FEDERAL COURT OF AUSTRALIA

ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant is to file and serve an amended notice of appeal setting out the grounds of appeal to the effect of those foreshadowed by her counsel today, together with further grounds as she may be advised.

2.    Such amended notice of appeal is to be filed and served on or before 13 April 2016.

3.    The first Respondent is restrained by himself or by his department, officers, agents or delegates, from removing the applicant from Australia until 5:00pm on 28 April 2016.

4.    The Appellant’s application for an order in terms of paragraph 3 of the notice of the appeal for an interlocutory injunction, preventing her removal from Australia pending the determination of the appeal, be listed for argument on 28 April 2016 at 10:15am.

5.    The Appellant is to file and serve such material upon which she intends to rely on or before 18 April 2016.

6.    The Respondent is to file and serve any material upon which it intends to rely on or before 26 April 2016.

7.    The Appellant is to file written submissions in support of the interlocutory application, not including the question of competency on or before 18 April 2016.

8.    The Respondent is to file written submissions as to the question of competency on or before 22 April 2016.

9.    The Respondent is to file written submissions as to the merits of the interlocutory injunction on or before 26 April 2016.

10.    The Appellant is to file any written submissions in response to the question of competency only, on or before 26 April 2016.

11.    Costs for today be adjourned in the cause of the application for the interlocutory injunction.

12.    The parties have liberty to apply.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The applicant is a citizen of Vietnam. She filed a Notice of Appeal in this Court on the afternoon of 11 April 2016. By paragraph 3 of the orders sought on the Notice of Appeal she applied for an interlocutory injunction restraining the first respondent from deporting her to Vietnam pending the determination of her appeal.

2    The applicant is currently detained in immigration “transit accommodation” in Adelaide. Some time on or after 5 April 2016 she was notified by officers acting on behalf of the first respondent (hereafter, the respondent) that she was to be removed from Australia at 8.40 am on Tuesday 12 April 2016. The removal was to be effected by her being escorted under guard to board a commercial flight to Ho Chi Minh City.

3    The applicant does not understand English. She was notified of the respondent’s intention to remove her from Australia by telephone through an interpreter. The interpreter translated a document titled “Notice of Intention to Remove from Australia” (the Removal Notice). The applicant was provided a copy of the Removal Notice. It states that the applicant “is liable for removal from Australia” under s 198(6) of the Migration Act 1958 (Cth) (Act).

4    The matter came before me as duty Judge at 5.30 pm on the day that the Notice of Appeal was filed, that is, the evening before the applicant’s proposed deportation. At the conclusion of that hearing, I made an interim order to the effect that the respondent be restrained from removing the applicant from Australia until 5:00 pm on 28 April 2016. The applicant’s application for an injunction restraining her removal until the final determination of her appeal was listed for argument on 28 April 2016 at 10.15 am. I gave directions for the filing of an amended Notice of Appeal and materials upon which the parties will rely at that hearing.

5    These are my reasons for making those orders.

Background

6    Section 198(6) of the Act provides that an officer must remove as soon as reasonably practicable a non-citizen who meets the descriptions given in s 198(6)(a) to (d). The criterion in s 198(6)(c) is that:

(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.

7    The remaining criteria are not presently in issue.

8    The respondent submits that the applicant is a detainee who has been immigration cleared and that her application for a substantive visa, namely a Protection Visa, has been finally determined. He emphasised that s 198(6) mandated the applicant’s removal. I deal with that submission later in these reasons.

9    The applicant’s application for a Protection Visa was made pursuant to s 36(2)(a) and alternatively under s 36(2)(aa) of the Act. Subsection 36(2)(aa) provides:

(2)    A criterion for a protection visa is that the applicant for the visa is:

…

(aa)    a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; …

10    In support of her visa application, the applicant (relevantly) claimed to be at “real risk” of harm in that she has been the victim of domestic violence in Vietnam. She claims to have been regularly beaten by her husband, and that she consequently fears for her safety and her life should she be returned.

11    A delegate of the respondent refused the applicant’s Protection Visa application. The applicant made an application for review of that decision before the Refugee Review Tribunal (Tribunal). The Tribunal determined that the applicant was not at “real risk” of “serious harm” within the meaning of s 36(2)(aa). It held that Vietnamese authorities provide reasonable protection to victims of domestic violence and that the applicant would be afforded such protection against any threat of domestic violence posed by her husband.

12    The applicant made an application to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 24 March 2016, Federal Circuit Court Judge Brown dismissed the judicial review application: ABAR15 v Minister for Immigration & Anor [2016] FCCA 638. In doing so, the learned Federal Circuit Court Judge properly identified that the application for judicial review could only succeed if the applicant could show that the Tribunal had committed a jurisdictional error.

The injunction application

13    This appeal is against the judgment of the Federal Circuit Court made on 24 March 2016. The appeal was commenced within time by a person acting on the applicant’s behalf, Ms Lesley Walker. Ms Walker is not a legal practitioner. The grounds of appeal are expressed as follows:

1.    The Federal Circuit Court committed jurisdictional error in its assessment of whether the applicant was in need of complementary protection.

Particulars

1.1    The Federal Circuit Court, in finding that the applicant was a victim of domestic violence, was no longer at risk of harm because of protection offered by authorities in Vietnam.

1.2    The Federal Circuit Court erred in finding that there was evidence that victims of domestic violence in Vietnam were no longer at risk because of changes to practice and policy.

1.3    The Federal Circuit Court erred in finding that there would be less than a ‘real risk’ to the applicant that she would suffer harm at the hands of her husband.

2.    The Federal Circuit Court erred in failing to give the applicant the opportunity to provide evidence of the failure of the Vietnamese government to implement domestic violence practices and policies that made the applicant safe from domestic violence.

14    When the matter came on before me, Ms O’Connor SC appeared for the applicant on instructions from the law firm Camatta Lempens. Ms O’Connor SC explained that Camatta Lempens acted for the applicant for the limited purpose of the hearing that afternoon, that her own instructions to appear were likewise limited, and that she was appearing at very short notice without having had the opportunity to collate any documents to support her submissions. Ms O’Connor SC explained that arrangements were to be made to refer the applicant to JusticeNet for ongoing pro bono assistance.

15    On the materials before me, I was satisfied that the applicant had acted with as much haste as possible in securing legal representation, in commencing the appeal and in making this application. This was especially so having regard to her status as a detainee and her inability to speak English. The respondent did not suggest otherwise.

16    Mr Prince from the Australian Government Solicitor appeared on behalf of the respondent. At the commencement of the hearing, I indicated that I would first hear the parties on the question of whether I should make an interim order restraining the removal of the applicant for approximately two weeks to enable the parties to collate, file and serve the materials upon which they would rely in support of the applicant’s application for an injunction to remain in force until the determination of the appeal.

17    The respondent opposed the making of any order that would delay the applicant’s removal from Australia for any length of time.

18    The principles applicable to the grant of an interlocutory injunction are well settled. The Court must be satisfied that there is a serious question to be tried and that the balance of convenience favours the grant: Australian Broadcasting Authority v O’Neill (2006) 227 CLR 57 (O’Neill). The respondent made no concession to the effect that the balance of convenience favoured the applicant. That issue is relatively straight forward. I deal with it first.

Balance of convenience

19    Mr Prince was unable to explain why the respondent had provided the applicant with, in all of the circumstances, very short notice of her impending removal from Australia. He explained that he was unable to obtain instructions on that issue because this matter had itself been listed at short notice. He emphasised that s 198(6) of the Act imposed an obligation upon officers (as defined in the Act) to remove the applicant from Australia as soon as reasonably practicable. That does not explain why the applicant was not informed immediately upon the dismissal of her application for judicial review (that is, on or around 24 March 2016) that her removal would then be arranged. There is nothing in the Act preventing the respondent from notifying a person in the applicant’s position that plans for the person’s removal from Australia are on foot, even if the precise practical arrangements have not yet been made.

20    Mr Prince submitted that the respondent would be prejudiced if his officers were now prevented from removing the applicant from Australia because all of the necessary practical arrangements had been made to bring about her removal the following morning. Those arrangements, he submitted, would need to be cancelled at some expense to the Minister and, by extension, to the Australian community.

21    At the time that his officers notified the applicant of her impending removal, the respondent can be taken to have known that the time in which she may commence an appeal against the decision of the Federal Circuit Court had not yet expired. In so acting, the respondent can be taken to have apprehended the risk that the person to whom such notice is given may commence an appeal and seek interlocutory relief restraining the removal pending the determination of the appeal, and that such an application would, by necessity, be made at very short notice to him. In the circumstances, I accord the prejudice that may be suffered by the respondent in cancelling the administrative arrangements for the deportation of the applicant very little weight. Similarly, I find that the difficulty experienced by Mr Prince in obtaining instructions from the respondent at such short notice are a natural consequence of the respondent proceeding in the manner I have described above.

22    The applicant claims to be a person who is at real risk of suffering significant harm if she is returned to Vietnam. The Tribunal held, and the respondent did not contest before me, that she is in fact the victim of domestic violence and that she does in fact fear for her safety. Whether she is in fact a person who is at real risk of serious harm is a question that might yet be decided in her favour should she succeed on her appeal. If an injunction is not granted, the prejudice that may be suffered by the applicant is potentially grave. It far outweighs the administrative inconvenience that might be suffered by the respondent if an injunction is not granted.

Serious question

23    The test for whether there is a serious question to be tried presents some difficulty in the present case. The difficulties are a consequence of this application being heard on the evening before the applicant was due to be removed and in circumstances where the Court had before it very few materials upon which a proper analysis of the questions to be tried on the appeal might be made. In addition, the Notice of Appeal, having been drafted by a non-lawyer and filed urgently, did not properly reflect the arguments that could or would ultimately be made on the appeal.

24    At the time of making the orders, I had before me the decision of the Federal Circuit Court, the Notice of Appeal and the Removal Notice. Ms O’Connor SC properly acknowledged that the grounds of appeal, as then drafted, did not readily disclose a serious question to be tried. She particularly acknowledged that paragraph 1 of the grounds of appeal appeared to misapprehend the nature of the Federal Circuit Court’s original jurisdiction; namely to identify whether the Tribunal committed any jurisdictional error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

25    Ms O’Connor SC made submissions foreshadowing the grounds that could and would be advanced by the applicant on the appeal and undertook on behalf of the applicant to file an amended Notice of Appeal incorporating those newly foreshadowed grounds. The foreshadowed grounds are to the effect that the Tribunal committed jurisdictional errors and that the Federal Circuit Court erred in failing to so find.

26    It was submitted that the jurisdictional errors include, among other things, legal unreasonableness in the sense described by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and a failure to take into account relevant considerations. In essence, it was submitted that the Tribunal erred in finding that although the applicant was indeed a victim of domestic violence and that she did indeed fear for her safety, Vietnam could afford her State-based protection such that she was not at a real risk of suffering significant harm within the meaning of s 36(2)(aa) of the Act.

27    Ms O’Connor SC referred to the fact that evidence was adduced before the Federal Circuit Court capable of supporting a finding by the Tribunal to the effect that there existed only four NGO-operated domestic violence shelters in the whole of Vietnam, a country with a population of more than eighty million people. A question arises as to whether that material ought to have been before the Tribunal and taken into account. Depending on the circumstances, that material might conceivably support an argument that the Tribunal acted unreasonably (in a legal sense) in making its own findings of fact, or that it erred in construing the meaning of the phrase “real risk” in s 36(2)(aa) of the Act. It might then be argued that the Federal Circuit Court erred in failing to identify such an error on the part of the Tribunal. In advancing such arguments, the applicant may well come up against decisions of the Full Court of this Court relating to the use by the Tribunal of so-called country information, and she may indeed be required to demonstrate that such cases are wrongly decided. I have taken these factors into account in determining whether the applicant has a prima facie case.

28    The requirement that an applicant for an interlocutory injunction show a serious question to be tried is one requiring the applicant to demonstrate “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial”: O’Neill at 82 [65] (Gummow and Hayne JJ). The two criteria for the grant of an injunction are interrelated: where the balance of convenience strongly favours the applicant for an injunction, less weight may be placed on the strength of the applicant’s prima facie case: Samsung Electronics Co Limited v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 [67]; Tait v P.T. Ltd as Trustee of the Scentre Tuggerah Trust [2015] FCA 1015.

29    Against those principles, and in circumstances where the orders I proposed were to the effect that the removal of the applicant from Australia be delayed by 16 days, the serious question threshold was a very low one. The applicant fulfilled that criteria by reference to her foreshadowed amended grounds of appeal, at least one of which appeared arguable, even if, on the materials before me, it was only barely so.

30    On the argument listed for hearing on 28 April 2016 the Court will have before it additional materials that may well demonstrate that the applicant’s cause is either unarguable or so weak that any further delay in her deportation cannot be justified.

Alternative basis for relief

31    The grant of interim relief is justified on an alternative basis.

32    In Stephenson v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 249; [1989] FCA 137 Burchett J granted an interim injunction in circumstances where it was not possible for the parties to prepare submissions addressing the substantive criteria for interlocutory relief, and not possible for the Court itself to make a proper assessment as to whether or not there was a serious question to be tried: see also Khim v Minister for Immigration, Local Government and Ethnic Affairs (1993) 39 FCR 535 at 538.

33    Similarly, in AEF15 v Minister for Immigration and Border Protection [2015] FCA 1150 (AEF15) Markovik J granted short term interim relief in urgent circumstances where the applicant’s representative was unable to assist the Court on whether there was a serious question to be tried.

34    I am satisfied that the respondent could have, but did not, afford the applicant more notice than he did of her impending removal. I have granted the applicant interim relief on the alternative basis that it is in the interests of the administration of justice to make such an order, irrespective of whether the substantive criteria for an interlocutory injunction pending the outcome of the appeal can presently be demonstrated: rule 1.32 of the Federal Court Rules 2011. Such an order ensures that the Court’s processes are not frustrated by the short notice given to the applicant of her impending removal and the consequential short notice afforded to her in arranging legal representation and preparing for the hearing of her application for interlocutory relief.

35    This is not to ignore the express words of s 198(6) of the Act which impose an obligation to remove from Australia persons falling within its purview. Rather, it is to recognise that the appeal (or any subsequent proceedings) may well determine that the applicant is no such person. If the decision of the Tribunal is found to involve jurisdictional error, then it is to be regarded as no decision at all: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614, [51]. It would follow in that event that the applicant’s application for a Protection Visa is not an application that has been finally determined within the meaning of subs 198(6) and she is not “liable” to be removed as stated in the Removal Notice.

Competency

36    The respondent opposes the interlocutory application on the ground that this Court does not have the jurisdiction to restrain the removal of a person pursuant to s 198(6) of the Act. Reliance was placed on s 476A of the Act. That provision circumscribes the original jurisdiction of this Court.

37    Mr Prince referred to the decision of Besanko J in Beyazkilinc v Manager Baxter Immigration Reception & Processing Centre [2006] FCA 16. The applicant in that case commenced an action in the Court’s original jurisdiction. He sought an injunction prohibiting his removal pursuant to s 198(6) of the Act. Besanko J held that s 476A of the Act removed from this Court the original jurisdiction it might otherwise have had to grant an injunction restraining the applicant’s removal from Australia (at 480, [53]).

38    This appeal is brought in the Court’s appellate jurisdiction. The Court has in previous matters granted injunctions restraining the removal of non-citizens pursuant to s 198(6) of the Act pending the determination of an appeal: SZVXC v Minister for Immigration and Border Protection [2015] FCA 1041; AEF15. Mr Prince could point to no contrary authority.

39    When I indicated to Mr Prince that I was not persuaded by his submissions as to competency, he sought additional time to research authorities in support of the respondent’s position. I determined not to delay the grant of interim relief for the purpose of hearing any further submissions on the question of competency. Instead, I invited the parties to make any further submissions as they may be advised on the question of competency at the next listing date, that is, at the same time as the resumed hearing on the applicant’s interlocutory application. Should the respondent demonstrate that the previous authorities to which I have referred are inapplicable or clearly wrong, I will hear the parties as to the consequences that might follow.

40    For the reasons given above, and upon the applicant giving the usual undertaking as to damages, I made the following orders.

(1)    The Appellant is to file and serve an amended notice of appeal setting out the grounds of appeal to the effect of those foreshadowed by her counsel today, together with further grounds as she may be advised.

(2)    Such amended notice of appeal is to be filed and served on or before 13 April 2016.

(3)    The first Respondent is restrained by himself or by his department, officers, agents or delegates, from removing the applicant from Australia until 5:00pm on 28 April 2016.

(4)    The Appellant’s application for an order in terms of paragraph 3 of the notice of the appeal for an interlocutory injunction, preventing her removal from Australia pending the determination of the appeal, be listed for argument on 28 April 2016 at 10:15am.

(5)    The Appellant is to file and serve such material upon which she intends to rely on or before 18 April 2016.

(6)    The Respondent is to file and serve any material upon which it intends to rely on or before 26 April 2016.

(7)    The Appellant is to file written submissions in support of the interlocutory application, not including the question of competency on or before 18 April 2016.

(8)    The Respondent is to file written submissions as to the question of competency on or before 22 April 2016.

(9)    The Respondent is to file written submissions as to the merits of the interlocutory injunction on or before 26 April 2016.

(10)    The Appellant is to file any written submissions in response to the question of competency only, on or before 26 April 2016.

(11)    Costs for today be adjourned in the cause of the application for the interlocutory injunction.

(12)    The parties have liberty to apply.

Associate:

Dated:    13 April 2016