FEDERAL COURT OF AUSTRALIA

Tanioria v Commonwealth of Australia [2016] FCA 1253

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The interlocutory application filed electronically on 20 October 2016 is dismissed.

3.    The applicant must pay the respondents’ costs of the application for leave to appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The applicant seeks leave to appeal from a judgment which was handed down on 18 October 2016. Leave to appeal is required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act).

2    The application for leave to appeal was lodged electronically at 3:13 pm on 19 October 2016 and was accepted for filing at 11:21 am the following day. The matter has come before me on an urgent basis as Duty Judge. The urgency relates to the fact that the indications are that the applicant will be removed from Australia to his country of origin, Fiji, next Monday. He came to Australia when he was a baby and has lived here ever since.

3    In view of the urgency, the application for leave to appeal was listed for hearing before me this morning. The applicant was represented by Ms Kennedy (solicitor). The respondents were represented by Mr Knowles of Counsel and Ms Seguna (solicitor) respectively.

4    The applicant has also filed an interlocutory application seeking expedition of his proposed appeal and, pending further order, an injunction restraining the respondents from removing him from Australia. Presumably these orders were sought in the event that leave to appeal was granted. The applicant filed a proposed notice of appeal, the terms of which substantially reflect the terms of his application for leave to appeal. The applicant has also filed a brief outline of written submissions, as did the Commonwealth who opposed the application, while the second respondent adopted a neutral position.

5    The application for leave to appeal has three grounds:

(a)    The Court below erred in finding that though a substantial part of the applicant’s claims would be frustrated by his removal from Australia, no interlocutory order need be made to preserve the subject matter of the litigation and preserve the functions of the Court.

(b)    The Court below also erred in the assessment of the balance of convenience due to the error described at (a) above.

(c)    The Court below failed to deal with the applicant’s submission that the balance of convenience favoured making an order as it was unfair to the applicant to have to maintain proceedings from an essentially foreign country while attempting to establish a new life in that location.

The primary judge’s reasons summarised

6    In November 2014 the Minister for Immigration and Border Protection (the Minister) made a decision under s 501 of the Migration Act 1958 (Cth) (the Migration Act) to cancel the applicant’s visa. That decision was unsuccessfully challenged by the applicant in judicial review proceedings. An appeal to the Full Court and a subsequent application to the High Court for special leave to appeal were also unsuccessful.

7    It is not disputed that the applicant currently is an unlawful non-citizen and that, under s 189 of the Migration Act, he must be detained and that s 198 of the Migration Act requires him to be removed as soon as is reasonably practicable.

8    The primary judge described proceedings which the applicant commenced in this Court on 1 July 2016 and which gave rise to an amended statement of claim dated 16 September 2016. In brief, the applicant seeks the following relief in those proceedings:

(a)    declarations that his current detention is unlawful and that the conditions of his detention are also unlawful, cruel, inhumane or degrading and unreasonably interfere with his alleged Constitutional right of political communication;

(b)    orders in the nature of habeas corpus to secure his release from detention;

(c)    alternatively, an order in the nature of habeas corpus securing his release from a particular section of the Villawood Immigration Detention Centre (VIDC) where he is currently held;

(d)    orders restraining the respondents from interfering with his privacy, property, political communication and access to medical and legal services; and

(e)    damages, including aggravated and exemplary damages.

9    The applicant has been held at VIDC since November 2014. He alleges in his amended statement of claim that his detention is unlawful because he is being detained by persons who are not officers of the Commonwealth contrary to s 61 of the Constitution. He also alleges that he has been falsely imprisoned by the second respondent and that the first respondent is vicariously liable for those actions. He also alleges that various particularised conditions of his detention at VIDC are not authorised by Commonwealth law and that, if they are authorised by s 189, that provision is invalid to the extent that it imposes impediments on his implied Constitutional freedom of political communication.

10    As I have emphasised, this is a brief summary of the application’s substantive proceedings. On 7 October 2016, both respondents filed interlocutory applications seeking that the applicant’s substantive proceedings be summarily dismissed under s 31A of the FCA Act or, alternatively, the amended statement of claim be struck out. Those interlocutory applications are scheduled to be heard by Markovic J in March 2017.

11    By an interlocutory application filed on 12 October 2016, the applicant sought an order restraining the respondents from removing him from Australia.

12    The primary judge summarised an affidavit sworn by the applicant’s solicitor in support of his interlocutory application below. In evidence was also a copy of a notice of intention to remove from Australia, which informed the applicant that it was anticipated that he would be removed from Australia on Monday, 24 October 2016.

13    The primary judge summarised the well-established legal principles relating to a grant of interlocutory injunctive relief, as recently summarised by Murphy J in MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201 (MZZLD)

14    The applicant’s case for interlocutory injunctive relief was put on the basis that it was necessary to preserve the subject matter of his substantive proceedings and that his removal would frustrate the Court’s processes. Alternatively, it was claimed that there is a serious question to be tried and the balance of convenience was in his favour. Her Honour summarised the applicant’s submissions in support of his claim that his removal would frustrate the substantive proceedings. This was because, so it was submitted, if he were removed, those parts of his case relating to habeas corpus or, in the alternative, an injunction or equitable compensation would be frustrated. It was submitted to her Honour that this was because, in order to obtain the relief he sought in the substantive proceedings, he needed to be continued to be detained. He also submitted that, if he were removed, he would lose his ability to vindicate his rights. In particular, he explained that if he were removed he would lose the option of seeking habeas corpus and of obtaining injunctions from detaining him at VIDC or the particular section therein in which he is currently held, as well as lose his claim for equitable compensation.

15    Her Honour summarised the submissions made by the Commonwealth who (together with the second respondent) opposed the interlocutory application.

16    Her Honour noted that the applicant accepted that, as matters stood at present, he is unable to apply for any substantive visa and that the substantive proceedings do not concern his immigration status. Rather they are in the nature of a private civil proceeding which is directed to the applicant’s alleged unlawful and continuing detention.

17    Her Honour rejected the applicant’s submission that the Court’s processes would be frustrated if his removal from Australia was not restrained. Her Honour said at [26] that while his removal would mean that he would no longer be able to seek some of the relief sought by him in his amended originating application (namely that relating to his release from detention or preventing his current detention) it would not frustrate his proceeding because he would still be able to prosecute his claims in relation to declaratory relief and damages and the alleged conversion of his property. Notwithstanding that the primary judge accepted that his removal would affect some of his claims for relief, her Honour held that the availability of declaratory relief would resolve the question of the lawfulness of the alleged conduct which the applicant pleads against the respondents, and that he would also be able to press his claim for damages. Her Honour explained why she rejected the applicant’s contention that damages would not be available for past conduct which was found to involve unlawful detention.

18    As to the alternative basis upon which the interlocutory application was argued, namely that there was a serious question to be tried and the balance of convenience favoured the applicant, the primary judge noted that she had been asked by the parties to assume that there was a serious question to be tried, albeit that the respondents contended that the serious question was “at the lowest threshold”.

19    Her Honour summarised the respective submissions by the applicant and the Commonwealth on the remaining issue of balance of convenience. Her Honour then identified the relevant task as involving the weighing up of the competing aspects which favoured the applicant and the respondents. As to the matters relied upon by the applicant, her Honour concluded that they did not favour the grant of interlocutory injunctive relief because:

(a)    it was not accepted that the applicant should remain in Australia in order to be able to pursue his substantive proceedings;

(b)    it was not accepted that considerations of inconvenience and the applicant’s ability to run his proceedings from Fiji weighed heavily in his favour, noting that it is not unusual for a party to instruct lawyers from a different location by electronic means and also having regard to the fact that the applicant’s claims depended principally on legal contentions and it was unlikely that there would be significant areas of factual dispute (citing Li v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 667 per Sackville J); and

(c)    nor did her Honour accept that the applicant’s contention that the Commonwealth would have an unfair advantage if he was removed because it would make the preparation of his case harder. There was no suggestion that he would be deprived of legal representation and appropriate Court timetabling steps could be taken to accommodate any need on his part for extra time given his presence overseas. Technology was available and the Commonwealth had agreed to pay for any necessary video link.

20    Ultimately, the primary judge concluded that, notwithstanding that the issue was “finely balanced” she was not persuaded that the inconvenience or injury which the applicant would suffer outweighed the injury to the Commonwealth. Her Honour accepted that there may be some inconvenience to the applicant but he had failed to demonstrate that this outweighed matters relied on by the Commonwealth. Arrangements had been made for the applicant’s removal and the Commonwealth would incur costs if this was deferred and, given the applicant’s financial circumstances, there were doubts about the value of the applicant’s undertaking as to damages. Moreover, although the applicant offered an undertaking not to seek damages from the Commonwealth in relation to his claims of false imprisonment beyond the time of the making of a restraining order, the same undertaking was not offered in relation to the applicant’s claims for equitable compensation. Her Honour concluded that the applicant would not suffer irreparable harm because he could still pursue some of his claims for relief even if he were removed.

21    Accordingly, the interlocutory application was dismissed and the applicant was ordered to pay the respondents’ costs.

Consideration

22    The principles guiding the question whether or not to grant leave to appeal are well settled. As cases such as Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 demonstrate, there are two requirements which need to be satisfied. First, the judgment the subject of the application must be attended with sufficient doubt to warrant it being reconsidered on an appeal. Secondly, that substantial injustice would result if leave were refused, supposing the primary decision to be wrong.

23    For the following reasons I am not satisfied that the applicant has come even close to meeting the first requirement in Décor.

24    First, it is important to note that the primary judge exercised a discretionary power in refusing to grant interlocutory injunctive relief. Accordingly, the principles in House v The King [1936] HCA 40; 55 CLR 499 at 504-505 apply. It is not enough that judges in an appeal might consider that the discretion would have been exercised differently by them. Rather, it must be demonstrated that there has been some error in the primary judge’s exercise of discretion, such as acting on a wrong principle, taking into account extraneous or irrelevant matters, failing to take into account a material consideration, or mistaking the facts. Also, if on the facts, the result is unreasonable or plainly unjust even though the nature of the error may not be discoverable, an appellate court can intervene. I am not satisfied that any arguable error of principle has been established in respect of the primary judge’s refusal to grant interlocutory injunctive relief.

25    Significantly, the applicant accepted that the primary judge accurately described the factual background and nature of his claims and the issues involved in the interlocutory application.

26    Secondly, in my opinion, there is no sufficient doubt to warrant the grant of leave to appeal in respect of the primary judge’s appreciation of “the degree of frustration of the processes” necessary to support interlocutory intervention. The primary judge found that removing the applicant from Australia would affect some of the relief he sought but I see no arguable error in this approach. Having regard to the obligations imposed by both ss 189 and 198 of the Migration Act, and the applicant’s acknowledgement that he is currently a non-lawful citizen with no imminent prospect of obtaining a visa, it is a singularly unattractive submission that he should be permitted to remain in detention, which he claims to be unlawful, so that the factual basis i.e. his ongoing detention, will persist such that there is utility in him maintaining all the relief sought by him.

27    Thirdly, I do not consider that there is sufficient doubt in the primary judge’s reasoning for rejecting the applicant’s claim that the respondents will obtain an unfair advantage if the consequence of his removal from Australia was to limit the relief which might potentially be available in the substantive proceedings. The primary judge plainly took this matter into account in weighing the balance of convenience (see at [26], [35] and [45]).

28    Contrary, to the applicant’s submissions:

(a)    removal of the applicant from Australia would not disadvantage the applicant in terms of the onus applicable to his causes of action. The relevant onus in a claim for habeas corpus is identical to the onus applicable to a claim for unlawful imprisonment – the applicant must prove the fact of detention, the respondents must prove the lawfulness of that detention: Hicks v Ruddock [2007] FCA 299; 156 FCR 574 at [53]-[56]; Commonwealth of Australia v Fernando [2012] FCAFC 18; 200 FCR 1 (Fernando) at [92]; and

(b)    nothing in the Migration Act “impliedly excludes” relief for damages. The applicant will be entitled to damages if it is established that (i) his detention was unlawful; and (ii) that he would not have been detained but for his unlawful detention: Fernando at [102]; Fernando v Commonwealth of Australia [2014] FCAFC 181; 231 FCR 251 at [82].

29    Fourthly, I do not accept that there is any arguable substance in the applicant’s contention that the primary judge failed to deal with “a substantial integer” of his case, namely that the balance of convenience favoured him because it would be substantially unfair to expect him to maintain his case while setting himself up in what would be an essentially foreign country for him. In my view, these matters were plainly considered by the primary judge (see [19(c)] above for the relevant matters which were considered by the primary judge on this topic in arriving at her conclusion that, although there may be some inconvenience, it was not of a nature to convince her to alter her view that the balance of convenience favoured the Commonwealth).

30    Finally, I am not persuaded that the primary judge arguably erred in finding that there is no substantial injustice in the applicant running his substantive case from Fiji and not from immigration detention in Australia. It is significant that the substantive proceedings do not seek to establish that the applicant is not in fact an unlawful non-citizen nor has the applicant taken or indicated that he proposes to take some action which might change his current migration status. No arguable error has been demonstrated in relation to the primary judge’s reasoning concerning the effects of his removal on the relief sought in the substantive proceedings. It remains open to the applicant to pursue his rights from Fiji. In the applicant’s particular circumstances, and having regard to the obligation imposed by s 198, it is deeply unattractive for him to seek to prolong his detention, which he claims to be unlawful, so that he can pursue some of the remedies he seeks.

31    As noted above, the primary judge concluded that the competing aspects concerning the balance of convenience were “finely balanced”. It was open to her Honour to reach that view and the applicant has not satisfied me that there is any arguable basis to suggest that her Honour erred in principle in the exercise of her discretion.

32    The Court is often faced with cases such as this where long-term residents in Australia who are not citizens seek to prevent their removal from this country after their visas have been cancelled on character grounds. The prospect of such removal has very serious consequences not only for the individual concerned, but also for their families, as is the case here. The Court is not unsympathetic or lacking in compassion for the hardship confronting both the applicant and his family in this case. But the Court must faithfully apply the law. The applicant has not established a proper basis for a grant of leave to appeal.

Conclusion

33    For these reasons the application for leave to appeal should be dismissed, with costs. The interlocutory application filed electronically on 20 October 2016, which sought expedition of the appeal and interlocutory injunctive relief restraining the applicant being removed from Australia, was dependent on leave to appeal being granted. Accordingly, it too should be dismissed.

34    Orders will be made accordingly.

Associate:

Dated:    21 October 2016