FEDERAL COURT OF AUSTRALIA

Lind v Minister for Home Affairs [2019] FCA 2210

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs fixed in the sum of $1,500.

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

REASONS FOR JUDGMENT

(Delivered ex tempore – revised from transcript)

ANASTASSIOU J:

1    The applicant seeks leave to extend time in which to seek judicial review of a decision of the Minister for Home Affairs, the Honourable Peter Dutton MP, to cancel his visa. The Minister cancelled the applicant’s visa exercising his powers under ss 501(3)(b) of the Migration Act 1958 (Cth).

2    The applicant was born in New Zealand on 18 March 1995. He has resided in Australia since he was 17 years of age, having arrived in Australia on 25 May 2012. He was the holder of a Class TY Subclass 444 Special Category (Temporary) visa.

3    On 6 September 2019 the applicant was convicted of four offences concerning an assault, possession of a controlled weapon, and threats to kill. He was sentenced to 13 months’ imprisonment. As a result he is deemed not to pass the ‘character test’ by operation of ss 501(6)(a) and 501(7)(d) of the Act.

4    On 24 October 2019, the Minister decided to cancel the visa under ss 501(3) of the Act as he considered it in the national interest to do so. On 1 November 2019 a notice of the Minister’s decision, including written reasons dated 24 October 2019 and supporting relevant information, was served upon the applicant. The relevant information included inter alia an intelligence report from the Northern Territory Police concerning the applicant’s criminal activities and association with the ‘Mongrel Mob’ motorcycle gang. Since 2 November 2019, the applicant has been detained in immigration detention.

5    On Friday, 13 December 2019, the applicant was informed that he was to be removed from Australia and returned to New Zealand on a flight scheduled to depart from Melbourne at 9 am on Wednesday, 18 December 2019. Late in the evening of 17 December 2019, the applicant made the present application, which included an application for urgent interim injunctive relief to restrain the Minister from removing him from Australia.

6    At approximately 1 am on 18 December 2019, I heard an urgent application for an interim injunction to restrain the Minister from removing the applicant on the flight that had been arranged. The application was heard by telephone conference. The applicant appeared in person. The Minister was represented by a solicitor from the Australian Government Solicitor’s office. I made an interim order, expiring at 4 pm of the same day unless further extended, restraining the Minister from removing the applicant. I did so on the explicit basis that the jurisdiction of the court should be preserved in order that it may have the opportunity to consider an application for an extension of time in which to appeal against the Minister’s decision to cancel the applicant’s visa: Tait v the Queen [1962] HCA 57; 108 CLR 620; 36 ALJR 330.

7    The application for an interim injunction came before me at 2:15 pm on 18 December for further hearing and consideration of the application for injunctive relief pending the hearing and determination of the applicant’s claim for an extension of time in which to make the application. It was necessary for the applicant to apply for an extension of time because the applicant was approximately 10 days late in making his application for review of the decision.

8    I heard the application for an extension of time concurrently with the application for the injunction as there is a substantive overlap between the question of whether there is a real prospect of success in the application, a matter relevant to the exercise of a discretion to extend time in which to make the application, and the question of whether there is a serious issue to be tried for the purposes of determining the interlocutory injunction application.

9    The grounds advanced by the applicant in support of his application for review were as follows:

(1)    That the Minister’s decision that the applicant’s removal was in the national interest was unreasonable given the applicant’s criminal history.

(2)    That it was unreasonable for the Minister to use subsection 501(3) power instead of alternatives, also given the applicant’s criminal history.

10    I will consider the second ground first, however, before doing so I note that there was some argument before me as to whether the Minister’s choice between particular statutory powers conferred on him by the Act is itself a ‘decision’ capable of judicial review. In the context of this application, being an urgent application for interlocutory orders, I need not come to a view on this question. Assuming in the applicant’s favour that the choice of power is capable of judicial review, the Minister’s decision reveals that he was cognisant of his powers and that he may choose between the power conferred by subsection 501(3) and other available powers. The Minister’s awareness and consideration of that choice is revealed in paragraphs 7 and 8 of his reasons. The Minister’s reasons reveal a consideration of the two distinct elements that he must be satisfied about in order to exercise his power under section 501(3), namely whether or not there is a reason to suspect that the person in question does not pass the character test as defined by section 501 subsection (6), and secondly, whether the cancellation of the visa is in the national interest. I can see no reason to conclude that the Minister’s choice to exercise his power under s 501(3) was unreasonable.

11    Turning then to the first ground, namely that the Minister’s decision to remove the applicant in the national interest was unreasonable, I find there is no real prospect of success on this ground or sufficient merit in it to warrant extending the injunction or to give leave to extend time in which to make an application for judicial review. In order to exercise the discretion to extend time, the applicant must show a reasonable prospect of success in an application for judicial review. This requires the applicant to demonstrate there is a reasonable prospect of establishing a legal error. At the very least he would need to demonstrate some unreasonableness on the part of the Minister. This has not has been demonstrated on the material before me.

12    The Minister considered each precondition to the exercise of his power under subsection 501(3), distinctly and separately. The Minister was reasonably entitled to conclude, as he did, that the first condition to the exercise of his power had been satisfied by reason of the criminal record of the applicant.

13    In my opinion, the Minister’s reasons were well-founded upon the material that was before him. The Minister had before him not only evidence of crimes that the applicant had committed based on his criminal record, but also evidence of the applicant’s association with, and his membership of, the Mongrel Mob. The applicant disputes that he is or was a member of the Mongrel Mob, but the intelligence report before the Minister indicated that he was in fact a ‘fully patched’ member. Even though the applicant disputes that fact, the question for me is whether there was material before the Minister upon which he could reasonably find, as he did, that the applicant was a member of that particular motorcycle gang or group.

14    The second element which the Minister considered was the national interest. The authorities indicate the question of what is and what is not in the national interest is properly a matter for the judgment of the executive arm of government. In Ozer v Minister for Home Affairs [2019] FCA 104 Steward J (at [13]) said:

Echoing these sentiments, Sankey J once observed in In Re Denaby and Cadeby Main Colleries Ltd & Ors (1927) 43 TLR 322 at 323, when considering whether the merger of certain coal mining companies was in the “national interest”, the following:

What constituted the national interest was a very different question, upon which opinions differed and which might become a political question more suitable to be decided by the High Court of Parliament than by the High Court of Justice.

15    That is not to say that that judgment is not capable of being reviewed by a court, but there is nothing on the material before me that would warrant the intervention of the court in relation to the Minister’s judgment of what is, and what is not, in the national interest in this case.

16    For these reasons, I have concluded that an application for judicial review has no real prospect of success and accordingly the application for an extension of time in which to bring such application is refused. The application for an interlocutory injunction restraining the removal of the applicant from the jurisdiction is accordingly also refused. For completeness I note that the interim injunction I made at approximately 1 am on 18 December 2019 expired at 4:00 pm, being the time at which these reasons were delivered ex tempore, and I do not propose to extend it further.

Associate:

Dated:    22 January 2020