Federal Court of Australia

Shi v Commonwealth of Australia [2024] FCA 231

ORDERS

THE COURT ORDERS THAT:

1.    The application for interlocutory relief is dismissed.

2.    The applicant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

Revised from transcript

KATZMANN J:

1    This is an application for an interlocutory injunction to restrain the Commonwealth, the Secretary of the Department of Home Affairs and the Minister for Immigration, Citizenship and Multicultural Affairs from removing the applicant, Wuwei Shi, from Australia. The application was filed yesterday. The intention is to remove Mr Shi this coming Monday, that is three days from today. Mr Shi is presently detained at the Yongah Hill Immigration Detention Centre in Western Australia and is scheduled to travel from Perth to Sydney on Sunday evening to join a flight from Sydney to Shanghai on Monday morning.

2    The application is supported by two affidavits sworn by Mr Shi’s solicitor, Yufeng Du. In opposing the application the respondents rely on an affidavit of Madisen Anne Scott, an AGS Lawyer, affirmed yesterday.

3    Mr Shi is a citizen of the People’s Republic of China and an “unlawful non-citizen” within the meaning of that term in the Migration Act 1958 (Cth).

4    He arrived in Australia in August 2007 when he was 15 years old as a dependent child on his mother’s subclass 309 Spouse (Provisional) visa. Since then he has held a succession of visas, most recently a class BB subclass 155 Five Year Resident Return visa. That visa was cancelled on 25 June 2020 under s 501(3A) of the Migration Act after Mr Shi was sentenced to 14 months imprisonment for possession of child exploitation material, which is an offence under s 220 of the Criminal Code (WA). Section 501(3A) of the Migration Act relevantly imposes a duty on the Minister to cancel a non-citizen’s visa if the Minister is satisfied that the non-citizen does not pass the character test because he has a substantial criminal record within the meaning of s 501(7)(c) (in that the person has been sentence to a term of imprisonment of 12 months or more) and is serving a full-time sentence of imprisonment. Mr Shi made representations to the Minister that the cancellation be revoked but the Minister was not satisfied that it should be revoked. Mr Shi applied to this Court to have that decision set aside for jurisdictional error but his application was dismissed (Shi v Minister for Home Affairs [2022] FCA 708) and an appeal from that judgment was dismissed (Shi v Minister for Home Affairs [2023] FCAFC 136). No application for special leave to appeal to the High Court has been filed.

5    On 18 January 2021, after his resident visa was cancelled and the Minister had declined to revoke the cancellation and while his judicial review application was pending, Mr Shi applied for a protection visa. That application was considered by a delegate of the Minister and refused. Mr Shi applied to the Administrative Appeals Tribunal for review of that decision on its merits. On 14 October 2021 the Tribunal affirmed the delegate’s decision and no application has been made for judicial review of that decision. The evidence is that Mr Shi has no extant visa applications or any extant applications for judicial review which relate to any decision under the Migration Act.

6    Upon the cancellation of his visa Mr Shi became an unlawful non-citizen. Section 189(1) of the Migration Act imposes a duty on an officer (defined widely in s 5) to detain a person in the migration zone (other than an excised offshore place) whom the officer knows or reasonably suspects is an unlawful non-citizen,. Accordingly, upon his release from prison on 7 January 2021, Mr Shi was taken into immigration detention where he remains.

7    Section 198(6) of the Act provides;

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.

8    With one qualification arising from a submission about a “suspension” of the duty, there is no dispute that all the conditions necessary to require the discharge of the duty in s 198(6) are satisfied in this case.

9    On 20 December 2023 Mr Shi, through his solicitor, wrote to the Minister requesting him to exercise his power under either s 417 or s 195A of the Migration Act to grant Mr Shi a visa.

10    Each of these provisions gives the Minister a power to make two distinct decisions: a procedural decision to consider whether to make a substantive decision and a substantive decision: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [53]. Each of those powers may only be exercised if the Minister considers it is in the public interest to do so. Each may only be exercised by the Minister personally. And neither power is compellable: SZSSJ at [53]. Indeed, the Act expressly provides that the Minister does not even have a duty to consider whether to exercise these powers.

11    Section 417 confers a power on the Minister to substitute a more favourable decision for a decision of the Tribunal affirming a decision to refuse to grant a protection visa. It relevantly provides:

(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.

(2)    In exercising the power under subsection (1) on or after 1 September 1994, the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

(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.

12    Section 195A gives the Minister the power to grant a person who is detained under s 189 a visa of a particular class regardless of whether the person has applied for the visa. It provides:

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).

(3)     In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.

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.

…

13    On 29 February 2024 the Minister’s Department referred Mr Shi’s request to the Minister and invited the Minister to indicate whether or not he wished to consider exercising either or both of those powers.

14    In the meantime, on 13 February 2024 Mr Shi was invited to sign a Request for Removal from Australia form. He refused to do so. On 16 February 2024 the Chinese Consulate issued a three-month permit to enable him to travel to China. And on 20 February 2024 Mr Shi was notified of the intention to remove him from Australia. He has been assessed as fit to travel.

15    On 4 March 2024 Mr Shi’s solicitor wrote to the Minister asking for information and seeking an undertaking not to remove Mr Shi from Australia unless and until he makes a decision and provides Mr Shi and his lawyers with that decision, failing which he would seek a court order.

16    On 5 March 2024 Mr Shi was advised that no such undertaking would be given and that the removal would proceed as scheduled, unless otherwise ordered.

17    On 6 March 2024 Mr Shi filed an application seeking the following relief under s 39B of the Judiciary Act 1903 (Cth):

1.    A declaration that the decision of the second respondent to refer, to the third respondent, requests made by the applicant on 20 December 2023 for Ministerial intervention under s 195A and s 417 of the Migration Act 1958 (the Act) (the Requests) was not made according to law.

2.    A declaration that for so long as the third respondent has not made a decision in relation to the Requests, it is not reasonably practicable to remove the applicant from Australia under s 198(1) of the Act.

3.    Until further order, the respondents, including their servants and agents, be restrained from removing the applicant from Australia

4.    An order that the respondents pay the applicant’s costs.

The second respondent is the Secretary of the Department of Home Affairs. The third respondent is the Minister.

18    It is common ground that in order to succeed Mr Shi needs to persuade the Court that he has a prima facie case for relief and that the balance of convenience favours the grant of the interlocutory injunction. The first question involves an inquiry into whether, if the evidence remains as it is, there is a probability that at the final hearing he will be held to be entitled to the relief he seeks. The strength of the probability required depends on the nature of the rights asserted by the applicant and the practical consequences likely to follow from the order he seeks. See Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65][72]; Plaintiff M168/10 v Commonwealth of Australia [2011] HCA 25; 85 ALJR 790; 279 ALR 1; 122 ALD 1 (Crennan J) at [15].

19    I am not persuaded that there is a prima facie case for relief.

20    The first declaration is difficult to understand in the absence of particulars. Mr Shi’s written submissions did not address it.

21    In oral argument, Mr Poynder of counsel, who appeared for Mr Shi, conceded that there was no basis for the first declaration and did not press it “at this stage”. It was sought on the assumption that the Minister had at least embarked on a consideration of whether to exercise the power in s 195A or 417. Mr Poynder argued that there were prejudicial comments in the Departmental submission that could vitiate the Minister’s decision for apprehended bias. Mr Poynder made it clear that any bias, whether apprehended or actual, giving rise to legal error would be that of the Minister in deciding whether or not to exercise his powers under s 195A or s 417. The evidence in Ms Scott’s affidavit, however, reveals that the Minister has not embarked on such a consideration and has given no indication that he ever will.

22    The basis for the second declaration and the injunction is that as long as a request has been made of the Minister to exercise his power under s 195A or 417 and the Minister has not completed his consideration, it is not “reasonably practicable” to remove him (and therefore the duty imposed on an officer to remove the unlawful non-citizen is “suspended”) until the consideration is complete. In short, Mr Shi’s claim is that because he has requested the Minister to exercise his non-compellable power, it is not reasonably practicable to remove him.

23    The same or similar arguments were rejected in three judgments of this Court – MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877; BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 995 and ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1326.

24    In MZAPC Colvin J refused leave to appeal from the dismissal of an application for an interlocutory injunction to restrain the removal of an unlawful non-citizen from Australia where the applicant had requested the Minister to exercise his personal non-compellable powers under four sections of the Migration Act, including ss 195A and s 417.

25    In that case, the applicant submitted that it would not be reasonably practicable for a person to be removed while there was a “pending request” and so the duty to remove him did not arise. He also submitted that it was necessary to harmonise the provisions allowing for a request to be made to the Minister with the terms of s 198 by interpreting the Migration Act so as to require that a person not be removed until it is clear whether the Minister is going to consider the request or not.

26    His Honour rejected these submissions for several reasons. It is sufficient for present purposes to refer to what his Honour said at [40] and [43]–[45].

27    At [40], his Honour said:

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

28    And at [43]-[45], his Honour said:

[Section] 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, section 197C(2) provides that an officer’s duty to remove under section 198 arises irrespective of whether there has been an assessment according to law of Australia’s non-refoulment obligations. Section 197C(3) provides that section 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 section 197C(7)) in a circumstance prescribed by regulation. Further, section 198 deals in considerable detail with the various circumstances in which an unlawful non-citizen must be removed from Australia.

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”.

Finally, there was no answer to the Minister’s submission [which was made in the present case as well] that the contentions advanced would allow for rolling requests as a means of deferring removal from Australia.

29    The contention in BJM16 was that there was an implication in s 198(6) that the duty imposed on an officer to remove the person as soon as reasonably practicable had to be postponed while there was a realistic possibility that the Minister would consider exercising his personal non-compellable power to lift the bar under s 48B(1) to enable the applicant to apply for a further protection visa after his initial application had been refused (at [27]). The applicant in that case submitted that unless s 198(6) were construed to contain the proposed implication, removing him from Australia would defeat the purpose of the power (at [28]). A similar argument was put in the present case.

30    In BJM6 at [36] Rares J observed that:

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.

31    His Honour rejected the construction urged upon him by the applicant, saying at [44]–[47]:

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.

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.

… 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.

32    That reasoning, like the reasoning in MZAPC, is apposite in the present case. An application for special leave to appeal was refused on the basis that an appeal would not have sufficient prospects of success: BJM16 v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCASL 204.

33    In ASU22 the applicant’s principal argument was that he had lodged a request with the Minister that he exercise his powers under s 48B. In that case, the request had been lodged but not considered. Wigney J said (at [27]) that in circumstances where the Minister is not obliged to consider, let alone act upon, a request, “it cannot be the case that the mere making of a request for Ministerial intervention could somehow prevent or even delay the [discharge of the] duty under s 198(6)”. His Honour proceeded to endorse the reasoning in BJM16 (at [28]–[30]), holding that Rares J was correct to find that the mere making of a request for Ministerial intervention cannot qualify or restrict the duty to remove an unlawful non-citizen from Australia.

34    Mr Poynder did not submit that these judgments were wrong. Rather, he submitted that they were distinguishable because, in contrast to the present case, the relief sought in the above cases was mandamus. No support for the submission can be found in the judgments. In any event, the fact that declaratory relief is sought in the present case is not a proper basis for calling into question the correctness of the reasoning in those judgments, which applies equally here.

35    Mr Poynder relied on HBMH v Commonwealth of Australia (No 2) [2024] FCA 8. In particular, he relied on the following statement at [28]:

As Kenny and Mortimer JJ observed in WKMZ [WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463] (at [115]), the differences in the repositories of the powers and obligations to remove (an officer) and the ministerial powers of intervention (Minister) “should be read as allowing the executive to, in effect, communicate to an officer that the time has not yet come to perform the duties imposed by s 198 unless and until [relevantly, the executive has completed its consideration of the exercise of one of the ministerial powers of intervention]”.

36    In that case the applicant requested ministerial intervention under s 195A of the Migration Act. He was also a member of a cohort of persons detained under s 189 of the Act in respect of whom the Minister had made a procedural decision to consider exercising his power under s 195A or s 197AB. In relation to the applicant’ individual request, the Minister decided not to consider exercising the power under either section. In relation to the cohort, however, the Minister accepted a recommendation from the Department, accompanied by a submission, that the Minister consider exercising his power.

37    Feutrill J held that it was reasonably arguable that the effect of a decision by the Minister to agree to a recommendation of his Department and the accompanying submission was that the Minister had made a procedural decision to consider the exercise of the power under s 195A or 197AB with respect to a cohort of persons detained under s 189 that included people in the applicant’s position (at [22], [37]). His Honour also held that it was reasonably arguable that it would be legally unreasonable to make a decision not to consider the exercise of the power under s 195A based in part on accepting as true allegations of sexual and criminal conduct without notice to the applicant and affording him an opportunity to be heard (at [63]). And he held that it was at least arguable that if the applicant is successful in demonstrating that the process by which the Minister made his decision was flawed, the applicant would be entitled to declaratory relief to that effect (at [66]). His Honour explained at [67] that “the foundation for restraining the respondents from removing the applicant from Australia would, in effect, be limited to preserving the subject matter of the proceedings —the applicant’s asserted entitlement to a declaration as to the flawed ministerial decision-making process”.

38    Mr Poynder claims that the position in the present case is analogous as here the request for Ministerial intervention has been forwarded to the Minister but no decision has been made, either procedural or substantive, and if Mr Shi is removed from Australia the subject matter of the application will not be preserved.

39    But the position is not analogous to the position in HBMH. That is because, in contrast to the present case, in that case the Minister had embarked on the decision-making process, by reading the Departmental submissions, and making two procedural decisions. And the remarks at [28] in which WKMZ is mentioned must be read in their proper context. That context is clear from what his Honour said at [27] and the beginning of [28] before the remarks upon which Mr Shi relied:

The lawfulness of continued executive detention must have foundation in the performance of a legitimate and non-punitive statutory purpose. Therefore, continued detention for the purposes of the secretary undertaking non-statutory inquiries, even if ultimately for the purpose of informing the possible exercise of one of the Minister's powers of intervention under the Act is not legitimate. On the other hand, detention for the purpose of the secretary undertaking inquiries at the direction of the Minister after the Minister had made a decision to consider the exercise of a power of intervention would have a statutory and therefore legitimate purpose and be lawful. Plaintiff M61/2010E at [62]-[65], [70]-[71].

It is implicit from the lawfulness of continued detention while inquiries are undertaken that the time for performance of the obligation or duty under section 198 is deferred or has not arisen because the non-citizen is then subject to statutory consideration for the grant of a visa.

It is at this point that the reference is made to the observations of Kenny and Mortimer JJ in WKMZ at [115].

40    Moreover, the subject matter of the application will not be destroyed, because the Minister can exercise the power in s 417(1) even if Mr Shi is removed from Australia.

41    Mr Poynder also drew attention to AOZ23 v Commonwealth of Australia [2023] FCA 184 (which I was informed has been appealed), in which Snaden J granted an injunction to prevent the removal of an unlawful non-citizen in circumstances in which the Department had made no decision whether to refer the request to the Minister. But that case is also distinguishable because it was concerned with the same situation as Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 23 in which the Full Court held that mandamus is available to compel a departmental officer to bring an intervention request to the attention of the Minister. Of course, that situation does not arise here, because the intervention request was brought to the attention of the Minister, even if the Minister has not yet embarked on considering it.

42    Having regard to the conclusion I have reached it is unnecessary to consider where the balance of convenience lies. It is sufficient to note that the fact that Mr Shi’s request may still be considered even if he is removed weighs in the respondent’s favour.

43    For these reasons I dismiss the application for interlocutory relief. Costs should follow the event. There will be order accordingly.

Associate:

Dated:    8 March 2024