FEDERAL COURT OF AUSTRALIA

Lum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1420

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be amended to be Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    Until further order, the First Respondent, by himself or by his department, officers, delegates or agents, be restrained and an injunction hereby issues restraining the First Respondent from removing the Applicant from Australia.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an urgent interlocutory application for injunctive relief brought by the applicant in QUD521/2019 to prevent his removal from Australia today. The applicant, Mr Lum, is a Zealand citizen, and I understand is currently in Yongah Hill Detention Centre in Western Australia. The interlocutory application was faxed to the Federal Court last night after hours, and provided to Chambers at approximately 10.45am this morning while I was in Court hearing another matter.

2    I understand that Mr Lum is not legally represented.

3    On 26 August 2019 the applicant filed an application for an extension of time to review a decision of the Administrative Appeals Tribunal of 17 May 2019, in which the Tribunal affirmed the decision of a delegate of the Minister under s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act) not to revoke the cancellation of the applicant’s visa. The applicant is clearly several months out of date in respect of his application to review the Tribunal’s decision. I understand that the application for extension of time is currently listed for case management before Justice Reeves on 10 October 2019.

4    In the very limited time available, I have had regard to background facts set out in the decision of the Tribunal. The Tribunal notes that:

    The applicant was granted a Class TY Subclass 444 Special Category (Temporary) visa on his arrival into Australia in January 2004.

    He has a lengthy criminal history in Australia which first began in 2000.

    He was sentenced to a term of five years imprisonment on November 2017.

    On 19 December 2017 a delegate of the Minister decided to mandatorily cancel the applicant’s visa on the basis that he did not pass the character test under the Migration Act.

    On 21 December 2017 the applicant wrote to the Department requesting a revocation of the decision to mandatorily cancel the visa pursuant to s 501CA(4) of the Migration Act. The applicant made representations to the Minister in accordance with that section.

    The delegate of the Minister decided on 22 February 2019 not to revoke the cancellation of the visa.

    The applicant lodged an application with the Tribunal on 3 March 2019 seeking review of the decision of 22 February 2019.

5    In its decision, the Tribunal found, in summary, that:

    The applicant did not pass the character test referred to in s 501CA(4) of the Migration Act.

    In relation to whether there was another reason why the cancellation of the applicant’s visa should be revoked, the Tribunal had regard to Direction 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA.

    The Tribunal referred in detail to primary consideration A (protection of the Australian community), primary consideration B (the best interests of minor children in Australia), primary consideration C (the expectations of the Australian community), and other considerations namely international non-refoulement obligations, strength nature and duration of ties, impact on Australian business interests, impact on victims and extent of impediments if removed.

6    After having regard to the totality of the evidence before the Tribunal, the Tribunal concluded that there was no other reason for it to revoke the cancellation of the applicant’s visa.

7    I have treated the application before me as an application for interlocutory relief preventing the Minister removing the applicant from Australia pending his challenge to the decision of the Tribunal. At the hearing today the Minister accepted that this approach was appropriate.

8    The draft application for review annexed to the applicant’s application for extension of time refers to grounds in the applicant’s affidavit dated 26 August 2019, namely:

1.    I am the applicant in this proceeding before Court.

2.    The First Respondent’s decision made on 22 February 2019 quashed.

3.    The Second Respondent’s decision made on 17 May 2019 quashed.

4.    The First Respondent’s did not properly apply s 501CA and s501CA(4) of the Migration Act 1958.

5.    The Second Respondent’s decision was unreasonable.

6.    The Second Respondent’s took into account irrelevant considerations;

7.    The Second Respondent’s failed to take relevant considerations into account;

8.    There was insufficient evidence or no evidence to support various findings made by the Second Respondent’s.

9.    The First Respondent’s failed to properly exercise discretion under s 501CA and s 501CA (4) of the Migration Act 1959.

10.    The Second Respondent’s decision involved an error of law.

11.    The Second Respondent’s in making the decision did not comply with the rules of natural justice and/or the applicant was denied procedural fairness.

9    The application for the interlocutory relief is opposed by the first respondent.

10    There is very little material before the Court other than the affidavits of the applicant of 26 August 2019 (accompanying his application for extension of time) and a further unwitnessed affidavit of the applicant dated 28 August 2019 annexed to this application. In his affidavit of 26 August 2019 the applicant deposed, materially:

The Applicant is without liberty and was unrepresented at all relevant times, the JP only comes into detention every Tuesday of the week.

The Applicant has been given a date on 28 August 2019 for removal unless he has a standing in a matter in Court which was his initial intention. The Applicant requests the Honourable Court to accept this application for filing in the interest of the administration of justice.

11    In his affidavit of 28 August 2019 the applicant deposed, materially:

With respect the Applicant requests the Honourable Court to accept the Interlocutory Application accompanied with this Affidavit for filing in the interest of the administration of justice.

As noted in the Applicant's initial application for review in this Court that the First Respondent has scheduled the Applicant's involuntary removal unless the Applicant has a standing in a matter in Court.

The Applicant is without liberty and was unrepresented at all relevant times but has managed to lodge his application for review in this Court. The Applicant was notified by email from Bryn the Client Officer with the Queensland Registry that his application was accepted for filing and was provided with the sealed copies today.

The Applicant has printed the correspondence as evidence (see attachment AB1-1) lo show First Respondent particularly Australia Border Force (ABF) officials that he has a standing in a matter in Court.

A date has been set for the Applicant to be removed by force from Australia on 29 August 2019. The ABF officials knowing full well that the Applicant has shown them that he has a matter in this Honourable Court still told the Applicant to get his property ready for tomorrow without a care in the world.

The Applicant sincerely request the Honourable Justice Reeves to intervene in this unlawful procedure that is taking place. The Applicant apologises for not having this Affidavit witnessed by a Justice of Peace (JP) as they are only present in detention every Tuesday of the week.

The Applicant apologises to the Honourable Court for any misunderstanding and inconvenience that may impact the proceedings of this matter.

12    At the hearing today the applicant appeared, in person, by video. Ms Helsdon for the Minister appeared in person.

13    Ms Helsdon informed the Court that the applicant had sought removal from Australia on 18 July 2019, however withdrew that request for removal on 7 August 2019. The applicant was served with a notice of removal on 16 August 2019, the date of his deportation being today.

14    The applicant submitted, in summary:

    He had initially sought removal to New Zealand in order that he be released, to allow him to seek work and pay for legal representation to challenge the visa cancellation;

    He subsequently learned from other detainees that he could apply for pro bono assistance whilst in detention;

    He originally sought to file an application challenging the Tribunal’s decision in the Federal Circuit Court of Australia, however was informed that he was required to make such application to the Federal Court of Australia;

    He managed to obtain some assistance last week in relation to preparing an application; and

    His family is in Australia and he wishes to remain.

15    In order to succeed, the applicant needs to satisfy the Court that there is a serious question to be tried and that the balance of convenience favours the granting of the injunction sought: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57.

16    In my view it is appropriate to order an injunction to prevent the removal of the applicant from Australia pending the determination of his application for extension of time.

17    First, insofar as concerns whether there is a serious question to be tried concerning the application for extension of time, I note that there is currently an application before the Federal Court, allocated to the docket of Justice Reeves. Issues relevant for the Court in considering such an application include:

    The extent of the delay;

    The explanation for the delay;

    Any prejudice a respondent might suffer because of the delay; and

    The merits of the proposed appeal.

(Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [348]-[349])

18    At this stage it is difficult to evaluate the application for review, given the broad grounds of review currently claimed and the very limited material before me. The Minister submitted further that the applicant was approximately 66 days out of time, and that his grounds of review were not arguable. However:

    There is proper Court documentation filed, including an application and supporting affidavit, which the Court has accepted;

    The proceedings in the Court are currently being case managed and a return date notified to the parties;

    The applicant has explained his delay in filing an application by reference to his misunderstanding of the appropriate jurisdiction of the Federal Court under s 476A of the Migration Act;

    In the event that the applicant obtains legal advice his grounds of review may be refined; and

    He has submitted, with some justification, that he would suffer prejudice if the extension of time were not granted.

19    Any removal of the applicant from Australia would be pursuant to s 198 or s 200 of the Migration Act. It is not clear to me which section of the Migration Act is applicable in this case, however that the applicant is due to be removed from Australia today is not in controversy. The Procedures Advice Manual (PAM3) – Act — Compliance and Case Resolution: Returns and Removals: Removal from Australia provides detailed guidance on interpreting the Migration Act, Migration Regulations and migration policy, guiding officers of the Department. I note that the Reader’s Guide to the Migration Regulations 1994 recognises PAM3 and the guidance it contains. I have extracted the following material from what appears to be the current version of PAM3:

Unfinalised judicial review in relation to substantive visas

General policy

The Act does not preclude involuntary removal of unlawful non-citizens who are entitled to seek judicial review or who are seeking judicial review of a decision in relation to a substantive visa. However, as a matter of policy, persons in this cohort usually should not be removed because:

•    the person should be given adequate time after a negative tribunal decision to consider their legal options to seek judicial review

•    the court may ultimately overturn the substantive visa decision and

•    the court may grant an injunction to prevent removal of the person.

Note: This policy can be bypassed if a removee requests voluntary removal under s198(1).

Policy exceptions

In some cases, particularly if a person has a history of serial and repetitive litigation, the officers may decide to progress removal despite unfinalised litigation.

Before progressing removal, however, officers must first refer the case to the AAT and Removals Injunctions Section for their views on the appropriateness of the removal and the Department’s ability to successfully defend injunction application (to stay removal).

When referring cases to the AAT and Removals Injunctions Section, officers should include a summary of the person’s immigration history and note any sensitivities of the case (provide up-to-date ROIB, if available).

20    I put this material to the Minister’s lawyer at the hearing this afternoon.

21    The Minister submitted that the policy did not apply to the applicant because he had requested voluntary removal from Australia, in July 2019, but changed his mind. In my view this does not mean that the Department should not be guided by PAM3 in the current circumstances. It is not in dispute that the applicant originally requested voluntary removal, however he withdrew that request prior to being notified of the proposed removal, and has subsequently initiated proceedings in this Court.

22    Further, I note the following observation of the Full Court of this Court in SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140; 233 FCR 279):

53.    The respondent must take responsibility for ensuring that no one is removed from this country while there are proceedings pending in this Court challenging the validity of that removal. We do not accept that any of the various subsections of s 198 of the Act, which impose a duty in the circumstances there specified to remove a non-citizen “as soon as reasonably practicable” can be invoked by the respondent to justify what occurred in the present case.

(Emphasis added.)

23    For these reasons I am satisfied that there is a serious question to be tried.

24    Second, the balance of convenience clearly favours the grant of an interlocutory injunction. While if the applicant is removed from Australia he would be able to prosecute his application from offshore, if his application for extension of time and ultimately the application for review are successful, there is nothing to suggest that he would be repatriated to Australia without cost. Further, the removal of the applicant from Australia in the current circumstances would arguably be another basis on which he would be deemed to be a “behaviour concern non-citizen” within the meaning of s 5(1) of the Migration Act.

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

Associate:

Dated:    29 August 2019