Federal Court of Australia

Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433

ORDERS

THE COURT ORDERS THAT:

1.    The Interlocutory Application dated 3 May 2023 be dismissed.

2.    The Applicant pay the Respondent’s costs of the application, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

ROFE J:

1    On 4 May 2023 I dismissed an application to restrain the removal of the applicant, Mr Marya, from Australia. The proposed deportation was scheduled for 8.45am on 5 May 2023. These are my reasons for dismissing the application.

Background

2    The applicant, Mr Marya, is an Indian national who, at the time of hearing, was held at the Melbourne Immigration Transit Accommodation detention centre and had been in detention since 16 July 2018.

3    Mr Marya is married and has two minor daughters, both of whom are Australian citizens. His wife and children reside in the community.

4    Mr Marya arrived in Australia in September 2006 holding a valid Vocational Education and Training Sector visa, which has since expired. He has since unsuccessfully sought a number of protection, child (residence) as a dependent applicant parent, and bridging visas.

5    Mr Marya was notified of his removal on 19 April 2023, when he refused to sign the Australian Border Force’s “Request for removal from Australia” notice.

6    Mr Marya filed his interlocutory application by way of email at 6.56pm on Wednesday 3 May 2023. He was scheduled to be removed early the next day (Thursday 4 May 2023). The planned removal on 4 May 2023 was abandoned due to the Mr Marya complaining of chest pains and being transported to hospital. Mr Marya was released from hospital later the same day.

The present proceeding

7    The matter came before me as duty judge on the evening of Thursday, 4 May 2023 in circumstances of urgency. The Minister planned to remove Mr Marya and fly him to Delhi, India early on the morning of Friday, 5 May 2023. Mr Marya, although referring to some assistance from Legal Aid, has not been legally represented in this proceeding. The hearing proceeded by video-link.

8    The material before the Court comprised the affidavit of the applicant of 3 May 2023 (accompanying his application for interlocutory relief), various emails from the applicant to Chambers supporting his position and the Minister’s outline of submissions and two affidavits of the instructing solicitor for the Minister (Mr Cunynghame), both made 4 May 2023.

9    In Mr Marya’s affidavit supporting his application for interlocutory relief, he relevantly deposed:

3.     Department of immigration failed to follow the guidelines for a ministerial intervention

4.     I am the applicant in these proceedings. I am applying for judicial review of the decision of the Department not to refer my request to the Minister dated 12 July 2021

5.     The decision by the officer of the Department not to refer the request to the Minister of [insert date] was legally unreasonable in all the circumstances.

6.     The decision by the officer of the Department not to refer the request to the Minister of 12 July 2021 in purported compliance with the Minister’s guidelines on Ministerial powers (s 351, s 417 and s 501J) (11 March 2016) exceeded the executive power of the Commonwealth following Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10.

10    In response to the Minister’s submissions and supporting affidavit filed ahead of the interlocutory hearing, Mr Marya emailed chambers outlining his response, which relevantly stated:

Also with the Respondents claim that I am misconceived as it was Minister who personally declined to intervene is wrong.

There were two applications for ministerial intervention, one only myself as applicant where minister did not personally decide not to intervene and that's also the matter for this judicial review.

The one respondent is talking about was ministerial intervention where myself, my wife and my younger daughter were applicants. That application is not part of this judicial review.

11    On 6 July 2021, the Minister signed a submission for decision providing that he elected not to consider intervening under ss 195A or 417 of the Migration Act 1958 (Cth) with respect to the applicant personally, and not in relation to any other members of his family. That is, the Minister refused to grant Mr Marya a temporary or permanent visa. This submission was annexed to Mr Cunynghame’s second affidavit.

12    Mr Cunynghame’s first affidavit annexes a letter from the Department sent on 12 July 2021 to Mr Marya titled “Outcome of request for Ministerial Intervention under section 195A of the Migration Act 1958”. The letter related to a request in respect of solely Mr Marya. The letter provides:

The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon Alex Hawke MP, has personally considered this request and has decided that it would not be in the public interest to intervene. The Minister has, therefore, not exercised his power under section 195A of the Act in your case.

[Emphasis added.]

13    The annexure to the second affidavit of Mr Cunynghame was directed to the second application for ministerial intervention the applicant claimed was also the subject of his judicial review application.

14    Counsel for the Minister confirmed in oral submissions the 12 July 2021 letter was the notification of the decision by the Minister, by his personal consideration, on 6 July 2021.

15    At the interlocutory hearing, Mr Marya claimed he had sought three requests for Ministerial Intervention:

(a)    in 2009 or 2010 in relation to his refused protection visa;

(b)    a further ministerial request relating to his wife and daughter; and

(c)    a third ministerial request being the subject of this judicial review.

16    Although appreciating the difficulties faced by an applicant in compiling evidence while in immigration detention, Mr Marya was unable to provide any documentary evidence to substantiate his claims of a third ministerial request.

17    Counsel for the Minister in oral submissions confirmed the Department’s records indicate the only intervention request from 2021 had been finalised. There was nothing to indicate there was an unconsidered request.

Disposition

18    The principles governing the grant of interlocutory relief are well known and need not be repeated: see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19], [65]–[72]; Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622–623; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 24; Australian Broadcasting Authority v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [9]–[15].

19    The applicant must show that he has a prima facie case, and that the balance of convenience favours the injunction being granted: O’Neill at [19]. Further, the claim to interlocutory relief must have sufficient connection to the final relief sought: Lenah Game Meats at [11]. I have determined the applicant does not satisfy these requirements.

20    While considering the applicant’s claim for relief, I remain cognisant of his status as a self-represented litigant. However, I consider that there is no arguable case for relief before me.

21    The applicant contends that “[t]he decision by the officer of the Department not to refer the request to the Minister of 12 July 2021 in purported compliance with the Minister’s guidelines on Ministerial powers (s 351, s 417 and s 501J) (11 March 2016) exceeded the executive power of the Commonwealth following Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10”. Further, the applicant seeks the substantive relief in his application to “[c]onsider applicants [sic] ministerial intervention request as per guidelines”.

22    The reference to Davis is misconceived. The letter to Mr Marya dated 7 July 2021 from the Department shows that his request for ministerial intervention was personally considered by the Minister, who declined to exercise his power to intervene. As the respondent submitted both in writing and orally, no comparison to Davis can be properly made as the facts do not arise in the present case.

23    Further, the interlocutory relief sought by the applicant does not have the requisite connection to the substantive relief sought. As noted by counsel for the Minister, an outstanding application for ministerial intervention does not prohibit the Department from removing an individual pursuant to s 198(5) of the Act. Even if the substantive relief was granted by the Court at a future date, the applicant would not have a basis to avoid removal and would have no legal right to remain in Australia. The Minister’s obligation under s 198(5) to remove an unlawful non-citizen persists despite any unresolved application for ministerial intervention. Regardless, there is no evidence before me that any such outstanding application exists. As such, I am not satisfied that the applicant has an arguable case to be tried.

24    Although counsel for the Minister submitted the interlocutory application should be dismissed on the strength of the Minister’s submissions on the applicant’s prima facie case, for completeness I now turn to considering the balance of convenience question.

25    I have carefully considered the consequences of the refusal of Mr Marya’s application. His wife and two children are currently living in the community and his removal will impact them greatly. Mr Marya made oral submissions at the hearing to this effect. He also stated that he intended to make an application for a parent visa as his Australian citizen children were both minors, but was still attempting to obtain the funds for the $8000 application fee.

26    However, as noted above, Mr Marya has no right to remain in Australia even if his substantive relief was granted. He has previously made an unsuccessful application for a protection visa, which was ultimately dismissed in the Federal Circuit Court in 2011 according to the Departmental records annexed to the first affidavit of Mr Cunynghame. Mr Marya has claimed he intends to file an application for a parent visa. However, s 195(2) makes clear that a detainee, whilst detained and after 2 working days since the commencement of detention, cannot apply for any visa other than a bridging visa or a protection visa. It would appear, therefore, that any such application would be invalid.

27    There are no further avenues for relief available to the applicant. This weighs heavily in the balance of convenience, as any granting of injunctive relief would only delay the inevitable. It is in the public interest to ensure the statutory scheme is enforced.

28    Finally, the evidence shows the applicant was given notice of his impending removal on 19 April 2023, and thus was not devoid of the opportunity to seek legal advice before lodging his application on 4 May 2023: cf. ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363 at [31]–[35].

29    As such, I have determined that the balance of convenience weighs against the applicant. As I have also found that no prima facie case exists, the application for interim relief is unsuccessful.

Associate:

Dated:    8 May 2023