Federal Court of Australia

AUR23 v Commonwealth of Australia [2023] FCA 1394

ORDERS

THE COURT ORDERS THAT:

1.    The prospective respondents, including by their servants and agents, be restrained from removing the prospective applicant from Australia:

(a)    Until 4.00 pm on 20 November 2023; or

(b)    If the prospective applicant files an originating application in relation to the subject matter of this application on or before 4.00 pm on 20 November 2023, subject to further order of the Court.

2.    Costs be reserved.

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

REASONS FOR JUDGMENT

HESPE J:

Introduction

1    This matter is an urgent application which was brought before me on 9 November 2023 as the Victorian General Duty Judge. The orders sought by the prospective applicant are:

(1)    Until further order, the prospective respondents, including by their servants and agents, be restrained from removing the prospective applicant from Australia; and

(2)    If this application is opposed, the prospective respondents pay the prospective applicant’s costs.

2    For the reasons below, I have decided to grant an interlocutory injunction.

3    Like the application the subject of the decision of Rofe J in AOZ23 v Commonwealth of Australia [2023] FCA 1312, the application is made in the shadow of the High Court’s decision in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10; (2023) 97 ALJR 214.

4    The applicant is a citizen of Jordan. He arrived in Australia as an unauthorised maritime arrival on 13 April 2013. On 11 July 2017, the applicant lodged an application for a Safe Haven Enterprise visa (a category of protection visa). The application was refused on 14 November 2018. On 17 December 2018, the Immigration Assessment Authority (IAA) affirmed the refusal decision. No application for judicial review of the IAA’s decision was made. No action was taken to remove the applicant from Australia at that time.

5    Section 46A of the Migration Act 1958 (Cth) essentially precludes an unauthorised maritime arrival from making an application for a visa. Section 46A(2) confers a discretion on the Minister to determine that s 46A(1) does not apply to an applicant. Section 48A of the Act precludes a non-citizen who, while in the migration zone, has made an application for a protection visa and that application has been refused, from making a further application for a protection visa whilst in the migration zone. Subject to certain criteria, s 48B empowers the Minister to determine that s 48A does not apply.

6    The applicant made a request for intervention under ss 46A and 48B of the Act on 11 January 2023. This request was purported to be finalised on 18 January 2023 by the Department of Home Affairs without referral to the Minister.

7    On 28 March 2023, the applicant commenced proceedings NSD277/2023 in the Sydney Registry of this Court. The Minister gave an undertaking to give three clear business days’ notice of any proposed removal from Australia.

8    The High Court handed down its decision in Davis on 12 April 2023. On 5 September 2023, the Minister accepted that the decision not to refer the applicant’s request for intervention to the Minister was unlawful and the proceedings were dismissed by consent.

9    It was accepted in this matter that as at 9 November 2023, there has been no referral by an officer of the Department of the applicant’s request to the Minister for consideration. At present, there are also no lawful instructions from the Minister to not bring to his attention the existence of requests (based on objectively ascertainable criteria). The basis for the request for Ministerial intervention was to permit the applicant to lodge a fresh protection visa application.

10    On 1 November 2023, the applicant was informed that he was to be removed from Australia on or after 11 November 2023. The applicant is expected to be removed from Australia on 11 November 2023.

Principles

11    The principles concerning the grant of interim injunctive relief are not controversial. They were set out in Samsung Electronics Company Limited v Apple Incorporated [2011] FCAFC 156; (2011) 217 FCR 238 at [60]–[67]. To obtain an interlocutory injunction an applicant needs to show the existence of a prima facie case and that the balance of convenience favours the grant of an injunction. The two are related enquiries.

Prima Facie Case

Contentions of the parties

12    The applicant intends to bring a judicial review proceeding seeking mandamus to compel the departmental staff to bring the s 48B request to the Minister’s attention.

13    The applicant relies on the reasons of Charlesworth J in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; (2021) 288 FCR 23 at [259]–[262] (Davis FCAFC) where her Honour concluded that mandamus is available to compel a departmental officer to bring an intervention request to the Minister’s attention (with Griffiths J agreeing at [87]). Justice Mortimer (as the Chief Justice then was) at [121]–[122], and Besanko J at [52], expressed reservations at that conclusion. Justice Kenny did not address the question.

14    The applicant submits that the removal duty in s 198 of the Act is not absolute and, in particular, that the “as soon as reasonably practicable” requirement must fit within the scheme of the Act as a whole, relying upon WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463 at [115] where their Honours (Kenny and Mortimer JJ (now Mortimer CJ)) stated:

…The use of the statutory phrase ‘as soon as reasonably practicable’ in s 198 is to be understood as allowing for the duties in s 198 to remove a person to be performed in a way which accommodates other aspects of the statutory scheme of the Migration Act, and — for that matter — other relevant and non-statutory exercises of executive power, such as inquiries about whether there is a third country which may be willing to accept a person removed from Australia, or negotiations about an assertion of statelessness, or a denial of nationality by a putative receiving state.

15    The applicant contended that his case was indistinguishable from that in AOZ23 where an interlocutory injunction was granted. In that case, Rofe J said at [14]:

The compellability of non-statutory executive action is an issue on which there is diverging Federal Court opinion. I consider that, for that reason, there is a prima facie case that should be ventilated before the Court. I consider that the balance of convenience favours granting a short injunction to enable the applicant to commence the judicial review proceeding. First, to preserve the subject matter of the prospective proceeding and, second, due to the potential harm to the applicant if he is removed to Sri Lanka.

16    The Minister appeared to accept that the issue of whether mandamus was available to compel the departmental staff to refer a request to the Minister was undecided. However, the Minister contended that to show a prima facie case, it was also necessary to show a sufficient connection between the interlocutory relief and the final relief sought.

17    The Minister contended that here, the final relief sought was mandamus to compel the referral of the request to the Minister. But, having regard to s 48B(6), that form of final relief could not prevent the removal of the applicant from Australia. Section 48B(6) is in the following terms:

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.

A corresponding provision appears in s 46A(7).

18    The Minister’s power is non-compellable and the Minister can choose to make no decision.

19    The Minister relied upon the following authorities:

(1)    Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433 where at [23], Rofe J stated:

Further, the interlocutory relief sought by the applicant does not have the requisite connection to the substantive relief sought. As noted by counsel for the Minister, an outstanding application for ministerial intervention does not prohibit the Department from removing an individual pursuant to s 198(5) of the Act. Even if the substantive relief was granted by the Court at a future date, the applicant would not have a basis to avoid removal and would have no legal right to remain in Australia. The Minister’s obligation under s 198(5) to remove an unlawful non-citizen persists despite any unresolved application for ministerial intervention…

(2)    MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877 where at [30], [43] and [44] Colvin J stated:

[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.

…

[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'.

(3)    BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 995, where Rares J stated at [35], [36], [44], [45], [46] and [54]:

[35]     …The appellant submitted that during the time in which unspecified officers had to follow and implement the Minister’s written instructions in the Guidelines in respect of his s 48B request, another officer could not be obliged to remove him under s 198(6) because the Minister was considering the exercise of his personal power through the process that the Guidelines mandated.

[36]    I reject that argument. In construing the clear words of s 198(6) in light of the requirements in s 197C(1) and (2), 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 s 48B. The Parliament could be expected to have contemplated that the Minister could, and probably would, put in place guidelines to filter out, from being brought to his attention, what would be likely to be very numerous applications that would not be appropriate for his individual personal consideration, so as to limit to particular classes of case matters that required his personal evaluation of the national interest.

…

[44]     I reject the appellant’s construction. It would be odd that the Parliament had specifically imposed a pre-condition for the duty of an officer in s 198(6)(d) to remove, as soon as practicable, an unlawful non-citizen that he or she had not made a valid application for a substantive visa and where s 197C(1) and (2) prescribe that Australia’s non-refoulement obligations are irrelevant to the performance of that duty, but somehow omitted to enact expressly that it was also essential there be no valid, but undetermined, request for the personal exercise of the Minister’s non-compellable powers under s 48B and numerous other provisions in the Migration Act analogous to it: DB Management 199 CLR at 338 [34]-[35].

[45]     The construction of s 198(6) which the appellant urges would be contrary to the statutory scheme in ss 48A, 48B and 197C. That scheme limits the entitlement of an unlawful non-citizen to make one or more further substantive applications for a protection visa, with the consequence that officers will have the duty under s 198, in appropriate cases, to remove him or her as soon as reasonably practicable, because, as s 197C provides, Australia’s non-refoulement obligations are irrelevant to the performance of that duty.

[46]     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.

…

[54]     As s 48B(6) expressly provides, there is no compellable duty of the Minister, or any officer of the Commonwealth, to process a request under s 48B(1) at all or within any particular time. The scheme of the Migration Act for the reasonably prompt removal of persons who satisfy the criteria or preconditions in s 198(6) would be frustrated by an implication in the terms of the nature for which the appellant contends. That implication does not seem to make sense with either the literal words or the ordinary and natural meaning of s 198(6), read alone or in the context of s 197C (which makes Australia’s non-refoulement obligations, that a request under s 48B(1) seeks to enliven, irrelevant to an officer’s duty to remove an unlawful non-citizen) as soon as reasonably practicable and the personal and non-compellable powers conferred on the Minister by s 48B.

(4)    ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1326, where Wigney J stated at [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…

20    It followed, according to the Minister, that:

(1)    Mandamus could not issue to compel the Minister to either consider a request or to consider whether to consider the grant of a request. The applicant had no entitlement to have the Minister consider his request.

(2)    A referral to the Minister could not qualify or otherwise modify the statutory duty under s 198(6) to remove the applicant from Australia “as soon as reasonably practicable”. There was no express reference in s 198 which qualified the circumstances in which removal must occur by reference to any of the powers in s 48B or s 46A.

(3)    Even if the applicant were successful in obtaining the final relief to be sought, there would be no basis for an injunction preventing his removal from Australia. The authorities of this Court made it clear that a request made under s 48B is not a ground for an injunction against removal from Australia: Marya, MZAPC, BJM16 and ASU22. It necessarily followed that s 198(6) could not be construed as subject to a duty to refer the request to the Minister.

21    Not surprisingly, each party sought to distinguish the circumstances of the authorities relied upon by the other party.

22    The Minister contended that AOZ23 was distinguishable because there was no consideration in that decision of the connection between the interim relief sought and the final relief to be obtained by the applicant.

23    The applicant contended that each of Marya, MZAPC, BJM16 and ASU22 were distinguishable because none of those cases were considering the duty of departmental staff to bring an application to the attention of the Minister and none were concerned with an injunction to permit the performance of that duty.

24    The Minister accepted that in Marya, the Minister had personally considered the non-citizen’s request and it is not apparent what final relief was being sought.

25    The Minister accepted that the contention put in MZAPC was not the same as the argument put in this case because the argument in that case appeared to be that the Act required that a person not be removed “until it is clear whether the Minister is going to consider the request”. Here, the argument appears to be that s 198 be construed as accommodating a duty on ministerial staff to refer a request to the Minister. Although accepted as “subtly different”, even if that duty was performed, and the request brought to the attention of the Minister, one would “run squarely” into the proposition rejected by Colvin J at [30]. If bringing the request to the Minister’s attention cannot be a basis for restraining removal, it cannot matter that the request is yet to be brought to the Minister’s attention.

26    In BJM16, Rares J rejected an assertion that under s 198(6) an officer could have no duty to remove a non-citizen whilst officers were engaged in following processes for consideration of a s 48B request. The final relief sought in that case was an injunction restraining removal pending the Minister’s resolution of the non-citizen’s request. The Minister accepted that there was no argument about the availability of mandamus requiring a departmental officer to bring the request to the Minister’s attention addressed in that case.

27    The Minister further contended that although the applicant’s request had not been referred to the Minister it could not be said that there was a prima facie case that mandamus would be granted. Before mandamus can issue, the applicant must demonstrate the non-performance of the duty. The Minister relied upon the following statement of Gummow J in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 at [41]:

With respect to mandamus, there are two species of failure to act or to decide: actual failure and constructive failure. Delay may be such as to show that there has been an abdication or abandonment of the statutory function to proceed in the matter…

28    It was said that any delay in the present case was not such as to amount to an abdication or abandonment.

Consideration

29    Many of the Minister’s submissions go to the question of whether a non-statutory compellable duty is consistent with the statutory scheme. Administrative action is sourced in and controlled by the statute (see Davis at [89] (Gordon J)). The existence, scope and content of an implied non-statutory duty to refer a request to the Minister is controlled by the scheme of the Act as a whole. It seems to me that many of the Minister’s submissions, if accepted, might call into question the existence of a compellable duty on ministerial staff to refer a request to the Minister in circumstances where there is no compellable duty on the Minister to exercise his power or even to consider to exercise his power. However that is not a matter to be resolved by me as duty Judge in the context of an application for an urgent interlocutory injunction.

30    If the duty exists and its performance can be compelled, the question of the interaction of that duty and the statutory obligation to remove a non-citizen “as soon as reasonably practicable” would arise for consideration. The authorities relied upon by the Minister support the proposition that such a duty could not indefinitely restrain removal. There does seem to me to be an open question as to whether, if there is such a compellable duty to refer, the obligation to remove is to be read as subject to the allowance of some reasonable time to allow that duty to be performed and how such a reasonable period might be determined. This is in circumstances where the evidence before the Court was that, as at 31 August 2023, there were 1,058 requests for Ministerial intervention under ss 46A and/or 48B of the Act of which 403 had been referred to the Minister.

31    Taking the applicant’s case at its highest, one accepts that there is a duty, performance of which can be compelled by mandamus, to refer a request to the Minister. If there is a right to have the Minister be made aware of the request (Davis FCAFC at [262] (Charlesworth J)) that sounds in a compellable duty to refer, removal from Australia would negate that right and duty. If the duty exists, the only purpose of interlocutory relief in these circumstances is to preserve the subject matter to enable an application for judicial review to be made.

32    This application for an interlocutory injunction would not be supportable if the applicant’s request is in fact referred to the Minister. The applicant attempted to contend that even if the matter had been referred to the Minister, the authorities of Marya, MZAPC, BJM16 and ASU22 are open to question because “post-Davis” it was to be accepted that judicial review is “available for non-statutory executive power”. Just what was meant by this contention is not entirely clear but is not a matter that needs to be resolved in the present application.

Balance of cOnvenience

33    The Minister quite properly conceded that there are obviously serious consequences to the applicant if removed from Australia which are significant in weighing the balance of convenience.

34    However, there are factors in the present case which temper that balance to some degree. The applicant requires Jordanian travel documents in order to be removed to Jordan. It takes on average six months to obtain such documents. The current travel document expires on 23 November 2023. If an injunction is granted this would be the second occasion on which travel documents were issued in respect of the applicant and not used. The Jordanian Embassy asked for an explanation as to why the last set of documents expired without use and the evidence is that there is a perception by officers in the Department that if such documents were to expire again, the relationship with the Jordanian Embassy would be affected.

35    I consider that the balance of convenience weighs in favour of the grant of an injunction.

CONClusion

36    It seems to me that on balance an interim injunction is to be granted to permit the applicant to file an application for judicial review. Given the travel document expires on 23 November 2023, the applicant is to file an originating application by 20 November 2023.

Associate:

Dated:    10 November 2023