AWS25 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 67
•29 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AWS25 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 67
File number: PEG 25 of 2025 Judgment of: JUDGE LADHAMS Date of judgment: 29 January 2025 Catchwords: MIGRATION – application for an urgent interlocutory injunction to restrain the Minister from removing the applicant from Australia pending the outcome of his judicial review application – whether there is a serious question to be tried – whether balance of convenience favours grant of injunction – injunction granted. Legislation: Migration Act 1958 (Cth) ss 5, 198, 424AA, 476, 477 Cases cited: ALY15 v Minister for Immigration and Border Protection [2017] FCA 281
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112
CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 870
CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
EIW20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1514
Merriman v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 834
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC (2024) 302 FCR 159; [2024] FCAFC 34
Morrison v Minister for Immigration and Citizenship [2007] FCA 723
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; [2003] FCAFC 292
Re Minister for Immigration and Multicultural Affairs; Ex parte SE (1998) 158 ALR 735; [1998] HCA 72
WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655; [2004] FCA 1332
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of hearing: 22 January 2025 Place: Perth (via Microsoft Teams) Applicant: In person Counsel for the First Respondent: Mr A Burgess Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 25 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWS25
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
29 JANUARY 2025
THE COURT ORDERS THAT:
1.The first respondent, by himself, his delegates, his Department, its officers, employees or agents, including members of the Australian Border Force, be restrained from removing the applicant from Australia until the determination of his application for judicial review of the decision of the second respondent made on 10 June 2024, or until further order of the Court.
2.The application be listed for a directions hearing before a Judge of this Court on 29 January 2025 at 10:00am AWST.
3.Reasons for these orders be published from Chambers at a later date.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
By way of an oral application made on 22 January 2025, the applicant sought an urgent interlocutory injunction to prevent the Minister from removing him from Australia pending the outcome of a judicial review application filed on 22 January 2025. The applicant’s removal was scheduled for 9.25am on 23 January 2025. The judicial review application relates to a decision made by the Administrative Appeals Tribunal (Tribunal) on 10 June 2024, affirming a decision not to grant the applicant a protection visa, and the applicant seeks judicial review of that decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
I heard the application for an interlocutory injunction on an urgent basis on the evening of 22 January 2025. At the conclusion of that hearing, I reserved judgment so that I could consider the documents before the Court and the submissions in greater detail before determining the application.
At 8.00am on 23 January 2025, having had an opportunity to carefully consider the material before the Court, I made the following orders:
1.The first respondent, by himself, his delegates, his Department, its officers, employees or agents, including members of the Australian Border Force, be restrained from removing the applicant from Australia until the determination of his application for judicial review of the decision of the second respondent made on 10 June 2024, or until further order of the Court.
2.The application be listed for a directions hearing before a Judge of this Court on 29 January 2025 at 10:00am AWST.
3. Reasons for these orders be published from Chambers at a later date.
These are the reasons referred to in order 3.
RELEVANT FACTUAL BACKGROUND
Much of the factual background set out in this summary is taken from an affidavit of Madisen Anne Scott affirmed on 22 January 2025 and filed on behalf of the Minister. While the applicant may consider that there are additional matters that are relevant, I do not understand the applicant to disagree with the substance of Ms Scott’s affidavit, save for that the applicant believes that he has health issues and questioned why he was assessed as fit to fly.
The applicant is a citizen of India who entered Australia in 2008 as the holder of a type of student visa. The applicant was granted a further student visa on 30 September 2010, but that visa was cancelled under s 116 of the Migration Act by a delegate of the Minister on 6 October 2011. The applicant sought merits review of the decision to cancel his student visa and on 28 November 2012 the Migration Review Tribunal (MRT) affirmed the delegate’s decision.
The applicant applied for a protection visa on 29 April 2014 (first protection visa application). There is no information before the Court about the applicant’s visa status between November 2012 when the MRT affirmed the delegate’s decision and 29 April 2014 when the applicant made the first protection visa application. On 27 March 2015 a delegate of the Minister refused to grant the applicant’s first protection visa application. The applicant sought merits review by the Refugee Review Tribunal (RRT) and on 30 March 2016 the RRT affirmed the delegate’s decision. A judicial review application in relation to the RRT decision was dismissed by the Federal Circuit Court on 29 June 2017. On 31 January 2023 the applicant applied to the Federal Court for an extension of time to appeal the Federal Circuit Court’s judgment. The applicant discontinued that application on 18 March 2024. I note that the applicant made a submission to the Court that the reason his application was discontinued was because he was offered an opportunity to make a second application for a protection visa.
On 25 August 2017 the applicant applied for a medical treatment visa, which was refused on 31 August 2017. The applicant sought review of this decision by the Tribunal on 8 September 2017 and on 7 September 2018 the Tribunal affirmed the delegate’s refusal decision. The applicant sought judicial review of the Tribunal’s decision and on 31 January 2020 the Federal Circuit Court dismissed the applicant’s judicial review application. An extension of time application to appeal the judgment of the Federal Circuit Court was dismissed on 29 May 2020.
On 11 December 2023 the applicant applied for a protection visa (second protection visa application). A delegate of the Minister refused to grant the applicant a protection visa on 11 April 2024 and the Tribunal affirmed the delegate’s decision on 10 June 2024. It is this Tribunal decision that is the subject of the judicial review application filed on 22 January 2025.
The applicant has no extant visa applications and he has been held in immigration detention pursuant to s 189 of the Migration Act since 12 March 2020.
Various steps have been taken to facilitate the removal of the applicant from Australia. On 27 November 2024 the Consulate General of India issued an Indian travel document for the applicant, which is valid until 26 May 2025. The applicant was assessed by a registered nurse on 6 January 2025 as being fit to travel. On 10 January 2025 the applicant signed a receipt for a Notice of Intention to Remove from Australia. Flight bookings were made and the applicant was scheduled to depart from Australia from Perth Airport at 9:25am on 23 January 2025.
PROCEEDING BEFORE THIS COURT
The application for judicial review contains 16 grounds, numbered 1-10 and 12-17, which I reproduce without alteration:
1. The Second respondent’s decision on 11th June 2024 be quashed.
2. The Second respondent decision was unreasonable.
3. The respondent took into account irrelevant considerations.
4. The respondent's decision involved an error of law.
5.The respondent in making the decision did not comply with rules of natural justice and the applicant was denied procedural fairness.
6. The respondent failed to take into account relevant considerations.
7.The Decision was in breach of the as Australia's Non Refoulement International Obligations as it were not properly considered in making the decision.
8.The Decision was completely given no weight in relation to the (The strength, nature and duration of ties to Australia and best interest of child).
9.The decision was completely biased by overlooking the (Extent of Impediments if removed) by not giving the weight on consequences if repatriate of significant harm I would face including my wife and her kids.
(Particulars)
a.Australia owes non-refoulement obligations to a person even if they are not a recognised refugee. In addition to its obligations under the Refugee Convention, Australia also has non-refoulement obligations under the ICCPR,the CAT,and the Convention on the Rights of the Child (CRC).These nonrefoulement obligations mean that Australia must not return any person who is in Australia to a country where there are substantial grounds for believing that they face a real risk of death, torture or cruel, inhuman or degrading treatment or punishment.
b.Unlike the non-refoulement obligation under the Refugee Convention, these non-refoulement obligations are absolute That is, there are no situations in which the person's expulsion or removal can be justified if there are substantial grounds for believing that there is a real risk of these types of harms occurring.
c.Australia's non-refoulement obligations under the Refugee Convention, the CAT and the ICCPR are primary considerations for respondents when deciding whether to grant or refuse the visa on the basis of these condiserations.
d.Australia's international non-refoulement obligations contained in section 36 of the Migration Act (which sets out the criteria for the grant of a protection visa). In addition to referring to the protection obligations under the Refugee Convention (including its exclusions), section 36 of the Migration Act provides that Australia owes protection (including non-refoulement) obligations towards a non-citizen where there are:
e.Substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.
10. A non-citizen will suffer significant harm if:
(a) The non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will b subjected to degrading treatment or punishment.[77]12.ALL THESE ABOVE MENTIONED FACTORS AND CRITIRIAS WERE NOT CONSIDERED WHEN MAKING UP THE DECISION AND I SEROUSLY BELIEVE THAT THERE IS REAL CHANCE OF SERIOUS HARM WOULD OCCUR TO ME UPON MY REPATRAITION.
13.By taking in consideration all the grounds stated above and using the sole applicant self represented. I highly believe that these grounds are reasonable to believe that this migration litigation has reasonable prospect for success.
14.The Second respondent also made an error by finding that I do not engage the protections afforded at s.36 (2) (a) of the act therefore misapplying and misconstrued the s.36(2) (a) and s.36(2)(aa).
15.The Second respondent has not considered each of the integers of my claims of the serious harm discussed with respects to my claims for refugees protection in the context of the complementary protection criterion regarding the real of significant harm at s.36(2)(aa).
16. The decision is the breach of the article 12 of ICCPR.
17.There was insufficient evidence or no evidence to support various findings made by the respondent.
The applicant did not in his judicial review application expressly indicate that he sought an interlocutory injunction to prevent the Minister from removing him from Australia pending the determination of the judicial review application. However, based on the applicant’s communications with the Court registry, the matter was referred to me as duty judge to hear an application for an interlocutory injunction. I convened a hearing in the evening of 22 January 2025 and at the hearing the applicant confirmed that he was seeking an interlocutory injunction to prevent his removal. I allowed the applicant to make an oral application to that effect.
There is a question as to whether the applicant requires an extension of time to make his judicial review application. Pursuant to s 477(1) of the Migration Act, the applicant was required to make the judicial review application within 35 days of the date of the Tribunal decision. If the application was made on the day it was filed, namely, 22 January 2025, the applicant will require an extension of time to seek judicial review of the Tribunal decision made on 10 June 2024. Pursuant to s 477(2) of the Migration Act, an application for an extension of time must be made in writing. The applicant has not made an application for an extension of time in writing at this point in time. I note, however, that the application filed by the applicant on 22 January 2025 is dated 17 July 2024 and I was advised by a member of the Court’s staff prior to the hearing that the applicant may have had some communications with the Court registry in July 2024 regarding the judicial review application. However, it was not possible to get any further details before making orders in this matter, because the matter was heard and orders were made outside registry opening hours. Taking into account the judgment in EIW20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1514, it is possible that the applicant may have made a judicial review application prior to filing the judicial review application on 22 January 2025. However, it is impossible for me to assess that issue based on the information available to me at this time.
At the hearing, I raised with the Minister’s lawyer the possibility that the applicant may have made his judicial review application at an earlier time, and that it was unclear to me whether an extension of time would be required. I proposed that, for the purpose of the application for an interlocutory injunction and assessing whether there is a serious question to be tried, I focus on the grounds of application and any assertion of jurisdictional error, rather than any possible need for an extension of time application. Counsel for the Minister did not object to that approach. I observe in passing that if there is a serious question to be tried in relation to the substantive judicial review application, there is also likely to be a serious question to be tried in relation to an extension of time application if an extension of time is required. I also note that if an extension of time is required, the applicant can be afforded an opportunity at a later date to apply in writing for an extension of time. I also record that, while the Minister agreed, for the purpose of addressing the application for an interlocutory injunction, to proceed on the basis that the applicant may have made the application within time, or that an extension of time, if required, would be granted, the Minister did not make any concession that an extension of time was not required or that, if an extension of time is required, it should be granted.
The documents before the Court for the purposes of the interlocutory injunction application comprise:
(a)the application for judicial review;
(b)an affidavit filed by the applicant attaching various documents, including a Notice of Intention to Remove and a Notice of Removal Costs, the Tribunal decision, the delegate’s decision, correspondence from the Tribunal and letters of support;
(c)a further handwritten letter of support for the applicant, which the applicant provided to the Court by email and which I received as an exhibit (exhibit 1);
(d)the affidavit of Ms Scott, referred to above; and
(e)a copy of a document headed ‘Health Discharge Summary’ by Primary Health Services Australia, being the assessment of the applicant’s fitness for travel referred to in Ms Scott’s affidavit, which was tendered by the Minister and received into evidence (exhibit 2).
Both parties also made detailed oral submissions at the hearing.
INTERLOCUTORY INJUNCTION
Relevant legislation relating to removal
Section 198(6) of the Migration Act is the source of the obligation to remove the applicant in the present case. That subsection provides:
An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c) one of the following applies:
(i)the grant of the visa has been refused and the application has been finally determined;
(ii) the visa cannot be granted; and
(d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
In the present case, the applicant is a detainee and his applications for protection visas, which are substantive visas, have been refused and they have been finally determined within the meaning of s 5(9) and (9A) of the Migration Act. There is no evidence before the Court to suggest that the applicant has made any further application for a substantive visa, or that he is able to do so.
Relevant principles
The principles relevant to the Court’s consideration of whether to exercise the discretion to grant an interlocutory injunction were summarised by the High Court in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 (ABC v O’Neill). In that case, Gleeson CJ and Crennan J identified the relevant principles at [19] as being:
(a)whether the applicant has shown that there is a serious question to be tried as to his entitlement to relief;
(b)whether the applicant is likely to suffer injury for which damages will not be an adequate remedy; and
(c)whether the balance of convenience favours the granting of an injunction: see also Merriman v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 834 at [15].
In ABC v O’Neill, Gummow and Hayne JJ identified at [65] that it is appropriate for the Court to consider:
(a)whether there is a serious question to be tried, which requires the applicant to show that there is a sufficient likelihood that he will succeed at the final hearing to justify the preservation of the status quo pending the final hearing; and
(b)whether the inconvenience or injury that the applicant would suffer if the injunction is refused outweighs or is outweighed by the inconvenience or injury the Minister would suffer if the injunction is granted.
As noted by Counsel for the Minister in his submissions, the limbs of the test for the grant of an interlocutory injunction are interrelated. In Morrison v Minister for Immigration and Citizenship [2007] FCA 723, French J (as his Honour then was) said at [22]:
… In order to grant interlocutory relief to restrain his removal, pending a substantive application, I would have to have regard both to the possibility that he has some case to argue in relation to the decision to cancel his visa and secondly that the balance of convenience lies in favour of an interim order. These two requirements are inter-dependent. Of course, the stronger the case that there is an arguable error on the part of the Minister, the less the balance of convenience need lie in favour of the applicant in order to justify the grant of relief…
The interrelatedness of the two limbs was also explained in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 870, where Thawley J said at [13]:
Consideration of the two main inquiries cannot be conducted completely independently of each other, because “an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even” and “[a] more doubtful claim (which nevertheless raises ‘a serious question to be tried’) may still attract interlocutory relief if there is a marked balance of convenience in favour of it”: Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 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?
In considering whether there is a serious question to be tried, I have considered the grounds raised in the application and the oral submissions of the parties. However, I am also mindful that the applicant is self-represented and that the Court has certain duties with respect to self-represented applicants.
The applicant has raised grounds that, on their face, purport to articulate errors that are recognisable categories of jurisdictional error. The applicant’s grounds are not properly particularised, which makes it difficult to clearly understand the jurisdictional errors that the applicant asserts. However, as the proceeding progresses, the applicant would appropriately be afforded an opportunity to provide particulars to his grounds: see, for example, DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9]. Where an applicant is self-represented, the Court will ordinarily review the Tribunal decision to ascertain whether there is any obvious or self-evident jurisdictional error, even it is not raised by the applicant: see, for example, COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20]. At this early stage of the proceeding, and without access to evidence such as a court book which would ordinarily be considered by the Court in determining an application for judicial review of a migration decision, the Court is somewhat limited in its ability to assess some of grounds raised by the applicant in any meaningful way, and in its ability to consider whether there is any self-evident jurisdictional error in the Tribunal decision, and I take this into account in assessing whether there is a serious question to be tried.
I accept that the applicant has done enough to raise a serious question to be tried. However, for the reasons explained below, I also acknowledge that, based on the case as presently articulated, the application appears to have limited prospects of success in the judicial review application.
At the hearing, I referred the applicant to the grounds in his application and invited him to address the grounds or otherwise explain why he believes the Tribunal made a jurisdictional error. Many of the matters raised by the applicant relate to the merits of the Tribunal decision and why he believes he should be granted a protection visa.
It is clear that the applicant disagrees with the Tribunal decision and believes he should be granted a protection visa. However, that does not assist the Court in determining whether there is a serious question to be tried. That is because, in considering the judicial review application, the Court has no jurisdiction to review the factual merits of the Tribunal decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31]. Rather, the Court considers whether the Tribunal made a jurisdictional error in reaching its decision, which requires the Court to ‘rule upon the lawfulness or legality of the decision by reference to the complaints made about it’: Djokovic at [17]. The applicant’s disagreement with the decision is not, of itself, sufficient to establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
The grounds referred to in the application that I have considered to be most relevant in finding that there is a serious question to be tried include grounds 2, 5, 6, and 15.
(a)Ground 2 is an unexplained assertion that the Tribunal decision was unreasonable. Insofar as the applicant’s oral submissions may relate to this ground, the applicant appears to assert that he meets the criteria for a protection visa, the Minister would not have lifted the statutory bar to allow him to make the second protection visa application if the claims that he articulated to the Minister did not have merit, and he would not have remained in detention so long if his claims were not genuine. These matters relate to the applicant’s disagreement with the factual merits of the decision rather than legal unreasonableness. There is merit in the Minister’s submission that the Tribunal decision is based on an assessment of the applicant’s evidence and that the decision is logical and cogent and that there is a clear and rational basis for the Tribunal’s conclusions. Without the applicant better articulating the reason he claims the Tribunal decision is legally unreasonable, the ground has limited prospects of success, but I accept that the ground raises a serious question to be tried that cannot be dismissed as having no merit without the Court having access to further evidence.
(b)Ground 5 is an assertion that the Tribunal denied the applicant procedural fairness, without any meaningful identification by the applicant of the basis on which he asserts the Tribunal denied him procedural fairness. Insofar as the evidence presently before the Court relates to the Tribunal’s satisfaction of its procedural fairness obligations, there are no obvious concerns with the decision. The Tribunal invited the applicant to a hearing, recorded at [123] of its reasons that it adopted the process in s 424AA of the Migration Act to invite the applicant to comment on information from the RRT decision in relation to his first protection visa application that the Tribunal considered to be inconsistent with the information that the applicant presented to the Tribunal, and considered documents submitted by the applicant before and after the hearing. However, there were other provisions in Part 7 Division 4 of the Migration Act with which the Tribunal was required to comply, and the Court is unable to form any view at this stage as to whether or not the Tribunal complied with those requirements. The ground raises a serious question to be tried, albeit in the absence of particulars, not a strong one.
(c)Ground 6 asserts that the Tribunal failed to take into account relevant considerations. There is no clear indication from the applicant as to the matters that he considers the Tribunal was required to, but did not, take into account. While I acknowledge the merit in the Minister’s submission that the Tribunal identified the applicant’s claims to fear harm, summarised the evidence and submissions before it, and identified and considered relevant country information, including information published by the Department of Foreign Affairs and Trade, which are all matters which it was required to take into account, that does not address whether there may be other relevant matters that the Tribunal was required to, but did not take into account, and the Court is unable to form any meaningful view on that question. In the absence of any meaningful identification by the applicant of matters that the Tribunal was required to, but did not, take into account, the ground is weak, but nevertheless raises a serious question to be tried.
(d)Similarly, ground 15 is an assertion that the Tribunal did not consider all integers of the applicant’s claim. The Tribunal was required to consider all the claims for protection raised by the applicant and their component integers: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263. I have not identified any claim recorded in the Tribunal’s reasons that was not considered by the Tribunal. However, it is ordinarily necessary to have regard to the claims as raised and articulated by the applicant to consider these types of grounds, which I am not yet able to do. In the absence the applicant identifying a specific claim or integer of the Tribunal that was not considered, the ground is weak, but nevertheless capable of giving rise to a serious question to be tried.
It is unnecessary to address in any detail, for the purposes of the application for an interlocutory injunction, the other grounds raised in the application. I will simply acknowledge the Minister’s submissions that the grounds are without merit and make a few brief observations. Some of the grounds on their face seem incapable of establishing jurisdictional error in the Tribunal decision. For example, grounds 1 and 13 do not assert any jurisdictional error in the Tribunal decision. Ground 14, to the extent that it asserts error on the basis that the Tribunal did not accept the applicant’s claims for protection, is a simple assertion of disagreement with the Tribunal decision which would not, of itself, be capable of establishing jurisdictional error. Ground 16, which is an assertion that the Tribunal decision is in breach of article 12 of the International Covenant of Civil and Political Rights, is unlikely to establish jurisdictional error in circumstances where Australia’s protection obligations are now codified in the Migration Act. Other grounds do not appear to relate to the decision that the Tribunal made in this matter. For example, grounds 7-9 appear to relate to matters that the Minister is required to consider in character related matters, rather than protection visa applications.
The further grounds raised in the application to which I have not yet specifically referred are grounds that assert a recognisable category of jurisdictional error and may relate to the Tribunal decision, but in relation to which I am able to form a preliminary view on the material currently before the Court. Based on the preliminary view I have formed, grounds 3, 4, 9 (to the extent that it raises an allegation of bias based on the Tribunal’s failure to have regard to matters that it does not appear to have been required to consider), 10, 12 and 17 do not, of themselves, raise a sufficiently strong question to be tried to warrant the preservation of the status quo pending the resolution of the judicial review proceeding. I do not identify anything referred to in the Tribunal’s reasons that the Tribunal was prohibited from taking into account (ground 3). The Tribunal appears to have accurately identified relevant law and applied it in an orthodox manner (grounds 4 and 14). The Tribunal’s reasons reflect that it considered the definition of ‘significant harm’ (albeit without expressly setting out the definition) in considering whether the applicant met the complementary protection criterion (grounds 10 and 12). The Tribunal’s findings appear to be supported by evidence (ground 17).
While I have accepted that there is a serious question to be tried, the judicial review application on its face has limited prospects of success. I do not, however, need to be satisfied that the applicant is more likely than not to succeed in his judicial review application. I only need to be satisfied that there is a sufficient question to be tried to justify maintaining the status quo. In many cases, a judicial review application with limited prospects of success would not raise a sufficient question to be tried to justify maintaining the status quo. However, given the interrelated nature of the limbs of the relevant test for the grant of an injunction, it is appropriate to address the balance of convenience before returning to whether the serious question to be tried is sufficiently strong to warrant the grant of an injunction in the particular circumstances of this case.
Where does the balance of convenience lie?
Based on the submissions advanced by the parties and the materials before the Court, in assessing the balance of convenience in the present case, it is appropriate to have regard to:
(a)the Minister’s statutory obligation to remove the applicant from Australia;
(b)whether the subject matter of the proceeding will be lost if the applicant is removed from Australia;
(c)the applicant’s migration history in Australia;
(d)the applicant’s fears for his life if he returns to India;
(e)the applicant’s concerns about his health;
(f)the (potentially permanent) separation of the applicant from his family;
(g)the applicant’s lack of support in India.
I consider these matters in turn.
The Minister’s statutory obligation to remove the applicant from Australia
In considering the balance of convenience, it is appropriate to have regard to the Minister’s statutory duty to remove the applicant. Section 198(6) of the Migration Act imposes an obligation on departmental officers to remove the applicant from Australia, and the grant of the interlocutory injunction would have the effect of requiring the Minister to direct his officers to proceed in defiance of that section: see also ALY15 v Minister for Immigration and Border Protection [2017] FCA 281 at [12]. It is appropriate to take this duty into account, and the Court should recognise the seriousness of restraining the enforcement of a valid law in considering the balance of convenience: Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC (2024) 302 FCR 159; [2024] FCAFC 34 (MZAPC) at [127]. That does not, however, require that interlocutory relief be refused: MZAPC at [122]-[123]. Justices Colvin and Jackson continued at [130] of MZAPC:
Therefore, an injunction may be granted by the Court to restrain the performance of a clear statutory duty (such as the duty to remove under s 198(6)), but it will only do so to preserve the subject matter of the proceedings and the integrity of its own procedures. In considering the balance of convenience it will have due regard to the statutory duty and will require a strong case or serious consequences or both in order to justify relief.
In considering the balance of convenience, I am also mindful of the reasoning of Mortimer J (as her Honour then was) in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825, (CPK20) where her Honour said 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.
The Minister’s statutory obligation to remove the applicant is a matter that favours the Minister in considering the balance of convenience. The Court recognises the seriousness of making an order that has the effect of preventing the Minister from carrying out his statutory obligation.
Whether the subject matter of the proceeding will be lost if the applicant is removed from Australia
This is a matter, similar to that described by Mortimer J at [14] of CPK20, extracted at [36] above, in which the subject matter of the proceeding is the applicant’s interest in remaining in Australia and his entitlement to remain in Australia.
If the applicant is removed from Australia, he may not have an entitlement to return to Australia even if successful in his judicial review proceeding. This may have significant adverse effects on the applicant’s ability to succeed before the Administrative Review Tribunal (ART) in his review application in the event that he is successful in his judicial review application and his matter is remitted to the ART for reconsideration according to law. If the injunction is not granted, and the applicant is ultimately successful in his judicial review application, damages are unlikely to be an adequate remedy.
The potential for the subject matter of the proceeding to be lost if the applicant is removed from Australia prior to the determination of the judicial review proceeding is a matter that weighs strongly in the applicant’s favour in considering the balance of convenience.
The applicant’s migration history in Australia
The applicant’s migration history in Australia is summarised in the background set out above.
The Minister submitted that the Court should place weight on the applicant’s extensive migration history in Australia, including that the applicant’s claims for protection have been assessed by two delegates and two Tribunal members. I accept that it is relevant to take the applicant’s migration history into account and that his claims for protection have been assessed. However, in taking this into account, I also take into account that the Tribunal’s decision of 10 June 2024 is challenged by the applicant in his judicial review application and if I find it is affected by jurisdictional error, it will be a decision in fact but not in law. Any finding of jurisdictional error would likely have the result that the ART is required to reconsider the applicant’s review application in respect of his second protection visa application.
The applicant’s fears for his life if he returns to India
The applicant submitted that he fears for his life and liberty if he is forced to return to India.
I acknowledge the applicant’s subjective fears and give some weight to the fact that the application for judicial review relates to an application for a protection visa. However, as submitted by the Minister, the fact that the applicant claims to fear harm if returned to India does not, of itself, mean that the applicant should not be removed from Australia to India. The Minister’s obligation in s 198(6) of the Migration Act to remove the applicant exists notwithstanding that the applicant might suffer serious harm or significant harm in the country to which he will be returned: see, for example, NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; [2003] FCAFC 292 at [13], [53]; Re Minister for Immigration and Multicultural Affairs; Ex parte SE (1998) 158 ALR 735; [1998] HCA 72 at [14]-[16].
The applicant’s concerns about his health
The applicant submitted that he has a number of health issues, mental and physical, for which he has not received his desired level of treatment in Australia, and has been so sick for two years, can barely walk, and does not understand how he was assessed to be fit for travel.
The Minister referred to the decision of French J (as his Honour then was) in WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655; [2004] FCA 1332, in which his Honour concluded at [86] that the duty and power to remove a non-citizen pursuant to s 198(6) of the Migration Act is not conditioned upon the non-existence of any medical consider that would deteriorate upon the person’s removal.
In the present case, I am not satisfied that the applicant’s health issues have any material impact on the consideration of the balance of convenience in favour of the applicant. While there is evidence in the form of exhibit 2, and findings in the Tribunal’s reasons, to suggest that the applicant has health issues, there is limited evidence before the Court in relation to the severity of the applicant’s health issues. Further, the applicant complains that he has not received adequate medical treatment in Australia, but did not submit that he would be unable to access adequate medical treatment in India. On the evidence before the Court, I am not satisfied that the applicant’s health issues would have such an impact on him as to warrant the grant of an interlocutory injunction.
The (potentially permanent) separation of the applicant from his family
The applicant submitted that he has a son in Australia who is 10 years old, and he has an Aboriginal partner who he loves and, if he is removed from Australia, he will not be able to see his kids again. The applicant also submitted that he has been accepted into the Aboriginal community and he provided a letter of support from an Aboriginal Corporation.
I note that the Tribunal decision records that the applicant has one biological child and that his partner has two children who the applicant considers to be his own. The Tribunal also recorded in its decision that the applicant’s family would not relocate with him to India if he returns there.
In the particular circumstances of this case, I find that the separation of the applicant from his family is a matter that weighs in favour of the applicant in considering the balance of convenience. I am mindful of the potential for any such separation of the applicant from his family to become permanent, even if the applicant succeeds in his judicial review application, if the applicant cannot return to Australia.
I acknowledge that there is a very real possibility that, if the applicant is unsuccessful in his judicial review application, or if he is successful and, upon remittal, the ART again affirms the delegate’s decision, the applicant will, in the not-too-distant future, be removed to India in any event and will face that potentially permanent separation from his family. However, in the particular circumstances of this case, if that is the ultimate outcome, it is preferable for it to occur after a proper consideration of the applicant’s judicial review application rather than before the Court has had any meaningful opportunity to properly consider that application.
The applicant’s lack of support in India
The applicant submitted that he does not have anyone who will be there for him in India, and he will be disconnected if he returns to India.
While I acknowledge the applicant’s concerns, this would not, of itself, outweigh any considerations based on the Minister’s statutory duty to remove under s 198(6) of the Migration Act.
Assessment of the balance of convenience
On balance, I find that the balance of convenience in this matter favours the applicant and supports the grant of the injunction. I have taken into account all of the matters referred to above, but I consider the strongest considerations to be, on the one hand, the Minister’s statutory obligation to remove the applicant from Australia, and on the other hand, the potential for the subject matter of the proceeding to be lost, even if the applicant is ultimately successful in the judicial review application, and the potential for this to result in a separation from his family which may continue for an indefinite period. I consider the inconvenience or potential injury to the applicant if the Court refuses to grant to interlocutory injunction to outweigh the inconvenience or injury to the Minister if the Court grants the injunction and prevents the Minister from carrying out his statutory duty pending the outcome of the judicial review proceeding. It is preferable for the subject matter of the judicial review proceeding to be preserved pending the determination of that application by the Court.
CONCLUSION
In considering the serious question to be tried and balance of convenience together, I have determined that it is appropriate to grant the injunction in the particular circumstances of the present case. Although the grounds raised by the applicant do not, on their face, appear to have strong prospects of success, I have accepted that there is a serious question to be tried. In circumstances where I have found that the balance of convenience favours the applicant, I am satisfied that the serious question to be tried is sufficiently strong to warrant the preservation of the status quo pending the determination of the judicial review application. I therefore grant the interlocutory injunction to prevent the applicant’s removal from Australia pending the outcome of this judicial review proceeding.
I propose to expedite the hearing of this matter. This is appropriate for two reasons. The first is that the applicant is in immigration detention and has claimed that his prolonged detention has adverse consequences on his mental health. This reason alone is sufficient to justify expediting the proceeding. The second reason it is appropriate to expedite the hearing is because the impact of the Order made by the Court is to prevent the Minister from carrying out his statutory obligation at this time. It is appropriate for the Court to take reasonable steps to ensure that this proceeding is resolved as expeditiously as practicable to minimise the period of time during which the Court’s Order prevents the Minister from performing his statutory obligation.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 29 January 2025
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