Federal Court of Australia

CJR17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 932

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to amend his originating application for judicial review in terms of the document filed 14 August 2024, subject to amendment to the name of the second respondent to be consistent with paragraphs 1 and 2 of the orders of 14 August 2024 by which the Administrative Appeals Tribunal was removed and the Secretary, Department of Home Affairs was added as the second respondent.

2.    The applicant have leave to amend his interlocutory application in terms of the amended interlocutory application filed 14 August 2024, subject to the same amendment to the name of the second respondent described in paragraph 1 of these orders.

3.    Until 4.30 pm (AWST) on 5 September 2024 the respondents are restrained by themselves, their servants or agents from removing the applicant from Australia.

4.    The originating application and interlocutory application for injunctive relief be adjourned to 10.15 am (AWST) on 5 September 2024 for further order and directions.

5.    Costs be reserved.

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

REASONS FOR JUDGMENT

FEUTRILL J:

1    On 15 August 2024 I granted an injunction restraining the first respondent (Minister) and the second respondent (Secretary) from removing the applicant from Australia until 5 September 2024 at an urgent hearing before me as a duty judge. At that time, I gave brief oral reasons for my decision and indicated that I would provide more detailed written reasons later. These are those written reasons.

2    The applicant commenced proceedings by originating process filed on 8 August 2024 and, at the same time, filed an interlocutory application for an interlocutory injunction. At that time, the applicant represented himself. Between instituting the proceedings and hearing the interlocutory application, the applicant secured legal representation. After securing legal representation, the applicant filed an amended originating process and an amended interlocutory application. The parties also filed a minute of consent orders that were made on 14 August 2024 by which, amongst other things, the original second respondent (the Administrative Appeals Tribunal) was removed as a party and the Secretary was added as the second respondent in the proceedings. The respondents did not oppose the amendments to the originating application and interlocutory application and consequently, at the commencement of the hearing on 15 August 2024, I indicated that I would make orders granting the applicant leave to amend the originating process and interlocutory application in terms of the documents filed in the Court.

Background

3    The applicant is a citizen of Zimbabwe who first arrived in Australia in 2007 as the holder of a student visa. In 2009 and 2012 he was convicted of rape and assault occasioning bodily harm while armed / in company and sentenced to terms of imprisonment. In 2013 he made an application for a protection visa which a delegate of the Minister refused in 2015. The Tribunal affirmed the delegate’s decision on review in 2017. An application for judicial review of the Tribunal’s decision was dismissed by the Federal Circuit Court, as that Court was then known, in 2017. A judge of this Court dismissed an appeal from the judgment of the Federal Circuit Court in 2018. In 2019 the High Court of Australia refused an application for special leave to appeal from the judgment of this Court.

4    After his judicial review proceedings, on two separate occasions, the applicant made a request for ministerial intervention pursuant to s 48B of the Migration Act 1958 (Cth). Both requests were finalised without referral to the Minister. The Department of Home Affairs initiated a request for intervention by the Minister under s 195A or s 197AB of the Act in December 2022. The Department gave to the Minister what is described as a first stage submission in May 2023 and an updated submission in June 2024 to assist him in deciding whether to consider exercising either of those powers. The Minister requested further information in May and July 2024. There is evidence to the effect that, as at the time of the hearing, the Minister had made no decision as to whether he wishes to consider exercising either power and has given no indication if he will make a decision whether to consider exercising either power and, if so, when.

5    In the meantime, on 30 May 2024 the Embassy of the Republic of Zimbabwe issued a temporary travel document for the applicant that is valid until 30 November 2024. On 26 June 2024 the applicant was invited to sign a request for removal from Australia which he refused to sign. On 3 July 2024 the applicant made another request for ministerial intervention under s 48B of the Act. On the same day, the Department sent the applicant an acknowledgement of that request. On 11 and 22 July 2024 and 4 and 9 August 2024 the applicant sent further emails to the Department in relation to his latest s 48B request.

6    There is evidence that, as at the time of the hearing, the most recent s 48B request has not been referred to the Minister or the Assistant Minister. No decision has been made by the Minister or the Assistant Minister as to whether they wish to consider exercising the powers under s 48B. No indication has been given if the Minister or Assistant Minister will make such a decision and the Minister or Assistant Minister has given no indication if they will make a decision to exercise the powers under s 48B of the Act.

7    On 6 August 2024 the applicant was informed that his removal from Australia had been scheduled for on or after 21 August 2024. On 9 August 2024 a registered nurse from the International Health and Medical Services assessed the applicant as fit to travel. On 14 August 2024 a pre-removal clearance was undertaken and an officer of the Department formed the view that if the applicant were removed, Australia would not be in breach of its international non-refoulement obligations. The applicant was then scheduled to be removed involuntarily from Australia at 10.45 pm (AWST) on 23 August 2024.

Legislative framework

8    The Act establishes a category of visas known as protection visas that, amongst other things, are intended to fulfil the Australian Government’s obligations under international conventions: ss 35A, 36, 36A, 37A of the Act. Where an application for a protection visa has been made, and the grant of the visa has been refused, a further application for a protection visa may not be made: s 48A of the Act.

9    The prohibition under s 48A is subject to s 48B of the Act by which the Minister may ‘lift the bar’ and permit a further application for a protection visa to be made. 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.

10    The Act also creates, through a series of provisions, a regime for the detention and removal of non-citizens who do not hold a valid visa. Non-citizens without a visa are referred to in the Act as ‘unlawful non-citizens’. Unlawful non-citizens are to be detained under s 189(1) of the Act and removed under s 198 of the Act. Relevantly, s 198(6) of the Act provides:

198    Removal from Australia of unlawful non-citizens

Removal of unlawful non-citizens in other circumstances

…

(6)    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.

…

The applicant’s amended originating application

11    In the applicant’s amended originating application for judicial review he seeks an order for the issue of a writ of habeas corpus for his release from immigration detention and the issue of a writ of mandamus to require the Secretary to refer the applicant’s request for ministerial intervention pursuant to s 48B of the Act to the Minister. The applicant also seeks a final injunction to restrain the respondents from removing him from Australia.

12    For the purposes of the application for interlocutory injunction, in effect, the applicant did not press or attempt to support his application on the ground that he is entitled to relief for habeas corpus. Accordingly, that aspect of the originating application may be put to one side.

13    Insofar as the applicant seeks the issue of a writ of mandamus and final injunctive relief, the applicant contends that the Secretary is under a duty to bring the applicant’s request for ministerial intervention under s 48B to the Minister’s attention. Further, in the meantime, it is not ‘reasonably practicable’ to remove the applicant for the purposes of s 198(6), at least, until the compellable non-statutory duty on the part of the Secretary to refer his request to the Minister has been exercised and, perhaps, the Minister has had some opportunity to consider the referral. The applicant further contends that his claim for final injunctive relief would be rendered nugatory if he were removed from Australia before final determination of his originating application. In substance, the applicant promotes his case by the same path of reasoning to which Jackson J referred in HBMH v Commonwealth [2023] FCA 1527; 302 FCR 146 at [11] (with all necessary amendments to make his Honour’s description of the path of reasoning applicable to s 48B, rather than s 195A of the Act and references to s 198(6), rather than s 198(2B) of the Act).

Why the interlocutory injunction was granted

14    The principles applicable to the grant or refusal of an interlocutory injunction are well-established and need not be repeated in these reasons.

15    I am satisfied that there is a serious question to be tried on the basis of the path of reasoning to which I have referred. That path of reasoning was accepted as giving rise to a serious question to be tried in HBMH at [30] and Jackson J there relied on a number of other decisions of judges of this Court to similar effect: AOZ23 v Commonwealth [2023] FCA 1312 (Rofe J), AUR23 v Commonwealth [2023] FCA 1394 (Hespe J).

16    The respondents oppose the grant of an interlocutory injunction on the ground that the balance of convenience does not favour the applicant notwithstanding that they accept that there is, for the reasons already given, a prima facie case for mandamus. The respondents emphasise that in considering the balance of convenience, the Court must have due regard to the statutory duty in s 198 and should require a strong case or serious consequences or both to justify relief. In support of this submission the respondents rely on Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34; 302 FCR 159 at [130]. However, the statement of principle Colvin and Jackson JJ made about a strong case or serious consequences was made in a somewhat different context to the applicant’s case here. In MZAPC the applicant accepted that there was an existing and extant duty to remove him from Australia under s 198, but he argued that if he were removed he would not be able to prosecute his claim in the Court and, thereby, the Court should exercise its power under s 23 of the Federal Court of Australia Act 1976 (Cth) to grant an injunction to prevent interference with the administration of justice. In that context, a strong case or serious consequences is necessary to sway the balance of convenience in favour of an applicant.

17    In this case, the question as to whether the duty under s 198(6) to remove the applicant (as soon as reasonably practicable) exists and is extant or has been deferred pending referral of the applicant’s s 48B request to the Minister is one of the matters in question in the proceedings for which there is a serious question to be tried. Therefore, while I accept that, as Mortimer J said in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [15]:

In public law, evaluating the “risk of injustice” to the repository of a public power may involve a different kind of evaluation. The risk of injustice may, in such circumstances, relate to the frustration of legislative intention within a legislative scheme, or the interruption of the course otherwise contemplated by law. …

and her Honour’s observation that ‘[t]here 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], the potential duty to remove is but one factor that is to be taken into account in the balancing exercise which is called for on this application for an interlocutory injunction.

18    The respondents also emphasise that the impediments the applicant may face if removed and returned to Zimbabwe, including the possibility of serious harm, are not matters that affect the duty of an officer to remove an applicant as soon as reasonably practicable under s 198(6) of the Act. Here, the respondents rely upon NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292; 133 FCR 506 at [13], [53]-[59], [63]-[67] (Wilcox, Lindgren and Bennett JJ), Re Minister for Immigration and Multicultural Affairs; Ex parte SE [1998] HCA 72; 73 ALJR 123 at [14]-[16] (Hayne J), M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131; 131 FCR 146 at [70]-[71] (Goldberg, Weinberg and Kenny JJ); AHF18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FCA 660 at [11] (Bromwich J), WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 1332; 84 ALD 655 at [86], SYVB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 600 at [22] (Nicholson J).

19    Nonetheless, the respondents accept that, in the exercise of the Court’s discretion, a matter that the Court may take into account in weighing the balance of convenience is any potential harm to the applicant if he is removed to Zimbabwe. That is, while it is not a reason for considering the duty in s 198(6) does not exist, if there is otherwise a serious question to be tried, harm if removed is relevant to the balance of convenience. However, in consideration of that factor, the respondents submit that a registered nurse employed by the International Health and Medical Services assessed the applicant as fit to travel and that an officer of the Department has considered and reached the view that removal of the applicant would not contravene Australia’s international non-refoulement obligations.

20    The applicant, on the other hand, has adduced evidence that, due to his sexual orientation, he fears for his safety if he returns to Zimbabwe and further, he may face criminal charges that are politically motivated. The applicant has given evidence to the effect that there is a warrant for his apprehension for the charge of threat to commit murder. He submits that warrant should be viewed with scepticism given that he has not lived in Zimbabwe for many years, and it should be inferred, from other facts to which he deposes, that that motivation to issue the warrant was political. There is also evidence that conviction for the offence for which there is a warrant carries with it punishment of a fine or a sentence of up to 10 years imprisonment. Therefore, if the applicant is returned to Zimbabwe he faces a prospect of arrest, conviction for that offence and a fine or imprisonment.

21    There is also evidence the applicant suffers from hepatitis B, irritable bowel syndrome, vertigo and is in receipt of ongoing treatment for mental health related illness or ailments. The applicant has made a statement to the effect that he will not be able to obtain adequate treatment for his medical conditions in Zimbabwe.

22    While there is a degree of evidence that the applicant will face particular hardship and potential harm if returned to Zimbabwe, due to the nature of that evidence, I accord it relatively little weight. Nonetheless, I accept that if the applicant is returned to Zimbabwe he will face hardship of an economic and social nature and difficulties both reintegrating into the Zimbabwe community and maintaining the prosecution of these proceedings. These are not trivial matters. I take full account of them as part of the ‘human dimension’ to a case such as this and the impact that removal from Australia will inevitably have on the applicant.

23    However, the more obvious and pressing consequence is that, if he were removed from Australia to Zimbabwe, it would render the applicant’s application for mandamus and injunction nugatory. That consequence, on any view, meets the description ‘serious’.

24    As a means of diminishing the seriousness of that consequence, the respondents also submit that, while they accept that the applicant had made out a prima facie case of the kind referred to in HBMH, such a case is relatively weak having regard to the reasons of Besanko and Mortimer JJ in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; 288 FCR 23, which cast doubt on the correctness of the joint reasons of Griffiths and Charlesworth JJ in that case upon which the applicant relies. The Minister also submits that the conclusion that the Secretary has a duty to refer a request to the Minister pays no regard to the ability of the Minister to exercise executive power to give a non-statutory instruction to officers of the Department that he or she does not wish to be put in a position to consider making a ‘procedural decision’ in a case that has certain characteristics, e.g., Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10: 97 ALJR 214 at [19], [26], [99] and [312]. The respondents submit that the notion that there is imposed on any officer of the Department a public duty, enforceable by mandamus, to bring to the attention of the Minister every request for intervention under s 48B of the Act would have the effect of imposing a duty indirectly on the Minister to consider whether to exercise the power in s 48B when there is no such duty in that section.

25    While I take into account that there are countervailing arguments, an application of this nature (being an urgent duty matter), does not lend itself to undertaking a detailed and comprehensive analysis of the underlying merits of the construction of the Act upon which the relief sought in the applicant’s originating process is founded beyond being satisfied that there is a serious question to be tried and, in that context, a number of other judges of this Court have considered that question to be sufficiently serious in circumstances of the cases before them to warrant the grant of an interlocutory injunction of a relatively short duration.

26    Having regard to all the matters to which I have referred, in my view, granting an injunction for a short period carries the lower risk of injustice should the decision turn out to be ‘wrong’: Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 722 at 780-781 (Hoffman J). In these circumstances, it is appropriate to make an order for an interim injunction to 5 September 2024 and for the matter to be brought back before the docket judge for consideration as to the continuation or dissolution of the interim injunction and (or) for other directions.

Associate:

Dated:    19 August 2024