APF23 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 182

Federal Circuit and Family Court of Australia

(DIVISION 2)

APF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 182  

File number(s):

PEG 31 of 2023

Judgment of:

JUDGE LUCEV

Date of judgment:

8 March 2023

Catchwords:

MIGRATION – application for urgent interlocutory injunction to restrain Minister from removing applicant from Australia – where applicant in detention centre – where applicant claims not aware of decision to dismiss judicial review application – whether there is reasonable excuse for non-appearance at hearing – whether there is any reasonable prospect of success – whether there is a serious question to be tried – whether balance of convenience favours grant of injunction – where injunction sought – where no previous attempt by applicant to resolve migration status – application for injunction refused  

Legislation:

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05

Federal Circuit Court Rules 2001 (Cth) r.13.03

Immigrants and Emigrants Act 1948 (Sri Lanka) s 45

Migration Act 1958 (Cth) Pt 7, Div 4, ss 5, 14, 36, 91X, 189, 195A, 197AB, 198, 425

Cases cited:

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57; (2006) 80 ALJR 1672; (2006) 229 ALR 457

AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10

ALY15 v Minister for Immigration and Border Protection [2017] FCA 281

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

Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225

Morrison v Minister for Immigration and Citizenship [2007] FCA 723

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300

SZTAL v Minister for Immigration and Border Protection & Anor [2016] FCAFC 69; (2016) 243 FCR 556

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362; (2017) 91 ALJR 936; (2017) 347 ALR 405

Division:

Division 2 General Federal Law

Number of paragraphs:

29

Date of last submission/s:

8 March 2023

Date of hearing:

7 and 8 March 2023

Place:

Perth

Applicant:

In person via Microsoft Teams with the assistance of a Sinhalese interpreter

Counsel for the Respondent:

Mr J Papalia via Microsoft Teams

Solicitor for the Respondent:

Australian Government Solicitor

ORDERS

PEG 31 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

APF23

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

order made by:	JUDGE LUCEV
DATE OF ORDER:	8 MARCH 2023

THE COURT ORDERS THAT:

1.The applicant’s application for an interlocutory injunction to prevent his deportation from the Commonwealth of Australia forwarded to the Court on 7 March 2023 be taken to have been filed on that day in Court.

2.The applicant’s application for an interlocutory injunction be dismissed.

3.The applicant pay the respondent's costs in the sum of $1,000 by 8 April 2023.

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
(Delivered ex tempore and revised from transcript)

JUDGE LUCEV

Introduction

1. Before the Court is an application for an interlocutory injunction, which the Court will treat as being filed in Court on 7 March 2023, which seeks to prevent the deportation of the applicant, APF23 (“APF23”) from the Commonwealth of Australia (“Interlocutory Injunction Application”). The applicant has been assigned the pseudonym of APF23 for the purposes of these proceedings pursuant to s 91X of the Migration Act 1958 (Cth) (“Migration Act”).

2. The grounds of the Interlocutory Injunction Application are as follows (reproduced unaltered):

   1.ON 2 march 2023 I was served with the documentation which states my date of removal australia .

   2.Despite the fact I arrived by the boat in 2012 from sri lanka and had my protection visa claims were refused by the minister.

   3.        I have been in detention for for than 3 years.

   4.I have been trying to seek legal advise from a very long time to apply for another protection visa claims and I was served this removal papers.

   5.Minister denied me lack of procedure and lacked duty of care

   Particulars

   1 illogical/irrational/unreasonable approach,

   2 question of public interest

   3.exercise of discretion.

   a.despite the finding that I did not satisfy the clause 36(2) for the person whom Australia owes protection the minister was negligible or did not consider the consequences of removal.denied procedural fairness by not considering the extents of impediments before the removal process actually takes place.

   b. Upon my arrival the the sri lankan authority I would be imprisoned right away and tutored and have the possibility to be beaten to death ..

   c.         It still pose a significant harm to my life upon the removal. 

3. The Interlocutory Injunction Application came on for two short hearings yesterday, being 7 March 2023, and APF23 made submissions in the second of those hearings. This morning, after a further explanation in relation to the proceedings from the Court, the Court having given a similar explanation yesterday, APF23 was given the opportunity to give evidence orally in these proceedings, but indicated that he had said as much as he wished to say in his submissions yesterday.

4. The respondent, being the Minister of Immigration, Citizenship and Multicultural Affairs (“Minister”), relied on three affidavits of Ms Centaine Alexandra Mumford (“Ms Mumford”) sworn on 7 March 2023. It is pertinent to note that the third of those affidavits includes the Court Book of earlier proceedings in the matter number MLG923/2015, in which APF23 then had the pseudonym of AQB15. For the purposes of these proceedings, references to the Court Book in these Reasons for Judgment will be to that in Ms Mumford’s third affidavit. The three affidavits of Ms Centaine Alexandra Mumford sworn on 7 March 2023 were taken as read and in evidence in these proceedings.

   Migration History

5. The migration history of APF23 can be summarised as follows:

   (a)on 26 March 2013 APF23 applied for a Protection (Class XA) (subclass 866) visa which was refused on 17 March 2014 by a Delegate of the then Minister for Immigration and Border Protection (“Delegate’s Decision”);

   (b)on 25 March 2014 APF23 applied to the then Refugee Review Tribunal, now Administrative Appeals Tribunal (“Tribunal”), for review of the Delegate’s Decision. APF23 took part in a hearing before the Tribunal (“Tribunal Hearing”) and on 26 March 2015 the Tribunal affirmed the Delegate’s Decision (“Tribunal Decision”), with the written reasons of the Tribunal Decision running for 12 pages;

   (c)on 29 April 2015 APF23 applied to the Federal Circuit Court of Australia for judicial review of the Tribunal Decision (“Judicial Review Application”) in MLG923/2015 under the pseudonym of AQB15;

   (d)on 2 May 2017 the Court’s records indicate that APF23 was sent an invoice for fees for setting down for a hearing in which the date of the hearing was included, being 8 June 2017. This invoice was sent to the email address specified in APF23’s then Notice of Address for Service;

   (e)on 8 June 2017 the Judicial Review Application was dismissed by a judge of the Federal Circuit Court for the non-appearance of APF23 pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth);

   (f)on 23 September 2015, APF23’s most recent Bridging E (Class WA) (Subclass 050) visa (“Bridging Visa”) ceased and APF23 became an unlawful non-citizen pursuant to s 14 of the Migration Act;

   (g)on 18 October 2020 APF23 was detained pursuant to s 189(1) of the Migration Act; and

   (h)on 12 October 2022 APF23 initiated requests for Ministerial intervention under ss 197AB and 195A of the Migration Act to which, it would appear, no final response has been received from the Minister.

   Interlocutory Injunction Application

   General Test for Interlocutory Injunction

6. In considering whether to exercise the discretion to grant an interlocutory injunction, it is appropriate for the Court to consider the following two factors:

   (a)whether there is a serious question to be tried, which requires APF23 to show that there is a sufficient likelihood that he will succeed at the final hearing to justify the preservation of the current position pending the final hearing; and

   (b)whether the inconvenience or injury that APF23 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] HCA 46; (2006) 227 CLR 57; (2006) 80 ALJR 1672; (2006) 229 ALR 457, HCA at [65].

7. The two limbs of the test for the grant of an interlocutory injunction are interrelated. For example, 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. 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...

8. 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 363 at [28] (Charlesworth J).

9. Interlocutory relief or injunctive relief may therefore be granted if there is a marked balance of convenience in favour of it.

   Set Aside

10. APF23 faces the difficulty that his Judicial Review Application has already been dismissed by reason of orders of this court on 8 June 2017. In order for that application to be revived, APF23 would need to apply to set aside the dismissal orders of 8 June 2017. The relevant law was succinctly set out in AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10 at [4]-[8] per Judge Given as follows:

    4 The Court’s power to set aside the orders made on 12 December 2016 is (now) contained in r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules) which relevantly provides that:

    (2) The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:

    (a)       it was made in the absence of a party;

    5 Whether or not to accede to the reinstatement application is a discretionary power which requires me to consider whether or not it is in the interests of justice to reinstate the application: FBS18 v Minister for Home Affairs [2019] FCAFC 196 at [50].

    6 In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (which was cited with approval by the Full Court in FBS18), Ryan J considered the principles relating to an application for reinstatement of a matter dismissed in the absence of a party. His Honour found at [7] that where reinstatement is sought, a discretion falls to be exercised by the Court [and] requires consideration of certain factors which his Honour listed as:

    (a)       first, whether there is a reasonable excuse for the party’s absence;

    (b) secondly, the existence and nature of any prejudice that might flow to the other party from the reinstatement, and how any such prejudice may be alleviated; and

    (c) thirdly, whether the application for reinstatement has a reasonable prospect of success in the substantive proceeding, with the grounds to be taken at an impressionistic level: see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J and DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475. While those decisions dealt with the discretion to extend time, which carries with it a clear prescribed time period in which to commence proceedings, there appears to me to be no material difference to using this standard of assessment in the exercise of the Court’s discretion as to whether to reinstate under r 17.05 of the Rules: see AVC19 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1752 at [3] to [5] per Davies J.

    7 The matters referred to in the preceding paragraph are not a definitive list, but are consistently considered in the exercise of the Court’s broad discretion to reinstate (see CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] per Mortimer J), noting the caution expressed by the Federal Court in AHN17 v Minister for Immigration and Border Protection [2018] FCA 1598 at [32] where McKerracher J said:

    …that whatever assistance that may be gleaned from earlier judicial decisions considering the discretion to set aside orders made in the absence of a party, those authorities can only operate as a guide to the exercise of the discretion in r 16.05...

    8 In the instant case, each [of] the three considerations outlined in MZYEZ do in fact arise for consideration against the lengthy background to this case and the circumstances which led to the dismissal of the application for non-appearance. An additional factor arises on the facts of this case, namely delay. While not a mandatory consideration in every matter (see AHN17 at [33]) the delay in seeking reinstatement does arise as a relevant factor to be weighed in the exercise of my discretion in this particular case.

    Is there a reasonable prospect of success of APF23’s Judicial Review Application?

11. The Court notes that there are two grounds of review specified in APF23’s Judicial Review Application and state as follows:

    1. The Refugee Review Tribunal did not afford me procedural fairness.

    2. The Refugee Review Tribunal applied the wrong legal test.

12. It would be necessary for APF23 to establish that there was material jurisdictional error in the Tribunal Decision in order for him to succeed in his Judicial Review Application: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590. The Tribunal Decision is set out in the Court Book but for present purposes, the Court accepts as accurate the summary provided at [6]-[11] by the outline of submissions filed by the Minister on 24 May 2017 in the MLG923/2015 proceedings which state as follows:

    (a)the Tribunal determined that APF23 did not face a real chance or risk of harm arising from his actual or imputed political opinion. Although APF23 had claimed to fear harm on that basis, he abandoned his claim at the Tribunal Hearing, stating that he did not fear harm because he worked for the UNP in Sri Lanka or because he had attended the protest in February 2012: CB 202 at [32];

    (b)the Tribunal was not satisfied that APF23 faced a real chance of harm of any kind on his return to Sri Lanka because his father left the village in 1996 owing money. In particular, the Tribunal noted that APF23’s claims had not been presented consistently throughout the application process which led it to doubt the truth of his claims: CB 203 at [33];

    (c)the Tribunal found it to be highly unlikely that APF23 would be pursued for his father’s debt, 20 years after his father had run away from the village. The Tribunal noted that even if it were to accept that APF23 had been assaulted in 2006 and 2008 in connection with his father’s debt, given that APF23 had spent the following 3 years in the village without difficulty, the possibility of any future threats, demands for money or assaults, was remote: CB 203 at [33]-[34];

    (d)the Tribunal accepted that APF23 was one of the people to steer the boat on which he travelled to Australia and that he was requested to do this by a friend. However, the Tribunal found that APF23 was not paid for this role. It noted that his evidence as to whether he received a reduced fare was contradictory but found that nothing turned on it: CB 203 at [38];

    (e)the Tribunal considered, having regard to country information, the application of s 45(1)(b) of the Immigrants and Emigrants Act 1948 (Sri Lanka) (“I & EA Act”) to APF23, namely that, any person who attempts or does any act preparatory to, or aids and abets any other person to organise any other person to leave Sri Lanka in contravention of any provision of the I & EA Act is guilty of an offence: CB 204-206 at [39]-[43];

    (f)the Tribunal accepted that APF23 would be questioned on arrival at the airport about his illegal departure. However, based on APF23’s description of his role on the boat, the Tribunal did not accept that APF23 would be viewed as having contravened s 45 of the I & EA Act which focussed primarily on persons who have been involved in the organisation of others to leave Sri Lanka. The Tribunal found it highly unlikely that the authorities would even be aware of the applicant's role on the boat: CB 206 at [44];

    (g)further, the Tribunal was not aware of any reports of persons such as APF23, who is Sinhalese and had a minimal involvement in the boat journey, being prosecuted under the I & EA Act for having been involved in organising a people smuggling venture: CB 206 at [44];

    (h)in light of all the circumstances, the Tribunal did not consider that there was a real chance that APF23 would be suspected of involvement in people smuggling, or that he would be on a watch list for this reason and come to the adverse attention of the authorities on return: CB 206 at [44]. The Tribunal did not consider that APF23 was at a real risk that the Sri Lankan authorities would identify him as someone who could provide them with information about people smuggling operations in Sri Lanka. In those circumstances, the Tribunal did not consider that there was a real chance or risk that APF23 would be subjected to a longer or more intensive interrogation process on return during which he might face persecution or significant harm. It found that there was not a real chance that APF23 would be charged with a people smuggling offence, or that there is a real chance that he would face prosecution or any consequent penalty which might result in serious or significant harm: CB 206-207 at [45];

    (i)the Tribunal found that on return to Sri Lanka, APF23 would be questioned about his departure and that security and character checks would be undertaken. However, the Tribunal determined that APF23 would not suffer any serious or significant harm by reason of this process. While the Tribunal accepted that APF23 may be charged with an offence under the I & EA Act because he travelled without a valid travel document, it accepted the Department of Foreign Affairs and Trade’s advice that no returnee who was just a passenger on a boat had ever been given a custodial sentence. Even if APF23 was prosecuted, the likely penalty would be a fine. While the Tribunal found that APF23 may be remanded in custody, while waiting to be granted bail, it found that bail is granted relatively quickly on the person’s own undertaking and that any such period of detention would be relatively short, most likely not more than 4 days at most. The Tribunal found that APF23 would be released on bail, with a family member as a surety, to appear in court at a future date. The Tribunal found that if convicted, APF23 would almost certainly be fined. The Tribunal did not consider any of this amounted to Convention based persecution as it found that it was not discriminatory on its terms and was based on laws of general application: CB 207-208 at [47]-[49];

    (j)the Tribunal did not accept that APF23 would be imputed with a political opinion because he left Sri Lanka illegally, and/or because he sought asylum in a Western country: CB 208 at [50];

    (k)in considering the complementary protection criteria, the Tribunal did not accept that APF23 would suffer a real risk of significant harm upon his return to Sri Lanka as a result of having driven the boat on the journey to Australia, because of any political activity, involvement or association in which he was engaged, or in connection with his father: CB 208 at [52]. While it accepted that APF23 would most likely be detained briefly on return for questioning, because there was only a remote possibility that his role in driving the boat would be known to the authorities, it found that the process of investigation would be quick and would not involve a lengthy period of detention: CB 208 at [53];

    (l)while the Tribunal had accepted that APF23 may be charged with an offence under the I & E A Act because he departed Sri Lanka illegally, it found that he would be released on bail, with a family member as a surety and would be remanded for a short period. It was satisfied that this would not give rise to a real risk of significant harm: CB 209 at [54];

    (m)the Tribunal determined that there was not a real risk that APF23 would face a custodial sentence as an illegal returnee and noted that APF23 had not claimed that he would be unable to pay the fine, which was the most likely penalty to be imposed: CB 209 at [5]. While the Tribunal accepted that the conditions in prison or detention may be poor, it did not accept that any pain and suffering caused to APF23 by overcrowding and poor and insanitary conditions was intended to cause extreme humiliation and thus, did not fall within the ambit of s 5(1) of the Migration Act: CB 209 at [56]; and

    (n)the Tribunal was not satisfied that APF23 was a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Migration Act: CB 209-210 at [59]-[60].

    Ground 1 – was APF23 afforded procedural fairness?

1. In relation to ground 1 as to whether the Tribunal complied with procedural fairness obligations, the Court notes that those obligations appear in Div 4 of Pt 7 of the Migration Act. The Court notes that APF23 was invited to a hearing before the Tribunal and, by reason of that invitation, was asked or invited to give evidence and present arguments to the Tribunal in relation to his case. APF23 attended the Tribunal Hearing on 20 March 2015 with a legally qualified representative in a hearing which lasted more than two and a-half hours: CB 193-194.

2. APF23 has not demonstrated in any way in these proceedings that he did not have a reasonable opportunity to present his case to the Tribunal or that he did not have notice of the issues which were the subject of that review.

3. The Tribunal Decision makes it clear that the Tribunal:

   (a)dealt with the issues which were relevant;

   (b)raised those issues with APF23; and

   (c)that it found it difficult to accept APF23’s claims in light of the fact that APF23 had indicated an absence of problems and that nothing had happened to him for over three years from the time of the events which were the subject of his claims. 

4. The Tribunal Decision also reveals that APF23 was given and took the opportunity to respond to issues raised by the Tribunal.

5. In the circumstances it is not evident that there was any contravention or breach of s 425 of the Migration Act dealing with the requirements of procedural fairness in relation to APF23’s Tribunal appearance. APF23 has not demonstrated that he did not have a reasonable opportunity to present his case to the Tribunal or that he was not put on notice of the issues on review: see generally, SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300, CLR at [47].

   Ground 2 – did the Tribunal correctly apply the law?

6. In relation to the second ground, it appears that the Tribunal properly set out the law to be applied and the test that the Migration Act required it to apply. The Tribunal Decision makes it plain that it considered APF23’s claims in the context of whether he had a well-founded fear of persecution for a convention reason either at that time or in the reasonably foreseeable future if he were to be returned to Sri Lanka and the Tribunal considered whether or not APF23 could satisfy the requirements of s 36(2)(a) of the Migration Act.

7. The Tribunal also set out and considered, by reference to the facts available to it, the application of the complementary protection criteria in s 36(2)(aa) of the Migration Act. The Tribunal also had regard to claims by APF23 as to what might happen on his return to Sri Lanka in terms of his detention and whilst it accepted that he may be remanded for a short period of time in an airport prison, it did not accept that any pain or suffering caused would be intentionally inflicted as required by s 5(1) of the Migration Act. In so doing it applied the law as set out in a Full Court Federal Court decision in SZTAL v Minister for Immigration and Border Protection & Anor [2016] FCAFC 69; (2016) 243 FCR 556 (“SZTAL”), the rationale for which was subsequently upheld by the High Court of Australia on an appeal from SZTAL, see SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362; (2017) 91 ALJR 936; (2017) 347 ALR 405.

8. The Court has considered, bearing in mind that APF23 is self-represented litigant, whether or not there might otherwise be a reasonably arguably material jurisdictional error in the Tribunal Decision: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215, and has concluded that there is no such jurisdictional error discernible. It follows that in the Court’s view APF23 has no reasonably arguable case or, indeed, no reasonable prospect of success on the Judicial Review Application if it were to be reinstated.

   Was there a reasonable excuse for APF23’s absence?

9. In the Court’s view there was no reasonable excuse for APF23’s non-appearance at the hearing on 8 June 2017 as he was notified of the hearing by the Court and has given no reason for his non-attendance. 

   Is there any prejudice that might flow to the Minister and if so, what?

10. In terms of prejudice to the Minister, it is clear that there is substantial prejudice to the Minister if the Judicial Review Application were to be reinstated. The litigation in relation to the Judicial Review Application was finalised almost six years ago. APF23 has been an unlawful non-citizen for almost seven years and has been in detention for more than two of those seven years. In the circumstances the Court considers that the Minister is entitled to the benefit of the principles of finality in relation to litigation. The Court also has regard to whether or not it is in the interests of justice to reinstate the Judicial Review Application, and, given that there are many thousands of outstanding cases awaiting hearing in this Court, the Court does not consider it would be appropriate to reinstate a case in respect of which there is no reasonable prospect of success on the underlying Judicial Review Application, as to do so would simply take up valuable judicial resources which ought to be devoted to other outstanding cases.

11. For those reasons the Court is of the view that APF23 would be unlikely to succeed on an application to set aside the dismissal orders of 8 June 2017 and that is a further reason, therefore, why he would have no arguable case in relation to this Judicial Review Application. Therefore, in terms of the first limb of the test for the injunction, there is no serious question to be tried. 

    Balance of Convenience

12. In terms of the balance of convenience the Court repeats what it said in relation to the issues of prejudice, delay and the interests of justice at [21]-[23] above, all of which weigh, in the circumstances of this case, against the balance of convenience favouring APF23. Importantly, in the circumstances of this case, there is also the statutory provisions of s 198 of the Migration Act. The public interest in the proper administration of the Migration Act is a further reason why the balance of convenience lies against granting the granting of an injunction. This is particularly so in circumstances where s 198(6) of the Migration Act imposes an obligation on officers of the Department of Immigration and Border Protection to remove an unlawful non-citizen from Australia, with the granting of an interlocutory injunction having 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]. The proper administration of the Migration Act is a factor that should be taken into account in deciding where the balance of convenience lies.

13. It is relevant to 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.

14. In this case the Court considers that the risk of injustice to the Minister is, for the reasons that are outlined, and particularly in relation to s 198 of the Migration Act, greater than the risk to APF23. As part of the public interest and the due administration of the Migration Act the Court also takes into account that:

    (a)APF23’s last substantive visa application was determined on a final basis by the Tribunal on 26 March 2015, almost eight years ago;

    (b)APF23’s last bridging visa expired almost seven and a half years ago;

    (c)the Judicial Review Application was dismissed for non-appearance on 8 June 2017, almost five years ago; and

    (d)in the circumstances of this case that APF23 has, it would appear, exhausted his options to obtain a substantive visa on shore.

15. Having regard to the assessments carried out by officers of the Minister in relation to the APF23’s medical condition, and the Minister’s protection obligations, as set out in the affidavits of Ms Mumford and the annexures to her affidavits, the Court is satisfied that there is no other impediment legally to APF23’s removal from the Commonwealth of Australia. In the circumstances the balance of convenience weighs significantly in favour of the Minister in these proceedings.

    Conclusion and Orders

16. In conclusion, neither limb of the test for the interlocutory injunction is satisfied and it follows that APF23’s application for an interlocutory injunction be dismissed.

17. The Court will hear the parties as to costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       9 March 2023