Federal Court of Australia

MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The applicant do pay the respondent's costs of and incidental to the application including the costs incurred on the basis of the order that any appeal be heard at the same time as the application for leave to appeal such costs to be assessed by a registrar if not agreed.

3.    Order 1 of the orders made by Banks-Smith J dated 6 July 2023 be extended until 4.30 pm on 11 August 2023.

4.    There be liberty to the respondent to apply to discharge order 3 of these orders.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The applicant has been notified that it is intended that he be removed from Australia to India, his place of nationality, in accordance with s 198(6) of the Migration Act 1958 (Cth). Broadly speaking, s 198(6) requires an unlawful non-citizen to be removed from Australia as soon as reasonably practicable if three circumstances exist, namely (i) the person is being held in immigration detention; (ii) the person has made a valid visa application which been finally determined on the basis that it is refused; and (iii) the person has not made another valid application for a substantive visa. The applicant claims that because he has 'pending requests' for the exercise in his favour of certain powers conferred by the Migration Act upon the Minister it would be unlawful for him to be removed from Australia. The precise nature of those powers is a matter that is addressed below.

2    The claim concerning the effect of the requests made to the Minister formed the basis for an application for an interlocutory injunction to restrain the removal of the applicant from Australia. The matter came on urgently before a judge of the Federal Circuit and Family Court of Australia. The Circuit Court judge refused the application: MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 594. The applicant sought and obtained an injunction in this Court restraining his removal pending the hearing of an application for leave to appeal (noting that the applicant maintains, in the alternative, that leave is not necessary). Orders were made for the application for leave and any appeal to be heard together.

3    The following issues arise for determination:

(1)    Is leave required to appeal the decision by the primary judge?

(2)    If leave is required, should leave be given?

(3)    If leave is given, should the appeal be allowed?

Relevant circumstances

4    The applicant came to Australia in 2006 on a student visa. After his application for a skilled migration visa was unsuccessful, the applicant applied in 2014 for a protection visa. He pursued judicial review and appeals in respect of that application and was refused special leave to appeal to the High Court in 2020. He has been in immigration detention since 2016. He has no pending visa applications.

5    On 18 June 2023, the applicant made a request to the Minister to exercise the power conferred by s 48B of the Migration Act to 'lift the bar' imposed by s 48A of the Act upon the applicant making a further application for a protection visa. The request is based on a claim that the applicant fears harm from violent criminals who have lent him nearly $100,000 at extortionate interest. He claims that his life would be at risk at the hands of those criminals if he was returned to India.

6    Also on 18 June 2023, the applicant made a request for the Minister to exercise the power conferred by s 195A of the Migration Act to grant a visa to a person who is in immigration detention on the basis that the person is known or reasonably suspected to be an unlawful non-citizen. The request relies upon his history of anxiety and depression. It also relies upon the fact that he has been in Australia for 17 years and a claim that he has never been back to India during that time. In support of the request he also refers to the fact that he has a fiancé living in the Australian community who will provide him with support.

7    On 4 July 2023, the applicant made a request for the Minister to exercise the powers conferred by s 351 and s 417 of the Migration Act. Those provisions allow the Minister to substitute a more favourable decision for an applicant for a visa by substituting the Minister's decision for a decision made by the Administrative Appeals Tribunal. The request relies upon both his fear of risk to his life arising from 'the loan sharks' from whom he says he has borrowed money and a claim that he suffers from chronic depression and anxiety and a claim that he would be left on the streets with no support if he was returned to India.

8    It is common ground that each of the powers the subject of the requests are powers conferred upon the Minister personally. It is also common ground that each power is both non-compellable and non-delegable.

9    These common positions reflect the terms of the statutory provisions pursuant to which the requests have been made by the applicant. Each of the provisions states expressly that the power may only be exercised by the Minister personally and that the Minister does not have a duty to consider whether to exercise the power if requested to do so 'or in any other circumstances'. By those terms, the provisions entrust to the Minister personally the evaluative task of determining whether it is in the public interest for the power to be exercised, a task which cannot be delegated or undertaken through any form of agency in any respect. Further, by reason of the personal character of each of the relevant powers, any procedural decision as to the circumstances in which the Minister may entertain or consider a request to exercise the power must be made by the Minister personally and cannot be delegated in any way. Finally, as there is no duty to exercise the power, the Minister can choose to make no such procedural decision at all. As to these matters, see Davis v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2023] HCA 10 at [16]-[26] (Kiefel CJ, Gageler and Gleeson JJ), [66] (Gordon J, agreeing); see also [145]-[147] (Edelman J) on the basis that the Minister has a liberty to act that is granted to the Minister personally which cannot be exercised by department officials in any respect; and at [316]-[318] (Jagot J) to similar effect as to the need for any decision concerning the exercise of the power to be made personally; Steward J dissenting on the basis that the departmental officials were providing permissible advice and assistance to the Minister in circumstances which did not involve any exercise of the personal power entrusted to the Minister.

10    In consequence, the making of a request to the Minister to exercise the relevant powers gives rise to no compulsion of any kind. The Minister cannot be required to exercise the power or even to consider whether to exercise the power. Therefore, if a request is made there can be no implied obligation for the Minister to do something in respect of the request within a reasonable time. Consequently, given the nature of the power, it is impossible for any other person to form a view as to whether the Minister will make a procedural decision about whether to exercise the power and, if so, when that might occur. In particular, it is impossible for any such view to be formed by the relevant officer who is required to discharge the statutory responsibility imposed by s 198(6) to remove as soon as reasonably practicable an unlawful non-citizen if the conditions there described are met.

11    In short, having regard to the nature of the personal powers entrusted to the Minister, it is not possible to identify whether, and if so when, a request made by a person like the applicant may be attended to by the Minister.

12    For reasons which follow, these aspects of the power were fatal to the application for injunctive relief and the primary judge was correct in refusing the application.

The reasoning of the primary judge

13    The primary judge approached the application for injunctive relief on the basis that it was appropriate for the Court to consider whether there was a serious question to be tried and whether the inconvenience or injury that the applicant would suffer if the injunction was refused outweighed the inconvenience or injury to the Minister: at [49]. Further, her Honour proceeded on the basis that those two limbs were interrelated: at [50].

14    The main reasons advanced before the primary judge as to why there was a serious question to be tried were recorded at [54] in the following terms:

(a)    the removal of the applicant is beyond the executive power of the Commonwealth because it would foreclose the possibility of the Minister considering his public interest powers;

(b)    the duty to remove a non-citizen under s 198(6) of the Migration Act is not a duty to remove immediately but a duty to remove 'as soon as reasonably practicable', and a range of factors should be taken into account in making an assessment of what is reasonably practicable including any pending requests to the Minister for the exercise of his public interest powers;

(c)    in any event, it is unlawful to remove an applicant while there are pending requests for Ministerial intervention.

15    Her Honour was not satisfied that there was a serious question to be tried: at [74].

16    The primary judge then addressed matters advanced concerning the balance of convenience and reached the following conclusions (at [80]-[81]):

There are therefore balance of convenience considerations that lie both in favour of and against the grant of the interlocutory injunction.

Given my views expressed above in relation to the serious question to be tried, and the interrelated nature of the serious question to be tried and the balance of convenience, on balance I have determined not to exercise my discretion to grant the interlocutory injunction. The lack of any serious question to be tried outweighs the competing balance of convenience considerations.

17    Therefore, in the result, her Honour's view that there was no serious question to be tried was the basis upon which the balance of convenience was said to be against the grant of relief.

Issue (1): Is leave required to appeal?

18    It was common ground that the decision by the primary judge was interlocutory. Although leave is required to appeal an interlocutory judgment, there are exceptions where leave is not required. One such exception is where the appeal is from an interlocutory judgment 'affecting the liberty of an individual': s 24(1C)(a) of the Federal Court of Australia Act 1976 (Cth).

19    For the applicant it was said that the judgment of the primary judge came within the exception for two reasons, namely:

(1)    it refused relief which, if granted, would prevent the forced removal of the applicant from Australia; and

(2)    it 'closed off' the applicant being set at liberty by the Minister exercising in his favour one of the personal powers the subject of the applicant's requests.

20    There are a number of instances where single judges of this Court have considered the terms of the exception. The cases were collected by Yates J in BET20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 6 at [51]. They reveal some divergence in views as to what is required in order for the interlocutory judgment to be one 'affecting the liberty of an individual'. The divergence in views concerns the extent to which the judgment under appeal must itself operate so as to confer authority to incarcerate or detain. As to that point, Yates J concluded that to come within the exception the interlocutory judgment must be one affecting liberty 'in the sense of subjecting the individual to direct incarceration or other total deprivation of his or her physical liberty': at [64]. It is an approach that seems to have been favoured in Hastwell v Kott Gunning [2021] FCAFC 70 at [21] (McKerracher, Kerr and Charlesworth JJ), although on that occasion it was not necessary for the Full Court to reach a concluded view on the competing positions: see at [22].

21    For the applicant, particular reliance was placed upon the reasoning of White J in Sami v Commonwealth of Australia [2018] FCA 1991 where his Honour found that the summary dismissal of applications which sought an order restraining his continued detention was a judgment within the exception because the effect was to deny him the release from detention which he sought: at [33]. In doing so, his Honour expressed the view that the exception expressed in s 24(1C) may be concerned with the practical impact of the judgment on the liberty of the individual rather than its character in an abstract sense: at [37]. His Honour's reference to the exception being understood to mean 'something like "concerning the liberty of an individual"' is to be considered in that context. His Honour was referring to a judgment which concerned liberty in the sense that it had a practical impact on an individual's liberty, not that it had some indirect association with liberty. I do not understand his Honour's reasons to propose that any form of connection between the order under appeal and the liberty of an individual would bring the case within the exception. Rather, his Honour was emphasising the fact that an order which did not, in express terms, deprive a person of their liberty could come within the exception because that was its practical effect.

22    In the present case, no judicial relief was sought which could affect the applicant's ongoing detention. It was effected by statute and not by Court order and there was no claim that the detention was unlawful. Irrespective of the outcome, the applicant would remain in detention. His liberty would be unaffected. Even if it be correct to focus upon the practical impact of the judgment, the decision by the primary judge did not adjudicate whether or not the applicant was at liberty. It concerned only whether a person who had been deprived of his liberty was able to insist that he remain in executive detention in Australia. Further, the practical effect of the refusal by the primary judge of the application for injunctive relief did not provide a basis for the applicant's ongoing detention (and thereby his loss of liberty). Rather, it meant that he would be at liberty in India. His concern was to maintain his detention so he could pursue requests which might result in him establishing a basis to remain in Australia. Until then, he asserted no basis for his release. It would be strange indeed if the refusal of the application by the applicant for an injunction which, if granted, would not affect the basis for his ongoing detention might be said to be an order affecting his liberty such that the exception would apply. For those reasons, in my view, it does not. Therefore, leave to appeal is required.

Issue (2): Should leave be given to appeal?

23    In the usual case, an applicant for leave to appeal must demonstrate both that the relevant decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice would result if leave were refused (assuming the decision to be wrong): Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398. An arguable ground as to error in the making of an interlocutory decision that has the practical effect of finally determining a substantive right will usually be a sufficient foundation for the grant of leave.

24    In the present case, the applicant claims that he cannot be validly removed from Australia while his requests are 'pending'. He says that it is beyond the executive power of the Commonwealth for any such removal to occur. On that basis, he seeks to allege error on the part of the primary judge in finding that there was no serious question to be tried.

25    In oral submissions in support of the application, two bases were articulated as arguable constructions of the Migration Act to support the application for leave.

26    First, it was submitted that as it would not be 'reasonably practicable' for a person to be removed whilst there was a 'pending' request, the requirement to remove did arise. This contention depended upon a proper construction of those words as used in s 198.

27    Second, it was submitted that it was necessary to harmonize the provisions that allowed for a request to be made of the Minister with the terms of s 198 by interpreting the Migration Act (by some unspecified means) as requiring that a person is not to be removed until it is clear whether the Minister is going to consider the request or not. This contention appeared to require the mandatory terms of s 198(6) to be qualified by a further condition (in addition to those expressly stated). It was also supported by a submission to the effect that there would be some form of executive interference with the exercise by the Minister of the personal power if an officer, in effect, pre-empted any view being taken by the Minister where there had been a request to exercise the power by proceeding to remove the person before the position of the Minister concerning the request was made known. Support for that submission was sought to be gained from the reasoning in Davis.

28    These matters raise issues of law. Therefore, assessment as to whether they are sufficiently arguable does not require allowance for the fact that the proceedings before the primary judge were at a stage where the evidence was incomplete or was contested.

29    The Minister contended that the principles in House v The King (1936) 55 CLR 499 were applicable when it came to considering whether there was an arguable ground of appeal. Those principles were 'fashioned with a close eye' on circumstances where the assessments to be made 'call for value judgments in respect of which there is room for reasonable differences of opinion': Norbis v Norbis (1986) 161 CLR 513. They do not pertain in the present case where the alleged error by the primary judge is in finding that there was no serious question to be tried as to a proposition of law advanced as the basis for injunctive relief.

30    I am not satisfied that the decision of the primary judge was attended with sufficient doubt to justify leave to appeal. The principal difficulty with the characterisation of the legal contentions advanced by the applicant as being sufficiently arguable to support a grant of leave to appeal is that they seek to give some legal consequence to the fact that the applicant has made requests for the Minister to consider the exercise of the personal powers. The error lies in the notion that a request might be 'pending' in some sense. The description of a request as 'pending' ascribes to the request some characteristic that requires a decision or determination at some future time such that the request awaits some subsequent event that is to occur. However, as has been explained, the nature of the relevant powers is such that they are both personal and non-compellable. It would alter their character if the making of a request could give rise to some form of requirement for the Minister to indicate whether or not the request was to be considered.

31    Significantly, the applicant disavowed any claim that the 'as soon as reasonably practicable' terminology used in s 198 required account to be taken of the fact (in any particular case) that the person involved wished to make a request such that until sufficient time had elapsed for the making of the request it could not be said that the point had been reached where it was reasonably practicable to remove the person where the other relevant conditions had been met. Rather, the submissions advanced for the applicant were to the effect that removal from Australia under s 198(6) of a person in the position of the applicant was not lawful unless and until it was clear that the Minister was going to consider the request or not. For completeness, I note that a provisional submission was advanced for the Minister that, on the facts in the present case, sufficient time had elapsed for the requests to have been made and they had been made by the applicant.

32    But for my view that the decision of the primary judge that there was no serious question to be tried is not attended with sufficient doubt to justify the grant of leave, I would have been satisfied that the consequences for the applicant if leave to appeal was refused justified the conclusion that there would be substantial injustice. This was a case where, in practical terms, the refusal of the application for an interlocutory injunction finally determined the claim. The consequence was that the applicant would be removed from Australia in circumstances where he had been here for a considerable number of years and he claimed that he was at serious risk of personal harm if returned to India.

Issue (3): If leave is given, should the appeal be allowed.

33    Strictly speaking, it is not necessary to consider further the merits of the appeal.

34    However, as the issue was fully argued and may be of wider importance, I will deal with issue (3) on the assumption (contrary to my view) that leave should be given.

35    Where, as here, an application for a interlocutory injunction, depends upon the resolution of a question of law and that question can be resolved without further evidence and the urgency of the matter does not render it impracticable to decide the question, the desirable course is to decide the question: Cohen v Peko-Wallsend Ltd (1986) 68 ALR 394 at 397 (Gibbs CJ, Mason and Wilson JJ); and Keogh v Registrar-General (NSW) (1918) 24 CLR 413 at 420-1 (Gavan Duffy and Rich JJ); see also the views expressed in OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270 at 274 (French J); and Hortico (Aust) Pty Ltd v Energy Equipment Co (Aust) Pty Ltd (1985) 1 NSWLR 545 at 549 (Young J).

36    In the present case the matter came before the primary judge with considerable urgency and it was appropriate for her Honour to approach the matter by assessing whether the proposition of law advanced had sufficient merit to justify the grant of an interlocutory injunction.

37    However, the applicant's contentions have now been fully argued after a reasonable period in which to develop them. They have been supported by written submissions. There is no urgency which impedes the adjudication of the applicant's contentions

38    Further, on the present assumption (namely that the Court is persuaded that the applicant's contentions were arguable and the primary judge was wrong to conclude that there was no serious question to be tried) it is necessary for this Court to consider whether it is appropriate, on that basis, to allow the appeal. It is appropriate in those circumstances for this Court in the exercise of its appellate jurisdiction to determine the merits of the question of law upon which the application for injunctive relief depends.

39    For the following reasons, the claims made by the applicant (assumed to be appellant) as to the proper construction of the relevant provisions of the Migration Act must be rejected.

40    Firstly, as has been explained, the appeal proceeds upon a false premise that any request for the exercise of the personal non-compellable powers may be 'pending'. It seeks to give statutory significance to a request that the power be exercised in circumstances where the nature of the power is such that no person other than the Minister can make a procedural decision as to whether to consider exercising the power. An obligation to make a procedural decision as to whether to consider the exercise of the power cannot arise from the making of a request any more than it can arise from the formation of a judgment by departmental officers. The adjudication as to what the public interest requires is entrusted solely to the Minister.

41    Secondly, if the request was given significance such that it could not be said to be reasonably practicable to remove a person unless and until it was clear whether the Minister was going to consider the request or not then the legislation would provide for a circumstance in which there was the prospect of indefinite detention having regard to the terms of s 196 (which, relevantly for present purposes, require detention until removal). The prospect would arise because the Minister could not be compelled to indicate one way or the other whether a particular request would be considered and when. Therefore, once the request was made it would not be reasonably practicable to remove the person until an event occurred which was not required to occur and which the Court could not compel. As has been observed, the contentions advanced in support of the appeal resisted any claim that it was not reasonably practicable to remove a person in circumstances where insufficient time had elapsed for that person to make a request that the person wished to make. A case of that kind does not fall for consideration in this instance.

42    Thirdly, assistance cannot be gained from the fact that the Minister has power to make a procedural decision that would require all such requests (or all requests of a particular character) to be brought to the Minister's attention in circumstances where no such procedural decision is said to have been made that applies in the present case. It may be accepted that the reasoning in Davis recognises the possibility of such a procedural decision. However, it is not relevant to consider what may be the consequence if a procedural decision was made that applied to requests of the kind made in the present case which meant that the Minister had decided to consider the request but had not yet done so. It is sufficient for present purposes to conclude that the mere possibility of such a procedural decision does not mean that anything is 'pending' when a person makes a request.

43    Fourthly, s 198(6) requires an officer to remove an unlawful non-citizen as soon as reasonably practicable if certain specified circumstances pertain. Those circumstances are such that, in substance, an unlawful non-citizen may not be removed whilst that person has a pending valid application for a visa that can be made whilst the person is in Australia. Further, s 197C(2) provides that an officer's duty to remove under s 198 arises irrespective of whether there has been an assessment according to law of Australia's non-refoulement obligations. Section 197C(3) provides that s 198 does not authorise or require the removal of a person if, in effect, a finding has been made that the person satisfies any of the criteria in the Migration Act that concern the protection of refugees including (by operation of the definition in s 197C(7)) a circumstance prescribed by regulation. Further, s 198 deals in considerable detail with the various circumstances in which an unlawful non-citizen must be removed from Australia.

44    Within that statutory context the absence of any provision which expressly qualifies the circumstances in which removal must occur by reference to any of the powers the subject of the requests made by the applicant is stark. In the face of those express and detailed provisions, the existence of the personal powers is not a basis to conclude that there is some further implicit limitation upon the circumstances in which an unlawful non-citizen must be removed 'as soon as reasonably practicable'.

45    Finally, there was no answer to the Minister's submission that the contentions advanced would allow for rolling requests as a means of deferring removal from Australia.

Orders and costs

46    For reasons that have been given, the appropriate order is that the application for leave to appeal be dismissed. It was accepted by both parties that costs should follow the event. There should be an order that the applicant pay the Minister's costs to be assessed if not agreed.

47    The injunction that was granted by this Court pending the hearing of the application for leave was expressed to continue until this application 'and any related appeal arising from the application' are finally concluded. In my view, that order concerned any appeal to be heard in this Court if leave was given. There is to be no such appeal. Therefore, the injunction will come to an end when the orders I have indicated are pronounced. However, in order to allow time for the applicant to take advice as to how to proceed, I will continue the existing injunction until 4.30 pm on 11 August 2023. I will reserve liberty to the Minister to apply to discharge that order.

Associate:

Dated:    1 August 2023