Federal Court of Australia

Lumumba v Commonwealth of Australia [2022] FCA 527

ORDERS

UPON:

The prospective applicant, by his counsel, undertaking:

(a)    to submit to such order (if any) as the court may consider to be just for the payment of compensation, (to be assessed by the court or as it may direct), to any person, (whether or not that person is a party), affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and

(b)    to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking.

THE COURT ORDERS THAT:

(1)    For the period identified in order 2 (and subject to further order), the prospective respondents, whether by their agents or howsoever otherwise, must not take steps directly to effect the removal of the prospective applicant from Australia.

(2)    For the purposes of order 1, the relevant period commences at the time that these orders are made and continues until the latter of:

(a)    4pm on Friday, 13 May 2022; or

(b)    in the event that the prospective applicant files an application for judicial review of (or otherwise by way of challenge to) the decision made on or around 12 October 2005 to remove his name from the Register of Citizenship by Descent, 4pm on the day on which that application is determined.

(3)    Costs be reserved.

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)

SNADEN J:

1    The prospective applicant, Mr Lumumba, moves the court for urgent interlocutory relief to restrain moves that are afoot to remove him from Australia. That project proceeds upon his filing of an application under Pt 7 of the Federal Court Rules. At present, no originating application has been filed. Nonetheless, it is envisaged that one will be filed forthwith. The prospective respondents are the responsible agencies of the state against which he maintains that his prospective causes of action will ensue.

2    The application for interim relief came before me in my capacity as duty judge. Both sides very helpfully filed and read solicitors’ affidavits made in support of their respective positions. That material was the subject of considered and intelligent oral submission at the hearing that was then very hastily convened. Given the speed with which the application came before the court, I record my thanks for the helpful evidence and submissions that were advanced.

3    I should recite some relevant background (the detail of which emerges without material controversy from the affidavit material). The prospective applicant was born in the Democratic Republic of the Congo in 1989. He came to Australia as a child. In 2004, his name was entered onto a registry maintained pursuant to s10B of the Australian Citizenship Act 1948 (Cth), in consequence of which he was thereafter deemed a citizen of Australia. That course appeared open at the time on the basis that his father (or, at the least, a man that he alleges is his father), Mr Patrice Emery Lumumba (to whom I shall hereafter refer, correctly or otherwise, as Mr Lumumba Senior), had acquired Australian citizenship and the prospective applicant was then under 25 years of age.

4    In October 2005, that registration was cancelled (or purportedly cancelled) pursuant to s7C of the Australian Citizenship Regulations 1960 (Cth). That cancellation was effected by means of correspondence that Mr Matthew Noble, a Citizenship Manager within what was then the Department of Immigration and Multicultural and Indigenous Affairs, sent to Mr Lumumba Senior on 12 October 2005. That correspondence relevantly recorded as follows:

Information held by the Department of Immigration and Multicultural and Indigenous Affairs now indicates that the registration by descent was made on the basis of false information, and that the legal requirements of [the relevant sections of the Act] were never met.

5    That cancellation (or purported cancellation) had the effect (or purported effect) of stripping Mr Lumumba of his Australian citizenship. Thereafter, Mr Lumumba (directly or via the agency of others) took various steps to identify the “false information” in respect of which that course had run. Although there is some controversy as between the parties as to matters of timing, what has emerged from those steps is that the decision proceeded upon an understanding on the part of relevant authorities that Mr Lumumba Senior and Mr Lumumba’s mother were not in physical proximity to each other in early 1989 (at the time of his conception).

6    The evidence suggests that Mr Lumumba only learned of that cancellation (or purported cancellation) in 2014. He maintains that he only learned of the reasons—or perhaps some facsimile of the reasons—for it more recently than that. Regardless, in the years that have transpired since, Mr Lumumba has taken various steps to remain lawfully in Australia. It is unnecessary to recite them, save to note that they have been unsuccessful. In June 2020—and apparently in consequence of his status, or perceived status, as an unlawful non-citizen under the Migration Act 1958 (Cth)—Mr Lumumba was made subject to immigration detention, in which he remains to the present day.

7    On or about 27 April 2022, Mr Lumumba was informed that he would be removed from Australia pursuant to s 198 of the Migration Act. Presently, that is scheduled to occur at 11:00pm this evening, Perth time. Mr Lumumba has been cleared by the Embassy of the Republic of Congo and Kenya to travel. That clearance expires on Monday, 9 May 2022.

8    By the present application—or more specifically, by the interlocutory injunctive relief for which me moves—Mr Lumumba seeks to avoid that eventuality. He intends to file an application for judicial review of the cancellation decision described above, by which he hopes to have it set aside and to secure consequential relief, including orders that he be released from immigration detention. If successful, it would (or probably would) follow that he should be regarded at law as an Australian citizen.

9    The principles to be applied in the present context are well-settled and were not in dispute. In considering an application for interim or interlocutory relief, the court is concerned to identify whether an applicant has a prima facie case for substantive relief and whether the balance of convenience should warrant intervention at an interim or interlocutory stage. Those inquiries are related, such that intervention might be warranted in relation to a weak prima facie case if the balance of convenience heavily favours it; and might not be warranted in relation to a strong prima facie case if the balance of convenience inclines strongly the other way.

10    I am satisfied that the circumstances of the present matter are such as to justify an exercise of the court’s discretion to grant interim interlocutory relief. Before explaining why that is the course to which I am attracted, I should first recite the contentions that the respondents advanced in favour of the contrary course.

11    The first concerned the significant period of time that has elapsed since the cancellation decision took (or purportedly took) effect. As the brief chronology outlined above makes clear, Mr Lumumba has had a considerable amount of time to prosecute the action that he now foreshadows. That reality, though not dispositive, is not unimportant. Almost certainly, the substantive application that Mr Lumumba anticipates making will require that he be granted an extension of time. It was suggested that that endeavour would be hopeless to the point that I could not conclude that he had any prospect of getting one. That was said to be so because of the amount of time that has passed, because of the state of his knowledge about his citizenship having been cancelled and because of the steps that he took, or didn’t take, even when armed with that knowledge.

12    There may or may not be an element of ambition to the substantive application that Mr Lumumba has foreshadowed, including with respect to the need that he obtain an extension of time. Nonetheless, I could not fairly conclude that there is no prospect that an extension, if sought, might be granted. That is not a matter for me to decide at this juncture: it will turn upon the usual criteria that inform applications of that nature, including the explanation that is given for the delay and the relative strengths of the case that is hoped to be prosecuted. Here, Mr Lumumba can point to the efforts to which he has gone since 2014 to remain lawfully in the country (which may or may not explain why it has not been until now that he seeks to challenge the decision now in focus), and may well lead other evidence that more fulsomely details the extent and chronology of his knowledge about the cancellation of his citizenship.

13    The respondents next contended that Mr Lumumba’s case on judicial review is weak to a point that should not warrant judicial intervention at this juncture. Before unpacking that contention, the prospective grounds (as Mr Lumumba has presently articulated them) should be set out. Mr Lumumba intends to submit that the decision to cancel his registration as a citizen by descent was the product of jurisdictional error (or is otherwise ripe for correction) because:

(1)    the cancellation of the was legally unreasonable;

(2)    it was effected in circumstances that involved his being denied procedural fairness;

(3)    the cancellation was beyond power because regulation 7C of the Australian Citizenship Regulations 1960 (Cth) was invalid; and

(4)    the cancellation was invalid because of the absence of specification of grounds, specification of grounds being a requirement for its validity.

14    It is not necessary that I should form now anything more than an impressionistic view as to the prospects that Mr Lumumba might have in seeking to set the cancellation decision aside. The grounds that he has foreshadowed are at least arguable.

15    It is, for example, at least arguable that the cancellation decision was attended by legal unreasonableness because it was effected without consideration as to whether or not, as a matter of discretion (as opposed to the basis that emerges from the correspondence itself—namely fraud), Mr Lumumba’s citizenship ought to be cancelled. That will turn upon an orthodox factual inquiry. I could not say at this juncture that that inquiry could permit only of an outcome prejudicial to Mr Lumumba.

16    Similarly, whether or not the decision was made satisfactorily alongside any applicable common law standards of procedural fairness is something that will fall to the court to determine in the usual way. Given evidence suggesting that the decision was made without notice and was not communicated directly to Mr Lumumba, it is not beyond the realm of the possible that it was not.

17    Further, Mr Lumumba intends to submit that the regulation pursuant to which the cancellation was effected was invalid because it purported to convey a means of cancelling citizenship that was additional to—and potentially not consistent with—the more fulsome regime for which the Act itself provides to that end. Again, that is not an argument that the court could say at this juncture must necessarily fail. It might fail; but it is not inarguable.

18    In my view, the substantive arguments that Mr Lumumba intends to pursue rise at least to the standard of a prima facie case for the purposes of the immediate inquiry.

19    I turn, then, to the balance of convenience. It is immediately apparent that it very strongly favours the relief for which Mr Lumumba moves. If, as is presently foreshadowed, he is removed from Australia this evening, it seems unlikely and unrealistic that he will be able to pursue the application that he intends to file; and certainly not with anything approximating the ease or convenience with which he might were he to remain in Australia. In that eventuality, the relief that he hopes to secure will effectively be lost to him—or, at the very least, made substantially more difficult to secure. The inconvenience is not all one way: not unfairly, the prospective respondents note that Mr Lumumba’s clearance to travel expires from 9 May 2022, after which it might take in the order of six months to secure for him another one (if it should come to that). That is a matter that properly informs where it is that the balance of convenience lies; but I incline nonetheless to the conclusion that it lies very much in favour of the relief for which Mr Lumumba moves.

20    Those conclusions stated, I consider that it is appropriate to exercise the court’s discretion to grant interim interlocutory relief substantially in the form requested (and as refined during oral submissions).

Associate:

Dated:    9 May 2022