Federal Court of Australia

MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 989

ORDERS

THE COURT ORDERS THAT:

1.    Until final orders are made on the originating process or further order of the Court, the respondents whether by themselves, their officers, employees or agents or otherwise, be restrained and an injunction be granted restraining them from removing the applicant from Australia.

2.    The parties may apply on 48 hours’ written notice to vary or discharge the injunction granted in paragraph 1 of these orders.

3.    The respondents pay the applicant’s costs of the interlocutory application for an injunction, if any, 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

FEUTRILL J:

Introduction

1    The applicant applies for an urgent interlocutory injunction on the basis that he has been given notice that he was (and is) liable to be removed from Australia at any time after 6 July 2023. It is proposed that the applicant be removed to the Republic of India. After unsuccessful proceedings for injunctive relief commenced in the Federal Circuit and Family Court of Australia (Division 2) the applicant applied to this Court for leave to appeal and was granted an interim injunction pending the resolution of that application. The application for leave to appeal was dismissed, but the interim injunction continued until 11 August 2023. When the matter first came on for hearing before me on 9 August 2023, the respondents gave an undertaking not to remove the applicant before 21 August 2022. At the conclusion of the substantive hearing of the application on 17 August 2023, the respondents varied that undertaking to the effect that they would not to remove the applicant before 4.15pm on 22 August 2023. An interlocutory injunction is sought by the applicant to restrain the respondents by themselves or by their departments, officers, delegates, servants or agents from removing the applicant from Australia. The respondents are the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (first respondent), Secretary of the Department of Home Affairs (second respondent) and the Relevant Officer under s 198 of the Migration Act 1958 (Cth) (third respondent).

2    The originating process filed on 8 August 2023 is for writs of certiorari, prohibition and mandamus to issue and for declaratory and injunctive relief against officers of the Commonwealth in the in the exercise of the Court’s original jurisdiction under s 39B of the Judiciary Act 1901 (Cth). The substance of the asserted ground of review is that officers of the Commonwealth exceeded the executive power of the Commonwealth in making a number of decisions in purported compliance with ministerial guidelines in respect of requests the applicant made for the Minister to consider exercising powers under each of ss 195A and 417 of the Act to grant the applicant a visa. The applicant relies on Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; (2023) 408 ALR 381 in support of his ground of review. In the applicant’s written and oral submissions the ground was expanded to include requests for the Minister to consider exercising powers under ss 48B and 351 of the Act as well.

3    Section 195A of the Act provides:

195A    Minister may grant detainee visa (whether or not on Persons to whom section applies

Persons to whom section applies

(1)    This section applies to a person who is in detention under section 189.

Minister may grant visa

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

…

Minister not under duty to consider whether to exercise power

(4)    The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

Minister to exercise power personally

(5)    The power under subsection (2) may only be exercised by the Minister personally.

…

4    Section 417 of the Act provides:

417    Minister may substitute more favourable decision

(1)    If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

…

(3)    The power under subsection (1) may only be exercised by the Minister personally.

…

(7)    The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

5    A decision under s 415 is a decision of the Administrative Appeals Tribunal on review of a Pt 7-reviewable decision (application for a protection visa). Section 351 is in similar terms to s 417 except that it relates to decisions of the Tribunal made under s 349 concerning a review of a Pt 5-reviewable decision (other applications for visas).

6    Section 48B of the Act provides:

48B    Minister may determine that section 48A does not apply to non-citizen

(1)    If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.

(2)    The power under subsection (1) may only be exercised by the Minister personally.

…

(6)    The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.

Section 49A precludes a person from making further applications for protection visas while in Australia (the migration zone) if an application for a protection visa has been refused.

7    The powers conferred on the Minister under ss 195A, 351, 417 and 48B are reposed in the Minister personally. The powers in ss 351 and 417 are exercisable after adverse decisions of the Tribunal. The Minister may substitute a more favourable decision to that made by the Tribunal. Section 195A is a power exercisable where a person is in immigration detention. Section 48B is a power exercisable where a protection visa has been refused and a person would otherwise not be able to make a further application for such a visa. All of these powers are exercisable in the public interest. The Minister has no duty to consider whether to exercise the powers conferred by these provisions. These features of the powers affect the relief which can be granted by this Court on any judicial review, and affects the nature of the judicial review which can be undertaken: see, CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [5] (Mortimer J).

8    Judicial review of requests for the exercise of these powers is also affected by guidelines the Minister has issued to the Department concerning the exercise of these powers: CPK20 at [6]. These are entitled 'Guidelines on Minister’s detention intervention power (s 195A of the [Act])' (November 2016) (2016 Ministerial Guidelines) and 'Minister’s guidelines on ministerial powers (s 351, s 417 and s 501J of the [Act])' (March 2016) (2016 Ministerial Instructions). These are the guidelines to which the applicant refers in his originating application. Neither the 2016 Ministerial Guidelines nor the 2016 Ministerial Instructions relate to the exercise of the Minister’s powers under s 48B of the Act.

9    The 2016 Ministerial Instructions were the subject of judicial consideration by the High Court in Davis. The plurality (Kiefel CJ, Gageler and Gleeson JJ) described the nature of the exercise of the Minister’s power conferred by s 351(1) (which is the same as for s 417(1) and ss 195A(1) and 48B(1)) as follows:

[14]    The Minister exercises the power conferred by s 351(1) by personally making the first or both of two distinct sequential statutory decisions neither of which the Minister is obliged to make. The first is procedural. The second is substantive. The procedural decision is either to consider, or to not consider, whether it is in the public interest to substitute a more favourable decision for a decision of the Tribunal. The substantive decision—which the Minister may but need not make where the Minister has made a procedural decision to consider whether it is in the public interest to substitute a more favourable decision — is either to think that it is in the public interest to substitute a more favourable decision and to do so, or not to so think and not to do so. The procedural decision, no less than the substantive decision, involves “a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory enactments may enable given reasons to be pronounced definitely extraneous to any object the legislature could have had in view”. The power is not further divisible.

[15]    A procedural decision made personally by the Minister to consider making a substantive public interest decision is an exercise of the power conferred by s 351(1). Likewise, a procedural decision made personally by the Minister not to consider making a substantive public interest decision is an exercise of the same statutory power. Within the meaning of the Act, each is a “privative clause decision” made under s 351(1). For the avoidance of doubt, s 474(7) spells that out. Within the meaning of the Act, each is therefore also a “migration decision”.

[16]    The Minister is not limited to exercising the power conferred by s 351(1) to make a procedural decision — to consider or not to consider making a substantive public interest decision — only in an individual case. The Minister can exercise the statutory power to make a procedural decision in a specified class of case and can do so in advance of a case arising within that class. Thus, the Minister can exercise the power conferred by s 351(1) to make a procedural decision to the effect that “I will consider making a substantive public interest decision in any case that has the following characteristics … but I will not consider making a substantive public interest decision in any case that has the following characteristics …”

[17]    For example, the Minister could exercise the power conferred by s 351(1) to make a procedural decision not to consider making a substantive public interest decision in any case which does not meet objective criteria specified by the Minister. The Minister could exercise the statutory power to make a procedural decision not to consider making a substantive public interest decision in any case where the Department has received a request for the exercise of the power which is not supported by information which a departmental officer assesses to bring the case within a class which the Minister has indicated to be a class in which the Minister wishes to consider making a substantive public interest decision.

[18]    But the power conferred by s 351(1) to make the procedural decision not to consider making a substantive decision in a class of case is not unbounded. The power is bounded by the exclusivity which s 351(3) attaches to the totality of the power which s 351(1) confers on the Minister and which s 351(3) attaches in particular to the assessment of the public interest. Plainly, it would not be open to the Minister to decide not to consider making a substantive decision in a class of case defined by reference to whether a departmental officer or any other person might think it to be not in the public interest to substitute a more favourable decision for a decision of the Tribunal. For the Minister to do so would be for the Minister to abdicate to that other person the core aspect of the substantive decision-making power under s 351(1) which s 351(3) makes clear can be exercised by no one but the Minister.

[19]    Being under no obligation to exercise the statutory power to make a procedural decision at all, however, the Minister can choose to make no procedural decision one way or the other under s 351(1). The Minister can instead choose to exercise executive power, involving the Minister acting in “a capacity which is neither a statutory nor a prerogative capacity”, to give a non-statutory instruction to officers of the Department administered by the Minister under s 64 of the Constitution as to the occasions, if any, on which the Minister wishes to be put in a position to consider making a procedural decision. Thus, the Minister can exercise executive power to give a non-statutory instruction to departmental officers to the effect that “I wish to be put in a position to consider making a procedural decision in any case that has the following characteristics … but I do not wish to be put in a position to consider making a procedural decision in any case that has the following characteristics …”. That was found to be the effect of the 2009 Ministerial Instructions in Plaintiff S10/2011 as explained in SZSSJ and has been found to be the effect of the 2016 Ministerial Instructions by the Full Court in an unchallenged aspect of the decision under appeal.

…

[29]    In enacting s 351 of the Act, the Parliament has seen fit to entrust to the Minister alone the evaluation of the public interest in substituting a more favourable decision for a decision of the Tribunal. A necessary implication of the exclusivity imposed by s 351(3) on the power which s 351(1) confers on the Minister is to deny the existence of executive power to entrust the dispositive evaluation of the public interest in substituting a more favourable decision to an executive officer other than the Minister.

[30]    Put another way, the extension by s 61 of the Constitution of the executive power of the Commonwealth to “the execution and maintenance … of the laws of the Commonwealth” does not authorise a Minister or any other officer of the Executive Government of the Commonwealth to undertake any non-statutory action that is expressly or impliedly excluded by a law of the Commonwealth. By confining evaluation of the public interest for the purpose of s 351(1) to the Minister personally, s 351(3) of the Act effects such an exclusion.

[31]     Put yet another way, being limited by s 351(3) to exercising personally the power conferred by s 351(1) — to make a statutory decision as to whether or not to consider whether it is in the public interest to substitute a more favourable decision for a decision of the Tribunal and likewise to make a statutory decision as to whether it is or is not in the public interest to substitute a more favourable decision — the Minister cannot circumvent that statutory limitation through a purported exercise of executive power which gives conclusive effect to an anterior consideration of the public interest undertaken by a departmental officer outside, but for the purpose of, the statutory power. What s 351 prevents the Minister or a departmental officer from doing directly in the exercise of statutory power, it prevents the Minister or a departmental officer from doing indirectly in the exercise of executive power.

[32]    That is the statutory limitation on executive power which will be seen to be transgressed by the 2016 Ministerial Instructions and by the two impugned departmental decisions made in purported compliance with the 2016 Ministerial Instructions.

(Footnotes omitted.)

10    Sections 10.1 and 10.2 of the 2016 Ministerial Instructions contain instructions to the Department concerning how to address ‘first requests’ and ‘repeat requests’ for the exercise of power conferred by ss 351(1) and 417(1) and the circumstances in which the Minister wishes to be put into a position to consider making a procedural decision. In the case of ‘first requests’, the Minister wishes to be put in that position only in cases assessed by the Department to have unique or exceptional circumstances and otherwise the request is to be finalised without referral to the Minister. In the case of ‘repeat requests’, the Minister wishes to be put in that position only if the Department is satisfied of a significant change in circumstances raising new substantive issues and then only if the Department assesses those new substantive issues to have unique or exceptional circumstances. Unique or exceptional circumstances are described non-exhaustively in section 4.

11    In Davis the plurality said that ‘[b]y instructing that those cases assessed by the Department not to have unique or exceptional circumstances were to be finalised by the Department without referral, the Minister purported to entrust the dispositive evaluation of the public interest to departmental officers. The Minister thereby exceeded the statutory limit on executive power imposed by s 351(3).’ The reasons of the other members of the majority in Davis were to similar effect: See, [66], [100]-[102] (Gordon J), [145]-[147], [172] (Edelman J), [251]-[254], [316]-[318] (Jagot J). Steward J dissented on the basis that the officers of the Department were providing permissible assistance and advice to the Minister in circumstances that did not involve any exercise of the Minister’s personal power. The High Court, by majority, granted declaratory relief: at [59]-[62], [66], [195], [324].

12    The 2016 Ministerial Guidelines are not in the same terms as the 2016 Ministerial Instructions. However, section 5 contains an instruction that: ‘Requests that I consider exercising my detention intervention power may only be made and referred by the Department. Any requests must first be assessed by the Department against these guidelines and should only be referred to me if the case is assessed as having met these guidelines.’ Sections 3 and 4 set out what may be broadly characterised as factors affecting the public interest. In section 3 the Department is instructed: ‘When assessing cases that may be referred to me for consideration of my detention intervention power, I expect the Department to balance [certain identified] considerations against any adverse information about the person arising’ and certain examples are then set out.

13    Having regard to the manner in which the 2016 Ministerial Instructions were construed in Davis, I consider it reasonably arguable that, with respect to the 2016 Ministerial Guidelines, the factors that the Department is instructed to assess and balance operate as ‘an approximation of the public interest’. Therefore, it is reasonably arguable that the Minister has purported to entrust the dispositive evaluation of the public interest to departmental officers and thereby exceeded the statutory limit on executive power imposed by s 195A(1).

14    It follows that subject to establishing that ‘requests’ were made, assessed by the Department purportedly in compliance with the 2016 Ministerial Instructions or 2016 Ministerial Guidelines and, as a consequence, not referred to the Minister for a procedural decision, there is a sound legal basis for, at least, the declaratory relief the applicant seeks in the proceedings. The extent to which the applicant would, or may, be entitled to additional relief, in effect, to compel the Secretary to refer the applicant’s requests to the Minister is more problematic and need not be explored on this application.

Interlocutory injunctions

15    The Court has power to grant an interlocutory injunction restraining the respondents from removing the applicant from Australia until his application for judicial review is heard and determined under s 23 of the Federal Court of Australia Act 1976 (Cth). Section 23 confers a broad power on the Court to make orders of such kinds, including interlocutory orders, as it ‘thinks appropriate’. As Deane J observed in Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 (at 622): ‘Wide though that power is, it is subject to both jurisdictional and other limits. It exists only “in relation to matters” in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to making of the “kinds” of order, whether final or interlocutory, which are capable of properly being seen as “appropriate” to be made by the Federal Court in the exercise of its jurisdiction.’ When speaking of the general power of the Court to make Mareva orders under s 23, his Honour further observed: ‘[t]hat general power should, however, now be accepted as an established part of the armoury of a court of law and equity to prevent abuse or frustration of its process in relation to matters coming within its jurisdiction’: Jackson at 623.

16    After referring to these observations of Deane J, the plurality in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 said: ‘The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceedings against whom final relief might be granted, as are need to ensure the effective exercise of the jurisdiction invoked (See Tait v The Queen [1962] HCA 57; (1962) 108 CLR 620).’ The reference to Tait would appear to be a reference to the observation of Dixon CJ in that case to the effect that: ‘I have never had any doubt that the incidental powers of the Court can preserve any subject matter, human or not, pending a decision.’ In Tait the High Court made an order staying execution of Mr Tait pending disposal of his applications for special leave and of any appeal to the High Court. Put another way, the 'counterpart of a court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion’: CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345 at 391.

17    The power to make orders under s 23 is not limited to parties to the proceedings and against whom final relief is sought. While in the case of parties to the proceedings ‘the focus is the frustration of the court’s processes’, in the case of non-parties, ‘the focus must be the administration of justice’: Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 at 401. However, in either case, the exercise of the power is in the interests of the administration of justice. Accordingly, certain kinds of orders made under s 23 are to be understood as forming part of the mechanisms available to ‘protect the integrity of [the Court’s] processes once set in motion’. These orders sit ‘outside the injunction as understood in courts of equity’: Cardile at [40].

18    Whatever may be the purpose or foundation for an application for an interlocutory injunction, the principles upon which a court will grant such an injunction are well-established. The Full Court set out the ‘correct approach’ in Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [52]-[74]. Applicants must first show that they have a prima facie case in the sense of ‘a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial’: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ, Gleeson CJ and Crennan J agreeing at [19]). This is commonly referred to as a serious question to be tried. What will be sufficient will depend on ‘the nature of the rights [the applicant] asserts and the practical consequences likely to flow from the order he seeks’: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622. These same considerations apply in public law cases: Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu [2000] HCA 23; (2000) 171 ALR 341 at [7] (Gleeson CJ).

19    These two questions are not entirely distinct. To the contrary, as the Full Court emphasised in Samsung Electronics, the strength of an applicant’s case is a factor to be considered in determining where the balance of convenience lies. Consequently, as Woodward J observed in Bullock v The Federated Furnishing Trades Society of Australasia [1985] FCA 48; (1985) 5 FCR 464 at 472 (Smithers and Sweeney JJ agreeing at 467 and 469 respectively):

… [A]n apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises "a serious question to be tried") may still attract interlocutory relief if there is a marked balance of convenience in favour of it. …

20    In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199, however, Gleeson CJ observed at [18]:

The extent to which it is necessary, or appropriate, to examine the legal merits of a plaintiff’s claim for final relief, in determining whether to grant an interlocutory injunction, will depend upon the circumstances of the case. There is no inflexible rule. …

Evidence

21    The applicant read and relied on two of his affidavits. The first was signed on 8 August 2023 and the second on 17 August 2023. The Minister took no objection to either of those affidavits even though these were signed without an attesting witness.

22    The Minister read and relied on three affidavits of Ms Centaine Alexandra Mumford. One was affirmed 9 August 2023 and two were affirmed 17 August 2023. Amongst other things, the effect of the affidavits of Ms Mumford is to put in issue the principal facts that underpin the applicant’s asserted ground of judicial review; namely, that an officer of the Department purportedly in compliance with the 2016 Ministerial Guidelines or 2016 Ministerial Instructions made ‘decisions’ that had the effect of finalising ‘requests’ the applicant had made to the Minster for the exercise of the Minister’s powers conferred under one or more of ss 195A, 351, 417 and 48B of the Act. The respondents take issue with the assertion that the applicant made any ‘request’ before June 2023 and that any officer of the Department made any ‘decision’ of the impugned kind at any time. That is, the respondents contend that the applicant is unable to demonstrate the factual premise upon which his application for judicial review is founded.

23    I approach consideration of the merits of the factual issues the applicant proposes to advance from the perspective that when assessing if there is a serious question to be tried the Court should take into account all evidence on the application (that is, of both the applicant and the respondents), but, in general, it is not appropriate for a judge to attempt to resolve conflicts of affidavit evidence on an interlocutory application: Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 at 734. The question is whether ‘if the evidence remains as it is there is a probability that at the trial of the action the [applicant] will be held entitled to relief’: Beecham at 622. Typically, that question is to be answered on the basis that the statements of fact contained in the affidavit(s) is support are accepted as true: Bristol-Myers Squibb Australia Pty Ltd v Astra Pharmaceuticals Pty Ltd [1999] FCA 256; (1999) 45 IPR 144 at [91] – [94], [99], [101] – [102]; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720 at [43] – [45]. However, 'this does not mean that [the judge] is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporaneous documents or other statements by the same deponent, or inherently improbable in itself it may be': Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331 at 341.

Background

24    The applicant is a non-citizen of Australia and a national of India. He entered Australia in January 2006 on a student visa. He later applied for another visa, but it was refused. An application to review that decision was made to the Migration Review Tribunal out of time and, therefore, dismissed. On 17 August 2012, applied to the Minister for exercise of the Minister’s discretion to grant a visa under s 351 of the Act. By letter dated 6 September 2012, the Department advised the applicant that the Minister could not exercise power under s 351 because the MRT had not made a decision under s 349. Thereafter, the applicant applied for an extension of time to seek judicial review of the MRT’s decision. That application was dismissed in September 2013.

25    In October 2013 the applicant applied for a protection visa. That application was refused. The applicant sought review of that decision in the Refugee Review Tribunal. The RRT affirmed the refusal decision, but later re-opened the review for jurisdictional error and, after re-opening, again made the decision to affirm. The applicant sought judicial review of that decision in the then Federal Circuit Court of Australia which was dismissed. Appeals to this Court and the High Court from that decision were also dismissed. The final decision was made by the High Court on 19 May 2021.

26    In the meantime, the applicant held a bridging visa. However, that visa was cancelled in November 2015 under s 116(1)(g) of the Act and reg 2.43(1)(p)(ii) of the Migration Regulations 1994 (Cth) after the applicant was convicted of drug-related offences and sentenced to six months' imprisonment. The applicant received re-notification of that cancellation in May 2022. He sought review of the cancellation decision in the Tribunal. The Tribunal affirmed the cancellation decision in July 2022. In August 2022 the applicant appealed to the Circuit Court. In February 2023 those proceedings were discontinued.

27    The applicant has been in immigration detention since June 2016 when he was released from prison.

28    The applicant was given notification by the Australian Border Force that it was intended that he be removed from Australia under s 198(6) of the Act on 6 July 2023.

29     On 18 June 2023 the applicant submitted a request for Ministerial intervention under ss 351 and 417 of the Act. On the same day, the applicant submitted a request for Ministerial intervention under s 48B of the Act.

30    On 3 July 2023 the applicant requested the Minster to exercise powers under s 195A to grant him a visa and under s 197AB to permit him to reside in the community.

31    On 4 July 2023 the applicant submitted a further request for Ministerial intervention under ss 351 and 417.

32    On 5 July 2023 the applicant filed an application for judicial review of the decision to remove him from Australia in the Circuit Court. Amongst other things, he sought writs of certiorari to quash that decision and prohibition to prevent his removal as well as a permanent injunction to restrain his removal. In those proceedings he also applied for an interlocutory injunction to restrain his removal pending determination of his judicial review proceedings.

33    On the hearing of the application for the interlocutory injunction, Judge Ladhams was not satisfied that there was a serious question to be tried or that the balance of convenience favoured granting an injunction. As to the latter consideration, her Honour considered that the public interest in the proper administration of the Act weighed against the applicant. That public interest was that the clear intention of s 198 of the Act would be frustrated by granting an injunction: MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 594 at [79]. Therefore, as already mentioned, the application for an interlocutory injunction was dismissed.

34    The applicant immediately applied to this Court for leave to appeal and an interlocutory injunction. Banks-Smith J granted an interim injunction on 6 July 2023 until the application and any related appeal was finally determined. Colvin J was not satisfied that the decision of Judge Ladhams was attended with sufficient doubt to justify the grant of leave to appeal. Therefore, as already mentioned, on 1 August 2023, the application for leave to appeal was dismissed: MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877. However, the orders of Colvin J extended operation of the interim injunction until 11 August 2023.

Is there as serious question to be tried?

35    The applicant deposes that he was informed by his case manager (a person who I understand to be an officer of the Commonwealth) that his request for exercise of power under s 195A made on 18 June 2023 would be refused because it did not meet the guidelines and, later, that it had been refused by the Department. He deposes that he was also informed that his request for the exercise of power under s 417 made on 3 July 2023 had been refused because it did not meet the guidelines.

36    In her first affidavit of 9 August 2023, Ms Mumford deposes that Mr Peter Frank, a lawyer employed by the Department, informed her that the applicant’s requests made in June and July 2023 have not been finalised by the Department. In her second affidavit of 17 August 2023, Ms Mumford deposes that Mr Frank informed her, in effect, that as of the date of that affidavit the Department had not finalised those requests. In her third affidavit, Ms Mumford deposes that Mr Frank is the Acting Secretary of the Migration & Citizenship Litigation Branch of the Department and that he had read all the relevant facts deposed in the applicants affidavit, he had reviewed or caused to be reviewed, the Department’s records and, in effect, he continued to instruct Ms Mumford that the Department had not finalised those requests.

37    In substance, there is competing hearsay evidence concerning ‘finalisation’ of the applicant’s requests made in June and July 2023. Taking into account the unequivocal nature of the statements attributed to Mr Frank, I do not consider there to be any serious question to be tried on the question of whether an officer of the Department has made a decision in purported compliance with the 2016 Ministerial Guidelines or 2016 Ministerial Instructions in respect of those requests. If the evidence were to remain as it is, on the final hearing the applicant will not be able to establish that such a decision was made at any time before the proceedings were commenced or up to 17 August 2023.

38    Separately to the requests made in June and July 2023, the applicant deposes in his first affidavit.

10.    As well as my requests, I have been informed by my case officers or other officials in immigration detention and believe that at various times on between approximately 7 and 9 occasions from 2016 to the present, case officers or other persons have made requests to the Minister on my behalf seeking his exercise of his public interest powers, especially under section 195A but also under section 417 of the Act ("the other requests") that was [made] by me on 2 occasions and it was deemed invalid. I have documentary evidence of [that] one request made under 195 A and 197 AB from 2021 shown to me and marked Annexure "PS-4" is a copy of the notification letter which says it did not meet the guidelines and that was done by the department in a weeks time and send me the notification for refusal in a week this has happened in all the previous requests the guidelines were assessed by the department quickly and i was notified for each and every request in less than week specially the request made in 2022 it was notified to me in 2 days after the request was made on my behalf but for the requests from 2022 and earlier I have today made a request under the Freedom of Information Act 1982 (Cth) for all the information relating to them. Now produced and shown to me and marked Annexure "PS-5" is a copy of acknowledgement of Freedom of Information request.

11.    I have been informed on a number of occasions by my case officers or other officials in immigration detention that the all the previous other requests made on my behalf did not meet the Guidelines and were finalised without being referred to the Minister.

12.    I am aggrieved by the other requests having been finalised without being referred to the Minister because this action deprived me of the possibility of being granted a visa or a residence determination or the opportunity to make a further application for a protection visa.

39    In his second affidavit the applicant elaborates on the requests. He deposes to his case managers making requests in about August 2016 and 2017 and to being informed that these requests were refused by the Department. He deposes that every year thereafter requests were made by his case managers and sometimes two requests were made in a year with the same outcome. He deposes that the only written record he has relating to the requests is the letter of 1 December 2021 exhibited as PS-4 to his first affidavit. That letter contains statements to the following effect:

Section 195A of the Migration Act 1958 (the Act) provides the Minister with power to grant a visa to a person in immigration detention, if he thinks it is in the public interest to do so. Section 197AB of the Act provides the Minister with the power to make a residence determination to a person in immigration detention. The public interest powers are non-compellable, that is, the Minister is not required to exercise or to consider the exercising his power. Further, what is in the public interest is a matter for the Minister to determine.

The Department has been issued with Ministerial Intervention guidelines to assess whether a case should be referred for the Minister to consider exercising his public interest powers. The Department has assessed your case and found that it does not meet the sections 195A or 197AB guidelines for referral to the Minister for his consideration and the request has now been finalised.

…

(Emphasis added.)

40    The applicant deposes that he made a request for all information relating to the requests made to the Minister under the Freedom of Information Act 1982 (Cth). Exhibited as PS-5 to his first affidavit is acknowledgement from the Department that it had received the applicant’s request under that Act.

41    Ms Mumford deposes that she requested the Department provide her with any record of requests for intervention under ss 195A, 195AB or 417 of the Act that had been made by or on behalf of the applicant. That information was provided to her on 9 August 2023. Ms Mumford then deposes facts taken from her review of those documents none of which identifies any ‘request’ made by or on behalf of the applicant for the Minister to exercise power under ss 195A, 195AB or 417 in the period between 2016 and the applicant’s requests made in June and July 2023.

42    Ms Mumford draws attention to section 6.2 of the 2016 Ministerial Guidelines, which provide:

6.2    Action to be taken where persons are in immigration detention

6.2.1    A person’s circumstances are to be assessed on an ongoing basis in accordance with case management principles and review practices adopted by the Department. If it is determined as part of this ongoing review of the person’s circumstances that this case falls within the ambit of these Guidelines, the case must be brought to my attention in a submission so that I may consider exercising my detention intervention power.

43    Further, that the Department’s Policies and Procedures Manual contains an instruction that requests for ministerial intervention are made in writing or by electronic transmission, and a person or that person’s representative can request the Minister to exercise power, or, alternatively, the Department ‘is able to initiate a request for cases where the public interest power is available’.

44    Ms Mumford deposes that on 3 November 2016, 3 January 2018, 19 March 2020, 22 September 2021 and 17 August 2022, the Department conducted internal assessments against the 2016 Ministerial Guidelines in respect of the applicant, and determined, on each occasion, that it would not bring the applicant’s case to the Minister’s attention in a submission so that the Minister might consider the exercise of his detention intervention power under s 195A of the Act. The applicant was generally notified that the Department had assessed his case in that manner and exhibit PS-4 of the applicant’s first affidavit was an example of such notification.

45    The respondents submit that on the basis of the facts deposed in Ms Mumford’s affidavits there is no serious question to be tried regarding the alleged ‘requests’ before June and July 2023 because the Department’s records do not reveal that the applicant made any such requests. As a consequence, the Department could not have made a decision in purported compliance with the 2016 Ministerial Guidelines or 2016 Ministerial Instructions to finalise a ‘request’ made by the applicant.

46    For the purposes of determining if there is a serious question to be tried, I do not consider that there is necessarily a bright line to be drawn between an assessment by the Department under the 2016 Ministerial Guidelines initiated by a formal request made by a person and an assessment initiated by the Department upon a review of a person’s circumstances. In each case, the Department would make a ‘decision’ in purported compliance with the 2016 Ministerial Guidelines. In each case, such a ‘decision’ would arguably exceed the executive power of the Commonwealth in the manner described in Davis. It is not for the officers of the Department to ‘decide’ what is or is not in the public interest for the purpose of the exercise of the Minister’s power under s 195A.

47    As to the question of whether the applicant made a ‘request’ that initiated an assessment by the Department, the state of the affidavit evidence is such that a finding could be made to the effect that an informal request or inferred request was made as a consequence of the applicant’s discussions with his case managers. If the applicant understood from his discussions with his case manager that the Department was considering whether or not to refer his case to the Minster for the possible exercise of power under s 195A or s 417, that could be regarded constructively as a request made by or on behalf of the applicant.

48    I also take into account that, as matters stand, there is asymmetry of the information available to the applicant and the respondents concerning any ‘requests’ and any ‘decisions’ that may have been made concerning possible referral of his case to the Minister for consideration of the exercise of powers under ss 195A and 417 of the Act. After the applicant’s Freedom of Information request has been answered and he has had an opportunity to consider the material of the kind evidently provided to Ms Mumford, he may be in a position to better identify the ‘requests’ or ‘decision’ that he contends were the subject of excessive exercise of executive power. There is a factual contest that cannot be resolved on this application that gives rise to a serious question to be tried.

49    The affidavit material demonstrates, at the very least, that the Department made assessments of the applicant’s circumstances against the 2016 Ministerial Guidelines and ‘decided’ based on those assessments not to refer his case to the Minister for consideration of the exercise of the Minister’s power under s 195A. In these circumstances, I do not regard the applicant to have failed to establish the factual foundation for his originating process or that the applicant’s claim for, at least, declaratory relief of the kind the High Court ordered in Davis to be ‘weak’ as the respondents submit.

Where does the balance of convenience lie?

50    The parties’ submissions on the balance of convenience were, with respect, somewhat confused and confusing. Part of that confusion may have arisen because of the urgent nature of the application and that it came on the back of the applicant’s unsuccessful attempt to obtain an interlocutory injunction in the Circuit Court resulting in some of the arguments made in the Circuit Court being recycled on the application in these proceedings.

51    However, it is important to appreciate that the underlying basis for the interlocutory injunction sought in the Circuit Court proceedings was different to the basis that applies to the application in this Court. In the Circuit Court the applicant was challenging the legal foundation for the duty or power to remove the applicant from Australia under s 198 of the Act. An interlocutory injunction was sought to preserve the status quo pending determination of that question.

52    In these proceedings there is no challenge to the duty or power to remove the applicant under s 198. Here, the question is whether the undoubted duty to remove the applicant will frustrate the Court’s processes. Thus, that is the lens through which the question of balance of convenience is to be viewed.

53    As a citizen of India in Australia without a visa the applicant is, in the language of the Act, an unlawful non-citizen. He must be detained and, in the present circumstances having exhausted all avenues to obtain a visa, must be removed from Australia as soon as reasonably practicable. Although an unlawful non-citizen, he has the right, as he has done, to commence proceedings in this Court and to have his application for judicial review determined according to law. The interests of the administration of justice may require that the jurisdiction of this Court which the applicant has regularly and properly invoked not be frustrated by his removal from Australia.

54    The applicant submits the balance of convenience is in his favour for the following reasons.

(1)    If the injunction is not granted, he will be deprived of the possibility of being granted a visa by the Minister under section 195A, or of having any further for protection considered if his s 48B request is successful.

(2)    He fears that he will be harmed if he returns to India. He fears harm from money-lenders from whom he has borrowed a substantial sum of money and that they will injure or kill him. He also considers that his health will suffer because he will not be able to obtain care and medications for mental illness from which he suffers.

(3)    If he is removed involuntarily, this may have future effects, for example on any future application for a partner visa. None of these prejudicial effects could be cured if the injunction is not granted.

(4)    If the injunction is not granted, there is also prejudice to the public interest in the frustration of the public interest powers (committed by Parliament personally to the Minister), by premature operation of officers of the Commonwealth.

55    As to the first and last of these matters, it appears to be accepted that if the applicant were removed from Australia the proceedings could continue and, ultimately, if the Minister were to exercise power to grant the applicant a visa under s 417, that power could be exercised if the applicant were in India. Therefore, the applicant’s interest and the public interest in the Minister’s exercise of power under s 417 would not be affected by the applicant’s removal.

56    The respondents submit that destruction of the possibility of the grant of a visa under s 195A is not relevant to the balance of convenience because even if the applicant were entirely successful he could not obtain the permanent injunctive relief to prevent his removal or mandamus to compel the Department to refer the applicant’s requests to the Minister for consideration. Further, even if the applicant obtained declaratory relief upon conclusion of the proceedings, there would remain power and duty to remove the applicant from Australia under s 198 of the Act. That is, he would have to be removed at the conclusion of the proceedings.

57    There is force in the respondents’ submissions. However, while remote, any possibility of the grant of a visa under s 195A would be lost if the applicant were removed from Australia. These proceedings are a step along the way to bringing to fruition that remote possibility. Thus, removal from Australia would practically deprive the applicant of the subject matter of the proceeding (his interest in remaining in Australia). That may be a factor taken into account in a consideration of the balance of convenience: CPK20 at [14] (Mortimer J). The third matter may also fall into this category but it is not of any real weight as it has no real connection with issues raised in the proceedings.

58    The second matter is of the most significance. The applicant deposes that he had borrowed money from money-lenders based in India for the purposes of funding his criminal and migration proceedings. He had expected to obtain a visa, gain employment and repay the loans. That has not taken place and he now owes substantial debts with interest accruing at 10 percent per month with an additional 5 percent per month due non-repayments. He asserts that the money-lenders harassed a friend through whom he arranged the loans to the point that his friend committed suicide. After his friend’s death, the money-lenders contacted the applicant by telephone and began to harass him directly. The money-lenders have threatened to kill the applicant if he does not repay his loans with interest. An associate of the money-lenders who was also in immigration detention warned the applicant that the money-lenders are waiting for his release (in Australia or on return to India). The applicant fears that he will be tortured, beaten or killed directly or indirectly by the money-lenders if returned to India.

59    Exhibited as PS-7 of the applicant’s second affidavit are extracts from the Department of Foreign Affairs and Trade (DFAT) Country Information Report for India of 20 December 2020. The substance of the relevant part of the Country Information is to the effect that money-lenders operate in India. They lend money at excessive interest rates and use harassment, coercion and violence to recover loans. There have been reports of suicides by borrowers unable to repay loans. The Country Information concludes: ‘In general, DFAT assesses those who lag behind in payments to loan sharks face a moderate risk of duress and harassment, which can include threats of violence towards themselves and family members, to elicit payments.’

60    The respondents made no submissions regarding the veracity of the applicant’s evidence concerning money-lenders. On the basis of that uncontradicted evidence, I accept for the purposes of this interlocutory application that in early 2016 the applicant borrowed $40,000 from money-lenders based in India. That debt remains owing together with interests that has accrued and is accruing at 15 percent per month. I also accept that he has been subjected to threats of violence and that he may be physically harmed if he is returned to India.

61    The applicant deposes to his medical history of various physical conditions and mental illness of differing degrees of severity and recurrence. That history was supported by exhibit PS-8 of his second affidavit containing records of the International Health and Medical Service. He has a possible pituitary cystic lesion (2mm) in his brain. He has chronic knee pain. He has irritable bowel syndrome with gastric reflux and other gastrointestinal symptoms. He has had opioid dependence in the past and has been diagnosed with anxiety and histrionic personality disorder. He takes a number of prescription medications, primarily for his mental illness.

62    The applicant deposes that his ongoing medical needs will not be treated if he is returned to India. He deposes that the costs and lack of medical facilities will prevent him from receiving the medical care he requires. The DFAT Country Information suggests that there is an acute shortage of health infrastructure in India and of skilled health care workers. Access to mental health care is difficult and patients are subject to stigma and discrimination.

63    I accept that if the applicant is returned to India he will not receive the same level of health care he currently receives in immigration detention. I also accept that it is likely that his mental illness will go untreated.

64    The applicant has not deposed facts relating to what, if any, family or social support networks he would have in India. Nonetheless, I take into account that the applicant has not resided in India since 2006 and has been in immigration detention since 2016. I infer that he has not been employed and in receipt of an employment income for about seven years.

65    All the above matters lead me to conclude that the applicant will face economic hardship and physical and mental health disadvantage if he were returned to India. Significantly, he is likely to be subjected to harassment, intimidation and potentially violence in connection with debts he owes to money-lenders.

66    It is highly unlikely that the applicant will be able to afford legal representation so as to maintain these proceedings from India. While the applicant’s counsel appeared pro bono on the application for interlocutory injunction and has indicated that he would be prepared to continue acting up to the filing of any further affidavits and amendment of the originating process, it would be unsafe to assume that the applicant will remain legally represented throughout these proceedings.

67    In my view, the applicant’s ability to represent himself and, if legally represented, maintain his instructions, will be significantly impeded if he were removed from Australia. In such circumstances, there is a very real prospect that due to physical harm or medical ailment he would not be able to continue to prosecute these proceedings from India.

68    Relying on MZAPC [2023] FedCFamC2G 594 at [59]-[73] and MZAPC [2023] FCA at 877 at [30], the respondents submit that the balance of convenience weighs against the grant of an injunction. The application of that part of the reasons of Judge Ladhams to the balance of convenience question is not entirely clear. That part of the reasoning was directed to the question of whether there was a serious question to be tried in those proceedings. That centred, in part, on the proper construction of s 198(6) and the duty of an officer to remove an unlawful non-citizen ‘as soon as reasonably practicable’. There were a number of difficulties with the applicant’s contention that it was not ‘reasonably practicable’ to remove the applicant while he had pending requests that the Minister exercise the powers under ss 195A, 351, 417 and 48B. The applicant’s construction of s 198(6) was rejected for various reasons none of which has any bearing on the balance of convenience question here.

69    In oral submissions, counsel for the respondents submitted that by operation of s 197C any non-refoulement obligations Australia may have are irrelevant to the exercise of the power under s 198(6). The evident point of that submission was to diminish the significance of the applicant’s evidence to the effect that he was exposed to the risk of harm at the hands of money-lenders if he were returned to India. The point here seems to be that as considerations of that kind are irrelevant to the performance of the duty under s 198(6) the Court should not permit them to interfere with the legislative intent collaterally by granting an injunction.

70    I accept that non-refoulement is irrelevant to the exercise of power and duty under s 198(6). However, the risk of harm to the applicant is not irrelevant to the question of frustration of the processes of this Court or to the interests of the administration of justice.

71    Relying on CPK20 at [15], [80]-[81]; ALY15 v Minister for Immigration and Border Protection [2017] FCA 281 at [12]; M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; (2003) 131 FCR 146 at [71]-[83], the respondents submit that the public interest in the proper administration of the Act is a strong reason why the balance of convenience lies against granting the injunction. The clear legislative intent in s 198 of the Act would be frustrated by the interlocutory injunction sought.

72    I accept that any grant of an interlocutory injunction ‘will interrupt and override the course envisaged, and required, by the legislative scheme in the Migration Act’ and there must be a ‘reasonable justification for the Court’s orders to interrupt the course which Parliament intends to occur, once a person has exhausted her or his avenues to secure a visa, including review and appeal’: CPK20 at [80]. In a public law context, prejudice to the public interest in that sense is a factor that weighs against the grant of an interlocutory injunction.

Disposition

73    There is a serious question to be tried. The real question whether the impediments the applicant will undoubtedly face prosecuting his proceedings from India and the practical loss of the utility of him remaining in Australia outweigh the interruption of the legislative scheme of the Act and the public interest in fulfilment of that scheme according to its terms.

74    Hoffmann J said in Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 at 780-781:

… I think it is important in this area to distinguish between fundamental principles and what are sometimes described as ‘guidelines’, ie useful generalisation about the way to deal with the normal run of cases falling within a particular category. The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the ‘wrong’ decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’ in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.

75    In this case, granting an interlocutory injunction is the course that carries the lower risk of injustice. In so doing, I accept that ‘risk of injustice’ in the context of public law and impeding or frustrating legislative intention falls within the concept of ‘injustice’ for the purposes of assessment of that risk. But, here, the countervailing and greater risk of injustice is that of frustrating the Court’s supervisory jurisdiction that entails ensuring that the exercise of executive power takes place within the legislative limits of that power.

Associate:

Dated:    21 August 2023