Federal Court of Australia

Sami v Minister for Home Affairs [2023] FCA 185

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application is dismissed.

2.    The applicant pay the respondent's costs of the interlocutory application

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Tony Sami is being held in immigration detention. He has been told that arrangements have been made to remove him from the country by charter flight departing from Perth on 8 March 2023. He seeks an interlocutory injunction restraining his removal. He does so in circumstances where he has been in immigration detention for more than a decade. During the course of the first seven years of his detention he made various visa applications, applied for Australian citizenship and sought review of various decisions refusing those applications. All of those attempts to secure a lawful basis to remain in Australia were unsuccessful. For the past three years he has been held in detention on the basis that the Migration Act 1958 (Cth) requires his detention until he is removed from Australia.

2    Since February 2022, Mr Sami has been pursuing an application for an order in the nature of habeas corpus or an injunction to require his release from detention into the Australian community. He claims that he is being indefinitely detained and that is unlawful. He seeks to challenge existing High Court authority concerning the interpretation and constitutionality of provisions in the Migration Act that require the detention of any person that an immigration officer suspects 'is an unlawful non-citizen' until their removal or deportation from Australia or the grant of a visa. The respondents to that application are the Minister and the Commonwealth.

3    In December 2022, Mortimer J determined that if the legal basis for Mr Sami's claim was upheld then, on the evidence as then before the Court, he would be entitled to the relief that he seeks. It is fair to say that on the facts before the Court, her Honour was highly critical (and understandably so, if I may respectfully say) of the reasonableness of the efforts that had been made to remove Mr Sami from Australia (and thereby bring to an end his executive detention): see Sami v Minister for Home Affairs [2022] FCA 1513 at [100]-[103], [149], [160].

4    As matters presently stand in relation to those proceedings, Mr Sami has brought an appeal and has sought removal of the appeal into the High Court on the basis of a submission that the Court should revisit the state of the existing authorities having regard to the factual findings as to what has occurred in Mr Sami's case in giving effect to the existing state of the law.

Notification of arrangements for removal

5    The pro bono lawyers acting for Mr Sami in the habeas corpus proceedings were notified on 9 February 2023 of arrangements for Mr Sami to be removed from Australia to Egypt (his country of nationality) by charter flight on 8 March 2023.

6    On 16 February 2023 the Minister considered a brief in relation to ministerial intervention. The Minister decided not to consider intervening under s 195A of the Migration Act to grant Mr Sami a visa. However, the Minister decided to consider intervening to make a residence determination to allow Mr Sami to reside in the community. A decision of that kind, if made, would not alter Mr Sami's current status as 'an unlawful non-citizen' and he would remain a person who must be removed 'as soon as reasonably practicable' under s 198 of the Migration Act.

The application for injunctive relief

7    Mr Sami filed the papers on which he relies and appeared at the interlocutory hearing on his own behalf. He confirmed that the pro bono lawyers who had been acting on his behalf in the habeas corpus proceedings and with whom there had been recent communications concerning his removal were not involved in the bringing of the application.

8    As the basis for his application for injunctive relief, Mr Sami said that he relied upon the terms of a substantive application that he seeks to bring under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) (Proposed Application). By the terms of the Proposed Application he complains that the Commonwealth of Australia has unlawfully discriminated against him by keeping him in detention for over three years 'fully aware that there is no potential for his removal'. The remedy to be sought by the application is a writ of mandamus seeking his immediate release from custody.

9    The Proposed Application was not accepted for filing. Mr Sami complains that it should have been accepted. His interlocutory application was accepted for filing in the pending appeal in the habeas corpus proceedings. He claimed that it should be heard as an interlocutory application that relies upon the matters the subject of the Proposed Application. It is not necessary to deal with these matters of procedure because Mr Sami was allowed to develop his submissions by reference to the Proposed Application.

10    Mr Sami also claimed that an affidavit of Ms Madisen Scott in opposition to the interlocutory application should be 'struck out' because it was not received in the Proposed Application. Irrespective of the way in which the present application is constituted it is appropriate to receive the affidavit in opposition to the interlocutory application. It does no more than place before the Court a non-contentious account of recent events together with matters stated on information and belief as to what would be the consequence for the arrangements to remove Mr Sami if the injunction were to be granted.

11    I approach the interlocutory application on the basis that it is brought by reference to the claims that Mr Sami seeks to advance by the Proposed Application as well as on the basis that it relies upon the pending appeal in the habeas corpus proceedings.

12    Counsel appeared for the Minister and the Commonwealth on the basis that both were respondents to the application.

No claim in aid of which an injunction to restrain removal could be granted

13    The Proposed Application does not identify a complaint to the Australian Human Rights Commission that is said to have been terminated by the President. It is the termination of such a complaint that provides the necessary foundation for an application of the kind sought to be advanced by the Proposed Application: s 46PO of the AHRC Act. In oral submissions, Mr Sami said that complaint was made in 2016 or 2017. It was said to have been a complaint about his treatment in detention and his transfer to a state prison for six months.

14    Also before the Court was an affidavit of Mr Sami exhibiting a notice under s 29 of the AHRC Act setting out findings made after an inquiry by the Commission as to whether practices concerning the extended detention of people who have had their visas cancelled or refused on character grounds was inconsistent with or contrary to human rights. Mr Sami is one of the people the subject of the notice. It refers to complaints made prior to certain amendments made to the AHRC Act in 2017. Therefore, it appears that the complaint by Mr Sami the subject of the Proposed Application is from that time and that it was addressed by the inquiry and notice. It is possible, but unlikely given the passage of time, that the complaint is still pending and on that basis he may rely upon the statutory power to grant relief preserving the status quo pending the Commission dealing with a complaint (as to which see my recent consideration of the nature and extent of the power in Millar v FQM Australia Nickel Pty Ltd [2022] FCA 1331 at [13]-[20]).

15    In any event, what is not apparent from the material before the Court or the submissions of Mr Sami is any respect in which the injunction might be justified on the basis that it would maintain the status quo or the rights of a complainant as the subject matter of a complaint. The injunction is not sought to be justified on the basis of the treatment of Mr Sami in detention prior to 2017 (being the matter that is said to have been the subject of the relevant complaint). Nor is it justified on the basis that his removal would involve some form of discrimination. Rather, the Proposed Application is concerned only with the past circumstances of his detention.

16    Nothing that was raised by Mr Sami in his submissions identified any basis upon which the Proposed Application might found ultimate relief the right to which would be rendered nugatory or would be compromised if the injunction were to be refused.

17    To the extent that the application relies upon the general law jurisdiction to grant an interlocutory injunction, I gratefully adopt the summary of the general principles that are applicable to the grant of interlocutory injunctive relief as set out by Jackson J in Frigger v Trenfield [2019] FCA 1746 at [6]. An applicant for such relief must show a sufficient colour of right to the final relief in aid of which the interlocutory relief is sought. The legal (including statutory) or equitable rights in respect of which final relief is to be sought at trial must be demonstrated and there must be likelihood of success in seeking such relief to justify the preservation of the status quo pending a final hearing: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 at [10]-[11] (Gleeson CJ), [91] (Gummow and Hayne JJ, Gaudron J agreeing). In order to do so in the present circumstances there must be an identified basis upon which Mr Sami might be able to secure a status that would enable him to remain in Australia.

18    In oral submissions Mr Sami claimed that if he was removed he would be denied the right to pursue his habeas corpus proceedings and complaints about the way he has been treated. He said that his removal would mean that unfair things would have happened without them being investigated. He went so far as to say that he was being removed in order to cover up what had been done in treating him as a political prisoner and depriving him of his liberty in breach of his human rights. There was no basis for these submissions. In fact, Mr Sami has been able to bring his circumstances to public attention through his complaint (along with others) to the Commission which had resulted in the publication of the notice. He had also been able to bring proceedings in this Court which have resulted in the findings of fact by Mortimer J. Further, his removal from Australia would not bring those proceedings to an end. To the extent that they complain about the lawfulness of his past detention they could be maintained. However, even if the proceedings were to be successful in demonstrating that there were limits upon the duration of lawful executive detention under the relevant provisions of the Migration Act, there was no evident means by which that conclusion might rise to providing an arguable basis upon which Mr Sami would have an entitlement to remain in Australia indefinitely notwithstanding his ongoing status as an 'unlawful non-citizen'.

19    Further, there was no evidence of a pending application to the Minister that might afford Mr Sami the status to be able to remain in Australia. He has been able to pursue visa applications and an application for citizenship. All his applications have been unsuccessful. That has been the position for more than three years. No complaint has been raised about the decision by the Minister not to consider intervening under s 195A. I accept that the unfinalised ministerial intervention request in relation to residential detention is not an impediment to removal.

20    Finally, this was not a case where the Minister had acted without any real notice such that some form of interim relief may have been appropriate to enable an applicant to consider and formulate possible grounds: cf. ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363 at [31]- [35].

21    For those reasons, I declined to grant the application for an interlocutory injunction. As the application was unsuccessful and there was no reason for costs not to follow the event, I upheld the application by the respondents for an order for costs.

Associate:

Dated:    8 March 2023