Alvindo v Minister for Immigration & Multicultural Affairs
[2024] FedCFamC2G 1088
•25 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Alvindo v Minister for Immigration & Multicultural Affairs [2024] FedCFamC2G 1088
File number: MLG 3262 of 2024 Judgment of: JUDGE BLAKE Date of judgment: 25 October 2024 Catchwords: MIGRATION – Urgent interlocutory application to restrain removal from Australia – where Applicant seeks to remain in Australia to pursue review of a decision by the Administrative Appeals Tribunal to cancel his student visa – whether prima facie case exists – HELD application for injunction refused. Legislation: Migration Act 1958 (Cth) ss 116(1)(g), 137K, 195(1), 198(5)
Migration Regulations 1994 (Cth) reg 2.43(oa), item 1222(4)(c)(ii)
Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) r 12.01
Cases cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825
FEL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 331
MZZLD v Minister for Immigration and Border Protection (2016) FCA 1201
SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140; (2014) 233 FCR 279
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of hearing: 22 October 2024 Date of last submission: 24 October 2024 Place: Melbourne Counsel for the Applicant: Mr Aleksov Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the Respondents: Ms Chan Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 3263 of 2024 THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RYO ALVINDO
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFARS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
25 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The Application in a Proceeding dated 21 October 2024 be dismissed.
3.Order 4 of the Orders sought in the Application dated 26 September 2024 be dismissed.
4.The matter be listed for Final Hearing before a Judge on a date to be advised.
5.Costs be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 BLAKE:
This matter has been listed urgently before the Court. The Applicant filed an application on 26 September 2024 (‘Application’). In the Application, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) dated 9 September 2024. In the Application (and in the Application in a Proceeding that he filed on 21 October 2024 (‘Application in a Proceeding’), the Applicant also seeks an interlocutory injunction to prevent his removal from Australia by the Minister until, effectively, his application for judicial review is determined by this Court. It is this aspect of the Application and the Application in a Proceeding that is before the Court. The Applicant is presently scheduled to be removed from Australia on 31 October 2024.
When the matter was allocated to me, I observed that among the various orders sought by the Applicant was a request that the Court refer the Applicant for legal assistance under rule 12.01 of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (‘Rules’). The Minister did not oppose referral. The Court considered the matter in chambers and ultimately a referral certificate was issued. The Court records its gratitude to Mr Aleksov of Counsel and to Carina Ford Immigration Lawyers for accepting the brief on a pro bono basis.
The Applicant thus appeared before me represented by Counsel and solicitors. He relied on the Application, a written outline of submissions dated 18 October 2024 and the Application in a Proceeding. The Minster relied on his written outline of submissions dated 21 October 2024, the Court Book (‘CB’), and the affidavit of Tess Price affirmed 18 October 2024.
For the reasons that follow, I have decided to refuse to grant the interlocutory injunction sought by the Applicant.
BACKGROUND.
The background is conveniently summarised in paragraphs [4]–[11] of the written submissions filed by the Minister. The Applicant took no issue with that background. It is reproduced below:
4.The applicant first arrived in Australia on 15 December 2019 as the holder of a visitor visa and subsequently departed on 5 January 2020. He re-entered Australia on 8 March 2020 on the same visitor visa. On 26 May 2020, the applicant was granted a student visa valid until 15 March 2022. On 17 June 2022, the applicant was granted a second student visa valid to 15 March 2025 [CB 80-84]. He departed Australia on 24 November 2022 and re-entered on 23 February 2023. He has remained in Australia since [CB 92].
5.On 4 June 2024 the applicant was convicted of the offences of “knowingly possess child abuse material” and “use optical surveillance device” [CB 23, 90, 216].
6.On 17 June 2024 a delegate of the Minister gave the applicant a notice of intention to consider cancellation of his visa [CB 22-26].
7. On 19 June 2024 the applicant’s legal representative requested an extension of time to comment, which was granted [CB 27, 34-35].
8.On 1 July 2024, the applicant’s legal representative provided its response to the notice of intention to consider cancellation [CB 38-84].
9.On 8 July 2024, a delegate of the Minister cancelled the applicant’s student visa. The delegate did so pursuant to s 116(1)(g) of the Act and reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth) [CB 85-95]. Paragraph (g) of s 116(1) provides that, subject to exceptions it is not relevant to set out, the Minister may cancel a visa if the Minister is satisfied that a prescribed ground for cancelling a visa applies to the holder [CB 89]. Subregulation 2.43 of the Regulations prescribes number of grounds for cancelling a visa. These include the ground prescribed in cl 2.43(1)(oa) of the Regulations, which provides [CB 90]:
(1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
...
(oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))...
10.On 15 July 2024, the applicant applied to the Tribunal for review [CB 96-125].
11.On 9 September 2024, the Tribunal affirmed the decision under review [CB 212-222]. The Tribunal found that the ground for cancelling the student visa provided for by cl 2.43(1)(oa) of the Regulations was satisfied. The Tribunal said it had regard to the circumstances of the applicant’s case [CB 216 [15]] and, after setting out the circumstances in which the applicant came to be charged with possessing child abuse material, concluded that “the factual allegations and circumstances leading to the convictions are overwhelmingly adverse to the applicant” and decided that the visa should be cancelled [CB 217-219 [22]-[44], [60]].
The Applicant is presently in detention awaiting removal from Australia.
LEGAL PRINCIPLES
There was no dispute as to the principles that are to be applied in a matter such as this. The principles relating to the grant of an injunction are well-established: see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; MZZLD v Minister for Immigration and Border Protection (2016) FCA 1201. In short, the Court must be satisfied that:
(a)there is a serious question to be tried, or that an applicant has made out a prima facie case in the sense that if the evidence remains as it is at this time, that there was a probability that the action would be such that an applicant might be entitled to the relief; and
(b)the balance of convenience favours the grant of the injunction.
The question of whether such an injunction will be granted inevitably turns on its own facts and circumstances: see SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140; (2014) 233 FCR 279; FEL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 331.
THE DECISION OF THE TRIBUNAL
In its reasons for decision (‘Reasons’), the Tribunal:
(a)identified that the issue before it was whether grounds for the cancellation of the Applicant’s student visa had been made out and if so, whether the visa should be cancelled: Reasons at [3]-[4];
(b)identified section 116(1)(g) of the Migration Act 1958 (‘Act’) together with regulation 2.43 of the Migration Regulations 1994 (‘Regulations’) as the relevant provisions in this case. Regulation 2.43(1)(oa) is a prescribed ground for cancellation if the holder of the visa has been convicted of an offence against a law of the Commonwealth, a State or Territory: Reasons at [11];
(c)noted that the Applicant had been convicted of and pleaded guilty to offences which included knowingly possessing child abuse material, use of an optical surveillance device, and that the Applicant had acknowledged the convictions and sentences: Reasons at [12]-[13];
(d)was satisfied that the ground for cancellation in section 116(1)(g) exists and that the Tribunal must consider whether the visa should be cancelled: Reasons at [14]–[15];
(e)stated it had regard to the circumstances of the case, matters raised by the Applicant, and matters in the Department’s Procedural Instruction, and then proceeded to list those matters: Reasons at [15]–[16];
(f)noted information supplied by the Applicant to the Department and also to the Tribunal (both before and after the hearing): Reasons at [17]-[21];
(g)set out the nature of the conduct that underpinned the convictions at [23]-[24] of the Reasons, put the relevance of that information to the Applicant at [25] and indicated it would consider in response the written explanations and material provided by the Applicant at [26];
(h)considered the explanations provided by the Applicant including that he himself was a victim of sexual abuse at [27], that he suffered from a medical condition at [28], that he had been stupid and that he did not know that what he was doing was illegal and that he was remorseful at [30];
(i)considered the Applicant’s response that the issue of him being an ongoing risk to individuals in Australia was very low: Reasons at [35];
(j)considered evidence from the Applicant’s mother including evidence to the effect that the Applicant suffered from not having a father figure: Reasons at [36];
(k)considered evidence from the Applicant’s great aunt who referred to problems the Applicant experienced as a teenager: Reasons at [37];
(l)considered evidence from the Applicant’s friend and paralegal: Reasons at [38];
(m)stated that it took into account partially extenuating factors such as the Applicant’s youth, however, indicated that it struggled to accept, even accounting for that and other matters, that the Applicant would not have realised that his multiple acts of photographing and videoing individuals in private and personal situations were not illegal: Reasons at [39];
(n)accepted that the Applicant had been remorseful for what he had done: Reasons at [40];
(o)stated it was adverse to the Applicant that he had only sought psychological help for his issues after being caught, but accepted that he was now genuinely attempting to seek psychological support: Reasons at [41];
(p)took into account that one potential cause for the Applicant’s behaviour was being exposed as a young child to his babysitter having sexual intercourse. The Tribunal also noted that while there was no medical evidence to substantiate the cyst that had been removed from the Applicant’s brain, the Tribunal was prepared to accept that this may have had some influence on his behaviour and also accepted that the adverse influence of social media may have impacted the Applicant’s offending: Reasons at [42];
(q)considered that the extenuating circumstances to which the Applicant pointed, do not fully exculpate him from responsibility, noted the enormous violation of the dignity and privacy of a number of individuals and stated that this was adverse to the Applicant: Reasons at [43]-[44];
(r)considered the Applicant’s purpose of travel to Australia, accepted that the Applicant had successfully undertaken studies in Australia and that this was positive to the Applicant in the exercise of the Tribunal’s discretion: Reasons at [45]-[48];
(s)considered the hardship that may be visited on the Applicant and his family. The Tribunal accepted that there was significant hardship to the Applicant if his visa remained cancelled and also accepted that the Applicant had a prominent place in his family unit and that the hopes of the family rested on him: Reasons at [49]-[56];
(t)accepted that the Applicant had been in full compliance with the conditions of his visa apart from the criminal convictions: Reasons at [57];
(u)noted that the Applicant did not fear persecution or significant harm on return to Indonesia and thus Australia’s non-refoulement obligations were not enlivened at [58], and that the Applicant did not have any children in Australia that would be impacted by the visa cancellation: Reasons at [59]; and
(v)considered that the factual allegations and circumstances are overwhelmingly adverse to the Applicant and that its consideration of factors weighed against the exercise of the discretion not to cancel the visa, before concluding that the visa should be cancelled: Reasons at [60]-[63].
THE APPLICATION
The final orders sought by the Applicant are set out in the Application. Among other things, he seeks that the decision of the Tribunal be quashed, and that the matter be remitted to the Tribunal for determination according to law.
The Grounds of Review in the Application are reproduced below:
1.The Administrative Appeals Tribunal made a decision that was Legally irrational and cannot be JUSTIFIED.
2.The Administrative Appeals Tribunal failed to consider the information and the claims that I have provided to the Administrative Appeals Tribunal.
3.The Purported Decision of the Administrative Appeals Tribunal dated 09 September 2024 has committed jurisdictional error.
4.The Purported Decision of the Administrative Appeals Tribunal is not acceptable According to Law.
5.The Purported Decision of the Administrative Appeals Tribunal dated 09 September 2024 is relied upon irrelevant and separate matters.
6.The Purported Decision of the Administrative Appeals Tribunal dated 09 September 2024 is Legally unreasonable and illogical.
7.The Purported Decision of the Administrative Appeals Tribunal dated 09 September 2024 is MISLEADING, BIASED, DISCRIMINATION, RACISM and PROCEDURALLY UNFAIR.
8.The Administrative Appeals Tribunal has Wrongly applied & interpreted the Migration Act 1958 (Cth) while taking the decision on 09 September 2024.
9.The Administrative Appeals Tribunal has Wrongly applied the relocation principle while taking the decision on 09 September 2024.
10.The Administrative Appeals Tribunal, at Point no. 23 of the decision made on 09 September 2024, has COPIED & PASTED TEMPLATED Purported Story made by the Police on the basis of Just on their opinion and not on the truth & facts of the applicant's case. Thus the Administrative Appeals Tribunal has relied upon a Fake Story made by the Police.
11.The Administrative Appeals Tribunal has denied the applicant of natural justice and has MISUSED ITS POWERS and has INTENTIONALLY "DEFAMED" and "DAMAGED THE CHARACTER & REPUTATION" OF THE APPLICANT IN THE COMMUNITY. It is not a "JUSTICE" to the applicant.
12.THIS KIND OF ILL-TREATMENT AND MISBEHAVIOUR WITH A POOR VULNERABLE INDONESIAN CITIZEN LIKE ME HELD IN THE DETENTION CENTRE IS NOT DESIRABLE.
13.The Administrative Appeals Tribunal has JUST COPIED & PASTED TEMPLATED CONTENTS, while making Reasons for Decision on 09 September 2024.
14.The Administrative Appeals Tribunal has failed to consider the applicant's strong Friends and Family ties with the Australian Community.
15.The Administrative Appeals Tribunal has failed to consider the applicant's significant contributions the Australian Businesses and years of work.
16.The Administrative Appeals Tribunal has completely disregarded all the testimonies given by Ms Juliana Bongso - the applicant's Mother, Ms Anggy Tanjay - the applicant's Grand-aunt, and Mr Varis Rosyidin - the applicant's Friend and a Paralegal.
17.The Administrative Appeals Tribunal has failed to consider about the Significant Impact on the applicant's Brother's Mental health and has given no weight on the oral evidences given by number family members of the applicant.
18.The Administrative Appeals Tribunal has given ZERO Weight given on the applicant's Brother's Mental health - who is currently living in Australia, if the applicant be removed to his home country.
19.The Administrative Appeals Tribunal has also noted that the applicant did not censor his speech, which was being honest and truthful, did not try to change or hide the facts of his offending.
20.The Administrative Appeals Tribunal has Pre-decided to Affirm the Decision and relied upon the Purported reasons for decision made by the Department of Home Affairs while cancelling the applicant's Student Visa (Subclass - 500) on 08.07.2024, rather considering other number of factors in favour of the applicant.
21.The Administrative Appeals Tribunal has failed to consider the applicant's significant depression, fear and loss of confidence.
22.The Administrative Appeals Tribunal has failed to consider that the applicant has made efforts to receive further psychological assistance to have his Mental Health Care Plans (MHCP). Though the applicant has committed provided all the relevant Medical reports / information in this regard.
23.The Administrative Appeals Tribunal has disregarded post-hearing submission with support letter submitted to the tribunal well in time as per the tribunal's request.
24.The Administrative Appeals Tribunal has failed to consider that the applicant has never harmed anyone physically in the community and the applicant's good behaviour to the Australian Community.
25.The Administrative Appeals Tribunal has failed to consider that "the Magistrates' Court found the applicant's level of seriousness of offending is lower end of scale, his risk of re-offending is low and therefore the applicant has been punished with a Community Correction Order only". The applicant has never re-offended till the applicant has been held in the Detention centre.
26.The Administrative Appeals Tribunal did not regard to the previous unblemished clean record of the applicant.
27.Thus, the Administrative Appeals Tribunal has failed to consider the entire merits of the applicant's case instead focused on finding "the Tribunal is not satisfied that the applicant will abide by conditions imposed on the Visa if granted, the applicant will not engage in criminal conduct and the applicant is irresponsible & reckless".
CONSIDERATION
The Applicant submitted, inter alia, that:
(a)there is a contested judicial review application on foot evidenced by the making of the application, the orders seeking that the decision of the Tribunal be quashed, and that the Minister had not sought to strike out the Application;
(b)the Grounds of Review had been drafted by the Applicant but were capable of refinement. Now is not the time to determine whether the allegations are correct;
(c)it is not possible at this time to say that the Applicant’s case enjoys no prospects of success. The Applicant has raised matters that cannot be considered now and need to be considered at Final Hearing. For example, a number of the Grounds of Review assert a failure to consider particular matters. That cannot be determined without, for example, access to the transcript of what occurred before the Tribunal. There is also a Ground under which the Applicant alleges bias. That argument is not one that cannot succeed;
(d)the Applicant has only had four weeks in which to put forward his material, while in detention, which is a very short period of time. He has not delayed in bringing the Application;
(e)if the Applicant is removed from Australia, but is successful in his judicial review case:
(i)the removal will not have been unlawful, but he will likely have been wrongfully battered during the removal process;
(ii)he would not be able to return to Australia to participate in the remitted case in person;
(iii)he would not be able to study in Australia whilst awaiting his review on remittal.
In practical terms, removal from Australia is likely to mean that the Applicant forever loses his student visa.
(f)the Minister will not suffer any prejudice if the injunction is granted, although the public purse will be burdened by keeping the Applicant in detention and there will be the cost of the airfares which are forgone.
Prior to considering the specific Grounds of Review, it is necessary to deal with some aspects of the submissions above:
(a)consideration of whether there is a serious question to be tried is to be determined having regard to, among other things, the Grounds of Review identified by the Applicant and the evidence before the Court, including the Court Book, and the Reasons of the Tribunal. It might be that the Grounds of Review are capable of refinement, but the test is whether the Grounds, along with other evidence before the Court, disclose a serious question to be tried; and
(b)I accept that there is a prospect that when the Applicant asserts a failure on the part of the Tribunal to consider a matter, he may be referring to something that he said in the hearing before the Tribunal which was not considered by it, and that such a matter may only be proved by the provision of the Transcript. Lack of access or opportunity to access the Transcript, however, does not prevent an applicant from particularising that issue in a ground of review, and nor is it a barrier to assessing whether an Applicant has raised a serious issue to be tried on the face of the Application.
I turn then to consider the Grounds of Review.
Grounds 1–8 are unparticularised. The Applicant did not expand upon them in the hearing before me. In their form, they do not give rise to any arguable case or serious issue to be tried when the Reasons of the Tribunal are considered. That these Grounds are unparticularised is a sufficient basis upon which they could be dismissed: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
Further, in Ground 7, the Applicant asserts bias. In oral submissions, the Applicant submitted that a claim of bias is not an argument that cannot succeed. The relevant test is not that the argument cannot succeed, but rather, whether the Applicant has an arguable case that he is entitled to the relief sought. The Applicant has not articulated how the alleged bias arose.
In Ground 9, the Applicant asserts that the Tribunal ‘Wrongly applied the relocation principle’. The relocation principle was not, on any view, relevant to the matters that the Tribunal was required to determine. The Tribunal in fact noted that the Applicant did not fear persecution or significant harm if he returns to Indonesia and expressly stated, correctly, that ‘Australia’s non-refoulement obligations are not enlivened’.
Grounds 10-13 as well as Grounds 19–20 do not disclose any arguable basis for relief. They amount to little more than bare assertions. They lack particulars. If anything, these Grounds simply mark out that the Applicant strongly disagrees with the decision of the Tribunal. Strong disagreement with the findings of the Tribunal, however, does not give rise to an arguable case for relief. Ground 10 is nonsensical. I cannot see how the Applicant can complain about a ‘Fake Story made by the Police’ when he was charged with offences, then pleaded guilty and has admitted his wrongdoing.
Grounds 14–18, 21 and 24 variously allege that the Tribunal ‘failed to consider’ various matters or failed to give weight to particular matters. With respect to these Grounds:
(a)in Ground 14, the Applicant asserts the Tribunal failed to consider his ‘strong Friends and Family ties with the Australian Community’. In Ground 15, the Applicant says the Tribunal failed to consider his ‘significant contributions the [sic] Australian Businesses and years of work’. I observe that the Tribunal noted that the Applicant was a student, that he had successfully undertaken studies in Australia, and that this was a positive factor in his favour: Reasons at [45]-[48];
(b)contrary to the assertion in Ground 16 and part of Ground 17, the Tribunal explicitly considered the evidence given by the Applicant’s mother, his grand aunt, and a friend: Reasons at [36] – [38];
(c)contrary to the assertion contained in Ground 17 and 18, the Applicant never raised as an issue any impact his removal would have on his brother’s mental health: see the Applicant’s Statutory Declaration dated 15 July 2024 (CB 109) and the Applicant’s post hearing submissions to the Tribunal (CB 207-208). The Applicant did raise issues in relation to his mental health, including by submitting clinical notes (CB 168–179), however, these notes and the submissions relate to the Applicant, not his brother. Notwithstanding the Applicant’s failure to raise any issue about his brother’s mental health, the Tribunal, noted that it had been indicated to the delegate by the Applicant that there would be hardship faced by his brothers if his visa was cancelled, and recorded the Applicant explaining that this was due to the fact that he was the eldest brother and thus had more responsibility in the family unit: Reasons at [53];
(d)contrary to the assertion contained in Ground 21, the Tribunal explicitly referred to the Applicant’s submission that circumstances had taken a toll on his mental health and that he was currently experiencing significant depression and fear and loss of confidence: Reasons at [54]. Indeed, the Tribunal noted that cancellation of the visa would cause considerable hardship to the Applicant and his family both financially and emotionally: Reasons at [49]-[56], [61];
(e)contrary to the assertion contained in Ground 24, the Tribunal explicitly referred to submissions made by the Applicant that he never threatened victims, never distributed images, and that he has no interest in harming children: Reasons at [30]-[31]. The Tribunal also noted the Applicant’s statement that his risk of reoffending was very low: Reasons at [35]; and
(f)the Tribunal acknowledged that the Applicant had complied with his visa conditions (apart from the criminal convictions) and that this factor weighed against cancellation: Reasons at [57].
In Ground 22, the Applicant asserts a failure by the Tribunal to consider that the Applicant had made efforts to receive further psychological assistance. The Tribunal expressly referred to efforts by the Applicant to obtain psychological assistance: Reasons at [18], [33] and [41]. The Tribunal also specifically referred to information about the Applicant’s mental health that the Applicant had provided in his post-hearing submission: Reasons at [54].
In Ground 23, the Applicant asserts that the Tribunal disregarded his post-hearing submission. The Tribunal, however, plainly considered the post-hearing submission it received. At [20] of the Reasons, the Tribunal specifically refers to two responses provided by the Applicant following the hearing. At [30]–[31], the Tribunal specifically refers to information provided by the Applicant following the hearing. At [30], the Tribunal refers specifically to information that is contained within the post-hearing submission: compare Reasons [30] with CB 208.
Contrary to the assertion in Ground 25 and 26, the Tribunal noted the particulars of what occurred at the Magistrates Court at [12] and [24] of the Reasons. Further, the Tribunal considered the evidence provided by the Applicant’s friend and paralegal as to matters the Magistrate considered in sentencing the Applicant, including that the Applicant had no prior convictions: Reasons at [38].
Ground 27 appears to be a ‘catch all’ ground in which the Applicant claims that the Tribunal failed to consider ‘the entire merits of his case’. That assertion has no merit when one has regard to the manner in which the Tribunal approached its task (which I have summarised above). The Tribunal, inter alia, carefully weighed the matters raised by the Applicant including that he had been ‘a very good student’ (at [61]), and that there is ‘very considerable hardship to the applicant and his family’ (at [61]), but ultimately concluded that ‘factors weighing against exercising the discretion, significant as they are, do not weigh against issues adverse to the applicant, particularly the circumstances leading to the convictions and the applicant having to bear some degree of responsibility for his multiple criminal acts of significant breaches of privacy’ (at [62]).
One submission advanced by the Applicant was that the question before the Court was whether there was a serious question to be tried depends not just on the orders sought, but an assessment of the Application (including the Grounds of Review) before the Court and the evidence before the Court and whether all of that gives rise to a serious question to be tried.
In summary, when the Applicant’s submissions and Grounds of Review are considered, the Applicant has not established that there is a serious question to be tried. The Grounds of Review appear to have low to negligible prospects of success at trial.
The balance of convenience also does not favour the grant of the injunction when the following matters are considered:
(a)there is a public interest in the proper administration of the Act. Section 198(5) of the Act requires an officer to remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen is a detainee, and neither applied for a substantive visa in accordance with section 195(1), nor applied under section 137K for revocation of the cancellation of a substantive visa. The Applicant meets the criteria established by section 198(5) of the Act. Non-removal of the Applicant frustrates the legislative intention within the legislative scheme and is a factor to consider in weighing the balance of convenience: CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [15];
(b)the Applicant is able to pursue his Application in Indonesia and he does not need to be present in Australia;
(c)a motivation behind the Application appears to be that the Applicant seeks to complete his studies, which he was due to finish in October 2024. His visa, however, expires in March 2025. The making of the Application does not re-enliven his visa, nor does the granting of any injunction. Given the well-publicised backlog of migration matters pending in this Court, it is unlikely any substantive judicial review application would occur before the expiry of the Applicant’s visa. Even if a judicial review application were heard and determined favourably for the Applicant, however, a remittal and reconsideration of his Application by the Tribunal is unlikely to occur before 15 March 2025;[1] and
(d)the Applicant does not claim to fear harm or persecution in Indonesia.
[1] Though if the Applicant succeeded before the Tribunal he could then apply for a visa: see item 1222(4)(c)(ii) of the Regulations.
For all of the above reasons, the application for an injunction to prevent the removal of the Applicant from Australia is not granted. The Application in a Proceeding must be dismissed. For the avoidance of doubt, I will also make an order dismissing Order 4 set out in the Application (which although expressed as an order for final relief, has been treated as an application for an interlocutory injunction). The matter should otherwise be case managed and allocated a final hearing date by the Registry.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 25 October 2024
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