FEDERAL COURT OF AUSTRALIA

XAD by her Litigation Guardian XAE v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1550

ORDERS

THE COURT ORDERS THAT:

1.    The respondents are restrained from removing the applicant from Australia pending the hearing and determination of this proceeding.

2.    The applicant’s application for interlocutory relief is otherwise dismissed.

3.    The costs of that application are reserved.

4.    The proceeding be listed for a case management conference on a date to be fixed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for interlocutory relief is dismissed.

2.    The costs of that application are reserved.

3.    The proceeding be listed for a case management conference on a date to be fixed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be listed for a case management conference on a date to be fixed.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The applicant is a two year old girl born to Sri Lankan parents. Despite having been born in Australia, she is designated to be an “unauthorised maritime arrival” under the Migration Act 1958 (Cth). On 29 August 2019, the applicant together with her parents and older sister, were in the process of being removed from Australia by an officer of the second respondent (“the Commonwealth”) purportedly pursuant to the removal power in s 198 of the Migration Act. The applicant’s removal was halted by an order made by a judge of the Federal Circuit Court. That restraint was continued by orders made by this Court so that the interlocutory relief claimed by the applicant could be properly considered.

2    In the absence of a further restraint upon the respondents, the applicant is threatened with removal from Australia. Broadly stated, her case is that there is currently no power to remove her from Australia under s 198 of the Migration Act. Through her legal representatives, the applicant says that s 198 of the Migration Act is not available as a source of power to remove her from Australia for one of two alternative reasons. First, because she has made a valid application for a visa and until that application is finally determined, there is no power to remove her from Australia. Second, that a statutory process in which an assessment is being made as to whether Australia’s international obligations would be infringed by her removal to Sri Lanka was commenced but has not been lawfully completed. The applicant contends that whilst that process remains afoot, the power to remove her under s 198 is not available.

3    In that context, the applicant seeks an interlocutory injunction restraining her removal from Australia until her proceedings in this Court have been finally heard and determined at trial.

procedural background and the applicant’s claims

4    The applicant has three proceedings before this Court. The first of the three proceedings commenced before the Federal Circuit Court on 29 August 2019 (VID951/2019) (“first proceeding”). That proceeding was transferred to this Court on 2 September 2019. The applicant also commenced a proceeding in this Court in its original jurisdiction (VID935/2019) (“second proceeding”) on 30 August 2019. Both the first and second proceedings were listed on 4 September 2019 and adjourned for hearing to 6 September 2019. On 6 September 2019, both proceedings were adjourned by consent to 18 September 2019. On 5 September 2019, the applicant commenced a second proceeding in the Federal Circuit Court (VID967/2019) (“third proceeding”); that proceeding was transferred to this Court on 6 September 2019. All three proceedings were listed for the hearing of the interlocutory applications made in each and it is the interlocutory applications made in the second and third proceedings which these reasons address.

5    The respondents are the same in each proceeding. The first respondent is the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister Coleman”), the second respondent is the Commonwealth, the third respondent is the Minister for Home Affairs (“Minister Dutton”) and the fourth respondent is the Secretary of the Department of Home Affairs.

6    There is a high degree of overlap between the three proceedings. In particular, the third proceeding has overtaken the first proceeding in the sense that all of the relief sought in the first proceeding is sought in the third proceeding, and the third proceeding expands on the grounds of relief in the first proceeding. In those circumstances, and as the applicant concedes, it is not necessary for me to further deal with the first proceeding and the interlocutory application made therein.

7    The first and third proceedings were each brought pursuant to an originating application supported by an affidavit. No statements of claim have yet been filed in either proceeding. Each of the originating applications set out what purport to be the grounds of the application. In many respects those grounds are somewhat ambiguous in setting out the contentions upon which the applicant relies, and have been expanded upon, if not overtaken, by the written submissions of the applicant. That that has occurred is not entirely the fault of the applicant. Information of which neither the applicant or her advisers were aware has been made available in material filed by the respondents which has resulted in the applicant recasting her case. In that context, and given the urgent nature of the applications for interlocutory relief, the proceedings are best addressed by reference to the applicant’s contentions as set out in the written submissions made on her behalf. That approach was not in contest.

8    On that basis, and in summary, in the third proceeding the primary relief sought by the applicant is a final injunction restraining the applicant’s removal from Australia. An interlocutory injunction restraining her removal is sought pending trial. The basis for the injunction sought is that the power to remove the applicant from Australia provided for by s 198(2) of the Migration Act is not engaged. There are two alternative bases relied upon by the applicant.

9    First, the applicant contends that she has made a valid application for a visa, the bar precluding a valid application under s 46A(1) of the Migration Act having been lifted by a determination made by Minister Dutton under s 46A(2) on 26 July 2017 (“Determination”). The applicant contends that so long as her application for a visa has not been finally determined, the power to remove her under s 198(2) of the Migration Act is not engaged.

10    Second, and in the alternative, the applicant contends that whilst there is a process afoot that may lead to the applicant being granted a visa, neither the duty to remove under s 198 of the Migration Act, nor the power to do so is engaged. The process which the applicant contends is afoot is an assessment as to whether her claims for protection have engaged Australia’s non-refoulement obligations under international law. The source and nature of those obligations are sufficiently described by Rares, Perram and Griffiths JJ in SZSSJ v Minister for Immigration and Border Protection (SZSSJ Federal Court) (2015) 234 FCR 1 at [44]-[45]:

[44]    Prior to the introduction of s 197C there were a number of provisions in the Act which had referred to Australia’s non-refoulement obligations. This had led the High Court to conclude in M61 at [34] that the Act, as it then was, reflected a legislative intention to adhere to Australia’s international obligations. Those obligations include an obligation not to refoule a person where there were substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to the receiving country, there was a real risk that the person would suffer significant harm. This obligation emerges, inter alia, from Arts 2.1 and 7 of the International Covenant on Civil and Political Rights 1966, done at Geneva on 16 December 1966 (“the ICCPR”). These provide:

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Article 2

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

[45]    It is orthodox that these articles create a non-refoulement obligation: Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (26 May 2004, UN Doc CCPR/C/21/Rev.1/Add.13) at [12]. The operation of the obligation has been fleshed out in various decisions of the UN Human Rights Committee, most recently in Pillai v Canada (unreported, Human Rights Committee, UN, Communication No 1763 of 2008, 25 March 2011, UN Doc CCPR/C/101/D/1763/2008). There are also two other non-refoulement obligations arising from treaties to which Australia has acceded. The first is the non-refoulement obligation generated by Art 33(1) of the Refugee Convention and the second a non-refoulement obligation deriving from Art 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1987, done at New York on 16 December 1987 (“Convention Against Torture”). In practice, officials dealing with these various non-refoulement obligations have tended to treat them compendiously.

11    The applicant contends that a non-refoulement assessment was conducted to assist in the consideration of the possible exercise of the Minister’s powers under s 46A of the Migration Act and, because it is a statutory process, that assessment must be conducted in accordance with Australian law, and in particular, the rules of procedural fairness. As procedural fairness was not provided to the applicant, the applicant contends that the assessment process has not been completed and remains afoot, thus precluding the exercise of the removal power in s 198 of the Migration Act.

12    In the second proceeding, and in the alternative to the contentions made by the applicant in the third proceeding, the applicant claims that a decision made on 21 August 2019 by an officer of the Commonwealth is affected by jurisdictional error. The decision impugned is a decision made by the officer who assessed the applicant’s request as not meeting the Minister’s guidelines for referral under s 46A (“Guidelines”) and therefore did not refer her request, that the Minister lift the bar imposed by s 46A(1), to the Minister for consideration. The relief claimed by the applicant in this proceeding is an injunction requiring that an officer assess her request, an injunction that the officer comply with s 13(5) of the Public Service Act 1999 (Cth) and a declaration that the assessment is affected by legal unreasonableness and/or a misunderstanding or misconstruction of the Guidelines. The applicant also seeks an injunction restraining her removal from Australia pending the resolution of the second proceeding.

Relevant principles for the grant of interlocutory relief

13    I recently outlined the relevant principles that govern the grant of interlocutory relief in BAF18 as litigation representative for BAG18 v Minister for Home Affairs [2018] FCA 1060 at [6]-[8]:

[6]    The principles to be applied in determining whether to grant an interlocutory injunction are well established. The applicant must identify the legal or equitable rights which he seeks to have determined at the trial and in respect of which final relief is sought. In general, the adjudication of whether an interlocutory injunction ought to be granted in advance of the final determination of a proceeding requires a two-step analysis. First, one asks whether the Applicant has shown a prima facie case or, put another way, a serious question to be tried. That involves the applicant establishing a sufficient likelihood of success to justify, in the circumstances, the grant of interlocutory relief pending the trial. The second question is whether the inconvenience or injury which the applicant is likely to suffer if the injunction is refused outweighs or is outweighed by the injury which the respondents would suffer if the injunction were granted; this is called the balance of convenience.

[7]    These principles were established by the High Court in Beecham Group Ltd v Bristol Laboratories (1968) 118 CLR 618 at 622-623 (Kitto, Taylor, Menzies and Owen JJ). The reference in that judgment to there being a ‘probability’ that at trial the plaintiff will succeed was explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 (“O’Neill”) at [65] as requiring only the satisfaction of the standard I have set out above, namely, that there is a sufficient likelihood of success in the circumstances to grant relief. With that view, Gleeson CJ and Crennan J expressly agreed at [19].

[8]    It is also to be noted, and of significance in this case, that the two questions are not independent. The more that the balance of convenience supports a respondent the stronger will be the prima facie case that the applicant may need to establish to support an interlocutory injunction. Conversely, where the balance of convenience strongly favours the applicant, then the strength of the prima facie case required to support the grant of an injunction diminishes: O’Neill at [19] (Gleeson CJ and Crennan J) and at [65]-[72] (Gummow and Hayne JJ); Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [52]-[74] (Dowsett, Foster and Yates JJ).

relevant legislative provisions

14    Section 46A relevantly provides:

(1)    An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:

(a)    is in Australia; and

(b)    either:

    (i)    is an unlawful non-citizen; or

(ii)    holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.

Note:    Temporary protection visas are provided for by subsection 35A(3).

…

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.

(2A)    A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.

(2B)    The period specified in a determination may be different for different classes of unauthorised maritime arrivals.

(2C)    The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.

(3)    The power under subsection (2) or (2C) may only be exercised by the Minister personally.

…

(7)    The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (2C) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.

15    Section 46A(1) of the Migration Act precludes an “unauthorised maritime arrival” who is in Australia from making a valid application for a visa. Section 5AA(1) of the Migration Act provides the meaning of the phrase “unauthorised maritime arrival”. As each of the applicant’s parents entered Australia by sea without a visa, each is designated by s 5AA(1) to be an “unauthorised maritime arrival”. The applicant did not arrive in Australia by sea and without a visa. She was born in Australia. Nevertheless, she too is an “unauthorised maritime arrival”. Section 5AA(1A) of the Migration Act extends the definition of “unauthorised maritime arrival” to a child of an “unauthorised maritime arrival” who is born in Australia.

16    As is apparent from the text of s 46A(1), that provision precludes an “unauthorised maritime arrival” who is in Australia from making a valid application for a visa. As the applicant is an “unauthorised maritime arrival”, pursuant to s 46A(1) any application she makes for a visa is not a valid application. In other words, the applicant is not permitted to apply for a visa.

17    There is however a capacity for the Minister to intervene and override the general rule laid down by s 46A(1). The bar precluding an “unauthorised maritime arrival” from making a valid visa application may be lifted in accordance with s 46A(2). That power may only be exercised by the Minister personally (s 46A(3)). As s 46A(7) provides that the Minister does not have a duty to consider whether to exercise the power to intervene given by s 46A(2), the Minister may decide that he will not consider a request that the bar imposed by s 46A(1) be lifted.

18    As many authorities have now recognised, s 46A (as well as ss 48B, 195A and 417) of the Migration Act involves a two stage process:

(i)    Firstly, the decision to consider exercising the power to lift the bar; and

(ii)    Secondly, the decision whether to lift the bar.

See Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at [70]; and Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [43].

19    The relief sought by the applicant is directed at restraining the exercise of the power conferred by s 198 of the Migration Act. Although the applicant was informed that she would be removed pursuant to s 198(6), the applicable power referrable to the applicant’s circumstances is provided for by s 198(2). That provision is in the following terms:

(2)    An officer must remove as soon as reasonably practicable an unlawful non-citizen:

(a)    who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and

   (b)    who has not subsequently been immigration cleared; and

   (c)    who either:

(i)    has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or

(ii)    has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.

20    The respondents contended that s 198(5) may also be available as a source of power to remove the applicant, but as nothing was said to turn on that eventuality I need not further consider that provision.

21    It is also necessary to observe for the applicant’s alternative case referred to at [10] above, that s 197C of the Migration Act has a potential application to the exercise of power under s 198. It provides:

(1)    For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.

has the applicant made a valid application for a visa?

22    For the purposes of the Court’s determination of the applicant’s interlocutory applications, it is not in contest that on 12 September 2019 the applicant made an application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHEV Visa”). Nor is it in contest, for current purposes, that if the applicant made a valid application for a SHEV Visa, the available power to remove her from Australia under s 198(2) (or s 198(5) if applicable) would not be engaged and that, pending the application for a visa being finally determined, the respondents are precluded from removing the applicant from Australia. The respondents have conceded that if the Court was satisfied that there is a serious question to be tried that the applicant has made a valid application for a SHEV Visa, that finding would suffice to support the grant of the interlocutory injunction that the applicant seeks restraining the respondents from removing her from Australia pending the determination of the third proceeding.

23    Consequently, the only live issue on this part of the applicant’s case, is whether or not there is a serious issue to be tried that the applicant made a valid application for a SHEV Visa. As stated already, the applicant was precluded by s 46A(1) of the Migration Act from making a valid application unless the bar in that provision was lifted by the exercise of the power conferred by s 46A(2). The only issue as to the validity of the applicant’s visa application concerns whether or not a determination made under s 46A(2) applicable to that application was made.

24    The applicant contends that it was and relies upon the following factual matters.

25    On 26 July 2017, Minister Dutton made the following Determination under s 46A(2) of the Migration Act which was signed by him and dated:

DETERMINATION UNDER SUBSECTION 46A(2) OF THE MIGRATION ACT 1958 PERMITTING THE MAKING OF A VALID APPLICATION FOR A TEMPORARY PROTECTION (CLASS XD) VISA AND A SAFE HAVEN ENTERPRISE (CLASS XE) VISA

Pursuant to subsection 46A(2) of the Migration Act 1958 (the Act), and thinking that it is in the public interest to do so, I hereby determine that subsection 46A(1) of the Act does not apply to an application by a person who is an unauthorised maritime arrival because of subsection 5AA(lA) of the Act, for a Temporary Protection (Class XD) visa and Safe Haven Enterprise (Class XE) visa, if:

(a)    a determination has been made under subsection 46A(2) in relation to a parent of the unauthorised maritime arrival, allowing an application for a Temporary Protection (Class XD) visa and Safe Haven Enterprise (Class XE) visa; and

(b)    any application by a parent of the unauthorised maritime arrival pursuant to a determination of the kind mentioned in (a) is made before 1 October 2017; and

(c)    a parent of the unauthorised maritime arrival has not made an application for a protection visa, within the meaning of section 35A of the Act, which has been refused and is finally determined within the meaning of the Act.

26    Furthermore, on the basis of evidence provided by the applicant’s solicitor in an affidavit made on 13 September 2019, the following factual matters are established at least on a prima facie basis:

(i)    the applicant’s father arrived in Australia, at Christmas Island, by boat and has never applied for a Temporary Protection (Class XD) Subclass 785 (visa) or a Safe Haven Enterprise (Class XE) Subclass 790 (visa);

(ii)    on or around 1 or 2 April 2013, the applicant’s mother arrived in Australia, at Cocos Island, by boat;

(iii)    sometime prior to 23 November 2016, a determination was made under s 46A of the Migration Act to allow the applicant’s mother to make a valid application for a SHEV Visa and on 23 November 2016, the applicant’s mother lodged an application for such a visa and the application was finally determined on 28 August 2017 following a decision of the Immigration Assessment Authority.

27    It is not in contest that the applicant mother’s application for a SHEV Visa was “finally determined” on 28 August 2017 within the meaning of that term in ss 5(9) and (9A) of the Migration Act.

28    There is an issue between the parties as to whether or not the Determination is applicable to validate the applicant’s application for a SHEV Visa. The only point of contention is whether, by the operation of para (c) of the Determination, the Determination is inapplicable to the applicant’s application for a SHEV Visa. That the criterion in each of paras (a) and (b) of the Determination is satisfied is not in contest for current purposes.

29    The point of difference between the applicant and the respondents turns on the proper construction of the Determination and, in particular, whether or not (as the respondents contended), each of the criterion in paras (a), (b) and (c) of the Determination is to be assessed as at the time that an application for a visa is made.

30    The respondents contended that at the time the applicant’s visa application was made (12 September 2019), the applicant mother’s application for a protection visa had been finally determined (on 28 August 2017) and that consequently, taking a time of application approach to the construction of the Determination, meant that the applicant could only have made a valid application for a visa before 28 August 2017.

31    The applicant contended that the disqualifying effect of para (c) of the Determination had no application to the visa application which she made because, as at the time that the Determination was made (26 July 2017), her mother’s application for a protection visa had not been “finally determined” and was not finally determined until 28 August 2017.

32    Discerning the meaning and intent of the Determination is not without difficulty, as I will shortly explain. Each of the competing constructions is open on the text of the Determination. Ordinarily, the resolution of an ambiguity in the text of a document such as the Determination will be assisted by reference to the purpose and context of the instrument. At the top of the document which records the Determination the words “Attachment C” appear. That suggests that the page on which the Determination is recorded formed part of a larger document and probably a document which provided a briefing to Minister Dutton on the subject of the Determination. Material of that kind, if it exists, could have assisted to identify the purpose for the Determination. However, no such material was put in evidence. If the material exists it was in the power of the respondents to have produced it. In that context, it is necessary to recall the “rule” in Blatch v Archer (1774) 1 Cowp 63 at 65, (1774) 98 ER 969 at 970 that:

[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

33    I am left therefore to construe the Determination by reference to its text and any discernible purpose apparent from it, as well as by reference to the terms of s 46A, on the assumption that what was intended was a determination made in conformity with its governing provision.

34    By reference to s 46A(2A) in particular, the applicant contended that the respondents’ construction of the Determination is out of conformity with its governing provision. That is because, on the respondents’ construction, the Determination does not have ongoing and certain temporal effect but the period in which the Determination “has effect” is unspecified and will differ as between different persons within the class of persons to which the Determination has application. That is so because if a time of application approach is taken to para (c) of the Determination, the period of effect of the Determination is rendered uncertain and will be potentially different for each person within the class.

35    It seems to me at least arguable that a determination with a variable and uncertain period of effect is not in accordance with what is contemplated by ss 46A(2), (2A) and (2B). Those provisions permit a determination to have a limited temporal effect but arguably require the limitation upon the period of effect to be “specified in the determination” (s 46A(2A)) and arguably confine the capacity to differentiate, in terms of the period specified, to a variation as between “different classes of unauthorised maritime arrivals” (s 46A(2B)) and not as between persons of the same class.

36    The respondents’ construction of the Determination does not accord grammatically with the text of para (b). That is because if, consistently with the respondents’ construction, the word “if” at the end of the introductory paragraph to the Determination is to be read as though it said “if at the time of the application” and also, consistently with the respondents’ construction, the Determination contemplates an application being made after 1 October 2017, the phrase “is made before 1 October 2017” in para (b) of the Determination, is ungrammatical.

37    The respondents’ construction is also less faithful to the text of the Determination because it involves reading in the phrase “if at the time of application”. I would accept that so much could be readily implied in the absence of a contrary indication. However, the grammatical difficulty that implying those words creates for para (b), is a contrary indicator.

38    The other difficulty with the respondents’ construction is that the rationality of that construction is premised on the parent application referred to in para (b) being the same application as that addressed in para (c). The rationale being that the child is not disqualified from making a valid application for a visa whilst the parent’s application is pending resolution. However, para (c) is dealing with a wider class of protection visa applications than is para (b). It is apparent from paras (a) and (b) of the Determination, that the parent application can only be an application for a Temporary Protection (Class XD) visa or a SHEV Visa. However, para (c) seems to be addressing an additional category of visa and includes an application for a permanent protection visa of the kind provided for by s 35A(2) of the Migration Act. An answer to that problem may be to read down the phrase “a protection visa”, but the need to do so serves to highlight the ambiguity in the text.

39    The applicant’s construction is also not without some difficulty because a time of determination approach to the construction of the Determination runs up against the fact that the time specified in para (b) post-dates the date upon which the Determination was made. That difficulty, however, is capable of resolution on the basis that the time limit there specified was intended to extend time so as not to disadvantage those persons, without prior notice of the terms of the Determination, from taking the benefit of the Determination. With that purpose in mind, it is at least arguably understandable why a time of determination approach was not strictly taken to para (b) whilst it was for paras (a) and (c).

40    On the evidence and the limited contextual material presently available and for the reasons given above, I consider that the applicant’s contention that the Determination applies to her application for a SHEV Visa raises a serious question to be tried. I am satisfied that there is a prima facie case that the applicant’s application for a SHEV Visa is valid. It follows, given the concession made by the respondents, that an injunction restraining the removal of the applicant from Australia pending the trial of the third proceeding should be made.

41    Although the respondents have conceded that the balance of convenience favours the applicant, it is necessary to say that the balance of convenience is strongly in favour of the applicant. No prejudice to the respondents was raised by them. For the applicant the potential prejudice is severe. The preservation of the subject matter of her proceeding depends upon her not being removed from Australia, including because once removed from Australia her capacity to make an application for a protection visa is negated. In circumstances where the balance of convenience strongly favours the applicant, it was not necessary for the applicant to have demonstrated a strong prima facie case to support the grant of the injunction that I propose to make. I have determined that a prima facie case has been demonstrated taking that consideration into account.

whether the removal power is not engaged because a statutory process is Afoot?

42    Having found for the applicant on her primary argument, it is not strictly necessary that I address her alternative argument made as to why the removal power in s 198(2) of the Migration Act is not engaged. However for completeness and in case I am wrong on the primary case, I will set out why I would have found a prima facie case established on the applicant’s alternative case.

43    Some additional factual matters need to be recorded.

44    A submission prepared by the Department of Home Affairs (“Departmental Submission”) and provided to Minister Coleman on 3 September 2019 included at para [8] thereof the following statement:

The [applicant’s] family are finally determined UMAs from Sri Lanka and were detained in March 2018, for the purpose of their removal from Australia, remaining in held [sic] detention since that time. Their removal has been delayed due to the commencement and finalisation of court proceedings. The High Court refused special leave in one of the proceedings on 14 May 2019. Since then, efforts have been made to make the removal of the [applicant’s] family possible. It became reasonably practicable to do so on 29 August 2019, but the attempt to remove them was halted by a court injunction.

45    Paragraph [19] of the Departmental Submission stated:

On 21 August 2019, the Department assessed that [the applicant’s] case did not meet the guidelines for referral to you for consideration under section 46A(2) of the Act as her claims were found unlikely to engage Australia’s non-refoulement obligations. Her representative was provided with the notification on the same day.

46    At para [21] of the Departmental Submission it was stated that in preparing that submission a Departmental officer had revisited the assessments referred to in paras [19] and [20] of the Submission and “agrees with them”.

47    On the basis of that material the following factual matters are established at least on a prima facie basis:

(i)    in March 2018 the applicant was detained in immigration detention and has remained in detention;

(ii)    whilst the applicant has been in detention and on or before 21 August 2019, the Department of Home Affairs made an assessment as to whether the applicant’s claims for protection have engaged Australia’s non-refoulement obligations and did so again between 21 August and 3 September 2019 (“non-refoulement assessment process”); and

(iii)    the conduct of the non-refoulement assessment process had the effect of prolonging the applicant’s immigration detention, a matter that the respondents conceded for current purposes.

48    The applicant’s fundamental proposition is that as long as there are processes afoot that may lead to the applicant being granted a visa, there does not arise any duty to remove her from Australia under s 198 of the Migration Act. The applicant further contends, and it is not in contest, that because the engagement of the duty to remove is the only relevant source of power to remove her, the absence of a duty would mean that there is no power to remove the applicant from Australia under s 198.

49    For reasons I will return to, the applicant also contends that s 197C is not relevantly engaged.

50    The process which the applicant contends is afoot and may lead to the applicant being granted a visa is that which I have described as the non-refoulement assessment process. The applicant contends that the non-refoulement assessment process was a statutory process directed to the possible exercise of the power conferred by s 46A(2) and had to be conducted in accordance with Australian law including compliance with the rules of procedural fairness. As that has not happened, because no procedural fairness was accorded to the applicant, the applicant contends that the process remains afoot and consequently the power under s 198 to remove her is not engaged. It is not in contest that no opportunity to be heard was provided to the applicant in relation to the non-refoulement assessment process.

51    The applicant’s contention that a process directed to the possible grant of a visa remains afoot, depends upon whether that process – the non-refoulement assessment process – was required to be performed in compliance with the rules of procedural fairness. Leaving aside s 197C, it is common ground that this aspect of the applicant’s case turns on whether the first step, the procedural decision to consider the exercise of power under s 46A(2), was taken by either Minister Dutton or Minister Coleman, each of whom are “the Minister” for the purposes of s 46A of the Migration Act.

52    Adopting the approach taken by the High Court in SZSSJ (at [40]), to address the issue of whether procedural fairness was required in the non-refoulement assessment process, that “process is to be characterised in terms of the [Migration Act]”. At [41] of SZSSJ, the Court referred to Plaintiff M61 and Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 and observed that those judgments “show that characterisation of an administrative process undertaken with a view to informing the Minister as to the possible exercise of non-compellable powers requires close attention both to the structure of those powers and to the facts”.

53    Their Honours then turned to consider each of those authorities and, at [52], concluded that three principles are to be drawn from them concerning the construction and relevant application of ss 48B, 195A and 417 of the Migration Act. As is apparent from that judgment including by the reliance placed upon Plaintiff M61 where s 46A was considered, the three principles there referred to should also regarded as applying to s 46A of the Act. Those three principles were described as follows:

[53]    First, each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.

[54]    Secondly, processes undertaken by the Department to assist in the Minister's consideration of the possible exercise of a non-compellable power derive their character from what the Minister personally has or has not done. If the Minister has made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department to assist the Minister's consideration has a statutory basis in that prior procedural decision of the Minister. Having that statutory basis, the process attracts an implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention. If the Minister has not made a personal procedural decision to consider whether to make a substantive decision, a process undertaken by the Department on the Minister's instructions to assist the Minister to make the procedural decision has no statutory basis and does not attract a requirement to afford procedural fairness.

[55]    Thirdly, the question whether the Minister personally has made a procedural decision to consider whether to grant a visa or to lift a bar in a particular case or class of cases is a question of fact.

54    Applying those principles to the issue at hand, whether the rules of procedural fairness were applicable to the non-refoulement assessment process is dependent upon two matters. First, the process had to have a “statutory basis” derived from the Minister having made “a personal procedural decision to consider whether to make a substantive decision”. As French CJ said in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at [24], once the Minister has made the procedural decision he must decide whether or not to exercise the power under s 46A(2) (see further Hayne J at [37]). It follows that until that decision – the substantive decision – is made, the Minister must be regarded as in the process of deciding whether or not to exercise the s 46A(2) power. Any process undertaken by the Department of Home Affairs at that time must be regarded as directed at assisting the Minister’s consideration of that substantive decision and, for that reason, the process has a statutory basis.

55    The second matter that the principles set out in SZSSJ require is that the non-refoulement assessment process had “the effect of prolonging immigration detention”. Given the finding on that question and the concession made by the respondents, that requirement is here satisfied and I need not deal further with it.

56    Whether the first requirement is satisfied, at least on a prima facie basis, turns then on whether an inference may be drawn that the Minister made the procedural decision under s 46A in circumstances sufficiently connected to the non-refoulement assessment process to enable that process to be characterised as having been undertaken to assist the Minister to consider the exercise of the substantive power in s 46A(2).

57    That is a factual question. The applicant’s primary basis in support of the necessary inference being drawn is that, relying on Plaintiff M61 at [35], [62]-[66] and [71], the prolongation of the applicant’s detention was lawful only if the non-refoulement assessment process was a statutory process directed at assisting the Minister to consider making the substantive decision under s 46A(2). The applicant contends that the better inference is that the non-refoulement assessment process was conducted lawfully rather than unlawfully and, on that presumption, a necessary fact was that the Minister had taken the procedural step and was necessarily engaged in considering whether or not to make the substantive decision pursuant to s 46A(2).

58    Reliance was also placed on the making of the Determination. It was said that Minister Dutton must have made the procedural decision prior to making the Determination. However, I consider that even if that was so, on the making of the Determination, the Minister was no longer considering whether or not to make a substantive decision, because the substantive decision that the procedural decision accommodated, had been made. The temporal disconnect between the taking of that procedural decision and the undertaking of the non-refoulement assessment process is also problematic.

59    The respondents contended that this case had more in common with the facts of Plaintiff S10 and, in particular, the respondents relied upon the fact that as in Plaintiff S10, a procedural decision was made by the Minister not to consider the exercise of a non-compellable power. In that case, the non-compellable powers in question were ss 48B, 195A, 351 and 417 of the Migration Act. In this case, on 3 September 2019 and after the applicant had brought proceedings in this Court, Minister Coleman made a procedural decision not to consider exercising the non-compellable power under s 46A(2).

60    There are a number of potential answers to those contentions made by the respondents, but it is presently sufficient to say that whether an inference is to be drawn that, at a particular point in time, the Minister must have been considering whether or not to exercise the substantive power in s 46A(2), is a fact and context specific exercise to be performed by reference to the facts and context of the particular case at hand. In the performance of that exercise in this case, one relevant fact is the decision made by Minister Coleman. However, that a procedural decision by one Minister was made on 3 September 2019 does not serve to deny the fact that, at an earlier time and possibly as early as March 2018 (when the prolongation of the applicant’s detention may have commenced) a relevant Minister (including Minister Dutton) did not make, at least constructively, a procedural decision to consider the exercise of the power under s 46A(2). In that respect, the respondents’ reliance on the decision made of 3 September 2019 may suffer from the same disconnection with the undertaking of the non-refoulement assessment process as does the applicant’s reliance on the procedural decision said to have been taken by Minister Dutton in relation to the making of the Determination.

61    The respondents also contended that the facts of Plaintiff M61 and those of SZSSJ provided greater support for the inferences there drawn, that the Minister had made the relevant procedural decision and was considering the exercise of the associated substantive power. That may well be true, but the comparison sought to be drawn with this case is a comparison between facts available at trial and facts available to an applicant on an interlocutory application. Furthermore, the question is not whether the facts are as strong as they were in Plaintiff M61, but whether the facts are sufficiently strong to enable an inference to be drawn on a prima facie basis.

62    In my view, that the prolongation of the applicant’s detention was likely to have been done lawfully rather than unlawfully, provides a sufficient basis to enable the inference to be drawn that a procedural decision had been taken and that the Minister must have been considering the exercise of the substantive power in s 46A(2).

63    Lastly, s 197C of the Migration Act needs to be considered. To avoid s 197C having any relevant application, the applicant relied on the reasoning of Rares, Perram and Griffiths JJ in SZSSJ Federal Court at [48]-[52] (not disturbed on appeal in SZSSJ), for the proposition that whilst s 197C prevents the officer referred to in s 198 of the Migration Act from considering the issue of non-refoulement, it does not prevent the officer from taking into account the fact that the Minister is considering whether to lift the bar under s 46A even if the subject matter of the Minister’s consideration is itself the issue of non-refoulement. On that basis, the applicant contends that her proposition that whilst the non-refoulement assessment process is afoot, the power to remove her under s 198 is not engaged, is unaffected by s 197C. For current purposes, that contention must be accepted to be at least seriously arguable.

64    I am satisfied that on her alternative case, the applicant has established a prima facie case that whilst the non-refoulement assessment process remains to be completed lawfully the power to remove her from Australia pursuant to s 198 is not engaged. As earlier stated, that the balance of convenience is strongly in favour of the applicant, means that it is not necessary for the applicant to have demonstrated a strong prima facie case. My conclusion that a prima facie case has been demonstrated on the applicant’s alternative case has been reached with that consideration in mind.

the applicant’s second alternative argument

65    Given that I have already found a prima facie case sufficient to justify the grant of an interlocutory injunction, it is no longer necessary for the applicant to rely upon her second alternative argument. However, I should record that that argument (summarised at [12] below) was unpersuasive. The decision impugned by this argument has been overtaken by a decision made to refer to the applicant’s request to Minister Coleman. By reason of that referral Minister Coleman made the procedural decision of 3 September 2019. As a result, the applicant’s argument is now premised on the notion that once the request is made to a particular Minister with responsibility for administering the Migration Act to exercise the s 46A(2) power, that request must be considered and determined by the particular Minister to whom it was made. Not only is that contention unattractive as a matter of construction of the Migration Act, at the factual level, the facts do not support the proposition that the request made by the applicant was directed at a particular Minister able to exercise the s 46A(2) power. Although the request was addressed to Minister Dutton it sought “Ministerial Intervention”. The request can only sensibly be construed as a request made for intervention by any Minister with the capacity to do so. Principally for those reasons, I would not have found that the applicant had a prima facie case on her second alternative argument.

conclusion

66    In the applicant’s third proceeding, I have found that the balance of convenience strongly favours the applicant and that a prima facie case has been established sufficient to justify the grant of an interlocutory injunction restraining the removal of the applicant from Australia until the hearing and determination, at trial, of that proceeding. The applicant’s interlocutory applications in that proceeding should be otherwise dismissed. The applicant’s interlocutory application in the second proceeding should be dismissed. It is appropriate that the question of the legal costs incurred in relation to those interlocutory applications be reserved. Each of the applicant’s proceedings should now be listed for a case management conference in order that the steps necessary to accommodate a trial may be formulated and taken.

67    I will make orders accordingly.

Associate:

Dated:    19 September 2019

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