having no on-going matters, that his case had been closed and that the expectation was that he make genuine arrangements to depart, otherwise he may be detained and removed. Thus, by 4 June, the applicant, who had said in May that he was going to consult a lawyer, was told on a number of occasions that if he was late with his judicial review application, he may be removed from Australia. What was not made explicit, however, was that if the applicant wished to prevent removal it was his responsibility to approach the Court for injunctive relief.

25    At this point, it is important to understand the policy of the Department. That policy, entitled “PAM3: Act – Compliance and Case Resolution: Returns and Removals: Removal from Australia”, was in evidence. Under that policy, as a general rule, no removal would occur if there was an unfinalised matter before a merits review tribunal, or if there was an entitlement to seek judicial review (that is if a time for review had not expired) or if the person was seeking judicial review. There were policy exceptions to these general rules such as a person presenting an extreme risk of harm. Other exceptions were as follows:

[T]he person has a history of serial and vexatious litigation and is considered unlikely to succeed in judicial review. This may be evidenced by attempts to repeat or reopen judicial appeal after review options have been exhausted, failed attempts to seek court injunctions to stay removal.

Litigation Branch has advised that the Department has reasonable prospects of defending an injunction application (to prevent removal) having regard to the particular set of facts and circumstances surrounding judicial review.

(The latter of these quoted exceptions was utilised in this case).

26    The same policy document provided for the giving of notice to persons to be removed. The policy was directed to persons in detention. The applicant was taken into immigration detention on 10 June 2014. Prior to that, on 5 June, in a telephone conversation with his case officer, he was told that because his application to appeal was out of time, he was expected to depart immediately. The case officer noted on that occasion that he was argumentative.

27    On being taken into detention on 10 June, the applicant was given a “Detainee Induction Pack” which contained, amongst other things, an information sheet for free legal services in Sydney.

28    To return to the policy: Departmental officers are required to remind persons in detention that the law requires the Department to remove them as soon as reasonably practicable. The policy also provided for minimum notice of removal, as follows:

Removal officers must provide a person with as much notification as possible of their planned removal date. Notification should occur at least seven days prior to removal to allow the person time to raise concerns about their planned removal. Removal officers should consider any concerns raised by the person and, if necessary, escalate the case to their removals manager. Removal officers should also appropriately document the person’s concerns and any resulting action on departmental systems.

29    The policy also provided for circumstances of notification of less than seven days, but more than 48 hours; and also of less than 48 hours.

30    On 4 June (before the applicant’s detention) Mr Dwyer advised as follows:

This client’s application to appeal (which was filed on 3 June) is out of time (by about 20 days). As such he requires an extension of time. In order to obtain an extension of time he would need to provide the court with a reasonable explanation for the delay in filing his proceedings (and with respect, his current explanation that he thought the appeal period was 31 days and he attended the court on 23 and 28 May (I assume in an attempt to lodge the appeal), do not appear to be acceptable) and he would need to satisfy the court that his proposed appeal is reasonably arguable. At the moment the proposed grounds of appeal are only generic and do not raise a specific error by the FCC that could be considered to be arguable.

It is possible that, if the client is detained and removal was progressed, that he would apply to the court for an injunction to prevent the removal. At the moment, I think we would be able to defend that application. But I can’t rule out that we would not be injuncted (depending on the judge and if an arguable error is identified).

31    This advice satisfied the second quoted exception at [25] above. The policy in practice appears to be that if the application for judicial review or appeal was before the Court (whether filed in time or being heard) removal would not take place; but if the application was out of time and an extension of time was being sought, advice would be taken as to its merits and likelihood of success. If such advice was (as here) that it was unlikely to succeed and if the Department would likely be successful in resisting an injunction application, steps would be taken to remove the person giving such notice as the Department thought appropriate and seeking to comply with s 256.

32    As stated above, on Thursday, 19 June, the applicant was advised that he was to be removed the following Wednesday. The note of the meeting records that the applicant was requested to sign a “Request for Removal” form. He asked for a copy of the form; he said that he would discuss it with his lawyer, and that he would possibly sign it the next day. The note also records that he declined to provide details of his lawyer “at that stage”. The record of the interview noted that the applicant was “polite and cooperative throughout the interview”. Also on 19 June, an email was sent to the Court (see [3] above). As noted above, a copy was sent to an address given by the applicant. It was not clear whether the applicant had access to the computer or his emails in detention.

33    At this point, it is necessary to explain why the email was sent to the Court. Mr Dwyer, in his second affidavit, explained this. He said that he had made known to officers of the Department and solicitors retained on behalf of the Minister that, as a “minimum standard”, the Court should be informed when the detainee is informed.

34    Mr Dwyer referred to five instances from 1 July 2013 to 30 June 2014 in which unlawful non-citizens were removed from Australia while having active litigation on foot. One of those matters was in the Federal Court and four in the Federal Circuit Court. It is unnecessary to go into the detail of them, except to say that in some, the Court was not informed, and that in two, an injunction was sought by the applicant (one proceeding being discontinued, an injunction being granted in another). In one proceeding, the Minister sought summary dismissal of the application for an extension of time. This last-mentioned proceeding came before Judge Nicholls in the Federal Circuit Court on 16 October 2013. At that hearing, the following exchange took place (according to a note in evidence):

His Honour was initially reluctant to proceed with the interlocutory hearing. He expressed the view that, in circumstances where s.198(6) of the Migration Act imposes a statutory obligation on the Department’s officers to remove a person from Australia, the mere existence of extension of time proceedings (absent an injunction) provides no impediment to removal being effected. He queried the necessity of the interlocutory application and asked why the Court’s resources should be directed to deciding the extension of time application today.

I responded that the Minister agreed with his Honour’s view and that the interlocutory application was brought out of an abundance of caution, lest any criticism be levelled at the Department for removing the applicant whilst proceedings were on foot.

His Honour remained unpersuaded of the desirability of hearing the extension of time application today. However, the applicant indicated that he wanted the Court to prevent his removal from Australia. In the circumstances, his Honour decided that he most expedient course would be to determine the extension of time application as sought.

His Honour had read our written submissions and did not need to hear any further oral submissions why an extension of time should be refused. He asked questions of the applicant regarding the applicant’s efforts to obtain legal representation and commence proceedings in the almost 9 months since the Tribunal’s decision. The applicant’s answers were consistent with the matters set out in the Removal of Interest Brief provided to us in connection with our removal file. However, none of those answers provided an acceptable explanation for the applicant’s lengthy delay in commencing proceedings.

…

His Honour also made it clear that he expects the Department to adopt a consistent approach in how it deals with matters such as this. He noted that, in an AGS matter this morning, an applicant in a similar position was removed without the proposed removal first being brought to the Court’s attention. He endorsed the approach taken in a previous matter in which the Court was notified in advance of a proposed removal.

His Honour’s preferred approach differs from how we have handled similar matters in the past. We have usually sought to have such matters listed and disposed of urgently so that no criticism can be directed at the Department for removing a litigant with proceedings on foot – see e.g. the attachment judgment from 2011 (also given by Judge Nicholls). We were also told by High Court Deputy Registrar Grey last year that it was inappropriate to notify the Court of the proposed removal of a plaintiff in an original jurisdiction matter.

In view of his Honour’s observations, the approach we propose to adopt in future extension of time applications in the Federal Circuit Court is to notify both the applicant and the Court in writing of any proposed removal. It will then be incumbent on the applicant to seek an injunction. The approach to be adopted in other courts, or where substantive judicial review proceedings are on foot, may differ. We will seek instructions accordingly on a case by case basis.

35    According to senior counsel for the Minister, what occurs in the Federal Circuit Court is that the Court is given notice of an impending and planned removal, and then, as a matter of urgency, the Court, of its own motion, lists the application that is pending before the Court for a hearing. It is to be noted that in 2012, the High Court Deputy Registrar told the Department that it was not appropriate to notify the Court of the proposed removal of a plaintiff in a matter in the original jurisdiction of the High Court.

36    Mr Dwyer also gave evidence of a number of other matters in both the Federal Circuit Court and the Federal Court in which injunctive proceedings were sought against removal once notification was made, in circumstances where there was litigation on foot. Mr Dwyer referred to 22 matters in the period 1 July 2013 to 30 June 2014, in 15 of which an injunction against removal was sought, nine being determined on the day of the application, four the day after, and the remaining two heard within three and five days.

37    It is appropriate at this point to say something of this practice. With respect to Judge Nicholls and to Mr Dwyer, the attitude of the Deputy District Registrar of the High Court is appropriate. The Court is not an adjunct of the Executive; nor does it act for, nor should it be seen to act for, or in the interests of, the applicant. One might ask rhetorically: What is the purpose of notifying the Court of the impending removal? If the answer is: so that the Court may, in the interests of the applicant, or for the sake of good order, promptly list the applicant’s application and have her or him brought to Court to press the application, there is a danger that the Court is being seen to be directed by the Department as to the time and place for the exercise of judicial power. The function of the Court is to hear and determine controversies in the exercise of judicial power of the Commonwealth, brought before it by the parties. If there is no legal impediment to the person being removed from the country, it will be a matter for the person concerned to bring an application to restrain the Minister from removing the person from Australia. As has already been discussed, there is a duty upon the person holding the applicant in immigration detention to provide reasonable facilities for the obtaining of legal advice and the making of a relevant application. This duty includes the person being given a reasonable time to seek that advice and to make that application.

38    A further difficulty arises in relation to giving notice to the Court. If, as was done in this case, the person in detention is informed that the Court has been informed, there is a danger that the detainee will be encouraged to think that the Court will list the matter promptly for him or her. What other purpose in the communication to the Court might there be, in that person’s eyes? Further, this is precisely what the Federal Circuit Court has apparently been doing. So if the Court, in the exercise of its administration, does not list the matter in time, and the detainee is removed, perhaps having been of the view that the Court will do something by way of listing her or his matter, the Court can be seen to be to blame for the applicant’s predicament.

39    Whilst it may be perhaps understandable that Mr Dwyer thought it appropriate to tell the Court, that was no doubt because the action of removing the applicant might be seen as having a tendency to undermine the exercise of judicial power that is sought by the detainee, to the extent that an application was on foot for the making of an order in relation to his status. However, for the reasons given, that step is not appropriate.

The underlying question of power

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. It is to be recalled that, in many cases, a person in immigration detention may not speak English, at all, or with any great facility, and may well be a stranger to the Australian legal system.

41    The Department’s policy identifies a usual period of seven days’ notice, which would generally be at least five working days. Further, a reasonable opportunity presupposes the knowledge of the person that she or he can seek injunctive relief to prevent deportation until her or his case is disposed of. It is of little use to have a telephone available for five days if the person does not know that she or he is entitled to approach the Court for an order to prevent her or his removal.

The applicant’s deportation

42    To return to this applicant’s position, on the Monday prior to his deportation, 23 June, he was once again interviewed by members of the Department. On this occasion, he made a complaint regarding his removal. It is to be recalled that on the previous Thursday, it appeared that he may have been willing to go voluntarily, though he was to speak with his lawyer. He wrote a note which stated that he still had legal options available to him and did not want to go back to Sri Lanka. On the following day, the Tuesday (the day before his deportation) the applicant spoke to his case manager with the assistance of a Tamil interpreter. In this interview he expressed his concerns about returning to Sri Lanka.

43    It is not clear on the evidence the extent to which the applicant actually did seek advice between 19 June and 25 June. The officers were entitled to assume that he would do or had done that which he said he would do: speak to his lawyer. The apparent absence of any statement by any officer of the Department to the applicant that if he wished to restrain the removal process, he must file an application in Court for an interlocutory injunction should be seen in that context.

44    It was submitted by senior counsel for the respondent that, in all the circumstances of this case, it should be concluded that the applicant had ample opportunity to seek injunctive relief, in particular it was submitted, in circumstances where the case officer had made enquiries that the applicant had a lawyer or agent, had encouraged the applicant to speak to his migration agent, and had endeavoured to have the agent make contact with the Department.

45    We are not prepared to conclude positively that this applicant had the full benefit of s 256 of the Act. Whilst he appears to have been informed on a number of occasions of the Department’s unwillingness to regard his application for an extension of time as a matter which would prevent his removal, he was given only three working days to bring an application in relation to the date set for his removal. He did, however, appear to have a lawyer available to him. The assessment of a reasonable time is difficult. Giving seven days (five working days) would have made the assessment easier to make. The case is therefore not without its troubling aspects.

46    As we said above, where 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 to which we have made reference. 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.

47    In all the circumstances of this case, whilst we are not positively persuaded that such a reasonable opportunity was given, we cannot conclude that the applicant did not have a reasonable opportunity, in the light of the apparent availability of a migration agent.

48    In the circumstances, we are prepared to dismiss the matter on the basis of the application being moot in the absence of the applicant in Australia. We are not prepared to deal with the matter on the merits.

49    What is a reasonable time and a reasonable opportunity to bring legal proceedings to prevent removal will always depend on the circumstances. Further, as the case of Morrison [2007] FCA 723 shows, the circumstances of an individual may demand very prompt removal.

50    The earlier procedure of the Minister of taking the initiative and seeking the disposal of cases not thought to be likely to succeed may impose on the Minister a burden and expense that is unreasonable. It is, however, important that policies and practices of the Department do not impede or undermine access to the Court by persons seeking to invoke the exercise of judicial power under Ch III. It is the responsibility of litigants to bring their applications to the Court. It is not the responsibility of the Court to manage their applications for them. Nevertheless, generally (and leaving to one side exceptional cases, such as Morrison) parties should be given a real and meaningful opportunity to approach the Court, if so advised. That involves, not only the provision of sufficient time and necessary implements of communication, but assumes and necessitates knowledge by the person of the entitlement and ability to seek that relief.

51    The order of the Court will be that the application be dismissed.

Associate:

Dated: