AKJ23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 129
Federal Circuit and Family Court of Australia
(DIVISION 2)
AKJ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 129
File number: PEG 16 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 22 February 2023 Catchwords: MIGRATION – application for urgent interlocutory injunction to restrain Minister from removing applicant from Australia – whether there is a serious question to be tried – whether balance of convenience favours grant of injunction – where injunction sought pending judicial review of a Tribunal decision affirming a decision to refusing to grant the applicant a bridging visa – where applicant sought bridging visa to allow him to depart voluntarily and see children before he departs Australia – application for injunction refused Legislation: Migration Act 1958 (Cth) ss 5, 48, 48A, 198, 359A, 363 Cases cited: ALY15 v Minister for Immigration and Border Protection [2017] FCA 281
Arkan v Minister [2000] FCA 1134
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825
CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 870
Gamage v Minister (2009) 112 ALD 449; [2009] FCA 1373
Lewai v Minister for Immigration and Multicultural Affairs [2001] FCA 1309
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Morrison v Minister for Immigration and Citizenship [2007] FCA 723
SZBYRv Minister for Immigration and Citizenship (2007) 96 ALD 1; [2007] HCA 26
Tanioria v Commonwealth [2016] FCA 1237
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of hearing: 14 February 2023 and 17 February 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr A Burgess Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent The Second Respondent did not appear ORDERS
PEG 16 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AKJ23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
22 February 2023
THE COURT ORDERS THAT:
1.The applicant’s application for an interlocutory injunction restraining his removal from Australia is dismissed.
2.Order 2 of the Order made on 14 February 2023 cease to have effect forthwith.
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).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
Introduction
The applicant seeks an interlocutory injunction to restrain the Minister from removing him from Australia. If granted, the injunction would be operative pending the determination of an application for judicial review of a decision made by the Tribunal on 14 February 2023, affirming a decision made by a delegate of the Minister not to grant the applicant a Bridging E (Class WE) visa (bridging visa).
While I am satisfied that the applicant has established that there is a serious question to be tried in relation to his application for judicial review of the Tribunal decision, I am not satisfied that the balance of convenience lies in favour of granting the injunction. I have decided not to grant the injunction. My reasons for this decision are explained below.
background
Applicant’s migration and visa history
The applicant’s migration and visa history was set out in the Tribunal decision, and the summary in this judgment is primarily based on the information in the Tribunal decision. The applicant is a non-citizen who travelled to Australia on a visitor visa from June to September 2019. He left Australia in early September 2019 and returned later that same month, also on a visitor visa. He has remained in Australia since that time.
Whilst in Australia, the applicant has made two applications for protection visas:
(a)The first application for a protection visa was made on 18 November 2019. The applicant was included in the application as a member of a family unit without advancing his own claims for protection. A delegate of the Minister refused to grant the applicant the protection visa on 21 September 2021 and that decision was affirmed by the Tribunal on 8 November 2021.
(b)The second application for a protection visa was made on 30 April 2021. In this application, the applicant advanced his own claims for protection. A delegate of the Minister refused to grant the applicant a protection visa on 7 July 2021 and that decision was affirmed by the Tribunal on 28 October 2021.
The applicant has also been granted the following bridging visas while in Australia:
(a)The applicant was granted a bridging visa on 5 December 2019 in connection with his first protection visa application. This visa was cancelled pursuant to s 116 of the Migration Act 1958 (Cth) (Migration Act) on 18 March 2021. On 19 March 2021 the applicant sought review of that decision by the Tribunal and on 1 September 2021 the Tribunal found that it had no jurisdiction to review the decision to cancel the bridging visa.
(b)The applicant held bridging visas between 18 May 2021 and 26 August 2021 to regularise his migration status while he was in prison.
The applicant also applied for further bridging visas that he was not granted:
(a)On 7 September 2021 the applicant applied for a bridging visa in connection with his outstanding protection visa applications. This application was refused by a delegate of the Minister on 10 September 2021. The applicant applied for merits review by the Tribunal and on 17 September 2021 the Tribunal affirmed the delegate’s decision.
(b)On 14 March 2022 the applicant applied for a bridging visa on the basis that he had ongoing judicial review proceedings. A delegate made a decision not to grant the applicant a bridging visa on 18 March 2022 and that decision was affirmed by the Tribunal on 29 March 2022.
(c)On 29 August 2022 the applicant applied for a bridging visa on the basis that he was seeking review of a decision to cancel a visa. A delegate of the Minister refused to grant the applicant a bridging visa on 1 September 2022 and the Tribunal affirmed that decision on 12 September 2022.
Application for bridging visa relevant to the judicial review application
The applicant was notified on or about 24 January 2023 that arrangements had been made for his removal from Australia. The applicant then made an application for a bridging visa on 3 February 2023.
The bridging visa application was refused by a delegate of the Minister on 3 February 2023 and on the same day the applicant lodged an application with the Tribunal seeking review of the delegate’s decision.
On 7 February 2023 the Tribunal wrote to the applicant and invited him to attend a hearing on 10 February 2023. The applicant made requests to the Tribunal on 7 February 2023 and 9 February 2023 for his hearing to be extended or for the hearing to be postponed. These requests were refused by the Tribunal.
When the matter came before the Tribunal for hearing on 10 February 2023, there were technical difficulties that prevented the applicant from appearing at the hearing via audio-visual means. The hearing was rescheduled to 13 February 2023 and proceeded on that date.
The Tribunal affirmed the delegate’s decision on 14 February 2023. The Tribunal acknowledged that the applicant claimed to be seeking the bridging visa on the basis that he was making arrangements to depart Australia and that he was booked on a flight scheduled to depart on 5 March 2023. The Tribunal also acknowledged that the applicant expressed a desire to leave Australia not directly from an immigration detention centre because he wanted to be in the best position to apply for a visa to return to Australia so that he could see his family. He also wanted to see his children before he left Australia, including his youngest child who he has not yet met. However, the Tribunal did not accept that the applicant was making, or was the subject of, acceptable arrangements to depart Australia because the Tribunal did not believe that the applicant would depart as he claimed.
Proposed removal from Australia
For reasons unrelated to the application for a bridging visa, the first scheduled removal of the applicant did not proceed.
Further arrangements were made for the applicant to be removed from Australia on 15 February 2023. After the applicant was advised of these arrangements, he made the application to this Court.
Proceeding before this Court
The applicant contacted the Court on the evening of 14 February 2023 to seek an injunction restraining his removal from Australia.
The applicant was asked to provide an application to the Court. The applicant provided an application for judicial review, along with an affidavit, in respect of a previous decision of the Tribunal refusing to grant him a protection visa. The application has previously been determined by the Court.
In circumstances where the Court was advised that the applicant was at the time in a car travelling to the airport, the Court considered that the application provided was sufficient to warrant convening an urgent hearing. A hearing was convened in the evening of 14 February 2023.
At the hearing, the applicant confirmed that he was seeking an injunction to stop the Minister from removing him from Australia and he indicated that he sought judicial review of the Tribunal’s decision in relation to his bridging visa application.
The hearing on 14 February 2023 was conducted in circumstances that were less than ideal. The applicant appeared by telephone from a car and from the airport, there was a lot of background noise and the interpreter indicated to the Court on multiple occasions that he was tired and that he had another commitment in the morning. There were significant restrictions on the time available for the hearing as a result of the interpreter’s concerns and the applicant’s scheduled flight. I was also concerned that the applicant had only received the Tribunal decision that day and I did not consider that he had sufficient time to review and consider the decision to be in a position to properly address whether he had a serious case to be tried, given that this would turn on whether he could advance an arguable case that the Tribunal decision was affected by jurisdictional error.
I therefore adjourned the hearing to 17 February 2023 and made an interim order restraining the Minister from taking any steps to remove the applicant from the Commonwealth of Australia until further order of the Court. I also made orders giving both parties an opportunity to file any further documents on which they wished to rely.
Shortly before the hearing, the applicant filed an application which I have treated as an amended application and, at the hearing on 17 February 2023, I granted him leave to rely on the amended application.
The amended application confirms that the applicant seeks an interlocutory injunction and sets out the following ground of review in relation to the Tribunal decision:
The Second Respondent failed to afford the Applicant procedural fairness.
Particulars
1.1The Applicant made multiple requests to the Second Respondent to postpone the hearing of his matter to allow him more time to prepare evidence and counteract the disadvantage caused to the Applicant by being in detention with limited access to the internet and having been in quarantine.
1.2The Second Respondent concluded that ‘little prejudice would flow from the refusal to postpone the hearing in the event that the Tribunal affirmed the delegate decision’ as the Applicant could reapply for a Bridging W (Class WE) visa after 30 days.
1.3The Second Respondent’s position failed to account for the fact that the First Respondent was under a duty to remove the Applicant when he ceased to have an application on foot, thereby preventing the Applicant from reapplying.
1.4The Second Respondent obtained further information about the status of the domestic violence order affecting the Applicant after the hearing which the Applicant was not invited to comment on.
1.5The Second Respondent thereby denied the Applicant procedural fairness and so fell into jurisdictional error.
The documents filed at or ahead of the hearing on 17 February 2023 largely supersede the documents that were available at the hearing on 14 February 2023. In addition to his amended application, the applicant filed an unsworn affidavit dated 16 February 2023, which simply annexes a copy of the Tribunal decision. The Minister read an affidavit of Ashley Burgess affirmed on 17 February 2023, which annexes a number of documents relating to the proceeding before the Tribunal and the proposed removal of the applicant from Australia.
For completeness, I note that between the first and second hearings, I made orders requiring that the applicant be allocated a pseudonym and the proceeding be given a new proceeding number, and prohibiting publication of the applicant’s name and the original proceeding number to persons other than the parties. This was done out of an abundance of caution to protect the identity of the applicant in circumstances where the applicant previously applied for a protection visa. It is for this reason that the orders I made on 14 February 2023 do not contain the same proceeding name and number as this judgment.
Interlocutory injunction
Relevant legislation relating to removal
Section 198(6) of the Migration Act is the source of the obligation to remove the applicant in the present case. That subsection 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.
In the present case, the applicant is a detainee and his applications for protection visas, which are substantive visas, have been refused and they have been finally determined within the meaning of s 5(9) and (9A) of the Migration Act. There is no evidence before the Court to suggest that the applicant has made any further application for a substantive visa, or that he is able to do so.
Relevant principles
In considering whether to exercise the discretion to grant an interlocutory injunction, it is appropriate for the Court to consider:
(a)whether there is a serious question to be tried, which requires the applicant to show that there is a sufficient likelihood that he will succeed at the final hearing to justify the preservation of the status quo pending the final hearing; and
(b)whether the inconvenience or injury that the applicant would suffer if the injunction is refused outweighs or is outweighed by the inconvenience or injury the Minister would suffer if the injunction is granted: see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [65].
As noted by the Minister in his submissions, the two limbs of the test for the grant of an interlocutory injunction are interrelated. In Morrison v Minister for Immigration and Citizenship [2007] FCA 723, French J said at [22]:
… In order to grant interlocutory relief to restrain his removal, pending a substantive application, I would have to have regard both to the possibility that he has some case to argue in relation to the decision to cancel his visa and secondly that the balance of convenience lies in favour of an interim order. These two requirements are inter-dependent. Of course, the stronger the case that there is an arguable error on the part of the Minister, the less the balance of convenience need lie in favour of the applicant in order to justify the grant of relief…
The interrelatedness of the two limbs was also explained in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 870, where Thawley J said at [13]:
Consideration of the two main inquiries cannot be conducted completely independently of each other, because “an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even” and “[a] more doubtful claim (which nevertheless raises ‘a serious question to be tried’) may still attract interlocutory relief if there is a marked balance of convenience in favour of it”: Bullock v The Federated Furnishing Trades Society of Australasia (No 1) [1985] FCA 19; (1985) 5 FCR 464 at 472 per Woodward J (Smithers and Sweeney JJ agreeing at 467 and 469 respectively); see also ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363at [28] (Charlesworth J).
Is there a serious question to be tried?
The issue of whether there is a serious question to be tried relates to the applicant’s judicial review application.
The applicant appears to have been assisted by Legal Aid WA in preparing his application. When invited at the hearing to make submissions about whether there is a serious question to be tried, the applicant did not address the grounds in his application and instead made submissions that addressed the factual merits of the Tribunal decision. The applicant requested time to see his children and submitted that he should not be removed forcibly. He submitted that he provided proof to the Tribunal that he will leave Australia on 5 March 2023 and that he wants to see his children before he leaves.
The matters raised by the applicant in his oral submissions do not demonstrate that there is a serious question to be tried. The Court does not have jurisdiction to review the factual merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31]. The evidence that was submitted by the applicant in relation to his desire to see his children and his proposed departure on 5 March 2023 was considered by the Tribunal. The applicant in his oral submissions has done little more than express disagreement with the conclusions that the Tribunal reached on the evidence before it.
I am satisfied, however, that there is a serious question to be tried when one looks at the ground in the application.
Counsel for the Minister addressed the ground as raising two distinct issues, and I will treat the ground in a like fashion. The first issue relates the Tribunal’s refusal to adjourn the hearing and is addressed in particulars 1.1 to 1.3. The second issue is addressed in particular 1.4 and relates to the Tribunal’s reference to documents that it obtained after the hearing and which it did not disclose to the applicant.
In relation to his first request for an adjournment, the applicant told the Tribunal that he had been ‘in quarantine’ at the immigration detention centre and that there were ‘network issues’ that meant he could not contact a lawyer and he needed time to look for a lawyer now that he was ‘back in the compound’: Tribunal reasons at [8]. The applicant’s second request for an adjournment was made on the basis of his need to find representation, his deficiency in English and a need to ‘collect more evidence from the community’: Tribunal reasons at [10].
The Tribunal’s reasons for not granting the applicant the adjournments that he requested are set out at [13] to [15] of the Tribunal’s reasons. In those paragraphs, the Tribunal said:
13.In reviews concerning a decision to refuse to grant a bridging visa which has resulted in an applicant being detained in an immigration detention centre, the Tribunal has 7 working days after the day on which the review application is received in which to make a decision (or longer with the applicant’s consent). While the Tribunal acknowledges that a postponement request is necessarily indicative of the applicant’s agreement of an extension to the period during which the Tribunal must determine a review, the Tribunal is not persuaded that this is determinative about whether a postponement should be granted.
14.The applicant applied for the bridging visa on 3 February 2023. He received a refusal decision that day. As demonstrated by his migration history, he has experience navigating visa applications, and bridging visa applications particularly. If the applicant desired obtaining legal representation connected with the review application, he should have arranged to do so at the time he applied to the Tribunal for review of the decision. Likewise, the applicant should have gathered all the ‘evidence from the community’ he referred to and submitted it when he applied for the bridging visa, or when he applied to the Tribunal for review of the decision. The Tribunal’s judgment is that the applicant had adequate time to prepare his bridging visa application and his review application.
15.The Tribunal has also considered that little prejudice would flow the applicant from the refusal to postpone the Tribunal hearing in the event that the Tribunal affirmed the delegate decision. Unlike refusals or cancellations of some visas which may result an applicant being prohibited from lodging another visa of that kind, the applicant is not prohibited from lodging another bridging visa application (after 30 days): s 74 of the Act.
Counsel for the Minister observed that the Tribunal has a discretion in s 363(1)(b) of the Migration Act to adjourn a review from time to time and acknowledged that the discretion must be exercised reasonably. To this end, Counsel for the Minister addressed particulars 1.1 to 1.3 as asserting unreasonableness, in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 as well as a denial of procedural fairness.
Counsel for the Minister also submitted that, at a practical level, the applicant was granted an adjournment in any event because, as a result of technical difficulties at the hearing on 10 February 2023, the hearing was adjourned to 13 February 2023. I do not accept that this adjournment of the hearing to the next working day equates to the applicant being granted the adjournment that he sought, although I accept that it did provide the applicant with further time to prepare his case than he would otherwise have had.
I accept that there is a serious question to be tried in relation to whether the Tribunal’s decision to refuse to grant an adjournment was legally unreasonable.
First, the Tribunal acknowledged that the reason the applicant was seeking the first adjournment was because he had been in quarantine and had been affected by network issues that impeded his ability to contact a lawyer. However, the Tribunal did not accept, reject or otherwise engage with this explanation at [14] of its reasons. Based on this, the applicant has an arguable case that it was unreasonable for the Tribunal to refuse his request for an adjournment, without expressly addressing one of his reasons for requesting the adjournment, and this gives rise to a serious question to be tried.
The applicant’s arguable case in this regard, while not without merit, may face to some difficulties at the final hearing. This is because the Tribunal reasoned that the applicant should have arranged a lawyer at the time of his review application and gathered all of his evidence at the time of the visa application or review application. In its reasons, the Tribunal acknowledged the short time frames between the visa application and decision and it took into account the applicant’s past experience in navigating bridging visa applications. It is arguable that the Tribunal’s reasoning that the adjournment should not be granted because the applicant should have taken steps to obtain a lawyer and all relevant evidence prior to his application provides an evident and intelligible justification for refusing the adjournment and that this reasoning subsumed the applicant’s claims regarding his desire to appoint a lawyer after the review application was lodged and his communication difficulties.
The second reason there is a serious question to be tried in relation to whether the Tribunal’s refusal to grant the adjournment was unreasonable is identified in particulars 1.2 and 1.3 of the ground of application. The Tribunal reasoned at [15] of its reasons that the applicant would face little prejudice by not being granted an adjournment, noting that he would not be prohibited from lodging another visa application after 30 days. However, the Tribunal failed to consider that the Minister had an obligation to remove the applicant from Australia. The implication from the particulars is that the Tribunal’s finding that the applicant would face little prejudice is tainted by error because it fails to take into account the possibility that the applicant will not be able to make a further application for a bridging visa because he might be removed before the expiration of the 30 day period. The applicant has an arguable case that this aspect of the Tribunal decision is legally unreasonable.
At the hearing, Counsel for the Minister advanced a number of submissions as to why the Tribunal’s reasons at [15] would not amount to jurisdictional error. These submissions include that:
(a)there was nothing in the Tribunal decision that would demonstrate that the Tribunal was aware of the planned removal on 15 February 2023;
(b)when the Tribunal’s reasons are properly construed, the Tribunal is simply stating that there is a difference in the law between bridging visas and other types of visas, with the Migration Act not prohibiting the applicant from lodging another bridging visa application, whereas when substantive visa applications are refused there are sometimes statutory bars which preclude applicants from making further applications for some types of substantive visas;
(c)the Tribunal’s reasons at [15] state the effect of the law in s 74 of the Migration Act and that provision specifically envisages that an applicant may be in detention and may be liable for removal;
(d)the Tribunal was not saying that it was positively satisfied that the applicant will be able to lodge another bridging visa in 30 days;
(e)it is evident from the reasons that the Tribunal was aware that there was a removal power that the applicant was subject to; and
(f)seen in that context, there is nothing unreasonable in the Tribunal’s reasoning.
While the submissions advanced on behalf of the Minister tend to gloss over the first sentence of the Tribunal’s reasons at [15], the submissions show that the Minister might be able to advance a reasonable argument at the final hearing to support his position that the Tribunal reasons at [15] do not disclose jurisdictional error. The matters raised by the Minister are not, however, so compelling that they overcome my view that the applicant has an arguable case and that there is a serious question to be tried in this matter.
Particular 1.4 appears to allege that the Tribunal breached s 359A of the Migration Act. That section requires that the Tribunal give to the applicant clear particulars of information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review, ensure as far as reasonably practicable that the applicant understands why the information is relevant and the consequences of it being relied upon, and invite the applicant to comment on or respond to the information.
The applicant’s concerns raised by particular 1.4 appear to relate to the matters addressed in the Tribunal reasons at [62] to [63], where the Tribunal said:[1]
62.After the Tribunal hearing, the Tribunal became aware that on … January 2023 a provisional Domestic Violence Order was made at the … Court against the applicant in favour of his wife. The record indicates that the applicant was not present in court when the order was made. … The Tribunal also became aware that the applicant had a charge of contravention of a Domestic Violence Order listed on [date] at … Court. As the applicant had been detained either in criminal detention or immigration detention since January 2021, the Tribunal cannot be satisfied that the applicant was aware of these matters, especially because the Domestic Violence Order application was a new application. Despite the concerns that the Tribunal had about the change in the applicant’s evidence about whether he was presently subject to a Domestic Violence Order or not, there is no recording of the delegate interview, and the Tribunal cannot be sure that what the applicant claimed at the Tribunal about what he said at the delegate interview is untrue.
63.In any event, whether the applicant is presently subject to a Domestic Violence Order or has outstanding criminal charges is not an issue that impacts on the grounds for the grant of the visa. The sole issue is whether the applicant is making, or the subject of, acceptable arrangements to depart Australia.
[1] The precise details of the Court and the date of the listings are not reproduced in this judgment to avoid the applicant to the present proceeding being identified via court lists in relation to his other legal matters.
It appears that the applicant was not advised that the Tribunal obtained further documents after the hearing, and it appears that the Tribunal did not follow the s 359A process in relation to the documents that it obtained after hearing. Based on this, the applicant has a reasonably arguable case that the Tribunal breached s 359A of the Migration Act. The applicant’s argument is sufficient to give rise to a serious question to be tried.
However, Counsel for the Minister has made submissions as to why the Tribunal has not breached s 359A of the Migration Act. Counsel for the Minister submitted that the Tribunal has not breached s 359A of the Migration Act because the documents in question were not material to the Tribunal’s decision and did not amount to a rejection, denial or undermining of the applicant’s evidence and therefore did not comprise ‘information’ for the purposes of s 359A: see SZBYRv Minister for Immigration and Citizenship (2007) 96 ALD 1; [2007] HCA 26 at [17]. The Tribunal articulated that it did not make adverse credibility findings against the applicant on the basis of these documents and proceeded on the understanding that the applicant may not be aware of the existence of the documents. The Tribunal also considered the possibility that the Domestic Violence Order might not be in place and that the applicant might be able to see his children with the assistance of a lawyer. Therefore, the Minister submitted that the applicant was not denied procedural fairness as a result of the Tribunal obtaining documents after the hearing.
While the applicant has a reasonably arguable case based on an alleged breach of s 359A of the Migration Act, the Minister also raises some valid arguments which may present some difficulties to the applicant in establishing his assertion of jurisdictional error at the final hearing.
The upshot of the foregoing discussion is that I am satisfied that the applicant has established that there is a serious question to be tried in relation to his judicial review application, but there remains some doubt as to the likely outcome of that application.
Where does the balance of convenience lie?
When I invited the applicant at the hearing to explain what damage he thought he would suffer if the injunction is not granted, he submitted that he would not be able to see his children and he does not want to be forcibly removed to another country.
I accept that if I do not grant the injunction, it is unlikely that the applicant will have an opportunity to depart Australia voluntary or to see his children before he departs. If I do grant the injunction, there is a possibility that the applicant will get to see his children before he departs Australia if he is successful in his judicial review application, successful in his merits review application and if any legal impediments to the applicant seeing his children can be overcome. In relation to the final point regarding possible legal impediments, I acknowledge that the Tribunal expressed some doubt as to whether the applicant would in fact be able to see his children if he was granted a bridging visa, noting that there was a Domestic Violence Order in place in favour of the applicant’s wife. That document is not in evidence before the Court and I am unable to form any view as to whether it would present any impediment to the applicant seeing his children, but I do acknowledge that the Tribunal decision reflects that the applicant believes he can seek to see his children through his lawyer if necessary and I proceed on the basis that if the applicant were to be granted a bridging visa, it might be possible for him to see his children.
In addition to the matters raised by the applicant, I also consider the possible impact on the judicial review application of a decision not to grant the injunction.
As discussed above, the applicant seeks judicial review of the Tribunal’s decision in relation to a bridging visa application which, if granted, would allow the applicant to spend a short period of time in the community before departing Australia, with the proposed departure date of 5 March 2023. If the injunction is not granted and the applicant is removed from Australia, the applicant would be able to appear at the hearing of his judicial review application by video or telephone and, if he is successful in his judicial review application, there is nothing before the Court to suggest that he would not be able to appear at a hearing before the Tribunal by video, as he did on 13 February 2023.
However, I acknowledge that the applicant’s removal from Australia might impact any reconsideration by the Tribunal of his merits review application. The relevant criteria that the applicant sought to meet for the grant of the bridging visa requires him to satisfy the Minister (or Tribunal on review) that he is making, or is the subject of, acceptable arrangements to depart Australia. The applicant’s purpose of making arrangements to depart Australia would cease to have any material relevance if the applicant has already departed Australia at the time of the Tribunal decision. For these reasons, it is arguable that the applicant’s judicial review proceeding may become futile if I do not grant the injunction. In ordinary circumstances, that would tip the balance of convenience in the applicant’s favour. There are, however, other considerations in the present case that have led me to take a difference view of the balance of convenience.
The Minister accepts that if the injunction is not granted in the present case, the applicant may be removed from Australia and that would constitute action against the applicant for which damages would not be an adequate remedy.
However, the Minister identifies the public interest in the proper administration of the Migration Act as reason why the balance of convenience lies against granting the injunction. This is particularly so in circumstances where s 198(6) of the Migration Act imposes an obligation on departmental officers to remove the applicant from Australia, and the grant of the interlocutory injunction would have the effect of requiring the Minister to direct his officers to proceed in defiance of that section: see also ALY15 v Minister for Immigration and Border Protection [2017] FCA 281 at [12]. I accept that the proper administration of the Migration Act is a factor that should be taken into account in deciding where the balance of convenience lies.
I also observe the following comments of Mortimer J in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [14] and [15]:
14.…In some cases, where a person will otherwise be removed from Australia, the subject matter of the proceeding (being the person’s interest in remaining or entitlement to remain in Australia) may be lost (in law or in reality). In such cases, there may be some force in the proposition that the balance of convenience favours the grant of such relief. However each case will turn on its facts and, as the authorities make clear, the two limbs of the test for the grant of interlocutory relief are intertwined. …
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. Nevertheless, consideration of which course has the lower risk of injustice may still provide useful guidance to the Court in assessing whether it is appropriate to grant interlocutory relief.
In considering the public interest in the due administration of the Migration Act, I take into account that the applicant’s last substantive visa application was finally determined by the Tribunal almost 18 months ago now, on 28 October 2021. An application for judicial review was dismissed on 23 August 2022, some six months ago. The applicant’s options to apply for any further substantive visa may be limited by the statutory bars in ss 48 and 48A of the Migration Act and it appears that the applicant may have exhausted his options to obtain a substantive visa onshore.
Of course, in considering the public interest in the due administration of the Migration Act, I also take into account the Minister’s obligation to remove the applicant as soon as reasonably practicable, set out in s 198(6) of the Migration Act. This obligation would remain even if the applicant was successful in his judicial review application.
Counsel for the Minister submitted that the present case has some similarities to Gamage v Minister (2009) 112 ALD 449; [2009] FCA 1373 (Gamage), where McKerracher J took into account in assessing the balance of convenience that even if a particular decision were set aside, that would have no effect on the applicant’s migration status. His Honour said at [98]:
98. … In particular, the Tribunal’s decision to affirm the decision made on 8 March 2006, even if set aside, would not revitalise the visa of the applicant. It cannot be said that the balance of convenience favoured an injunction being granted as the student visa was to otherwise expire on that date in any event. Even if the cancellation decision were set aside, that would have no effect on the applicant’s current status as an unlawful non-citizen who is required to be removed from Australia pursuant to s 198 of the Migration Act.
I accept that the present case has some similarity to Gamage, in the sense that the applicant’s status as a person who is liable to be removed pursuant to s 198 of the Migration Act would remain unchanged even if he were to be successful in his application to the Court.
I acknowledge that in the ordinary course, if I were to grant an interlocutory injunction, that injunction would be lifted when the Court determines the judicial review application. There is a possibility that the Minister might take action to remove the applicant before the Tribunal reconsiders his merits review application even if he is successful in his judicial review application.
It is also relevant to the assessment of the balance of convenience that the applicant applied for the bridging visa for the stated purpose of enabling him to make arrangements to depart Australia. In other words, the applicant will shortly be departing Australia whether or not the injunction is granted. The main difference from the applicant’s point of view is that if he is granted a bridging visa he will have the opportunity to depart Australia voluntarily and he might have the opportunity to see his children before he departs. Seen in this light, the damage or inconvenience to the applicant if the injunction is refused does not relate so much to the applicant losing any possible opportunity to remain in Australia, but rather relates to the loss of any possibility of departing Australia in a different manner.
At the hearing, Counsel for the Minister referred me to Tamberlin J’s judgment in Arkan v Minister [2000] FCA 1134 (Arkan), which also involved an application for an interlocutory injunction where the related judicial review application was for a bridging visa to allow the applicant to make arrangements to depart Australia. His Honour made the following comments on the balance of convenience at [13] of his judgment:
As to the balance of convenience I have taken into account the long history of this matter and the fact that the applicants have (not unnaturally) already taken almost every available avenue of challenge to the decisions of the Minister and the Department and that they have been unlawfully in Australia for a considerable period of time. I have weighed against this the hardship which they claim they will suffer if returned to Turkey. In my view the balance of convenience favours their departure. Clearly there is little real benefit in further delaying their departure until such a time as they can satisfy the Minister that they have made suitable arrangements for their departure. A grant of a visa for this purpose would from a practical viewpoint achieve very little for the applicants.
In Lewai v Minister for Immigration and Multicultural Affairs [2001] FCA 1309 (Lewai), Hely J followed Arkan, finding at [43] that there was little real benefit in delaying the applicants’ departure until they could satisfy the Minister that they had made suitable arrangements for departure.
Likewise, in the present case, there is little real benefit in delaying the applicant’s departure from Australia so that he can satisfy the Minister (or Tribunal on review) that he has made his own acceptable arrangements to depart. While I acknowledge that granting the injunction may leave open the possibility that the applicant may be able to briefly see his children before he departs Australia if the judicial review application and merits review application are both determined in his favour and if there are no legal impediments to him seeing his children, this possibility does not in my view tip the balance of convenience in the applicant’s favour. The applicant’s desire to see his children is understandable and I accept that it would be upsetting to him if he does not have an opportunity to see his children. However, there is no evidence before me to suggest that the applicant would be able to develop any meaningful relationship with his children in circumstances where his departure, voluntary or otherwise, is imminent.
Finally, I acknowledge that in cases such as Arkan and Lewai, the Court found that there was no serious question to be tried, whereas I have found that there is a serious question to be tried in the present case. The finding that there is a serious question to be tried does not mean that the balance of convenience cannot favour the Minister or that the Court should necessarily grant injunctive relief. Counsel for the Minister referred me to Tanioria v Commonwealth [2016] FCA 1237 as an example of a case where injunctive relief preventing the applicant’s removal from Australia was refused even though the Court proceeded on the basis that there was a serious question to be tried.
Having taken into account all of the considerations addressed above, I find that the balance of convenience lies with refusing to grant the injunction.
Conclusion
Although the applicant has established that there is a serious case to be tried, the balance of convenience favours the Minister. Taking into account my findings in relation to both limbs of the relevant test, I consider that the appropriate course is to refuse the application for an interlocutory injunction.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 22 February 2023
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