AQB15 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 185
Federal Circuit and Family Court of Australia
(DIVISION 2)
AQB15 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 185
File number(s): MLG 923 of 2015 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 – whether there is a serious question to be tried – whether balance of convenience favours grant of injunction – where injunction sought to set aside a non-appearance decision made in 2017 by the Court – where injunction sought following related urgent interlocutory injunction decision handed down earlier that morning – application for injunction refused Cases cited: APF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 182 Division: Division 2 General Federal Law Number of paragraphs: 6 Date of last submission/s: 8 March 2023 Date of hearing: 8 March 2023 Place: Perth Applicant: In person by telephone 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
MLG 923 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AQB15
Applicant
AND: MINISTER FOR IMMGIRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
8 MARCH 2023
THE COURT ORDERS THAT:
1.The three affidavits of Centaine Alexandra Mumford sworn 7 March 2023 and filed in PEG31/2023 be treated as if also filed in these proceedings.
2.The name of the Minister be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The applicant’s application in a proceeding filed today be dismissed.
4.The applicant pay the respondent’s costs in the sum of $500 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
This is an application in a proceeding (“Application”) filed by the applicant, AQB15, to set aside an order made by this Court on 8 June 2017 (“2017 Order”) dismissing AQB15’s judicial review application (“Judicial Review Application”) in these proceedings for non-appearance, and for an urgent interlocutory injunction preventing AQB15’s deportation from the Commonwealth of Australia.
It is part of AQB15’s Application that he seeks an urgent interlocutory injunction preventing his deportation from the Commonwealth of Australia. The Application has been filed within the last two hours. This morning in APF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 182 (“APF23”), the Court delivered a reasonably lengthy ex tempore judgment dismissing an application in a proceeding by APF23, who is the same person as AQB15, for an interlocutory injunction preventing deportation. This Application was filed after that judgment in APF23 was delivered and those orders were made in APF23. The Application seeks orders to set aside the 2017 Orders of this Court, to restrain the Minister from taking any further decision until the matter is determined by this Court, and for an urgent interlocutory injunction preventing AQB15’s deportation from the Commonwealth of Australia.
The Application is supported by an affidavit signed by AQB15 and which the Court will treat as filed in these proceedings. That affidavit seeks to explain the circumstances in which AQB15 did not appear before this Court on 8 June 2017, and basically they were as follows:
(a)that the applicant was homeless and frequently moving house;
(b)that he was depressed and on medication;
(c)that he was unable to afford a lawyer;
(d)that he had no access to the internet or the telephone and he was therefore unaware of the Court date on 8 June 2017 (“Hearing”) of which he had been advised by email in circumstances set out this morning in the judgment in APF23.
The Court has explained in the proceedings in APF23 and set out in the judgment in APF23 the tests with respect to obtaining an interlocutory injunction and setting aside an order dismissed for non-appearance at [6]-[12] per Judge Lucev:
6In 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].
7The 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...
8The 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).
9Interlocutory relief or injunctive relief may therefore be granted if there is a marked balance of convenience in favour of it.
Set Aside
10APF23 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.
In terms of the test for setting aside the 2017 Order, AQB15’s affidavit might afford some excuse for his non-appearance at the Hearing. In the circumstances, however, that does not offer any significant assistance to AQB15. The fundamental issue in relation to this Application is that the underlying Judicial Review Application, that is, the one dismissed for non-appearance, has no real prospect of success for the reasons outlined in APF23 earlier today, and although the non-appearance issue might now be said to be explained, at least to some degree, the other matters to be considered in relation to setting aside an Application, such as prejudice and the interests of justice, otherwise remains the same as they were in APF23 and do not weigh in favour of setting aside the order of 8 June 2017. And it follows, save for the issue with respect to non-appearance, that as outlined in APF23 there is no serious question to be tried.
Otherwise the balance of convenience factors remain unchanged from those outlined in APF23 this morning, and the Court refers to and relies upon those reasons for judgment for the purposes of this judgment. The Court also observes that the present Application is undoubtedly in many respects subject to issue estoppel by reason of the earlier reasons for judgment in APF23, and that also weighs against the balance of convenience. It follows that the Application must be dismissed with costs which the Court proposes to assess. The Court will assess costs as a lump sum of $500, and the Court will make orders accordingly.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 9 March 2023
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