Federal Court of Australia

McRoy v Minister for Home Affairs (No 2) [2021] FCA 538

ORDERS

THE COURT ORDERS THAT:

1.    Pending the hearing and determination of the application, or further earlier order, the respondent whether by his officers, servants or agents, or otherwise be restrained from deporting the applicant, James Daniel McRoy, from Australia.

2.    The application be heard on 11 June 2021 at 10.15am, or such other date as the court may appoint after consultation with the parties. The hearing is to be by appearance in person, unless otherwise ordered by the court. Submissions in the hearing of the extension of time application are to be treated as submissions in respect of any judicial review application, to the end of any such judicial review application being determined instanter if an extension of time be granted.

3.    The applicant file and serve such amended application, if any, on or before 12 May 2021.

4.    The respondent file and serve such affidavit, if any, as he may be advised on or before 19 May 2021.

5.    The applicant file and serve an outline of submissions of not more than 10 pages on or before 28 May 2021.

6.    The respondent file and serve an outline of submissions of not more than 10 pages on or before 8 June 2021.

7.    Liberty to apply.

8.    Costs reserved.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Earlier today, in circumstances of some urgency, I granted on the application of the applicant, Mr James Daniel McRoy (Mr McRoy), who was due to be deported from Australia on a flight departing at 12.15pm today, an interim injunction reserving until later today consideration of whether or not he ought to be granted an interlocutory injunction restraining his deportation, pending the hearing and determination of his application for an extension of time within which to seek the judicial review of a decision made by the then Minister for Home Affairs (Minister), the Honourable Peter Dutton MP, personally to cancel his visa.

2    As I related in reasons for judgment earlier delivered today (see McRoy v Minister for Home Affairs [2021] FCA 537), Mr McRoy is a New Zealand citizen. He came to Australia as an infant at about one year of age. He has been a resident of Australia for some 33 years thereafter. In that time, lamentably, he has engaged in criminal activity. That criminal activity has included drug offences which saw him sentenced in the Supreme Court by Jackson J to a term of imprisonment of a length which engaged a basis for satisfaction on the part of the Minister as to his having a substantial criminal record for the purposes of the Migration Act 1958 (Cth) (Migration Act).

3    There is no challenge at all, nor, with respect, could there be with any prospect of success, to the existence of a basis for the Minister’s being so satisfied in relation to Mr McRoy.

4    The Minister’s decision was made in December last year. It was communicated to Mr McRoy on 18 December 2020.

5    The question for today is not whether or not to grant an extension of time, much less to hear substantively any consequential judicial review application if an extension were granted. Rather, it is the more limited question as to whether there ought to be an interlocutory injunction restraining, beyond the present time of expiry of the interim injunction, deportation pending the hearing and determination by the Court of the extension of time application?

6    Each of the parties are agreed that, whilst it would be possible for an extension of time application to be heard and determined on a day separate to the hearing of any consequential judicial review application, if extension were granted, it would be convenient in this case to treat argument in respect of the merits on an extension application as if it were argument on a substantive judicial review application, to the end that all would be heard in the one day.

7    Of course, it is the case in relation to an extension of time that ordinarily one does not do other than form an impression as to proposed grounds of review being reasonably arguable. It is just that in this instance, the interests of justice which include the saving of expense to the parties and the scarce public resource of judicial time, are overwhelmingly in favour of hearing all on the one day.

8    The parties have further agreed that the case, if it were heard in that way, would take no more than one day’s hearing time.

9    As it transpires, if I were allocated docket judge responsibility, it would be possible to hear the case as soon as 11 June 2021. That is a relevant consideration in the context of balance of convenience and whether or not to grant an interlocutory injunction. So too, of course, is the expense borne, at least in the first instance, and perhaps more than that, by the Commonwealth in relation to the continuing detention of a person who would otherwise have been deported today. But the affording to the parties of an early hearing date will minimise that particular expense to the Commonwealth.

10    I am very conscious that the Minister, in the ordinary course of events, is under a duty to deport those whose entitlement to remain in Australia has ceased as a result of the cancellation of a visa. No less important, however, is the right of a person aggrieved, such as Mr McRoy, to invoke the judicial power of the Commonwealth to challenge on judicial review such a visa cancellation decision.

11    Prospects of success and the existence, or otherwise, of an adequate explanation for delay are relevant considerations in relation to the granting of an extension of time. They are also relevant in relation to whether or not to grant an interlocutory injunction so as to preserve the status quo pending the hearing of such an extension application. Of course, as to merits, it would be quite inappropriate to treat either today’s application or even, for that matter, an extension application as if it were a substantive hearing.

12    As to prospective merits, Mr McRoy, via his solicitor, Mr Burrows, with commendable precision and candidness, identified what one might term an “overarching theme”, which had two limbs as to the foundation for the jurisdictional errors alleged. It may well be that greater precision than that possible in the exigencies of time is needed in relation to the grounds of review as presently pleaded, but the oral submissions made the essence clear enough.

13    The overarching theme may be summed up by an interrogative note, “guilt by association”? The association concerned, apparent enough from the Minister’s reasons, is an association with an apparently New Zealand originated motorcycle gang, the “Mongrel Mob”. It is quite obvious from the Minister’s reasons that he formed adverse views in relation to Mr McRoy based on a perception with respect to that association.

14    As to the two limbs, which are under that general interrogative note, these might be identified as a denial of procedural fairness with respect to such an association on the one hand and a gap in logicality, or perhaps unreasonableness, on the other with respect to adverse conclusions concerning any such association.

15    By a letter dated 23 October 2019 from the Minister’s department, Mr McRoy was provided, amongst other thing, with an amorphous mass, impressionistically, of material concerning the Mongrel Mob. His then solicitors inferred from this that there was a concern in relation to association and made, at [34] of a response to the Minister dated 21 January 2020, particular submissions based on a related statutory declaration by Mr McRoy concerning the involvement which he had had with the Mongrel Mob. The use of the past tense is that of the solicitors in the submission.

16    Impressionistically, the case appears to me to be one which warrants consideration on an extension of time application. By that, I mean impressionistically, it does not strike me as so utterly hopeless as to make it unlikely at all that the extension application would have any prospect of success.

17    As to delay, it has, understandably and relevantly, been put by the Minister that this particular application has been brought well outside the 35-day limit specified in s 477A of the Migration Act – no less than 130 days after the decision to cancel was communicated to Mr McRoy. There are reasons for that, which are set out eloquently in the affidavit of Mr McRoy’s solicitor, Mr Burrows. Once again, impressionistically, the explanation does not strike me as so utterly devoid of either credibility or prospective merit as to make the prospect of an extension, even taking into account questions of merit, remote; rather, the reverse.

18    In theory, were the result of any judicial review application the quashing of the Minister’s decision and if the Minister were, on reconsideration, disposed not to cancel the visa, that would see Mr McRoy able to return to Australia if, pending the hearing and determination of his application, he were deported. But that would be very disruptive indeed both to him personally as well as to those near and dear to him. I have noted in that regard a subsisting relationship as well as a child. Those relationships are also not without relevance in terms of deciding whether or not to grant an interlocutory injunction.

19    It only comes to this. Taking into account each of the considerations which I have mentioned, in my view, Mr McRoy should have the benefit of an interlocutory injunction which restrains the Minister, pending the hearing and determination of the extension of time application and any consequential judicial review application, from deporting Mr McRoy back to New Zealand.

20    For completeness, I record as well that I have taken into account that the destination of deportation is, as was put on behalf of the Minister, hardly to be regarded as a place of threat to health, life or comfort. That said, it has been some 33 years since Mr McRoy lived there and his close ties, unsurprisingly perhaps, are no longer with New Zealand, but rather with Australia. I have taken these matters also into account in deciding that the interests of justice favour the granting of an interlocutory injunction.

21    The intention is that this order overtake the interim injunction earlier granted. I shall now proceed to deal with the subject of interlocutory directions with respect to the hearing of the extension of time application.

Associate:    

Dated:    20 May 2021