AJH17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 192
Federal Circuit and Family Court of Australia
(DIVISION 2)
AJH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 192
File number(s): SYG 321 of 2023 Judgment of: JUDGE GIVEN Date of judgment: 6 March 2023 Catchwords: MIGRATION – interlocutory application for urgent injunctive relief to restrain removal of applicant from Australia – examination of serious question to be tried in relation to application for extension of time – Federal Court of Australia Migration Practice Note (MIG-2) to be treated as applying in the Federal Circuit and Family Court of Australia Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth)
Migration Act 1958 (Cth)
Cases cited: ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363
Australian Broadcasting Corp v O'Neill (2006) 227 CLR 57
Calava v Minister for Immigration [2015] FCCA 2525
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475
FEL19 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs
Jackamarra v Krakouer (1998) CLR 516
MZZLD v Minister for Immigration and Border Protection (2016) 154 ALD 315
SZSPI v Minister for Immigration and Border Protection (2014) 233 FCR 279
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 6 March 2023 Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Human Rights For All Solicitor for the Respondents: Sparke Helmore ORDERS
SYG 321 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AJH17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
6 MARCH 2023
THE COURT ORDERS THAT:
1.Until further order, the first respondent by himself, his delegates, his Department, and its officers, employees or agents be restrained from removing the applicant from Australia until the determination of his application for an extension of time in which to seek judicial review of the decision of the Administrative Appeals Tribunal dated 29 June 2022, or the judicial review application itself (whichever is the later).
2.Costs of the Application in a Proceeding filed on 6 March 2023, are reserved.
3.The matter is listed for hearing of the application for extension of time and, if granted, final hearing of the substantive application before Judge Given at 10.15am on 13 June 2023 in Court 13.1, level 13, 80 William Street, Woolloomooloo.
4.The first respondent must file and serve a bundle of relevant documents (Court Book) in electronic form on or by 20 March 2023, which complies with the following requirements:
(a)be in portable document format (pdf);
(b)be capable of being searchable for specified text;
(c)have an index and be paginated;
(d)have each entry in the index bookmarked; and
(e)be set so that when opened:
(f)it displays at 100% zoom; and
(g)the bookmarks menu is displayed.
5.On or by 27 March 2023, the first respondent must:
(a)serve one copy of the sealed Court Book in paper form on the applicant; and
(b)provide two copies of the sealed Court Book in paper form to the Chambers of Judge Given (by delivery to the Level 13 Registry, 80 William Street).
6.The applicant must file and serve any amended application for an extension of time, and Affidavit evidence, on or by 24 April 2023.
7.The first respondent must file and serve any Affidavit evidence, on or by 8 May 2023.
8.The applicant must file and serve a written outline of submissions (not exceeding 10 pages) and list of authorities 14 days before the hearing referred to in order 3, and provide a version of same in Word format by email to the Chambers of Judge Given on the date of filing.
9.The first respondent must file and serve a written outline of submissions (not exceeding 10 pages) and list of authorities 7 days before the hearing referred to in order 3, and provide a version of same in Word format by email to the Chambers of Judge Given on the date of filing.
10.If the applicant is not represented by a lawyer, then at least 2 days before the hearing referred to in order 1, the first respondent must file and serve an Affidavit pursuant to r 6.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) which evidences:
(a)service of all sealed documents filed in the proceedings for the first respondent, upon the applicant; and
(b)any other correspondence in the proceedings which may be relevant to matters to be raised and/or orders which may be sought at the hearing.
11.Any directions which are inconsistent with these orders are vacated.
12.The parties are granted liberty to restore on 2 days’ notice.
THE COURT NOTES THAT:
For the purposes of order 10, the annexed documents need not reproduce the sealed Court documents in full.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
I have before me an urgent interlocutory application seeking an injunction to restrain the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) from removing the applicant from Australia until his application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) is determined by the Court. The matter has come before me today in my capacity as Duty Judge.
In support of the application the following three Affidavits were read without objection for the applicant:
(a)Affidavit of the applicant affirmed on 5 March 2023 (applicant’s Affidavit);
(b)Affidavit of Eric Zheng Yu Zhang affirmed on 5 March 2023; and
(c)Affidavit of Alison Mary Battisson affirmed on 5 March 2023 (Battinson Affidavit).
The applicant is a citizen of Vietnam. Having been refused a protection visa, he sought review of it that refusal by the Tribunal. The Tribunal decision was made on 29 June 2022.
The applicant deposes to having been in immigration detention since 17 October 2019. He says that he is impecunious and has been throughout the duration of his detention. The applicant deposes, without specific dates, to having taken some steps to obtain assistance in pursuing a review of the Tribunal decision. Again without dates, the applicant says he eventually found an intermediary who connected him with his present legal representatives. The applicant was put in contact with his legal representatives 10 days ago.
Pursuant to s 477(1) of the Migration Act 1958 (Cth) (Act) any application to this Court for review of the Tribunal’s decision under s 476 was required to have been made within 35 days. By reference to the date of the Tribunal decision, the last date for such an application to be made within time was 3 August 2022. Accordingly, the applicant’s application filed on 24 February 2023 is 205 days out of time.
By an application in a proceeding filed on 6 March 2023, the applicant seeks the injunctive relief to prevent his removal from Australia on an urgent, interlocutory basis.
At the interlocutory hearing before me the applicant was presented by Counsel. The first Minister was represented by a solicitor.
Removal injunction principles
This Court has power under s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act) to grant, inter alia, interlocutory orders which includes within it, a power of equity traditionally exercised to grant injunctions to preserve the status quo, pending a determination of a claim for a legal remedy: see Calava v Minister for Immigration [2015] FCCA 2525 per Judge Manousaridis at [8].
The principles which guide the exercise of the discretionary power to issue such an injunction are well established (see for example Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 per Mason ACJ) and apply in both private and public law litigation. Namely, the discretion will be exercised if the Court is satisfied that:
(a) there is a serious question to be tried or that the applicant has made out a prima facie case in the sense that if the evidence remained as it is at the time, that there is a probability that the trial of the action would be that the applicant would be entitled to relief;
(b)the applicant will suffer irreparable injury for which damages will be an insufficient or adequate compensation unless the injunction is granted; and
(c)the balance of convenience favours the granting of the injunction.
see also MZZLD v Minister for Immigration and Border Protection (2016) 154 ALD 315 in relation to matters in this Court’s jurisdiction pertaining to applications for an extension of time.
The question of whether or not to grant an injunction inevitably turns on the facts before the Court in the particular circumstances of the case: see SZSPI v Minister for Immigration and Border Protection (2014) 233 FCR 279 per Allsop CJ, Mansfield and Besanko JJ and FEL19 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 331 per Judge Barnes at [13].
In relation to whether or not to grant an interim injunction, whether there is a serious question to be tried will turn upon whether there is a prima facie case. This question needs to be assessed by some standard. It is not necessary for an applicant to show that they will succeed on their application, either for extension of time or judicial review. Rather, they would need to demonstrate that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending a hearing of those applications: see Australian Broadcasting Corp v O'Neill (2006) 227 CLR 57 at 81 to 84 (Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed) (ABC v O’Neill).
How strong that probability of success needs to be, depends on the nature of the rights the applicant is asserting and also the practical consequences which are likely to flow from the order he seeks (see ABC v O’Neill at [65]).
In my view, in the present circumstances of this case, the standard is required to be assessed in line with authorities that go towards whether or not an application should either be reinstated following a nonappearance or an extension of time. Noting that whether the standard is described as being arguable or reasonably arguable or sufficiently arguable or having a reasonable prospect of success, the hurdle is relatively low see DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 (DHX17).
The examination of any substantive, proposed grounds of review should not go beyond a reasonably impressionistic level (see DHX17), and the Court has also had regard to the principles in the High Court’s decision in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 which essentially requires the Court to have regard to the interests of the administration of justice in making an assessment of that kind.
Consideration
Serious question to be tried
There is no dispute in the circumstances of this case that the Court has jurisdiction under s 477 of the Act to entertain an application for an extension of time by the applicant in which to seek judicial review of a decision of the Tribunal refusing to grant him a Protection visa. If that extension were to be granted, the Court would have jurisdiction under s 476 of the Act to grant constitutional writ relief directed to the decision. Issuance of such writs would be contingent upon there being a jurisdictional error in the Tribunal’s decision under review. In this sense, there is no dispute that the Tribunal’s decision might, subject to the applicant traversing those discretionary hurdles, be vulnerable to relief on judicial review.
The Court is not determining the extension of time application itself today, much less any judicial review application which might be available if time were extended in respect of whether or not there is an arguable case or a serious question to be tried.
The starting point in relation to whether there is a serious question to be tried is, of course, the grounds set out in the application which are as follows:.
Grounds for application for extension of time
1.The Applicant has been detained in immigration detention since 17 October 2019. As a result, the Applicant has had no income and is impecunious. The evidence shows that access to pro bono legal representation for individuals detained in immigration detention is extremely limited.
2.The Applicant previously sought pro bono legal representation and was informed that none was available post the Tribunal Decision. The Applicant only became aware of the existence of his current pro bono legal representatives in the last week.
3.There is no prejudice to the Respondents.
If time were to be extended, the current proposed ground of review is as follows (omitting lengthy particulars):
1. The Second Respondent failed to give proper, genuine and realistic consideration to the risk that the applicant would be subject to significant or serious harm on return to Vietnam by reason of his drug convictions and/or acted in a legally unreasonable way in considering such a risk.
This ground is said to arise from [108] of the Tribunal’s reasons for decision in which it observed that the applicant had been convicted in Australia of certain drug offences (albeit further details of which were not known to the Tribunal). Of its own motion, the Tribunal raised with the applicant the possibility that this may give rise to a sur place claim as there was country information which indicated that Article 6 of the Penal Code of Vietnam gives broad extra-territorial jurisdiction for crimes under Vietnamese law committed outside of Vietnam, and that these may be punishable, additionally under Vietnamese law.
Of course the Minister, as an opposing party in an application such as this, has something in the nature of a vested right in relation to the issues which have already been concluded by statutory processes: see Jackamarra v Krakouer (1998) CLR 516 and Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491 per McHugh J. The Minister says that there is no serious question to be tried because the Tribunal put this issue to the applicant for comment and the applicant was unable to meaningfully comment upon it. It was also submitted that the applicant had not made this claim himself.
The applicant made other submissions to the Court in relation to the application. These directed themselves, it seems, more to the merits of the applicant’s explanation for why he did not apply within time for judicial review. The Battinson Affidavit annexes voluminous material in support of the proposition that persons in immigration detention face difficulties, and seeks to rely on an extract from this Court’s 2020 - 2021 Annual Report. Material which documents general difficulties is of somewhat limited use in the abstract. It can be accepted as a matter of logic that having not been in the community, the applicant may have experienced some additional obstacles to readily seeking legal advice. By his Affidavit the applicant also deposes to the fact that he does not speak English. The very general description in the grounds, supporting the extension of time application suggests that the applicant was told that there was no pro bono legal representation which was available to him. I accept that there has been some attempt to set out the steps which the applicant has taken to obtain legal representation and, more specifically, to file proceedings in this Court.
I also accept what the solicitor for the Minister says, which is that the version of events that is set out in the applicant’s Affidavit (see [2(a) above]) is somewhat vague as to chronology. In particular, there are no specific dates on which the applicant took the various steps. Further, I note that the position of the applicant is not particularly different to many other applicants who appear before this Court in terms of his language skills and impecuniosity, and yet, other applicants in similar circumstances do manage to file with the Court, including from immigration detention. The solicitor for the Minister made submissions to the effect that the impending removal of the applicant, while confirmed with the applicant only recently cannot have come as a surprise to him because he has been on a “removals pathway” since September 2022. Counsel for the applicant points out that, even if that be so, the Minister has taken some 6 months in which the applicant was not removed and as such there was no particular urgency which would prevail in circumstances where the applicant has now taken proper steps to regularise his status by seeking judicial review subject to being granted an extension of time in which to do so.
I do not accept the submissions made for the first respondent that there is no serious question to be tried simply because it was the Tribunal, and not the applicant, who raised the potential sur place claim. The Tribunal appears to have considered this to be an issue which arose on the materials before it. That being so, it is possible that the manner in which it then proceeded to dispose of it may warrant consideration.
I am also not satisfied that any of the matters that the Minister has pointed to as arising from the Affidavit of the applicant, but most specifically the health reports that are annexed thereto, counter the applicant’s version of events as to why he has not sought review earlier, such that this undermines whether there is a serious question to be tried. Notwithstanding the fact that he has told health professionals different things in relation to his plans and his feelings about steps he may take to seek review, he has given a broadly consistent version of the events following the Tribunal’s decision. The applicant does not deny having received the Tribunal’s decision.
As the Court is not today assessing the persuasiveness or otherwise of the applicant’s explanation for delay, these factors are of limited weight. They would be relevant in due course if the injunction were to issue and the applicant was given an opportunity to seek to make out his case by reference to the matters which regularly arise for consideration in relation to an application for an extension of time.
As already discussed, these involve a high level and impressionistic assessment of the substantive merits of any judicial review application. In my view where the application for extension of time is properly brought (in the sense that it is within jurisdiction and not obviously an abuse of process), and where the proposed ground of review does not seem, on its face, manifestly hopeless, I am prepared to accept that with the benefit of further evidence going to both the explanation for an extension of time and any amended application which might be forthcoming if the applicant were to receive the Court Book and be given such opportunity, and with the assistance of his now representatives, there is a serious question to be tried.
Nothing that I said, though, about the arguability or otherwise of the proposed grounds of review (noting that they may not be the final proposed grounds of review in this matter) should be taken as constituting a finding that, upon an analysis, including after amendment, the Court would be satisfied that those grounds are sufficiently arguable by themselves as to warrant time being extended, such that they could be considered on a final basis in circumstances where I am yet to consider all of the factors that weigh in relation to an application for an extension of time. However, I am of the view that the serious question to be tried in this matter will enable the applicant, or should enable the applicant, to be able to bring that application before the Court.
This weighs in favour of granting the interlocutory relief.
Damages as an insufficient remedy
In relation to whether or not the applicant would suffer irreparable injury for which damages would not be adequate compensation, as Counsel for the applicant points out, there is no right to compensation in that regard, but this question is also intertwined with the question of the balance of convenience. In that respect, regard is to be had to the nature of the visa sought. The Minister concedes it would not be available to the applicant to pursue that visa were he offshore, or at least that it would be inutile for him to continue to do so. If the injunction were not to issue, that the consequences for the applicant would be significant and that there is no monetary recompense which would have the effect of neutralising that.
This also weighs in favour of the injunction being granted.
Balance of convenience
The Minister concedes that the balance of convenience favours the interim relief.
I have had regard to ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363 per Charlesworth J, where at [34] to [35] her Honour said as follows:
I am satisfied that the respondent could have, but did not, afford the applicant more notice than he did of her impending removal. I have granted the applicant interim relief on the alternative basis that it is in the interests of the administration of justice to make such an order, irrespective of whether the substantive criteria for an interlocutory injunction pending the outcome of the appeal can presently be demonstrated: rule 1.32 of the Federal Court Rules 2011. Such an order ensures that the Court’s processes are not frustrated by the short notice given to the applicant of her impending removal and the consequential short notice afforded to her in arranging legal representation and preparing for the hearing of her application for interlocutory relief.
This is not to ignore the express words of s 198(6) of the Act which impose an obligation to remove from Australia persons falling within its purview. Rather, it is to recognise that the appeal (or any subsequent proceedings) may well determine that the applicant is no such person. If the decision of the Tribunal is found to involve jurisdictional error, then it is to be regarded as no decision at all: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 614, [51]. It would follow in that event that the applicant’s application for a Protection Visa is not an application that has been finally determined within the meaning of subs 198(6) and she is not “liable” to be removed as stated in the Removal Notice.
Despite the fact that, at present, the applicant is a person whose removal is prescribed by the Act, as ABAR15 observes, if he were to be successful in having time extended and on judicial review, that circumstance would cease. As such, and having regard to the aforementioned principles, I am of the view that both the balance of convenience and the interests of the administration of justice are served by the issuance of the injunctive relief sought.
Conclusion
For the foregoing reasons, I am satisfied that the interim relief sought by the applicant should be granted. I will so order. I will also make a timetable for the matter to be prepared for hearing of the application for extension of time, before me. Having regard to the applicant’s ongoing detention, it is desirable that any such timetable be as truncated as the Court can accommodate in order that the applicant’s status is resolved one way or another, with a degree of expedition.
Prior to concluding, I would make the following observation. On 7 March 2022, the Federal Court of Australia issued Migration Practice Note (MIG-2), pertaining to the removal from Australia of immigration detainees who have proceedings before the Court. Parties seeking interlocutory relief in this Court should also approach their applications for same as though Practice Note MIG-2 applies in this Court also.
In the present case I am unaware as to what, if any, steps were taken by the first respondent to comply with Practice Note MIG-2. The applicant has, by his representatives, brought to the Court’s attention his impending involuntary removal and has been able to approach the Court with the instant application in a proceeding seeking to prevent same. Accordingly, I am satisfied that matters to which Practice Note MIG-2 goes, appear to have been substantively met in the present case. Whether that was by the Minister’s facilitation or not, I do not know.
However, parties should assume that there will be a uniform approach to removal injunctions in this Court as in the Federal Court of Australia in regard to Practice Note MIG-2 and its requirements. To this extent, in future removal inunction applications, those who represent the Minister should be prepared to furnish evidence of compliance with Practice Note MIG-2.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 10 March 2023
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