Federal Court of Australia

ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1326

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the application.

3.    The name of the first respondent be amended to the “Minister for Immigration, Citizenship and Multicultural Affairs”.

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

REASONS FOR JUDGMENT

(Revised from transcript)

WIGNEY J:

1    The applicant is a citizen of Malaysia. He arrived in Australia as long ago as April 2017 as a holder of an electronic travel authority visa which permitted him to stay in Australia for a relatively short period. Shortly prior to the expiry of that visa, however, the applicant applied for a protection visa and was granted a bridging visa in connection with that application. Unfortunately for the applicant, however, his bridging visa was later cancelled by a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs. Even more unfortunately for the applicant, his protection visa application was refused. He has been in immigration detention since December 2021.

2    The applicant’s unsuccessful protection visa application has since been the subject of both administrative and judicial review. I will provide further detail concerning that litigation shortly. It suffices at this point to note that the applicant’s administrative and judicial review applications were unsuccessful, and he has exhausted his rights of appeal. He is, as a result, an unlawful non-citizen for the purposes of the Migration Act 1958 (Cth) and he has been advised that he will be removed from Australia tomorrow. The application which he has filed today is a last-ditch effort to stave-off his removal from Australia so he can seek to persuade the Minister to permit him to lodge another protection visa application. He maintains that if he is returned to Malaysia he will suffer serious harm.

3    For the brief reasons that follow, the applicant’s application for an interlocutory injunction restraining the Minister from removing him from Australia, which I heard on an urgent basis as duty judge, must be dismissed. In short, the applicant’s last-minute request for Ministerial intervention provides no basis for restraining the Minister from removing the applicant from Australia as effectively required by the scheme in the Migration Act.

The applicant’s attempts to secure a protection visa

4    It is necessary to provide a little more detail concerning the history of the applicant’s attempts to secure a protection visa.

5    As has already been noted, the applicant arrived in Australia on an electronic travel authority visa in April 2017. Shortly before the expiry of that visa on 22 June 2017, he applied for a protection visa. It is unnecessary to detail the basis of his protection visa application, save as to note that the applicant claimed that he would be persecuted or seriously harmed if he was returned to Malaysia.

6    A delegate of the Minister refused to grant the applicant a protection visa. That decision was made on 4 October 2017.

7    Shortly thereafter, the applicant lodged a review application in the Tribunal in respect of the delegate’s decision. For reasons that are presently unclear, it took the Tribunal some considerable time to hear that application. The applicant eventually appeared at a hearing before the Tribunal on 8 February 2022. Two days later the Tribunal affirmed the delegate’s decision to refuse the applicant’s protection visa application.

8    The applicant next filed an application in the Federal Circuit and Family Court of Australia (FCF Court) seeking judicial review of the Tribunal’s decision. Unfortunately for the applicant, that application was also unsuccessful. On 27 July 2022, the FCF Court dismissed the application: ASU22 v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 654.

9    The applicant had a right of appeal to this Court from the FCF Court. He did not, however, file an appeal within the prescribed time as required by r 36.06 of the Federal Court Rules 2011 (Cth).

10    It would appear that the applicant has applied for various other visas on 14 January 2022, 28 March 2022, 20 April 2022, and 21 April 2022. Each of those visa applications was an application for a form of bridging visa and each was refused on the basis that the application was invalid.

11    On 11 October 2022, some months after the FCF Court’s dismissal of his judicial review application, the applicant applied to this Court for an extension of time to appeal from the FCF Court’s decision. That application did not fare any better than the applicant’s previous applications. On 9 August 2023, a judge of this Court dismissed the extension of time application: ASU22 v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FCA 927. It is unnecessary to address in detail the reasons for refusing the application. It suffices to note that the judge found that none of the proposed appeal grounds had any reasonable prospects of success.

12    It was at this point that the applicant had exhausted his rights of review and appeal in respect of his protection visa application. He was at this time, and still is, an unlawful non-citizen: see ss 13 and 14 of the Migration Act. He is not an Australian citizen and does not hold a visa which permits him to remain in Australia. He is in immigration detention pursuant to s 189 of the Migration Act.

13    In those circumstances he is, by force of s 198 of the Migration Act, required to be removed from Australia. Relevantly, s 198(6) of the Migration Act provides as follows:

An officer must remove as soon as reasonably practicable an unlawful non citizen if:

(a)     the non citizen is a detainee; and

(b)     the non citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c)     one of the following applies:

(i)     the grant of the visa has been refused and the application has been finally determined;

(ii)     the visa cannot be granted; and

(d)     the non citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

Intention to remove the application from Australia

14    On 4 October 2023, the applicant was given notice of his intended removal from Australia by the Australian Border Force pursuant to s 198 of the Migration Act.

15    The receipt of that notice prompted the applicant to file a further application in the FCF Court. That application, which was filed on 13 October 2023, sought an extension of time to file a second judicial review of the Tribunal’s decision. He also sought an interlocutory injunction restraining his removal from Australia. It would appear that the purpose of the injunction was to permit his second review application to be heard and determined.

16    The FCF Court dismissed the application for an interlocutory injunction very shortly before the hearing of this application: ASU22 v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FedCFamC2G 938. The judge who heard and determined the application, Goodchild J, held that there was no serious question to be tried. Her Honour found that, even putting to one side the fact that the application was a second attempt at judicial review of the Tribunal’s decision, there was no apparent merit to any of the grounds of review which the applicant sought to agitate. Her Honour also held that the “public interest in the proper administration of the Migration Act” weighed against the grant of an injunction (at [49]).

Request for Ministerial intervention

17    Two days ago, on 16 October 2023, the applicant lodged a request for Ministerial intervention pursuant to s 48B of the Migration Act. The general effect of s 48B(1) is that the Minister may, if it is considered to be in the public interest to do so, permit an applicant to lodge a protection visa application in circumstances where s 48A of the Migration Act would otherwise prevent that from occurring. Section 48A of the Migration Act prevents a person from making a protection visa application in circumstances where a previous application has been refused.

18    Importantly, s 48B(6) provides that 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.”

19    The evidence indicated that the Minister received the request for Ministerial intervention on 16 October 2023. The letter acknowledging receipt simply noted that the applicant would be advised of the “outcome of this request when it is available”.

20    As will be seen, the applicant’s case for an interlocutory injunction hinged on the fact that he had sought Ministerial intervention.

The applicant’s claim for injunctive relief

21    The applicant advanced three reasons why the Minister (or an “officer” as defined in s 5 of the Migration Act) should be restrained from performing the duty under s 198(6) of the Migration Act in removing him from Australia.

22    First, he relied on the fact that he had lodged a request to the Minister to exercise his powers under s 48B of the Migration Act. In effect, he submitted that he should not be removed from Australia unless or until the Minister had considered and determined that request.

23    Second, the applicant contended that if he was returned to Malaysia, he would be assaulted or apprehended by the Malaysian authorities or local police who wanted to take his land. It would appear that this was one of the primary claims the applicant made in support of his original protection visa application.

24    Third, the applicant claimed that there was a serious risk that if he was returned to Malaysia, the local authorities would detain, torture or harm him on account of his bisexual orientation. It would appear that this claim resulted from a change in the applicant’s personal circumstances and was not made in his protection visa application. It was the main reason why the applicant sought Ministerial intervention to permit him to lodge a second protection visa application.

25    The Minister opposed the applicant’s injunction application. He submitted that there was no serious question to be tried in relation to the application, and the balance of convenience did not favour the grant of an injunction. In short, the Minister submitted that none of the reasons advanced by the applicant provided any justification for preventing the Minister from carrying out the duty to remove the applicant from Australia pursuant to s 198(6) of the Migration Act.

No prima facie case or serious question to be tried

26    None of the contentions or submissions advanced by the applicant provide a basis, or even an arguable basis, for restraining the Minister from carrying out his duty to remove the applicant from Australia pursuant to s 198 of the Migration Act.

27    The applicant’s main argument hinged on the fact that he had lodged a request for Ministerial intervention that had not yet been considered or determined. The fundamental problem for the applicant, however, is that the Minister is not obliged to consider, let alone act upon, that request. In those circumstances, it cannot be the case that in the mere making of a request for Ministerial intervention could somehow prevent or even delay the Minister from carrying out his duty under s 198(6) of the Act.

28    In BJM16 v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FCA 995, Rares J effectively dismissed an argument similar to that now advanced by the applicant. In rejecting the argument, his Honour said (at [36]):

… it is difficult to think that the Parliament intended that it was possible for an unlawful non-citizen to delay the performance of an officer’s duty to remove him or her merely by making, or because he or she has made, an application for the Minister to exercise a personal power such as that in section 48B.

29    His Honour also reasoned as follows (at [46]-[47]):

Moreover, the Parliament has made clear in s 48B(6) that the Minister does not have any duty to consider under s 48B(1) whether to exercise the power to lift the bar, whether or not he is requested to do so by the non-citizen, any other person, or in any other circumstances. In this context, if the appellant’s argument were right, an officer would be prevented from removing him under s 198(6) for an indefinite period because, ultimately, the Minister may or may not decide to consider whether to exercise his personal power, including after the Department has pursued a process, such as in the Guidelines, to process whether, in accordance with the Minister’s instructions, the request should or should not be put before him.

Because the Minister’s powers under s 48B and its analogues are both personal and non-compellable, a person seeking their exercise will not be able to seek a writ of mandamus to require the Minister to make a procedural or substantive decision on a request such as one under s 48B(1). Therefore, the unlawful non-citizen could be held indefinitely in immigration detention until the request is determined, notwithstanding the express terms of ss 197C and 198(6) that require the person’s removal as soon as reasonably practicable in circumstances where Australia’s non-refoulement obligations in respect of the unlawful non-citizen are irrelevant to the performance of that duty.

30    I am not persuaded that Rares J was wrong, let alone plainly wrong in arriving at that conclusion. In those circumstances, I should follow his Honour’s judgment. In any event, in my view his Honour was correct in finding that the mere making of a request for Ministerial intervention cannot qualify or restrict the duty under s 198 to remove an unlawful non-citizen from Australia.

31    The applicant’s second contention may be dealt with shortly. The problem for the applicant is that his claim that if he was returned to Malaysia, the local authorities or police would harm him because they wanted to take his land, was the subject of his original protection visa application. The delegate and the Tribunal refused to grant the applicant a protection visa despite that claim. The applicant’s judicial review challenges to the Tribunal’s decision were also unsuccessful, including his most recent attempt to challenge the decision in the FCF Court. There is, in all the circumstances, no proper basis for this Court to revisit this claim in the context of an application for an interlocutory injunction.

32    Much the same can be said concerning the applicant’s third contention. The applicant’s claim that he fears that he will be harmed if returned to Malaysia on account of his bisexuality was not a claim he made in support of his original protection visa application. He did, however, unsuccessfully raise it in the context of his recent application in the FCF Court. Justice Goodchild found that it provided no basis for the applicant’s extension of time application to file a further judicial review application, or his application for an interlocutory injunction. Putting that to one side, the mere fact that the applicant has, in recent times, advanced a further claim relating to his fear of harm cannot provide a basis for preventing or delaying the Minister in carrying out the duty to remove the applicant pursuant to s 198 of the Migration Act. That is all the more so given that the applicant is currently not able to make a further application for a protection visa based on this new claim and there is no sound or reasonable basis for expecting that the applicant will necessarily be permitted to lodge a new application.

33    It should also be noted that, while it may perhaps be accepted that the Minister has not yet considered the request for intervention under s 46B of the Migration Act, officers of the Department recently conducted a “non-refoulment obligations assessment” regarding the applicant. It is open to infer that the officer considered the applicant’s recent claim that he fears harm in Malaysia on account of his sexuality. The officer concluded that “removal of the applicant would not be in breach of Australia’s non-refoulment obligations”.

Conclusion and disposition

34    I am, in all the circumstances, unpersuaded that the applicant has any arguable case for preventing or delaying the Minister, or an officer on his behalf, from removing the applicant from Australia in accordance with the duty under s 198(6) of the Migration Act. The mere fact that the applicant has recently sought Ministerial intervention under s 48B of the Act cannot prevent the applicant’s removal, even if that request may not have yet been considered. Nor do the applicant’s factual claims concerning fears of being harmed in Malaysia provide any basis for preventing his removal from Australia in circumstances where he has exercised and exhausted his review and appeal rights in respect of his protection visa application.

35    Of course, I fully appreciate the gravity of the applicant’s claims and have no reason to doubt that he genuinely fears that he is at risk of harm if he is returned to Malaysia. He has, however, been given every opportunity to advance his claims for a protection visa, as well as his rights of review and appeal. The clear scheme of the Migration Act is that an unlawful non-citizen in the applicant’s position must be removed. That is so despite the applicant’s last-ditch attempt to seek Ministerial intervention to permit him to agitate new protection claims.

36    There is no basis for the applicant’s application for an injunction restraining the Minister from removing him from Australia. His application must be dismissed with costs.

Associate:

Dated:    31 October 2023