ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 938
•18 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 938
File number(s): PEG 231 of 2023 Judgment of: JUDGE GOODCHILD Date of judgment: 18 October 2023 Catchwords: MIGRATION – interlocutory application to stop applicant’s removal from Australia – where applicant is in immigration detention - where substantive judicial review proceeding is the applicant’s second attempt to seek judicial review of Tribunal’s decision – whether prima facie case for relief is established – consideration of the application of res judicata and Anshun estoppel principles – whether the balance of convenience weighs in favour of injunctive relief – application dismissed. Legislation: Migration Act 1958 (Cth) ss 189(1), 476, 477(2) Cases cited: ALY15 v Minister for Immigration and Border Protection [2017] FCA 281
ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 654
ASU22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 927
Australian Broadcasting Corporation v O’Neill(2006) 227 CLR 57; [2006] HCA 46
BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221
BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 49
Cbi Constructors Pty Ltd v Chevron Australia Pty Ltd [2023] WASCA 1
Christensen v General Motors Australia Pty Ltd [2022] FedCFamC26 706
CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 870
CTF21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 309
DXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2020] FCAFC 127
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Jackamarra (an Infant) v Krakouer(1998) 195 CLR 516
Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs[2022] HCA 28; (2022) 403 ALR 604
Macquarie Bank Ltd v National Mutual Life Assn of Australia Ltd (1996) 40 NSWLR 543
Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433
Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v EGZ17 (2022) 289 FCR 164
MZZLD v Minister for Immigration and Border Protection[2016] FCA 1201
SZRIQ v Federal Magistrates Court of Australia[2013] FCA 1284; (2013) 236 FCR 442
Tai Shing Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242
Tomlinson v Ramsey Food Processing Pty Ltd (2005) 256 CLR 507
Virgin Atlantic Airways v Zodiac Seats UK Ltd [2013] UKSC 46
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of hearing: 16 October 2023 Applicant: In Person, via Audiovisual Link Counsel for the Respondents: Mr Hall Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 231 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASU22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOODCHILD
DATE OF ORDER:
18 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Minister’s name be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The applicant’s interlocutory application seeking an injunction restraining the first respondent from removing the applicant from Australia, is dismissed.
3.The matter is otherwise stood over for hearing on a date to be fixed.
4.The applicant is to pay the first respondent’s costs in the fixed sum of $3,000.00.
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 GOODCHILD:
BRIEF BACKGROUND
The first respondent proposes to remove the applicant from Australia to Malaysia on 19 October 2023.
The applicant is a citizen of Malaysia. He arrived in Australia as the holder of a travel visa which was valid until 25 July 2017. The applicant was subsequently granted a bridging visa on 3 July 2017, which was cancelled on 25 May 2021.
On 22 June 2017, the applicant applied for a protection visa.
On 4 October 2017, the delegate of the then Minister for Immigration and Border Protection refused to grant the applicant a protection visa.
On 24 October 2017, the applicant sought review of the delegate’s refusal decision in the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal affirmed the decision of the delegate on 10 February 2022 (“the Tribunal’s February 2022 decision”).
Since 3 December 2021, the applicant has been detained in immigration detention pursuant to s 189(1) of the Migration Act 1958 (Cth) (“the Act”).
On 16 March 2022, the applicant applied for a judicial review of the Tribunal’s February 2022 decision in the Federal Circuit and Family Court of Australia (“the FCFCOA”). The FCFCOA dismissed that application on 16 August 2022 and published its reasons: ASU22v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 654 (“the first FCFCOA decision”).
On 11 October 2022, the applicant applied to the Federal Court of Australia (“the FCA”) for an extension of time to appeal from the decision of the first FCFCOA decision. On 9 August 2023, the Federal Court dismissed the applicant’s appeal and published its reasons: ASU22vMinister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 927 (“the FCA decision”).
On 4 October 2023, the applicant was given notice of his intended removal from Australia by the Australian Border Force pursuant to the Act.
By way of an application filed on 13 October 2023, the applicant now seeks an urgent injunction restraining the first respondent from removing him.
The applicant also seeks an extension of time pursuant to s 477(2) of the Act to seek judicial review of the Tribunal’s February 2022 decision. Effectively, this is the applicant’s second attempt to seek judicial review of the Tribunal’s February 2022 decision in the FCFCOA.
The applicant’s application proceeded to an urgent hearing before me in my capacity as General Federal Law duty judge on 16 October 2023. The hearing proceeded by video-link. The applicant was not legally represented, while the first respondent was represented by counsel.
At the hearing, the applicant sought an adjournment for the purposes of seeking legal advice. I refused that application for reasons I will come to.
In support of his application for an urgent injunction, the applicant relied upon an affidavit which annexed a number of documents concerning his pending removal from Australia and a document that he describes as “pertinent document in support of my claims”.
Before me, the first respondent relied upon written submissions and an affidavit of the lawyer from the Australia Government Solicitor who has carriage of the matter (“AGS#1”). This affidavit annexed documents concerning the migration history of the applicant as well as Border Force removal documents. At my request, the first respondent also provided me with copies of the applicant’s protection visa application and the decision of the Tribunal’s February 2022.
For the reasons that follow, I have determined that the interlocutory application seeking an urgent injunction restraining the first respondent from removing the applicant from Australia be dismissed. I stand over the substantive hearing on a date to be fixed.
CONSIDERATION OF APPLICATION FOR INTERLOCUTORY RELIEF – URGENT INJUNCTION
In order to grant an interlocutory injunction the Court must generally be satisfied that there is a serious question to be tried and that the balance of convenience favours the grant of the injunction: see MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201 (“MZZLD”) at [8] (per Murphy J). In MZZLD, his Honour also observed at [9] that the two limbs of the test are not considered in isolation and that the balance of convenience is “to be assessed in the context of the strength of the prima facie case”.
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 in his judicial review application; 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 (“O’Neill”) at [65].
The two limbs of the test for the grant of an interlocutory injunction are interrelated.
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 serious question to be tried must relate to the final relief sought in the application and the grounds of application. In the present case, the applicant seeks on a substantive basis a judicial review of the Tribunal’s February 2022 decision.
In considering whether there exists a serious question to be tried, it is to be remembered that the applicant had already sought a judicial review of the Tribunal’s decision in March 2022, an application which was finally determined by the FCFCOA in August 2022. This initial judicial application was also dealt with on appeal by the FCA in August 2023.
Whilst there is included in the applicant’s application dated 13 October 2023 an application for an extension of time to seek judicial review, the relief effectively sought by the applicant on a final basis is for the relevant writs to be issued to quash the Tribunal’s decision and direct the Tribunal to determine the applicant’s visa application according to law.[1]As these are matters that have already been dealt with to finality by the FCFCOA in its August 2022 reasons, the principles of res judicata may apply to prevent the adjudication of the applicant’s application ‘afresh’.
[1] See CTF21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 309 where Given J dealt with a second application for an extension of time and held that there is no statutory bar to applicants bringing multiple applications for an extension of time in the FCFCOA. CTF21 can be distinguished from the present case on the basis that the earlier application brought by the applicant and dealt with by this Court was not of an interlocutory/interim nature, but rather one seeking that the Court make a final determination on a judicial review of a Tribunal’s decision.
The authorities[2] are clear that the doctrine of res judicata is informed by considerations of finality and fairness and operates to prevent a party from bringing subsequent proceedings to challenge an outcome that has already been decided.[3]
[2] Tomlinson v Ramsey Food Processing Pty Ltd (2005) 256 CLR 507; Tai Shing Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 (“Wong”); Cbi Constructors Pty Ltd v Chevron Australia Pty Ltd [2023] WASCA 1.
[3] See also useful summary of six important principles relating to res judicata in Christensen v General Motors Australia Pty Ltd [2022] FedCFamC26 706 at [45] citing the English case of Virgin Atlantic Airways v Zodiac Seats UK Ltd [2013] UKSC 46.
As a related principle, and as submitted by the first respondent which I accept, the applicant’s attempt to re-agitate a judicial review of the Tribunal’s decision is also precluded by Anshun estoppel.
The concept of estoppel, including in the context of an earlier exercise of judicial power, was discussed by the High Court in Tomlinson v Ramsey Food Processing Pty Ltd[4] as follows:
Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.
Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”. The third form of estoppel is now most often referred to as "Anshun estoppel”, although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
(Footnotes and citations omitted)
[4] Tomlinson v Ramsey Food Processing Pty Ltd (2005) 256 CLR 507.
More recently, the Full Court of the Federal Court in Wong discussed the application of both doctrines at [36]-[39] as follows:
36 The doctrines of res judicata and issue estoppel are founded on the broad rules of public policy expressed in the maxims nemo debet bis vexari pro una et eadem causa (‘a person ought not to be vexed twice for one and the same cause’) and interest reipublicae ut sit finis litium (‘it is in the interests of the State that there be an end to litigation’). It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue.
37 A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 598 and 602. Anshun estoppel arises where the issue now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding. In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceeding between the parties: Anshun supra at p602
38 Nevertheless, where an issue has not actually been litigated and decided before, there must be exceptions to that general rule (cf the operation of res judicata and issue estoppel where the action/issue has been determined on a final basis). As foreshadowed in Anshun, there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding. The Court therefore has a discretion, if it determines that special circumstances exist, to allow an issue to be raised, even where it is found that the point was unreasonably omitted from the earlier proceeding: see Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558. However, the circumstances in which that would be permitted must, because of the principles referred to above, be exceptional, constituting ‘special circumstances’: see BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221 at par [30]. What will be sufficient to constitute special circumstances is by no means fixed and may involve consideration of a wide range of factors, all of which bear upon the general discretion of the Court where justice requires the non-application of the general principle: see BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669 (Sackville J) at [50] referring to Port of Melbourne Authority v Anshun (No 2) [1981] VicRp 9; [1981] VR 81; see also Bryant v Commonwealth Bank [1995] FCA 1299; (1995) 57 FCR 287 at 296,298-299, citing Yat Tung Investments Co Ltd v Dao Heng Bank Ltd [1975] AC 581.
39 Anshun estoppel has been applied to proceedings in the nature of judicial review of administrative action, in so far as Anshun estoppel is aimed at avoiding abuse of process: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 355-6 and 365; Stuart v Sanderson [2000] FCA 870; (2000) 100 FCR 150, at 156-157, per Madgwick J. However, where the beneficiary of such a principle is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance.
In such a case as the present one, the rights of the applicant to a judicial review of the Tribunal’s February 2022 decision have ceased to have independent existence by virtue of the final judgment delivered by the FCFOA in August 2022. The matters now raised in the current judicial review application cannot also be asserted before me given its nexus to the subject matter of the judicial review application on foot in the earlier FCFCOA proceedings. In my view, there are no special circumstances in the applicant’s case that could otherwise permit the applicant to raise these new matters: Macquarie Bank Ltd v National Mutual Life Assn of Australia Ltd (1996) 40 NSWLR 543 at 558. While what constitutes ‘special circumstances’ is by no means fixed, those circumstances must be “exceptional” to require the non-application of the general principle: BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221. There are no exceptional circumstances here.
There is recent authority for the principle that different grounds of jurisdictional error can be seen as ‘separate’ causes of action or claims arising out of the one decision, which would mean that such a claim is not barred by “claim” estoppel in the subsequent proceedings.[5] This, however, is not relevant in the present case where the grounds advanced by the applicant, in their current form, do not raise allege any arguable basis for jurisdictional error on the part of the Tribunal.
[5] AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 114 at [65] to [66].
Even if I were wrong that the principles of res judicata and Anshun estoppel apply in the present case, the final relief being sought by the applicant, being an application to extend the time to apply for a judicial review, does not raise a serious question to be tried for the following reasons.
The central question in relation to the substantive extension of time application is whether there is a sufficient likelihood of success that time should be extended for the applicant’s further application for judicial review of the decision of the Tribunal made on 10 February 2022.
Section 477(2) of the Act empowers the Court to extend the 35-day time limit imposed for applications to this Court, if satisfied that it is necessary in the interests of the administration of justice to do so. Section 477(2) does not, itself, prescribe factors which mandatorily fall for consideration in determining whether to exercise that discretion: see BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 49 per Logan J at [24]. The Court is required to evaluate all of the relevant circumstances and decide if it is satisfied that the extension is necessary in the interests of the administration of justice: see BTI15 (supra) per Jagot and Halley JJ at [40]. In so doing the following matters generally arise for consideration:
(a)the length of delay;
(b)the explanation for the delay;
(c)balancing of the interests of the parties, namely the relative prejudice to the Minister (and public interest) as well as the consequences for the applicant if time were not extended; and
(d)whether the proposed substantive grounds have a reasonable prospect of success, with that assessment to be (usually) taken at a reasonably impressionistic level, such that they warrant time being extended in order to be determined on a final basis: DXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2020] FCAFC 127; (2020) 382 ALR 246, MZABP v Minister for Immigration & Border Protection[2015] FCA 1391; (2015) 242 FCR 585 at [62] per Mortimer J (as her Honour then was), Jackamarra (an Infant) v Krakouer(1998) 195 CLR 516 at [7] to [9]), BTI15 (supra) per Logan J at [25] to [26] and Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs[2022] HCA 28; (2022) 403 ALR 604 at [16] to [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ. It is accepted there are some cases in which a closer examination of the merits is appropriate: see Katoa (supra) at [18].
When examining the relative merits of a proposed substantive application at an impressionistic level the standard of assessment, whether described as being arguable, reasonably or sufficiently arguable or having a reasonable prospect of success, is a low bar: DHX17 (supra) at [76] per Collier, Rangiah and Derrington JJ, SZRIQ v Federal Magistrates Court of Australia[2013] FCA 1284; (2013) 236 FCR 442 at [47] and Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348 to 349 per Wilcox J.
Length and explanation for the delay
As the Tribunal’s decision is dated 10 February 2022 and the current judicial review proceedings were initiated on 13 October 2023, the ‘delay’ in filing for judicial review is 575 days, although it is to be remembered that the applicant first sought judicial review of the Tribunal’s decision in August 2022 before a different FCFCOA Judge.
So far as the present (second) judicial review application is concerned, the applicant provides no explanation for the delay in filing. It can be inferred that the applicant was awaiting the decision upon his appeal of the first FCFCOA decision, which was delivered by Halley J on 9 August 2023. That said, it was only after the applicant was notified of his proposed removal on 4 October 2023 (over two months after the FCA decision was handed down), that he filed the current application and his accompanying affidavit.
In the circumstances of this case, I am minded to accept that the delay in filing this application may be adequately and satisfactorily explained by the pending appeal of the first FCFCOA decision, the fact of the applicant being at all relevant times in detention and his limited English.
While there may be an explanation for the lengthy delay, for the reasons that follow I am of the view that the applicant’s proposed grounds of review lack sufficient merit or prospects of success on an impressionistic level to justify the grant of an extension of time.
Merit
The grounds of application contained in the applicant’s application filed 13 October 2023 are the following:
1.I am a homosexual individual from Malaysia who is confronting potential removal to a nation governed by Islamic principles. Under the applicable Shari legal provisions of said nation, there exists a palpable risk of severe corporal punishment or capital retribution being meted out against me on account of my sexual orientation. I hereby petition this honourable court to grant a stay of my deportation in light of the imminent threats to my personal safety.
2. Subsequent to the discovery by the authorities of my romantic involvement with an individual while in immigration custody, allegations have been advanced against me under dubious circumstances, implicating me in unresolved charges of homicide and burglary. If adjudicated guilty of these allegations, the potential consequence is the imposition of capital punishment. I have appended to this submission a pertinent document in support of my claims; however, it is written in the Malay language. I would respectfully request the court to consider directing an examination of this document. Owing to the exigencies of the situation and the limited timeframe available to me, I regret my inability to furnish a translated version of the aforementioned document.
(As per original)
It is clear that neither of the applicant’s two grounds identify or particularise any errors the Tribunal is said to have made whether in relation to any finding made or conduct engaged in by the Tribunal. Absent such matters, the grounds do not constitute grounds of judicial review I am able to consider. That alone, according to WZAVWv Minister for Immigration and Border Protection [2016] FCA 760 (at [35]), is a sufficient basis to dismiss such an application.
Furthermore, both grounds raise fresh claims for protection concerning the applicant’s sexuality and relate to matters that were not before the Tribunal. Both grounds raise concerns about the applicant’s safety due to his sexual orientation. The now disclosed homosexuality was not a matter averred to by the applicant in his application for a protection visa. Nor was it raised by the applicant in his Tribunal hearing. The applicant stated that he suppressed this aspect and kept it from being disclosed.
With respect to the document that was attached to the applicant’s supporting affidavit, the applicant asserted that this document was a list of people who were involved in criminal activity. The applicant asserted that this issue was raised with the Tribunal. That material was not before the Tribunal at the time it made its decision and would therefore be irrelevant: Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v EGZ17 (2022) 289 FCR 164 at [29] .
The first FCFCOA decision records that the Tribunal was not satisfied that there was any truth to the applicant’s claims. The Tribunal raised a number of credibility concerns rejecting various aspects of the applicant’s claims. The applicant raised six grounds in the application, none of which succeeded. There was no record of the applicant raising the issue of his sexual orientation at the hearing of the applicant’s first judicial review application before the FCFCOA.
When the first FCFCOA decision was appealed in the FCA, Justice Halley, in considering whether to extend the time for filing that appeal, accepted that the applicant had provided an adequate and satisfactory explanation for his delay in filing the notice of appeal, but that his proposed grounds of appeal had insufficient merits or prospects of success to justify granting the extension. In those proceedings, there is no record of the applicant raising the issue of his sexual orientation, and in particular any protection concerns in relation to it.
The first respondent submits that while the grounds of review now relied upon by the applicant differ from those advanced in the first FCFCOA decision, they do not identify any arguable basis for jurisdictional error justifying the grant of relief under s 476 of the Act. I agree with that submission.
Thus, on an impressionistic assessment of the grounds of review advanced by the applicant I am not satisfied that either ground has sufficient merit or reasonable prospects of success to establish the prima facie case required.
In all of the foregoing circumstances, and having particular regard to the form and substance of the applicant’s application, I am not satisfied that there is a serious question to be tried.
Where does the balance of convenience lie?
I accept there is prejudice to the applicant if the injunction is not granted. In all likelihood, the rejection of this application would mean there would be no impediment to the applicant being removed from Australia. This would be a serious outcome. The applicant does not wish to be removed from Australia to Malaysia. He says that he is seeking protection of his life. However, there is simply no evidence before me supporting the assertions the applicant makes as to his risk of harm upon his return to Malaysia.
The applicant has no right to remain in Australia. The first respondent correctly submits that there being no further avenues for relief weighs heavily in the balance of convenience against the grant of the injunction: Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433 at [27].
The public interest in the proper administration of the Migration Act is a matter that weighs against the balance of convenience favouring the applicant. I accept the Minister’s submission that the Court should, in the circumstances of this case, give weight to the public interest in the due administration of the Act. The clear legislative intent of s 198 of the Act would be frustrated by granting an interlocutory injunction and the grant of the interlocutory injunction would have the effect of requiring the Minister to direct his officers to proceed in defiance of s 198 of the Act: see also ALY15 v Minister for Immigration and Border Protection [2017] FCA 281 at [12].
Given my views expressed above in relation to the serious question to be tried, and the interrelated nature of the serious question to be tried and the balance of convenience, on balance, I have determined not to exercise my discretion to grant the interlocutory injunction.
ADJOURNMENT REFUSAL
As noted earlier, at the urgent hearing before me on 16 October 2023 the applicant sought to adjourn the proceedings to seek legal advice. Such a request came about in the following circumstances.
When the hearing started, I enquired of the applicant if he required some time to have the respondent’s documents translated to him – this included the first respondent’s submissions and supporting affidavit. The applicant took this opportunity, and the matter was stood down for a period of time. Upon resumption of the hearing, the applicant stated to me that he wanted a lawyer to represent his case. He indicated he sent a number of emails to Legal Aid and other lawyers and then made the request that the matter be adjourned.
The first respondent opposed the application. I refused the applicant’s application for the following reasons.
Whether an adjournment of the hearing should be granted is a matter for the discretion of the Court with the overriding consideration being interests of justice. It is usual that there are three factors that must be considered: firstly, why the party seeking the adjournment is not in a position to proceed on the day that the matter has been listed for hearing; secondly, whether there would be any utility in granting the adjournment; and thirdly, whether the party resisting the application for an adjournment will suffer prejudice if an adjournment is granted and the extent to which such prejudice can be compensated by an order for costs.
These factors must be considered in the context of the overarching purpose of the civil practice and procedure provisions in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (No. 12, 2021) (“the FCFCOA Act”). The FCFCOA Act provides that its objects are, relevantly, “to ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a).
It follows that consideration needs to be given to the just resolution of disputes according to law and as quickly, inexpensively and sufficiently as possible and to avoid undue delay expense and technicality.
The Federal Court handed down its decision on the applicant’s appeal on the first FCFCOA decision on 9 August 2023. There has been over two months between the FCA’s appeal decision and the hearing that took place on 16 October 2023. In my view, that is ample opportunity to seek legal advice.
The applicant was also on notice of the actions to effect his removal from Australia from 4 October 2023. There is no evidence that he has taken steps to obtain legal assistance from this date, other that bare assertions he made at the hearing before me.
Furthermore, and importantly, in considering the application for the adjournment I was not convinced that there would be any real utility in granting the adjournment. Absent the first respondent consenting to the injunction for period of time of time or providing an undertaking that no steps would be taken to remove the applicant from Australia, the applicant could be removed from Australia tomorrow. Given the limited prospects of success of the applicant’s substantive proceeding, and bearing in mind the litigation history of this matter, I did not consider that it was in the interests of the administration of justice, or the effective functioning of this Court, to grant the adjournment.
CONCLUSION
For all of the foregoing reasons, I dismiss the applicant’s interlocutory application and make the orders set out at the front of this Judgment.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 18 October 2023
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