Federal Court of Australia

AZU19 v Commonwealth of Australia [2022] FCA 1495

ORDERS

NOTING the undertakings given by Mr Min Guo, counsel for AZU19, to the Court today,

THE COURT ORDERS THAT:

1.    Until further order, the Commonwealth of Australia and the Minister for Immigration, Citizenship and Multicultural Affairs (including by their officers, delegates or servants and agents) be restrained from removing the person identified as AZU19 from Australia.

2.    By 4:30 pm on 28 December 2022, AZU19 file a proceeding for judicial review as outlined in the affidavit of Andrea Main affirmed on 13 December 2022 and paragraphs 14 -19 of the written submissions filed today on behalf of AZU19.

3.    The matter be listed for hearing for one day in March 2023 on any date other than

6-8, 16-17 and 27 March 2023.

4.    There be liberty to apply on 48 hours’ notice.

5.    The respondents pay AZU19’s costs of and incidental to today.

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

REASONS FOR JUDGMENT

KENNY J:

1    AZU19 seeks an urgent injunction before the start of a proceeding, pursuant to rule 7.01 of the Federal Court Rules 2011 (Cth). The injunction is to restrain the Commonwealth of Australia and the Minister for Immigration, Citizenship and Multicultural Affairs from removing him from Australia pending his foreshadowed application for judicial review.

2    AZU19 is a Sri Lankan national. He applied for a protection visa in May 2017, which was refused in September 2018. The Immigration Assessment Authority affirmed the refusal decision in January 2019. I was informed at the hearing today that an application for an extension of time to file a judicial review application was dismissed by the Federal Circuit Court in December 2019. AZU19 remained in Australia. He was apparently granted a bridging visa in February 2022. He was taken into immigration detention when that bridging visa expired.

3    On or about 5 December 2022 it appears that AZU19 was informed that he was to be removed from Australia. At that time, his removal was scheduled for 12 December 2022. This was later postponed until the evening of 14 December 2022.

4    On 8 December 2022, a lawyer acting for AZU19 submitted a request on AZU19’s behalf for Ministerial intervention under s 48B of the Migration Act 1958 (Cth) to allow him to make a fresh application for a protection visa. Administratively speaking, the process of “lifting the bar” to permit the making of another protection visa application essentially involves two steps: an internal Departmental decision to refer or not to refer a matter to the Minister for his or her personal consideration; and, if there is a referral, the Minister making the substantive decision under s 48B to lift the bar or not to lift the bar, to allow the further application to be made. There are Guidelines that direct the Minister’s Department as to the circumstances in which the Minister may wish to consider exercising the intervention power under s 48B. These Guidelines include information about when to refer an intervention request to the Minister.

5    In substance AZU19’s request was made on the basis that there had been a material change in the relevant circumstances since his 2017 visa application that would affect him if returned to Sri Lanka. This was because there had been a deterioration in the political, security and economic situation in Sri Lanka.

6    At the hearing my attention was drawn to a recent DFAT report stating that:

DFAT also assesses that Sri Lankans detained by the authorities face a moderate risk of torture.

This is particularly relevant in the applicant’s case because the IAA found that persons such as AZU19 returning to Sri Lanka will undergo a police investigative process, which may entail a period of custody.

7    My attention was also specifically drawn to the statement in the request that:

... given his fragile mental health, he will have very little capacity to withstand questioning or even a short period in detention and the risk of him experiencing serious or significant harm in this context is high.

It was further submitted in the request:

Any period of imprisonment – even 14 days – will have a serious and lasting negative impact on AZU19’s mental and physical health, given his various vulnerabilities, including his fragile mental health and history of substance abuse.

8     Finally, I was taken to the following paragraph, which was stated:

In the present context, we submit that the aforementioned country information amply demonstrates a substantial change and real chance of deterioration in the security and human rights situation in Sri Lanka since [AZU19’s] protection claims were last assessed in 2019. This change of circumstances confirms the particular vulnerability of people with a similar ethnic, political and social group profile to that of [AZU19]. This new information engages non-refoulement obligations, in particular, the ICCPR and CAT. We submit that in addition to [AZU19’s] profile, his poor mental and physical health is such that there is a heightened level of vulnerability in that if he were to return to Sri Lanka, he is at a real risk of having his rights under the ICCPR, particularly articles 1, 6 and 7, and the CAT violated.

None of this was said to have been previously considered.

9    Yesterday, 13 December 2022, an officer of the Minister’s Department assessed the request as not meeting the Guidelines. There were no reasons given to AZU19.

10    It may be accepted that on its face the request addressed the Guidelines, because the request sought to present new information that was unknown or did not exist at the time of the original protection visa application. The Guidelines state that such information may amount to exceptional circumstances justifying the Minister’s consideration of the request. The Guidelines required that this new information be supported by country information and relate to Australia’s non-refoulement obligations. The request made on behalf of AZU19 apparently met these requirements, noting that it specifically referred to the ICCPR and the CAT.

11    In submissions to the Court, AZU19’s counsel stated that AZU19 intended to seek judicial review of the decision not to refer the request to the Minister on two grounds, including legal unreasonableness. Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; 288 FCR 23 would support the availability of this ground to challenge this decision. The first ground cannot be said to be lacking in merit, given that, superficially at least, the request met the Guidelines’ requirements. The second ground was that the Guidelines were invalid. The possibility that this ground is sufficiently arguable is supported by Mortimer J’s discussion in Davis at [141]-[145]. Of course, no clear view can be taken at this point because no application has yet been filed.

12    The lawyer for the Commonwealth and the Minister, Mr Keith Sypott, contended that AZU19 had already had a sufficient opportunity to make out his case for a protection visa and challenge unfavourable decisions. It seems to me, however, that this misses the point that AZU19 sought to make – namely, that new circumstances had arisen that had never been considered before and that justified reconsideration of his claims for protection.

13    The question that this application raised was whether an injunction should be granted to prevent AZU19’s removal from Australia in order that he can commence judicial review proceedings. The relevant principles are well-known: see Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238. Briefly stated, the Court must be satisfied, first, that the applicant for the injunction has shown that there is a prima facie case such that, if the evidence remains the same, there is a probability that the applicant will succeed; and second, that the balance of convenience favours the grant of the interlocutory injunction.

14    Plainly enough, the balance of convenience favours AZU19 in this case, because if he is removed from Australia he will be returned to Sri Lanka, without having an opportunity to pursue his judicial review proceeding. It is evident that the refusal of the injunction would have the effect that the applicant will suffer irreparable injury for which damages will not be adequate compensation.

15    Further, it seems to me that, in the circumstances, AZU19 has shown a prima facie case. It should be borne in mind that “where the balance of convenience strongly favours the applicant, the strength of the prima facie case required to support the interlocutory injunction diminishes”: see Ocean Dynamics Charter Pty Ltd v Hamilton island Enterprises Limited [2015] FCA 460 at [28].

16    It seems to me clear enough that AZU19 has made out his case for an injunction to prevent his removal in order that he can bring his judicial review proceeding.

17    I note here that at the hearing today Mr Keith Sypott informed the Court that the removal of AZU19 would not take place this evening but he was not instructed to give any undertaking to the Court about his removal on another day. He also said that AZU19 would be given 48 hours’ notice of any proposed removal but that he was not instructed to give any undertaking to this effect. Having regard to these and the above matters, it seemed to me that I should make the orders sought by AZU19.

Associate:

Dated:    14 December 2022