FEDERAL COURT OF AUSTRALIA

Somba v Minister for Home Affairs [2018] FCA 1022

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent is, until further order, restrained by himself or his department officers, agents or delegates, from removing the applicant from Australia.

2.    The matter be listed for a case management hearing on 5 July 2018 at 12:00pm, the applicant to appear either by video link or telephone.

3.    Pursuant to r 4.12(1) of the Federal Court Rules 2011 (Cth), the applicant be referred to a lawyer for legal assistance.

4.    Costs reserved.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    By interlocutory application, the applicant seeks interim orders preventing his removal from Australia, that removal being proposed to take place tomorrow.

2    The substantive proceeding was originally commenced in the Federal Circuit Court of Australia. For reasons explained below, the Federal Circuit Court made orders on 3 July 2018 transferring the proceeding and the interlocutory application to this Court pursuant to s 39 of the Federal Circuit Court of Australia Act 1999 (Cth).

Background

3    In the substantive proceeding, the applicant sought review of a decision of the Administrative Appeals Tribunal made on 5 June 2018. The Tribunal’s decision related to a decision by a delegate of the Minister for Home Affairs not to exercise the power under s 501CA(4) to revoke an earlier decision to cancel the applicant’s visa, that decision having been made under s 501(3A) of the Act. The Minister made the revocation decision on 24 October 2017 and notified the applicant of the decision the following day, namely 25 October 2017.

4    On 1 November 2017, the applicant applied to the Tribunal for review of the Minister’s decision. The applicant was required to lodge that application within nine days pursuant to s 500(6)(b) of the Migration Act 1958 (Cth). The matter was listed before the Tribunal on 8 January 2018. The applicant did not appear at that hearing. On the application of the Minister, the Tribunal dismissed the proceeding pursuant to s 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). That section provides:

If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

(a)      if the person who failed to appear is the applicant—dismiss the application without proceeding to review the decision; or

(b)      in any other case—direct that the person who failed to appear shall cease to be a party to the proceeding.

5    Section 42A(9) of the AAT Act provides:

If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

6    On about 6 February 2018, the applicant wrote to the Tribunal seeking reinstatement of his application for review. The application for reinstatement was listed before the Tribunal on 8 March 2018. The applicant appeared at that hearing and gave evidence.

7    The Tribunal dismissed the reinstatement application, delivering reasons on 5 June 2018. The Tribunal recorded the effect of the applicant’s evidence at the hearing on 8 March 2018 as follows (at [10] of its decision):

Mr Somba gave evidence that:

•    on the morning of the hearing he suffered a migraine headache and could not walk properly;

•    management refused his request for a nurse to attend him;

•    he thought that he may have been affected by sleeping pills he had taken the previous evening;

•    he did not think he was properly prepared for the hearing and was overwhelmed by the whole situation;

•    he had been told that even if the Tribunal made a decision in his favour the Minister would cancel the decision in any event;

•    in the light of all these factors he felt “overwhelmed and defeated”. [Emphasis in original]

8    The Tribunal then stated (at [11]):

Whatever the circumstances of Mr Somba’s failure to attend the hearing, I have come to the conclusion that the application for reinstatement should be refused as an order for reinstatement would be futile. For this reason I do not consider that it is appropriate to reinstate the application.

9    The perceived futility revolved around the operation of s 500(6L) of the Act. That section provides:

If:

(a)     an application is made to the Tribunal for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and

(b)     the decision relates to a person in the migration zone; and

(c)     the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);

the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.

10    According to the Tribunal (at [12]):

The effect of subsection 500(6L) of the Migration Act, set out above, is that unless Mr Somba’s application for review was finalised before the Tribunal within 84 days of his being notified of the delegate’s decision, the delegate’s decision under review is affirmed.

11    The Tribunal found the applicant was notified of the Minister’s revocation decision on 25 October 2018. Pursuant to s 500(6L), the 84-day period expired on 17 January 2018. This was 9 days after the decision made by the Tribunal to dismiss the application under s 42A(2) and 20 days before the applicant applied for reinstatement pursuant to s 42A(9) on 6 February 2018.

12    At [14]-[16], the Tribunal stated:

14.    It is clear from the context of the Migration Act that applications for review of visa cancellation decision when applicants are onshore are to be dealt with within a strict time frame. In this matter, Mr Somba applied for re-instatement after the 84 day period had expired. In these circumstances, even if his application had been re-instated on the day he applied, immediately subsection 500(6L) would have applied and the decision would have been affirmed by force of the statute.

15.    In reaching this conclusion I have considered whether subsection 500(6L) does not apply in this matter because the Tribunal has made a decision under section 42A of the AAT Act. However consistent with the context of the Migration Act in which subsection 500(6L) occurs, I am satisfied that the reference to the Tribunal having not made a decision under section 42A of the AAT Act is a reference to a decision under that section which remains in force.

16.     There is additional support for the conclusion I have reached in the words used in subsection 42A(9) of the AAT Act. This subsection gives the Tribunal a discretion to decide whether a dismissed application should be reinstated. If it is decided to reinstate an application the previous order dismissing the application ceases to have effect for all purposes, including the purposes of other legislation, such as the Migration Act.

13    Based on this construction of s 500(6L), the Tribunal considered it futile to reinstate the application and it dismissed the application.

14    On 20 June 2018, the applicant filed an originating application in the Federal Circuit Court for review of the Tribunal’s decision of 5 June 2018. Accompanying that application was an affidavit affirmed by the applicant on 14 June 2018 and filed in the Federal Circuit Court on 20 June 2018.

15    The Minister filed a response to the originating application on 25 June 2018. This was to the effect that the Federal Circuit Court did not have jurisdiction to hear the application.

16    Although it is not entirely clear, it seems the applicant was served with a “Notice of intention to remove from Australia” on 29 June 2018.

17    On 29 June 2018, the applicant sent a facsimile to the Federal Circuit Court registry, which enclosed an application in a case seeking interlocutory orders preventing his removal from Australia. As the facsimile was transmitted at 4:35pm on Friday, 29 June 2018, the application in a case was taken to have been filed the following business day, namely on Monday, 2 July 2018 – see: r 2.05(3)(b) of the Federal Circuit Court Rules 2011 (Cth).

18    The application in a case was listed before the Federal Circuit Court duty judge on 3 July 2018, that is, yesterday. The Minister read an affidavit affirmed on 2 July 2018, and filed an outline of submissions on the interlocutory application shortly before the hearing before the Federal Circuit Court duty judge on 3 July 2018.

19    The applicant appeared at the Federal Circuit Court hearing by video link from the Perth Immigration Detention Centre. He made submissions in support of his application in a case, and gave evidence (or made submissions) as to the reasons for his non-appearance at the Tribunal hearing on 8 January 2018.

20    As mentioned, the Federal Circuit Court made orders transferring the matter to this Court pursuant to s 39 of the Federal Circuit Court of Australia Act 1999 (Cth) on the basis that, among other reasons, the Federal Circuit Court lacked jurisdiction by reason of s 476(2)(b) and (c) of the Act.

21    The Federal Circuit Court also noted that the applicant had sent a facsimile to the Federal Court registry on 30 June 2018, which annexed a document titled “Notice of appeal from a decision of the Administrative Appeals Tribunal”. At the time of the Federal Circuit Court hearing, that document had not been processed for filing by the Federal Court registry.

22    In any event, the Federal Circuit Court proceedings were transferred to this Court. The principal issue which requires urgent determination is the applicant’s application for interlocutory relief preventing his deportation from Australia. I have had regard to the originating application and accompanying affidavit filed in the Federal Circuit Court on 20 June 2018, the application in a case stamped as filed on 2 July 2018, the Minister’s response filed on 25 June 2018, the affidavit affirmed on 2 July 2018 by the Minister’s representative, and the Minister’s written submissions filed on 3 July 2018.

Consideration

23    There are two main inquiries when deciding whether to grant an interlocutory injunction. The first is whether the applicant has a prima facie case in the sense of “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial”; this does not mean the applicant must establish that he is more probable than not to succeed at trial: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65], per Gummow and Hayne JJ, Gleeson CJ and Crennan J agreeing at [19].

24    As Katzmann J observed in SZTZM v Minister for Immigration and Border Protection [2017] FCA 534 at [39]:

What will be sufficient will depend on “the nature of the rights [the applicant] asserts and the practical consequences likely to flow from the order he seeks”: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622.

25    The second main inquiry is whether the inconvenience or injury the applicant would be likely to suffer if an injunction were refused outweighs the injury the respondent would suffer if the injunction were granted: O’Neill at [65].

26    These two main inquiries are equally applicable to public law disputes of the present kind: Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu (2000) 171 ALR 341 at [7] (Gleeson CJ); ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363 at [18] (Charlesworth J); SZTZM at [40] (Katzmann J).

Serious question

27    This issue turns on the proper construction of s 500(6L) of the Act and its application to the present facts. The relevant facts are these:

(1)    The applicant was notified of the delegate’s decision under s 501CA(4) not to revoke the visa cancellation on 25 October 2017.

(2)    The applicant applied to the AAT for review of that decision on 1 November 2017.

(3)    The proceedings were listed for hearing on 8 January 2018 and the Tribunal dismissed the applicant’s case pursuant to s 42A(2) of the AAT Act because the applicant did not appear at the hearing.

(4)    If s 500(6L) had any operation, it would have operated to deem that the Tribunal had made a decision to affirm the delegate’s decision on 17 January 2018. The critical question at present is whether s 500(6L) did have that operation, or if not, what operation it had.

(5)    The applicant applied for reinstatement on 6 February 2018.

(6)    The applicant was heard on his application for reinstatement on 8 March 2018.

(7)    The Tribunal dismissed the application for reinstatement on 5 June 2018.

28    The applicant’s case, as I apprehend it, is that s 500(6L) had no relevant operation. Section 500(6L) requires three matters to be satisfied for there to be a deemed decision to affirm the decision under review.

29    Paragraph (a) of 500(6L) requires that an application be made to the Tribunal for review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa. That paragraph is clearly satisfied.

30    Paragraph (b) of 500(6L) requires that the decision relates to a person in the migration zone. That paragraph is also clearly satisfied.

31    Paragraph (c) of 500(6L) requires that the Tribunal “has not made a decision under section 42A, 42B, 42C or 43” of the AAT Act “in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision” which, in this case, was 25 October 2017.

32    The applicant’s argument, as I apprehend it, is that the matter in paragraph (c) was not satisfied. If that argument is correct, the applicant’s case is that the decision was not taken to have been affirmed at the end of the 84-day period.

33    At the end of the 84-day period, that is, on 17 January 2018, there was a decision under s 42A. The Tribunal had made a decision under s 42A(2) on 8 January 2018. That decision remained in effect. On the applicant’s case, s 500(6L) did not operate to deem the decision under review to have been affirmed. That argument accords with the literal meaning of the words of the section and is arguable.

34    The Tribunal considered that “the reference to the Tribunal having not made a decision under section 42A(2) of the AAT Act is a reference to a decision under that section which remains in force”: at [15]. The decision of the Tribunal under s 42A(2) did “remain in force” and continues to remain in force.

35    The Tribunal stated (at [16]) that its construction of s 500(6L) was reinforced by s 42A(9), which:

… gives the Tribunal a discretion to decide whether a dismissed application should be reinstated. If it is decided to reinstate an application the previous order dismissing the application ceases to have effect for all purposes, including the purposes of other legislation, such as the Migration Act.

36    Section 42A(9) does not expressly state that any previous order, including an order under s 42A(2) dismissing the application, ceases to have effect for all purposes. The Tribunal considered that the applicant’s case had to fail because the effect of the decision under s 42A(9), if such a decision had been made, would be to deem that there never had been an order under s 42A(2). That being the case, if the Tribunal had made an order under s 42A(9), immediately upon making that order for reinstatement, s 500(6L) would have operated to deem to delegate’s decision to have been affirmed because the 84-day period had lapsed.

37    That conclusion may be correct. For present purposes, it is not necessary to reach a view on that issue. For present purposes, it is sufficient to record that the applicant’s case is arguable.

38    The Minister properly drew the Court’s attention, also, to a decision of the AAT in KQHR v Minister for Immigration and Border Protection [2018] AATA 684, in which a construction of s 500(6L) was given. In that case, the Tribunal stated at [30]-[31]:

30.    For the most part, ss 42A and 42B give the Tribunal power to dismiss an application without proceeding to review the merits of a decision or complete a review if certain conditions are met. Although not described as a “decision” in either s 42A or s 42B, the Tribunal does make a decision to dismiss an application if those certain conditions are met. If it exercises that power, that is an end of the matter and file is closed. It is difficult to describe the dismissal decisions as being made “in relation to the decision under review” as such for they are in relation to the application for review of the decision. It is clear from the context of s 500(6L), however that the words “in relation to” are intended to be read very broadly to go beyond decisions relating to the decision under review as such and to extend to the application for review that relates to that decision. In the case both of a decision under s 42C or s 43 or a decision to dismiss an application under s 42A or 42B, that the matter has come to an end. If the Tribunal dismisses an application for review of a decision made by a delegate of the Minister under s 501 under either s 42A or 42B within the 84 day period referred to in s 501(6L), the deeming provisions of that section do not apply just as they do not apply if a decision is made under s 42C or s 43.

31.    Not all decisions made under s 42A result in dismissal, though. As I have set out above, ss 42A also provides for reinstatement of an application after it has been dismissed. If a decision to dismiss an application under s 42A or s 42B is a decision “in relation to the decision under review”, those words must be broad enough to encompass a decision reinstating that application. In this case, I made that decision within the period of 84 days after KQHR was notified of the decision under review in accordance with s 501G(1). It would follow that the provisions of s 500(6L) deeming a decision to have been made under s 500(6L) would not have come into operation and the merits of KQHR’s application could have been heard. As matters turned out, the parties and I proceeded on the basis that, if I were to reinstated the matter as I did, I would have to make a decision under s 43 of the AAT Act or let the deeming provisions of s 500(6L) take effect. I decided to review the decision on the papers even though hearing the matter on what was agreed to be the last day before the deeming provisions applied meant that I could not hear KQHR give evidence or be cross-examined.

Balance of convenience

39    The Minister properly did not suggest anything other than that the balance of convenience lay more with the applicant than with the respondent. In my view, the balance of convenience clearly favours the applicant.

40    It has been noted that the two main inquiries when granting an interlocutory injunction are related in that “an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even” and “[a] more doubtful claim (which nevertheless raises ‘a serious question to be tried’) may still attract interlocutory relief if there is a marked balance of convenience in favour of it”: SZTZM at [43] (Katzmann J), quoting Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472, per Woodward J (Smithers and Sweeney JJ agreeing at 467 and 469 respectively); see also ABAR15 at [28] (Charlesworth J).

CONCLUSION

41    In my view, in light of the balance of convenience strongly favouring the applicant, and in light of the fact that the argument he wishes to put is at least arguable in the sense that it is at a level such as to justify the preservation of the status quo pending trial, it is appropriate to grant the interlocutory relief sought.

42    In reaching this conclusion, I have had regard to the obligations on the Minister under s 198 of the Act but note that, 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].

43    In those circumstances, I make the following orders:

(1)    The first respondent is, until further order, restrained by himself or his department, officers, agents or delegates, from removing the applicant from Australia.

(2)    The matter be listed for a case management hearing on 5 July 2018 at 12:00pm, the applicant to appear either by video link or telephone.

Associate:

Dated:    4 July 2018