Federal Court. In determining whether to grant an interlocutory injunction to prevent the Applicant's removal, is it sufficient that the underlying judicial review proceeding challenge only the discharge of the obligation under s 66, without directly challenging the exercise of the power under s 198 of the Migration Act 1958 (Cth)? Does the FCA have jurisdiction to declare a notification as non-compliant with s 66 of the Act?
The Applicant's application for a protection visa was refused by a delegate of the Minister, after which the Applicant made no application to the AAT for merits review of that decision under Pt 7 of the Migration Act 1958 (Cth) (as it was then enacted).
While the Applicant was in immigration detention, the Department purported to comply with s 66 of the Act by handing him letter notifying him of the visa refusal and of his entitlement to apply to the AAT for review. That letter said that it was transmitted via email.
Section 66(2)(d) provided that notification of a decision to refuse a visa must, if the applicant has a right to have the decision reviewed under Pt 5 or Pt 7 or s 500 – state: (i) that the decision can be reviewed; and (ii) the time in which the application for review may be made; and (iii) who can apply for the review; and (iv) where the application for review can be made.
The Department then notified the Applicant of its intention to remove him from Australia pursuant to s 198 of the Act.
The Applicant then applied for judicial review to the Federal Court (FCA), seeking as a final remedy a declaration to the effect that the Minister failed to notify the Applicant of the decision to refuse to grant the applicant a protection visa in the manner that s 66 of the Act required.
The Applicant also applied to the FCA for an interlocutory injunction to restrain the Minister from removing him from Australia, pending the outcome of the judicial review application.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In determining whether to grant an interlocutory injunction to prevent the Applicant's removal under s 198, is it sufficient that the underlying judicial review proceeding challenge only the discharge of the obligation under s 66, without directly challenging the exercise of the power under s 198 of the Act?
Question 2: Is the strength of an applicant’s interlocutory injunction case a factor to be considered in determining where the balance of convenience lies?
Question 3: On the proper construction of s 66(d) of the Act, does the word ‘state’ mean that the notification of the decision must set out the information in each subsection in a manner that is complete and clear?
Question 4: If the answer to Question 3 is 'yes', is that a question of fact?
Question 5: In the case of stating the time in which the application for review may be made, must the notification crystallise the period either expressly or by reference to objective facts from which the period can be ascertained on the face of the notification?
Question 6: In circumstances in which the Applicant was in immigration detention and was therefore not able to receive electronic communications, is there a real question to be tried as to whether the notification letter taken with the objective facts crystallised the period within which he could apply to the AAT?
Question 7: If the applicant were removed to the country which he claimed to seek protection from, would the subject matter of the proceeding be effectively destroyed and the relief sought be of no real utility, being a powerful consideration in favour of the grant of an interim injunction, "notwithstanding that there is a real risk of injustice to the Minister and the Commonwealth relating to the frustration of the legislative intention and scheme concerning removal of unlawful non-citizens should a decision to grant an injunction turn out to be the ‘wrong’ decision"?
Question 8: May the the outcome of the judicial review proceeding affect the lawful exercise of the power to remove the Applicant under ss 198(2A) or 198(6) of the Act, thus pointing to the balance of convenience favour the Applicant?
Question 9: Does the FCA have jurisdiction ‘in relation to’ each of a decision of a delegate of the Minister not to grant a protection visa under s 65 and a decision of a delegate of the Minister to cancel a bridging visa under s 501(3A) of the Act?
Question 10: If the answer to Question 9 is 'yes', is it reasonably arguable that a declaration of right regarding the extent to which the applicant was notified of a ‘migration decision’ in accordance with s 66 of the Act falls within the original jurisdiction of the Court conferred under s 39B(1A)(c) of the Judiciary Act 1903 (Cth), because the relief the Applicant seeks is not, in substance, an application for direct judicial review of a migration decision that would engage the jurisdiction of the High Court under s 75(v) of the Constitution?
The FCA answered those questions as follows: