FEDERAL COURT OF AUSTRALIA

Chauque v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2100

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed on 5 December 2019 be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

O’BRYAN J:

1    On 9 December 2019, I heard and dismissed an interlocutory application filed by the applicant on 5 December 2019. These are my reasons for doing so.

2    On 29 November 2019, the applicant filed an application (to which I will refer as the primary application) for an extension of time in which to lodge an application for review of a decision of a delegate of the Minister made on 12 October 2015 under s 65 of the Migration Act 1958 (Cth) (Act). By that decision, the delegate refused an application by the applicant for a partner (temporary) and partner (residence) visa.

3    The applicant is presently a detainee of Yongah Hill Immigration Detention Centre in the State of Western Australia.

4    On 5 December 2019, the applicant filed an interlocutory application seeking to restrain the Minister from removing him from Australia until the primary application has been finalised. The interlocutory application was supported by an affidavit that exhibited a notice received by the applicant from Australian Border Force on 15 November 2019 advising him that arrangements had been made for his removal from Australia pursuant to s 198(6) of the Act. The notice stated that it was anticipated that the applicant would be removed from Australia on 27 November 2019. The notice was addressed to Salehe Sozi Salum. The applicant explained that he had adopted that name whilst in detention. Despite adopting a name, the applicant had commenced the present proceeding using his original name, Quenete Chauque, which was his name at the time of the delegate’s decision.

5    As the application for an interlocutory injunction appeared to be urgent, the Court listed it for initial hearing on 9 December 2019 not knowing whether the Minister had been served. The Minister had received notice of the application and, at the hearing, was represented by its solicitor, Mr Adam Cunynghame. The applicant appeared by video link from the Federal Court in Perth and was unrepresented.

6    The applicant stated that, following the delegate’s decision, he had been taken into detention on 11 November 2015. He stated that he had endeavoured to lodge an application for review of the delegate’s decision with the Administrative Appeals Tribunal in 2016. However, he was unable to raise the application fee and ultimately the application did not proceed. He explained that he had not been able to make an application to the Federal Court for review of the delegate’s decision because he had been transferred from detention in Victoria to detention in Perth and did not have access to the relevant documents or advice. I infer that his recent application to review the delegate’s decision was prompted by the notice given to him by Australian Border Force of its intention to remove him from Australia.

7    Mr Cunynghame informed the Court that the applicant’s application had only recently come to the attention of the Minister. However, Mr Cunynghame was able to inform the Court, on instructions, that following the making of the primary application by the applicant, the Department does not currently plan to remove the applicant from Australia. Further, if the Department changes its view in the future and wishes to take steps to remove the applicant from Australia before the determination of the primary application, the Department would be required to give a further notice to the applicant of its intention to remove him, consistently with the obligations recently referred to by Allsop CJ in Moana v Minister for Immigration and Border Protection (No 3) [2019] FCA 2052. That would provide the applicant with a further opportunity to seek injunctive relief from the Court.

8    In the circumstances, and on the basis of the information provided to the Court by Mr Cunynghame on instructions from his client, in my view the basis for an interlocutory injunction no longer exists. There is no present threat that the applicant will be removed from Australia.

9    For those reasons, I dismissed the application for an interlocutory injunction and made no order as to costs.

10    The primary application seeking review of the delegate’s decision is presently listed for case management on 31 January 2020. Mr Cunynghame indicated that the Minister may file a notice of objection to competency of the application pursuant to rule 31.24 of the Federal Court Rules 2011 (Cth). If that application is filed, I will make directions in chambers timetabling the hearing of that application on 31 January 2020.

Associate:

Dated:    16 December 2019