FEDERAL COURT OF AUSTRALIA

Cayzer v Minister for Immigration and Border Protection [2014] FCA 1166

THE COURT ORDERS THAT:

1.    The Respondent be restrained from detaining the Applicant until a determination has been made by the Court as to the Applicant’s citizenship status or until further order.

2.    Leave be granted to the Respondent to apply on short notice to set aside the above order.

3.    Both parties have liberty to apply generally.

THE COURT NOTES THAT:

The applicant by his counsel undertakes to notify immediately the Minister for Immigration and Border Protection of this ex parte application and of this order.

The applicant by his counsel undertakes to start within 14 days a substantive proceeding seeking an injunction and a declaration that the applicant is an Australian citizen and not subject to the Respondent’s power under s 501(3) of the Migration Act 1958 (Cth).

The applicant personally undertakes not to leave the State of Tasmania or change his residential address until further order.

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

REASONS FOR JUDGMENT

1        Shortly before noon on 30 October 2014 the applicant filed an affidavit in the above matter. My associate was advised that the applicant sought an urgent hearing. The court convened at 2.15pm.   Mr Melick SC advised the court he was directly briefed, with Mr Broomhall of counsel, on behalf of the applicant. He sought an urgent ex parte injunction to prevent the applicant's threatened detention by officers acting on behalf of the respondent. Mr Melick referred to communication to the applicant to the effect that he was to be detained pending his removal from Australia. In light of the circumstances and limited time the court made interlocutory orders with reasons to be provided. These are my reasons for the orders made on 30 October 2014.

2        Section 501 of the Migration Act 1958 (Cth) confers powers on the respondent, under certain circumstances, to cancel a visa. By notice dated 8 January 2014 the respondent advised the applicant that he was considering cancelling the applicant’s Class BF Transitional (Permanent) visa. The applicant made submissions in writing to the respondent on 21 March 2014 and 8 July 2014. The respondent on 27 October 2014 decided to cancel the applicant’s visa, and on 29 October 2014 the applicant was informed by officers of the Department of Immigration and Border Protection that he must report to their office at 188 Collins Street Hobart by 9.00am on 31 October 2014 and that upon his reporting he would be detained pending his removal from Australia. If he failed to report by that time, the Department would seek the assistance of Tasmania Police to locate and detain him.

3        It is uncontroversial that on 11 November 2011 the applicant was convicted of a serious crime which, if he required a visa to remain in Australia, would enliven the power of the respondent to give attention to its possible revocation. The merits of the respondent’s actions, assuming the applicant is required to hold a visa, are not the subject of these proceedings.  Instead Mr Melick submitted that the respondent's power to revoke a visa was unavailable as against the applicant.

4        He submitted that the applicant was an Australian citizen.

5        The facts relevant to the applicant's claims to be an Australian citizen also seem uncontroversial. They are recounted in the respondent's decision which was filed with the ex parte application. They can be summarised shortly. The applicant is aged 54. He was born in Scotland.  He arrived in Australia with his family in 1965. He was then aged 5 years old.  Since the age of 5 he has never lived anywhere but Australia. He has children in Australia and has no close family outside of Australia. He has an Australian de facto partner.

6        Mr Melick referred the court, inter alia, to the decision of the High Court in Re Patterson; ex parte Taylor (2001) 207 CLR 391 as authority for the proposition that a British subject owing allegiance to the Crown who arrived in Australia as a child before 1984 and who has become integrated into the Australian community is an Australian citizen.

7        In that case the majority held that the British subject was not an alien but was a subject of the Queen of Australia, and hence Migration Act s 501(3) could not apply to him.

8        Mr Melick submitted that the facts in the present case fell within those circumstances.  Mr Melick submitted, and the applicant confirmed in his affidavit, that the applicant had never applied for any visa. Mr Melick submitted that regulations under the Migration Act providing for deemed visas could not convert the status of a citizen to that of a non-citizen.

Consideration

9        The two most important factors a court must consider if requested to grant an ex parte interlocutory injunction is (a) whether the substantive application when heard would have real prospects of success and (b) the balance of convenience as between the parties.

10        With respect to merits, the High Court's decision in Re Patterson; ex parte Taylor, at least on the court's initial examination and without the benefit of a contradictor, appears indistinguishable. It is clearly in favour of the applicant.

11        In regard to the balance of convenience it appeared to the court self-evident that the balance favoured the status quo: that is the applicant's liberty; at least provided the applicant remained available to be detained and removed should the ultimate result be unfavourable to him.

12        The application was made on an ex parte basis because there was no time to initiate a substantive proceeding with notice to the respondent prior to the date notified to the applicant for his surrender into detention.  For that reason there was no contradictor. Decisions at this stage must be based on limited facts and without the benefit of argument. Once these proceedings come to the respondent's attention it is quite possible that the respondent may have a complete answer to the propositions advanced by Mr Melick. The respondent would want to put those submissions to the court without delay.

13        For that reason the court required an undertaking from Mr Melick that the application and the court's orders would be immediately brought to the respondent's notice. I ordered that the respondent have leave to apply on short notice should it seek to discharge the injunction.

14        The court is also mindful of the qualification regarding the balance of convenience: that the balance favours the status quo: at least provided that the applicant will remain available to be detained and removed in the event that the injunction is discharged. The court notes that the applicant is on parole until November 2015 and because of that is subject to conditions that he live at a fixed address and not leave Tasmania. Breach of those conditions would render him liable to arrest and return to prison. In addition the applicant gave an undertaking to this court that he would not change his place of residence or leave the State of Tasmania. Any breach of that undertaking would be a contempt. Those factors, together with the applicant's family ties referred to in the respondent’s reasons for decision, suggest that any risk of flight, whilst impossible to entirely discount, is slight and not sufficient to alter the balance in favour of the status quo.

15        In matters such as these there can be no justification for requiring the usual undertaking as to damages.

16        The applicant by his counsel gave an appropriate undertaking that he would start within 14 days a substantive proceeding seeking an injunction and a declaration that the applicant is an Australian citizen and not subject to the Respondent’s power under s 501(3) of the Migration Act.

17        I was therefore satisfied that the merits and balance of convenience justified the grant of the order sought.

Associate:

Dated:    31 October 2014