FEDERAL COURT OF AUSTRALIA

Bernard v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 109

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 7 February 2020 is dismissed.

2.    The applicant must pay the first respondent's costs of the interlocutory application to be assessed if not agreed.

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

REASONS FOR JUDGMENT

(edited from the transcript)

JACKSON J:

1    The first respondent (Minister) intends to remove the applicant, Mr Bernard, to Mauritius in two days' time. Last Friday Mr Bernard filed an application seeking orders prohibiting that removal until the conclusion of this proceeding.

2    The proceeding is an application for an extension of time within which to apply for judicial review of a decision of the Administrative Appeals Tribunal. The decision was made on 3 May 2017. The Tribunal had affirmed a decision of a delegate of the Minister not to revoke the mandatory cancellation of Mr Bernard's visa, which occurred because he has a substantial criminal record. Under s 477A of the Migration Act 1958 (Cth), Mr Bernard had 35 days within which to apply for judicial review of that decision. His application for an extension of time was not lodged until 4 December 2019. So he was two and a half years out of time.

3    The immediate difficulty with Mr Bernard's application for an injunction is that on 18 December 2019, McKerracher J dismissed a substantially identical application. Mr Bernard's deportation had been scheduled to take place on 11 December 2019. The court restrained that on an interim basis, but when the matter came on for hearing the application was dismissed. Mr Bernard was represented by pro bono counsel on that occasion and the matter was fully argued. He represents himself today.

Principles

4    The application which McKerracher J dismissed was an interlocutory one, so the dismissal created no absolute bar to Mr Bernard making a similar application again: DA Christie Pty Ltd v Baker [1996] 2 VR 582 at 601-603; 606, 610-611. But the importance of finality in litigation, along with the efficient use of the resources of the court and of litigants, mean it is not appropriate to entertain such a renewed application without good reason. As Heydon JA said in Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 at [72]:

The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker … at 602-603 - the risk of conflicting decisions, the unnecessary vexing of respondents, judge shopping and the diminution of certainty in the conduct by respondents of their affairs - and others - damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily - are evils which each court in its individual discretion will rightly strain to avoid.

5    In P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413; (2009) 255 ALR 466, Goldberg J surveyed the authorities in relation to attempts to obtain interlocutory orders that had been the subject of a previous application. At [40] his Honour identified two divergent views as to the circumstances in which a court will entertain a second interlocutory application in such circumstances: one that has been called a strict view; and another that has been described as a liberal view. But he did not find it necessary to decide which to follow in the case before him. Rather, at [49], he said:

I consider that for present purposes in order for the applicants to satisfy the threshold issue they need to persuade me that since the order I made on 2 November 2007 and the decision of the Full Court, one or more of the following factors has occurred or is satisfied:

(a)    there is new material or new evidence which was not available, or reasonably available, to them at the time the orders were made on 2 November 2007 and 4 July 2008;

(b)    there has been a material change in the circumstances since those orders were made;

(c)    there are exceptional circumstances which warrant re-consideration of the matter, the subject of their notice of motion; and

(d)    as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter, the subject of their notice of motion.

6    This approach has been applied subsequently by other judges of this court: see for example Food Channel Network Pty Ltd v Television Food Network, GP [2010] FCA 372 at [16] (Jagot J); and Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 2) [2015] FCA 272 at [44] (Reeves J). I take the same approach here, pausing only to add that I agree with Reeves J's observation in Adata that in addition to the considerations above, the question must also be determined with regard to the overarching purpose of the civil practice and procedure rules as expressed in s 37M(1) of the Federal Court of Australia Act 1976 (Cth), to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

The basis of the application

7    Mr Bernard's written application sought an order restraining his removal from Australia until the conclusion of the proceeding. It was unsupported by any affidavit. But at this morning's hearing Mr Bernard indicated that he accepted that the outcome of McKerracher J's decision was that he would be removed to Mauritius. He merely wanted that to be delayed by a month. The reason he gave (after being sworn in to give evidence) was that he did not know what he would do after the end of the seven days' accommodation which will be supplied to him at the Minister's expense. He said after that he would have no accommodation and no employment in Mauritius. He suffers from health issues, including a congenital heart defect and opioid addiction. He acknowledged he has a brother in Mauritius who will help him, but he said that the brother lives in accommodation owned by the brother's partner, who has said they will not take Mr Bernard in. He said he will not be entitled to government assistance.

8    When asked why he had not tried after the court's decision on 18 December 2019 to make any necessary arrangements in Mauritius, and how an additional month would make any difference, Mr Bernard said that non-government agencies had been closed over the end of year break and have only recently re-opened. It appeared from his evidence that he has recently made contact with two such agencies, who may provide accommodation along with treatment of drug addiction. He is waiting for a call back from a third. He also says that he will seek employment as a chef, for which he is qualified, and it is possible that if he obtains that employment at a resort in Mauritius, the resort may provide accommodation as well.

9    Mr Bernard also pointed to difficulties associated with his addiction issues and the need for methadone treatment. However, the evidence establishes that Mr Bernard will receive a consultation with a medical practitioner on his arrival in Mauritius which, among other things, will deal with the extent to which he requires methadone treatment in Mauritius and, it may be inferred, will help him to take steps to obtain such treatment.

10    Mr Bernard explained that he did not raise these matters before McKerracher J because at that time he was focused on trying to preserve his ability to have the visa restored to him. He now accepts at a practical level that this will not happen (although his application for an extension of time remains on foot) and only now has he considered the implications of his return to Mauritius. So it was only after that hearing that he began to address those implications.

11    The Minister opposes Mr Bernard's application. It was submitted on the Minister's behalf that Mr Bernard has effectively conceded there is no serious question to be tried, so there is no proper basis to grant an injunction to restrain his removal from Australia. Since he is an unlawful non-citizen within the meaning of s 14 of the Migration Act, his removal is mandatory by reason of s 198(6). The Minister conceded that s 23 of the Federal Court Act was wide enough to give the court power to make the order, but submitted that to do so would be unorthodox and irregular.

Consideration

12    It may be accepted that Mr Bernard will face difficulties when he returns to Mauritius. Any person in his position would, and the difficulties will be exacerbated by his addiction and other health issues. Nevertheless, his evidence about the matter suggests that the difficulties, while real, are likely to be temporary. There is a range of non-governmental associations in Mauritius who may be prepared to give him the help, including accommodation, that he needs. He has prospects of finding gainful employment, which may well come with accommodation. He has a brother there, and whether or not that brother can give him temporary accommodation, he will give Mr Bernard some help in establishing himself in Mauritius.

13    Being self-represented, Mr Bernard was not in a position to explain how his evidence, even if accepted, would require the court, in the exercise of its discretion, to make an order temporarily restraining his removal from Australia. In my view, the matters he has raised, if they are to be entertained by the court at all, would go to the question of balance of convenience in the grant of an injunction. They are additional instances of prejudice which, Mr Bernard says, he will suffer if the order he seeks is not made. Against that, the Minister pointed to the costs the Commonwealth will suffer if Mr Bernard's removal was delayed a second time, only to be reinstated a month later with a further period of detention in between.

14    I do not consider that the matters Mr Bernard has raised, even if they are accepted to be true, warrant the court effectively reconsidering his application again, albeit on a more limited basis of delaying a removal for a month. It is not new material or new evidence which was not available or reasonably available, at the time of the application, before McKerracher J. These difficulties were foreseeable, then, and Mr Bernard was in a position to address them in evidence. They do not represent a material change in circumstances since 18 December 2019, nor is there anything exceptional about them. There is no other reason why the overarching need to do what justice requires in the circumstances dictates that Mr Bernard should be permitted to put his application anew. Even if the court were persuaded that it was otherwise appropriate to restrain his removal for another month, there was no cogent material before it to indicate that the additional time would make any appreciable difference to his prospects.

15    Even if they were accepted, the difficulties Mr Bernard has raised are hardly likely to change the balance of convenience in any significant way, in light of the fact that there is no basis to say that he has a serious case to be tried so that his removal may turn out to be unjust. I do not consider that they provide any good reason requiring the court, in the exercise of its discretion and the interests of justice, to permit him to renew the application that was dismissed late last year.

16    I therefore conclude that, as understandable as it may be for Mr Bernard to wish to delay his removal from Australia, this application is an abuse of process of the court. It must be dismissed, with costs.

Associate:

Dated:    11 February 2020