BLO17 v Minister for Immigration and Border Protection [2017] FCA 463

FEDERAL COURT OF AUSTRALIA

BLO17 v Minister for Immigration and Border Protection [2017] FCA 463 Appeal from: BLO17 v Minister for Immigration and Border Protection (Federal Circuit Court of Australia, SYG1035/2017, Orders dated 28 April 2017)

File number: NSD 633 of 2017

Judge: BURLEY J

Date of judgment: 1 May 2017

Catchwords: MIGRATION – application to vary or discharge orders of Federal Circuit Court of Australia – urgent deportation – application dismissed

Date of hearing: 1 May 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 10

Solicitor for the Applicants: Mr A P Joel of Adrian Joel & Co Solicitors

Counsel for the Respondents: Ms R Francois

Solicitor for the Respondents: Sparke Helmore Lawyers

ORDERS NSD 633 of 2017

BETWEEN: BLO17 First Applicant

BLP17 Second Applicant

BLQ17 Third Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: BURLEY J DATE OF ORDER: 1 MAY 2017

THE COURT ORDERS THAT:

1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

BURLEY J: 1 Before me is an oral application made on behalf of the applicants to vary or discharge orders made by Judge Emmett in the Federal Circuit Court of Australia made on 28 April 2017 to the following effect: 1. The application in a Case filed on 28 April 2017 by the applicants is dismissed. 2. The first respondent file and serve by 4:00pm today that the two children of the first and second named applicants who have Australian citizenship are also booked to return to Fiji with the second named applicant on 2 May 2017. 3. The first and second named applicants pay the costs of the first respondent fixed in the amount of $1,801. 2 Those orders were made as a consequence of an urgent application brought by the applicants to restrain the Minister from deporting them to Fiji, pending resolution of an application for review from a decision made by the Administrative Appeals Tribunal on 3 June 2016 which, apparently, dismissed the applicants' appeal from a decision refusing to grant them particular visas. I say "apparently" because I have before me neither the decision of the Administrative Appeals Tribunal nor a transcript of the hearing before Judge Emmett. However, the matter is urgent because the applicants are scheduled to be deported separately at 8.30 am and 12.55 pm tomorrow, 2 May 2017. 3 Judge Emmett refused to grant an injunction restraining the deportation because, I'm told by the Minister's representative, she considered that there was no serious question to be tried that would warrant the grant of such relief. However, the basis of the present application is not that the primary judge erred in her assessment of whether an injunction should be granted. The application, as best I can understand it, is that the decision of the primary judge was conditioned upon her satisfaction that the family unit of the applicants would not be "fragmented" by the deportation of the applicants. 4 This submission is made against the background that two of the applicants are parents and the third applicant is one of their children who is, like the parents, not a citizen of Australia. There are two other minor children in the family who are Australian citizens and for this reason are not the subject of any deportation decision. 5 In response to order 2 set out above, on 28 April 2017 an affidavit was filed by Naryl Brown, a Removals Officer employed by the Department of Immigration and Border Protection. Ms Brown deposed that on 24 April 2017 the respondents were given notice of the intention to remove them from Australia to Fiji on 2 May 2017. 6 The first and second applicants indicated at that time that it was their intention that their two children would accompany them to Fiji rather than remain in Australia. Ms Brown deposes that on the afternoon of 28 April 2017, and following the hearing of the matter on that day before Judge Emmett, the first and second applicants indicated to the Department that it was their intention that the two children would not travel to Fiji, but rather remain in Australia with their uncle and aunt, who are also Australian citizens and reside in a suburb of Sydney. The affidavit also states that in the event that the first and second applicants decide, prior to 2 May 2017, that their two children, who are citizens, should accompany them to Fiji, the department will arrange for them to accompany their mother on her flight, which is scheduled to depart at 12.55 pm on 2 May 2017. 7 It is apparent from this affidavit that it is the desire of the parents that their two children remain in Australia under the care of their uncle and aunt. The applicants' solicitor indicated that he had no instructions contrary to the order of Judge Emmett was that evidence be served that the two children are booked to return to Fiji. The Minister, it seems to me, has no power to compel the children to travel with the parents against their parents' own wishes. The parents apparently do not desire them to leave Australia at the present time. It is difficult in the circumstances to see that the underlying basis for Judge Emmett's orders has been undermined. 8 Furthermore, it is a little opaque as to the basis upon which this Court would, on appeal, revisit the interlocutory order made on the basis that has been advanced. The applicants' solicitor indicated that he had no instructions contrary to the position set out in the affidavit of Ms Brown. Further, the applicant has not challenged the decision of Judge Emmett to refuse any injunction restraining the Minister from deporting the applicants other than by reason of the matter concerning the children that I have articulated above. 9 Insofar as injunctions are concerned, it is necessary to show that there is an arguable case and that the balance of convenience favours the granting of an injunction. In the case of an application for leave to appeal from a decision refusing an injunction what needs to be shown is arguable error and the existence of substantial injustice if leave is not granted, supposing the decision to be wrong. 10 In the circumstances of the present case, where no basis is advanced that the primary judge was otherwise incorrect in her view as to the question of substantial injustice, I am not satisfied that the matters concerning the treatment of the two children, who are Australian citizens, otherwise changes the balance. The children are, in accordance with their parents' wishes, to remain in Australia with their aunt and uncle. No adequate basis has been advanced for their parents to remain. Accordingly, I dismiss the application with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.