FEDERAL COURT OF AUSTRALIA

SZKUO v Minister for Immigration and Citizenship [2009] FCA 1570

PRACTICE AND PROCEDURE – application for an injunction restraining the respondent from removing the applicant from Australia – injunction sought for the purpose an application to the High Court for special leave to appeal – test to be applied – prospects of the applicant obtaining special leave to appeal – balance of convenience considered

Held: injunction granted

Federal Court of Australia Act 1976 (Cth), s 20

Migration Act 1958 (Cth), ss 5(9), 196(6)(c)(i), 426A

Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460

Jennings Construction Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681

Miller v Nationwide News Pty Ltd [2008] NSWCA 261

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11

Minister for Local Government v South Sydney City Council (No 3) [2002] NSWCA 327

Papachristopoulos v Minister of Immigration and Multicultural Affairs (unreported, NG 719 of 1997, 17 December 1997)

Re Cortaus Ltd (in liq); Sheahan v Joye (1996) 19 ACSR 591

Sibuse Pty Limited v Shaw (No 2) (1988) 13 NSWLR 125

Smith Kline & French Laboratories (Australia) Limited v Secretary, Department of Community Services and Health (1991) 99 ALR 417

SZKUO v Minister for Immigration & Anor [2007] FMCA 2073

SZKUO v Minister for Immigration (No 2) [2009] FMCA 498

SZKUO v Minister for Immigration and Citizenship [2009] FCA 93

SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167

SZKUO v MINISTER FOR IMMIGRATION AND CITIZENSHIP

NSD 552 of 2009

JAGOT J

16 DECEMBER 2009

SYDNEY

Upon the applicant by the applicant’s counsel undertaking to prosecute the application for special leave to appeal to the High Court of Australia from the judgment of the Full  Court of the Federal Court of Australia with all reasonable expedition, THE COURT ORDERS THAT:

1.         The respondent be restrained from removing the applicant from Australia pending the disposal by the High Court of Australia of the application made to it on 15 December 2009 by the applicant seeking special leave to appeal from the judgment of the Full Federal Court of Australia on 3 December 2009.

2.         Costs of the notice of motion filed in Court on 16 December 2009 be costs in the applicant’s favour if the applicant is granted special leave to appeal and the appeal is allowed.  Otherwise, no order as to costs.

3.         Liberty to restore on 48 hours’ notice.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                          This is a notice of motion which seeks orders that the respondent, the Minister for Immigration and Citizenship (the Minister), be restrained from removing the applicant from Australia pending the disposal by the High Court of Australia of an application made to it on 15 December 2009 seeking special leave to appeal from the judgment of the Full Court of the Federal Court of Australia (Moore, Jagot and Foster JJ) delivered on 3 December 2009 (SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167). 

2                          The matter involved an appeal from the Federal Magistrates Court and raised an issue about the power of the Minister to remove the applicant from Australia having regard to the terms of s 198(6)(c)(i) of the Migration Act 1958 (Cth).  Section 198(6)(c)(i) imposes an obligation upon the relevant officers to remove an unlawful citizen as soon as reasonably practicable in circumstances where, relevantly, the grant of a visa has been refused and the application has been “finally determined”. 

3                          The circumstances in which the matter came before the Full Court are identified in [2]-[7] of the Full Court’s reasons for judgment.  In short, the applicant attended a hearing of the Refugee Review Tribunal (the Tribunal) in response to an invitation to do so; through some form of administrative error, the applicant was not called into the hearing room to give evidence in support of his application for review of a decision of the Minister’s delegate to refuse the applicant a protection visa.  Consequently, the Tribunal, pursuant to s 426A(1) of the Migration Act, dismissed the applicant’s application for review on the basis of the Tribunal’s understanding that the applicant had failed to attend the hearing without any explanation.  After a lengthy delay, the applicant applied to the Federal Magistrates Court seeking orders quashing the Tribunal’s decision.  In SZKUO v Minister for Immigration & Anor [2007] FMCA 2073 the Federal Magistrate accepted the facts relating to the applicant’s attendance at the Tribunal.  The Federal Magistrate determined that although these factual circumstances amounted to a jurisdictional error by the Tribunal there was a discretion to withhold relief.  The six year delay between the Tribunal hearing and the application to the Federal Magistrates Court was not adequately explained.  Accordingly, the Federal Magistrate made orders dismissing the application.  The applicant attempted to obtain an extension of time in which to file a notice of appeal against the Federal Magistrate’s decision but this was refused (SZKUO v Minister for Immigration and Citizenship [2009] FCA 93).  Thereafter, the applicant commenced further proceedings in the Federal Magistrates Court seeking a declaration that he was not liable to detention or removal from Australia because his visa application had not been “finally determined” within the meaning of s 198(6)(c)(i) of the Migration Act.  The Federal Magistrates Court dismissed that proceeding (SZKUO v Minister for Immigration (No 2) [2009] FMCA 498).  An appeal thereafter followed to the Full Court of the Federal Court.  The decision of the Full Court that the appeal be dismissed was unanimous (SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167).  The reasoning underlying that decision is set out in [22]-[34] of the Full Court’s judgment. 

4                          In the present application there was no dispute between the parties that I had the power to make the orders sought by the applicant, although there was an issue raised about whether the substance of the orders sought would be a stay of the orders of the Full Court or an order restraining the Minister from exercising his powers of removal under the Migration Act.  The Minister, nevertheless, accepted that an order in the nature of an injunction could be made.  That acceptance is consistent with the observations of Branson J in Papachristopoulos v Minister of Immigration and Multicultural Affairs (unreported, NG 719 of 1997, 17 December 1997) in which Branson J referred to her own decision in Re Cortaus Ltd (in liq); Sheahan v Joye (1996) 19 ACSR 591 to the effect that a single judge has the power to grant an application of the kind sought in this case, that power being derived from s 20 of the Federal Court of Australia Act 1976 (Cth).

5                          Although the parties were on common ground in relation to the issue of power, they diverged about the correct test to apply.  In Jennings Construction Limited v Burgundy Royale Investments Pty Limited (No 1) (1986) 161 CLR 681 at 684 Brennan J identified that a “stay to preserve the subject matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction”.  His Honour said that “exceptional circumstances” must be shown before exercise of this power is warranted.  Mason CJ in Smith Kline & French Laboratories (Australia) Limited v Secretary, Department of Community Services and Health (1991) 99 ALR 417 at 419 also stated that the jurisdiction to grant injunctive relief to preserve the subject matter of litigation pending the determination of an application for special leave to appeal or of an appeal pursuant to such a grant of leave is an “extraordinary one” and would be granted only in “exceptional circumstances”.  Kirby J in Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 at 463 referred to a distinction between the general approach in the High Court (where special or exceptional circumstances must be shown in order to secure provision of a stay pending an appeal) and the approach in other courts, specifically the New South Wales Court of Appeal, which have adopted a less stringent approach.  At 463-464, Kirby J explained the reasons underlying this distinction as follows:

In the High Court the old rule of stringency continues largely to be maintained with particular force where no grant of special leave to appeal has yet been secured.  There are obvious reasons for a measure of greater stringency at this point.  Ordinarily, the case will have proceeded through at least two tiers of the judicial process.  The would-be appellant’s arguments will have been rejected by the court whose orders are the subject of the special leave application.  Only a relatively small proportion of the applications for special leave succeed.  To succeed, something more than legal or factual error must be shown.  There are reasons for maintaining a higher standard in this court for the provision of a stay then would now usually be imposed by other Australian appellate courts in respect of invocations of their jurisdiction.

6                          The Minister, based on these authorities, advocated the application of the stringent test identified by Brennan J in Jennings Construction. 

7                          The applicant referred to decisions of the New South Wales Court of Appeal in which that Court applied the less stringent test to which Kirby J made reference in Bryant.  In Minister for Local Government v South Sydney City Council (No 3) [2002] NSWCA 327 at [10] to [12] Spigelman CJ identified that the principles applicable to a stay and an injunction substantially overlap.  His Honour read the decisions in Jennings Construction and Smith Kline as being authority for the proposition that an intermediate court of appeal should not be diffident in granting a stay or an injunction in an appropriate case notwithstanding the difficulty that may be occasioned for a member of such a court in making an assessment of the prospect of a grant of special leave in a particular case.

8                          McColl J in Miller v Nationwide News Pty Ltd [2008] NSWCA 261 also identified the divergence between the approach of the New South Wales Court of Appeal and that of the High Court.  The approach of the New South Wales Court of Appeal, her Honour observed, derives from the decision of Sibuse Pty Limited v Shaw (No 2) (1988) 13 NSWLR 125 in which the Court adopted the test that a stay or injunction would be granted pending an application for special leave to appeal to the High Court only in an “appropriate” case.  McColl J adopted the Sibuse line of authority on the basis that it was a decision of three judges of the New South Wales Court of Appeal which had been followed in other cases of that Court and which had not yet been the subject of criticism by the High Court.  In so doing her Honour made express reference to the decision of Kirby J in Bryant.

9                          The applicant ultimately submitted that, irrespective of the test to be applied, the circumstances of this case met the requisite standard. 

10                        It seems to me that there is a divergence of approach between the High Court and the New South Wales Court of Appeal, the latter being an intermediate appellate court.  Given the status of this Court as an intermediate appellate court, the considerations and approach adopted by Branson J in Papachristopoulos, as well as the other decisions of single judges of this Court to which I have been taken in oral submissions, it seems to me that I should apply the less stringent test; however, I also propose to deal with the matter by reference to both standards given that I have reached a conclusion of a sufficient degree of confidence to be able to do so. 

11                        In relation to the relevant factors both parties relied on the decision in Jennings Construction where Brennan J at 685 said that:

In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and, fourthly, where the balance of convenience lies.

12                        The Minister’s submissions accepted (as was appropriate) that the factors relevant to the balance of convenience mostly weighed in favour of the applicant.  However, the Minister said that this was insufficient to warrant an injunction.  The Minister emphasised that the Full Court had unanimously dismissed the appeal from the Federal Magistrates Court.  Although the applicant sought to identify issues of legal principle about the legal effect of discretionary decisions having regard to the reasoning in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11, the present case involved nothing more than a matter of statutory construction.  Hence, the Minister submitted that Bhardwaj and the issues to which it gives rise should be seen as an interesting side-line in this matter.  For these reasons the Minister submitted that there was no substantial chance that the applicant would be granted special leave.  The Minister also referred to the fact that the applicant has been in detention, at the cost of the Australian public, since 9 April 2008.  In consequence the Minister submitted that the Minister should be entitled to the fruits of his success and be able to implement the removal of the applicant on the date as scheduled, being this Friday, 18 December 2009. 

13                        It is true and I accept that the applicant has been in detention for a considerable period of time.  If I make orders as the applicant seeks, the applicant will continue to be so detained at the expense of the Australian public.  As Branson J identified in Papachristopoulos that is a relevant factor.  Branson J also identified, however, that very considerable weight should be given to the right of all persons in Australia to approach the Australian courts and to have their legal rights and obligations determined according to law.  Ultimately in Papachristopoulos her Honour considered that the Full Court in dismissing the appeal had not identified any point of legal principle with the consequence that the prospect of the grant of special leave to the High Court was “so remote” that no extension of the injunction earlier made in that proceeding should be granted. 

14                        In Bryant Kirby J said that a decision on a stay application should not become an occasion for a detailed analysis of the issues that will arise in the special leave application and (if granted special leave) the appeal.  His Honour noted (at 463) that the evaluation of the prospects of success will necessarily involve a matter of judicial impression.  That judicial impression, his Honour noted, does not predetermine one way or the other the substantive application. 

15                        As both parties are aware I was a member of the Full Court which unanimously dismissed the applicant’s appeal.  That latter fact, however, does not remove the overall judicial impression that one can obtain from reading the reasons for decision.  Specifically, insofar as I am aware, the applicant is correct in identifying that the High Court has not yet had an opportunity to consider the legal effect of a discretionary decision on the Minister’s power of removal.  Further, the applicant is also correct in identifying that there is scope for debate arising from the High Court’s decision in Bhardwaj as to the existence and relevance of a party’s underlying rights and the source of those underlying rights in terms of the relief granted on a judicial review application.  This emerges from paragraphs to which I have been taken by the applicant particularly at [46], [57] and [58] of the reasons for judgment in Bhardwaj.  The applicant also submitted that the definition of “finally determined” (s 5(9) of the Migration Act), which refers to a decision which is no longer “subject to any form of review”, describes a legal rather than a factual condition. 

16                        The relevant authorities appear to indicate that the concept of a substantial prospect of a grant of special leave includes a prospect which may be described as not insubstantial or not remote.  This matter gives rise to issues which satisfy me that the applicant has a not insubstantial or not remote prospect of obtaining a grant of special leave.

17                        In addition to my satisfaction about this issue, it is also apparent (and indeed not disputed by the Minister) that an order is required to preserve the subject matter of the litigation.  The subject matter of the litigation is the capacity or power of the Minister to deport the applicant from Australia.  If the applicant is deported from Australia on 18 December as proposed the subject matter of the litigation will be entirely removed. 

18                        The balance of convenience also heavily favours the applicant.  The notice of removal which was served on the applicant on or about 11 December 2009 appears to identify three restrictions that would apply to the applicant if removed.  First, the applicant may not be eligible for the grant of another Australian visa pending repayment of debts owed to the Commonwealth of Australia.  Second, the applicant may not be eligible for the grant of another Australian visa for a period of three years because the basis of his deportation is as an unlawful non-citizen more than 28 days after the applicant’s last substantive visa ceased.  Third, the applicant may not be eligible for the grant of another Australian visa for 12 months on the basis of the statutory powers relied upon by the Minister to remove the applicant. 

19                        In these circumstances, all of the relevant discretionary factors weigh heavily in favour of the applicant.  The only factor which weighs against the applicant is the cost of maintaining the applicant in detention for the relevant period.  This factor, even taken together with the fact that the applicant has been unsuccessful before the Federal Magistrates Court and unanimously before this Court, cannot outweigh the other factors to which I have referred.

20                        In summary, my overall impression is that there are matters of general importance to the operation of the Migration Act and the Minister’s powers (as well as the individual position of the present applicant) which arise in this case.  I cannot conclude that there is not a substantial prospect of special leave being granted.  It follows that I am comfortably satisfied that this is an appropriate case for the making of an order in the nature of an injunction.  I am also able to say, if I need to, that having regard to the factors as identified by Brennan J in Jennings Construction, the matter meets the standard of an exceptional case.  It raises new issues about the Minister’s powers which have not been previously determined.  It raises what seems to me to be an important point about the operation of the provisions of the Migration Act.   Accordingly, I am minded to make the orders sought by the applicant.

Associate:

Dated:         16 December 2009