FEDERAL COURT OF AUSTRALIA

AEF15 v Minister for Immigration and Border Protection [2015] FCA 1150

THE COURT ORDERS THAT:

1.    The applicant be referred to a lawyer for legal assistance pursuant to rule 4.12 of the Federal Court Rules 2011 (Rules) and a certificate for legal assistance be issued in accordance with Form 9 of the Rules for that purpose.

2.    The applicant file and serve any amended application for extension of time and leave to appeal, and any amended draft notice to appeal by 5:00 pm on 3 November 2015.

3.    The Minister, by himself or by his department, officers, agents or delegates, be restrained from removing the applicant from Australia until 5:00 pm on 4 November 2015.

4.    The applicant’s application be adjourned for further hearing at 10:15 am on 4 November 2015 before a judge of this Court to be notified to the parties.

5.     Costs of today be reserved.

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

REASONS FOR JUDGMENT

1    This matter came before me on an urgent basis as the duty judge at approximately 1:30 pm. The applicant filed an Application for Extension of Time and Leave to Appeal (the Application) together with an affidavit sworn by him on 20 October 2015. Included in the Draft Notice of Appeal was an order seeking “Interlocutory Injunction preventing Applicant’s removal from Australia”.

2    The draft Notice of Appeal annexed to the applicant’s affidavit appeals from “all of the Orders of the Federal Circuit Court of Australia given on 9 April 2015”. The proposed grounds of appeal as recorded in the Draft Notice of Appeal (without alteration) are:

1.    The proceeding in the Order which the application relates was pronounced involves question of law;

2.    There is jurisdiction error occurs in the order.

3    When the matter came on before me, I was informed that the applicant was on his way to or possibly at the airport in anticipation of his removal. He was scheduled to leave Australia on a flight departing at 3:05 pm. The applicant was represented for the purpose of the hearing of the Interlocutory Application only by Ms Warnakulasuriya of Warna Legal. Ms Warnakulasuriya informed the Court that she had not assisted the applicant in the preparation of the Application or the Draft Notice of Appeal but that she was present to assist the Court in relation to his application for an order restraining his removal.

4    The decision which is the subject of the Application for an Extension of Time and Leave to Appeal and the Draft Notice of Appeal was made by the Federal Circuit Court of Australia (FCCA) on 9 April 2015 after a hearing which occurred on that day: see AEF v Minister for Immigration & Anor [2015] FCCA 884. The Orders that were made by the court are annexed to the applicant’s affidavit. They were:

(1)    The proceedings be summarily dismissed.

(2)    The Applicant to pay the First Respondent’s costs fixed in the sum of $1,367.00.

5    The applicant’s affidavit annexes a Notice of Order Made in the Magistrates Court of Victoria at Dandenong on 13 October 2015. The Notice records that an order was made that the applicant was not guilty. The applicant’s representative informed the Court that the reason for the delay in filing the application for leave to appeal the decision of the primary judge was that the applicant was occupied with dealing with the matter before the Magistrates Court of Victoria. It was only after that matter was dealt with that the applicant turned his mind to the filing of the application now before the Court. That explanation is borne out by the applicant’s affidavit filed in support of the Application at [3] and [4]. No evidence was provided of the date on which the applicant was charged.

6    The solicitor for the first respondent provided the following relevant dates:

(1)    the judgment the subject to the Application and Draft Notice of Appeal was given on 9 April 2015;

(2)     the judgment being interlocutory, the applicant had until 23 April 2015 to file an application for leave to appeal;

(3)    the applicant was taken into immigration detention on 12 June 2015;

(4)    the applicant was notified of his removal on 19 October 2015.

7    The power to make the order sought by the applicant preventing his removal is found in s 23 of the Federal Court of Australia Act 1976 (Cth). The accepted test for the granting of an interlocutory injunction is that the Court must generally be satisfied that there is a serious question to be tried and that the balance of convenience favours the grant of an injunction. In showing whether there is a serious question to be tried it is sufficient for the applicant to show a “sufficient likelihood of success” to justify in the circumstances of the case the preservation of the status quo. Further, the Court may act to ensure its own processes are not frustrated.

8    The applicant’s representative, having not assisted in the preparation of the Draft Notice of Appeal, was unable to assist the Court in relation to whether there was a serious question to be tried.

9    The solicitor for the first respondent submitted that, based on the Draft Notice of Appeal, there is no serious question to be tried. The application does not plead any arguable grounds or identify the nature of the alleged jurisdictional error. The applicant’s representative is unable to shed any light on the grounds included in the Draft Notice of Appeal. The solicitor for the first respondent also submitted that based on the facts available, the delay in bringing the Application, had not been properly explained. The solicitor for the first respondent submitted that, if the Court was satisfied that there was a serious question to be tried; the first respondent’s position is to accept that the balance of convenience favours the applicant remaining in the jurisdiction.

10    The primary judge dismissed the applicant’s application before him on its first return date on the basis that there was no arguable case. The applicant was represented on the first return date before the primary judge. In his reasons for decision, the primary judge noted at [3]:

Mr Clark of counsel, who appeared for the applicant, sought to object to the Court considering whether or not the application disclosed an arguable case. The identification on the first return date that the Court may hear and determine all interlocutory or final issues or make directions for the future conduct of proceedings makes patently clear that the Court is in a position where it can properly consider whether or not there is an arguable case on the first return date. Before addressing Mr Clark of counsel on behalf of the applicant, Mr Elliott on behalf of the first respondent was asked as to whether there was any reason why this matter should not be the subject of summary dismissal consideration. Mr Elliott indicated that as far as the first respondent was concerned there was no reason why the Court should not consider summary dismissal. There is no substance in Mr Clark’s objection to the Court considering whether the matter should be summarily dismissed. Mr Clark properly conceded that ground 3 was unarguable.

11    The primary judge concluded at [13] as follows:

The findings of the Tribunal were clearly open. The applicant had a genuine hearing. There is no substance in the grounds advanced for the reasons I have identified. The proceedings have no reasonable prospect of success. The application is summarily dismissed.

12    Despite the urgent nature of these applications it is regrettable that the transcript of the FCCA proceedings of 9 April 2015 was not in evidence. No doubt the availability of a transcript of those proceedings would have clarified the extent to which the FCCA considered each of the applicant’s grounds. When asked, the solicitor for the first respondent was unable to assist me with an understanding of whether the decision of the primary judge may be infected by an error of the kind identified in SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317 or Shrestha v Migration Review Tribunal & Anor (2015) 229 FCR 301. The solicitor for the first respondent candidly and, in my view, quite properly informed me that it could not be said that the decision of the primary judge was not infected by such error.

13    Despite the assistance provided by applicant’s representative on this application, the applicant was unrepresented for the purposes of the preparation of his Application and the Draft Notice of Appeal. His proceedings before the primary judge were dismissed over objection by counsel appearing on his behalf. While the reasons of the primary judge disclose that counsel for the applicant conceded that one of the grounds in his application before that Court was unarguable, there does not appear to be any such concession in relation to any other grounds raised by the applicant in those proceedings.

14    In SZVXC V Minister for Immigration and Border Protection [2015] FCA 1041, in similar circumstances, Griffiths J considered an urgent interlocutory application in which the applicant sought leave to appeal against a decision of the FCCA and an interim injunction restraining his removal from Australia. The draft notice of appeal in that matter included a ground of denial of natural justice. In that case, his Honour rejected the first respondent’s argument that there was no utility in restraining the applicant’s removal because he had been unable to establish any arguable error within the reasons of the FCCA dismissing the application. In doing so, his Honour noted that “[i]t may well be that if an adjournment had been granted and legal advice obtained, different arguments could have been presented which might or might not have resulted in a different outcome”: at [24]. In the present case, had the matter proceeded to final hearing, with the benefit of submissions and relevant documents there may or may not have been a different outcome.

15    In the circumstances, I propose to grant the interlocutory relief sought by the applicant for a period of 14 days. I will also make an order pursuant to r 4.12 of the Federal Court Rules 2011 referring the applicant to a lawyer for legal assistance. The applicant is to file and serve any amended application for extension of time and leave to appeal and any amended draft notice of appeal by 3 November 2015. The Application will be adjourned for two weeks to 4 November 2015.

Associate:    

Dated:    28 October 2015