BUL23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 628
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BUL23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 628
File number: PEG 139 of 2023 Judgment of: JUDGE LADHAMS Date of judgment: 18 July 2023 Catchwords: MIGRATION – application for interlocutory injunction to restrain Minister from removing applicant from Australia – where applicant has pending request for Ministerial intervention – whether serious question to be tried – where balance of convenience lies – application for an interlocutory injunction refused. Legislation: Migration Act 1958 (Cth) ss 5, 41, 48A, 48B, 189, 195A, 198, 197C, 351, 415, 417, 474, 476 Cases cited: APF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 182
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 870
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 179 ALD 1; [2023] HCA 10
Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20
Mokhlis v Minister for Home Affairs (2020) 382 ALR 1; [2020] HCA 30
Morrison v Minister for Immigration and Citizenship [2007] FCA 723
MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 594
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 17 July 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the Respondent: Ms K McInnes Solicitor for the Respondent: Australian Government Solicitor ORDERS
PEG 139 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BUL23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
17 July 2023
THE COURT ORDERS THAT:
1.The application for the interlocutory injunction is refused.
2.The reasons for judgment in relation to these orders are to be published at a later date from chambers.
3.The applicant is to pay the respondent’s costs of an incidental to the application for an injunction fixed in the amount of $4,000.
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
The applicant is a non-citizen who is scheduled to be removed from Australia on 19 July 2023, pursuant to s 198(6) of the Migration Act 1958 (Cth) (Migration Act). On 14 July 2023 the applicant filed an application to seek an injunction to prevent his removal from Australia. Due to the short time until the applicant’s scheduled removal, the application came before the Court on an urgent basis on 14 July 2023 for a directions hearing and on 17 July 2023 for a hearing in relation to an application for an interlocutory injunction.
At the conclusion of the hearing on 17 July 2023, I made the following orders:
1.The application for the interlocutory injunction is refused.
2.The reasons for judgment in relation to these orders are to be published at a later date from chambers.
3.The applicant is to pay the respondent’s costs of and incidental to the application for an injunction fixed in the amount of $4,000.
These are the reasons referred to in order 2.
APPLICATION BEFORE THE COURT
The applicant relies on an amended application filed late in the afternoon of 14 July 2023.
In that amended application, the applicant indicated that he is challenging a future decision or other action taken by the Minister or an officer under the Migration Act, and that he seeks an interlocutory injunction to stop any proceeding to remove him on 19 July 2023. The final relief sought by the applicant is also an injunction to stop any proceeding to remove him on 19 July 2023.
The amended application contains the following four grounds of application:
1.The Minister unfairly and unjustifiably placed a lock on the applicant case to resubmit 866 application for protection due to change of circumstances in receiving country.
2.The applicant required time to submit 48B application to the Minister, requesting to remove the bar on the applicant’s case before the applicant resubmit his 866 application.
3.The Minister is likely to be in violation of Article 1 of the Refugee Convention 1951 and 1967 Protocol Relating to the Status of Refugees by involuntary removal of an asylum seeker to a frontier where the applicant will be subjected to persecution and serious harm.
4.The Minister is likely to be in violation of other International Humanitarian law, including Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) for involuntary removal of an asylum seeker to a frontier where he will be subjected to cruel and degrading treatment because of his religious belief and political activism in the past without full investigation of the applicant’s cases according to current situation in the receiving country.
Based on the application and the grounds, the Court infers that the decision the applicant challenges is the decision to remove him pursuant to s 198(6) of the Migration Act. The Minister’s submissions also proceed on this basis and the Minister accepts that a decision to remove a person under s 198 of the Migration Act is a ‘migration decision’ within the Court’s review jurisdiction: see s 474(2) of the Migration Act; Mokhlis v Minister for Home Affairs (2020) 382 ALR 1; [2020] HCA 30 at [12]-[13].
The evidence before the Court comprises an unsworn affidavit of the applicant filed on 14 July 2023 and an affidavit affirmed by Keith Maxwell Sypott on 17 July 2023 and filed on behalf of the Minister. Both parties also filed written submissions ahead of the hearing and I have had regard to those submissions, as well as the oral submissions advanced at the hearing.
FACTUAL BACKGROUND
The applicant is a citizen of India who arrived in Australia on a tourist visa in November 2002. He has not departed Australia since that time.
The applicant became an unlawful non-citizen on 2 October 2008 and he has been detained in immigration detention since 23 October 2017, pursuant to s 189(1) of the Migration Act.
Since his arrival in Australia, the applicant has applied for and been refused a number of visas. These visa applications and associated decisions can be summarised as follows:
(a)On 10 December 2002 the applicant made an application for a protection visa. A delegate of the Minister made a decision not to grant the applicant a protection visa on 14 February 2003 and that decision was affirmed by the Refugee Review Tribunal (RRT) on 23 December 2003. The applicant sought judicial review of the RRT’s decision by the Federal Magistrates Court and the application for judicial review was dismissed on 5 December 2005. The Federal Court dismissed an appeal from the Federal Magistrates Court’s judgment on 27 April 2006. The applicant made an application for special leave to appeal the Federal Court’s judgment and then withdrew that application on 5 September 2006. The High Court refused the applicant’s request for reinstatement of his special leave application on 3 April 2007. The applicant lodged a further application to the RRT to seek review of the delegate’s decision, but the RRT determined that it did not have jurisdiction to conduct the review in June 2007.
(b)The applicant lodged a further three protection visa applications on 18 July 2007, 3 September 2007 and 29 August 2008. Each of these applications was found to be invalid because s 48A of the Migration Act prohibited a further application for a protection visa.
(c)On 4 September 2008 the applicant applied for a bridging visa, which was refused by a delegate of the Minister on 17 October 2008.
(d)On 17 November 2008 the applicant applied for a further bridging visa, which was refused by a delegate of the Minister on 17 December 2008.
Since July 2006, the applicant has also made a number of requests for Ministerial intervention. These requests include:
(a)requests made on 18 July 2006, 26 September 2007, 23 April 2008, 12 June 2008, 24 July 2008 and 24 November 2008 for the Minister to exercise his power under s 417 of the Migration Act to substitute for a decision of the Tribunal under s 415 another decision that is more favourable to the applicant;
(b)requests made on 18 July 2007, 3 September 2007, 29 August 2008 and 13 July 2023 for the Minister to exercise his powers in s 48B of the Migration Act to lift the bar in s 48A and allow the applicant to make a further application for a protection visa; and
(c)requests made on 9 July 2019 and 10 July 2020 for the Minister to exercise his powers under s 195A of the Migration Act to grant the applicant a visa.
The request for the Minister to exercise his power in s 48B made on 13 July 2023 remains pending. All of the other requests have been finalised, with the request on 18 July 2006 for intervention under s 417 finalised as ‘not considered’ and the balance of the requests referred to in [12] finalised as ‘not referred’.
On 7 July 2023 applicant was given a ‘Notice of Intention to Remove from Australia’ by an officer of the Department of Home Affairs. His removal is scheduled for 5.10pm on Wednesday 19 July 2023.
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 an unlawful non-citizen and a detainee. His only valid application for a protection visa, which is a substantive visa, has been refused and is finally determined within the meaning of s 5(9) and (9A) of the Migration Act. The applicant does not presently have a visa application on foot. It follows that the obligation to remove him under s 198(6) of the Migration Act is enlivened.
Relevant principles
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 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: see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [65].
The two limbs of the test for the grant of an interlocutory injunction are interrelated. This was explained in Morrison v Minister for Immigration and Citizenship [2007] FCA 723, where 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… and 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 issue of whether there is a serious question to be tried relates to the applicant’s judicial review application.
The Court does not have jurisdiction in relation to any decision or proposed decision under s 48B of the Migration Act
Before turning to the grounds of application, it is appropriate to address aspects of the applicant’s oral submissions. Although the judicial review application indicates that the applicant is challenging the decision to remove him, in his oral submissions, the applicant spoke at length about why he believes that he needs to be given a chance to make a further application for a protection visa, and why he fears harm if he is returned to India. These submissions suggest that the applicant is asking the Court to require the Minister to exercise his powers under s 48B to lift the bar in s 48A and allow him to make a further application for a protection visa.
Section 48A operates to prevent a non-citizen who has previously made an application for a protection visa from making a further application for a protection visa while in the migration zone. That bar applies to the applicant. Section 48A is subject to s 48B. Section 48B(1) allows the Minister, if he thinks it is in the public interest to do so, to determine that s 48A does not apply to prevent an application for a protection visa being made by the non-citizen in the period starting when written notice of the decision under s 48B(1) is given and ending at the end of the seventh working day after the notice is given. The power in s 48B(1) can only be exercised by the Minister personally and the Minister is not under any obligation to consider a request to exercise his powers: see s 48B(2) and (6) of the Migration Act; see also Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 179 ALD 1; [2023] HCA 10 at [12]-[15], [19], [104]-[105], [199] and [298], in relation to a relevantly similar power in s 351 of the Migration Act.
As I explained to the applicant at the hearing, the Court does not have the power to order the Minister to allow the applicant to make another application for a protection visa. Not only is the power in s 48B a personal and non-compellable power of the Minister, but reviews relating to the exercise of that power are expressly excluded from the Court’s jurisdiction under s 476 of the Migration Act: see ss 476(2)(d) and 474(7) of the Migration Act. Therefore, to the extent that the applicant’s submissions address why he should be given a further opportunity to make an application for a protection visa, they cannot give rise to a serious question to be tried.
Grounds of application
In my view, none of the grounds raised by the applicant give rise to a serious question to be tried.
Ground 1 alleges that the Minister acted unreasonably in ‘unfairly and unjustifiably’ preventing him from resubmitting an application for a protection visa in circumstances where there has been a change of circumstances in India. In his written submissions, the applicant submitted that the Minister placed him in an ‘extremely difficult situation’ by restricting him from re-applying for protection status due to a change in circumstances, and submitted that this is not within the bounds of legal reasonableness. The applicant also submitted that the Minister held him for six years in immigration detention, deprived him from liberty, did not allow him to reapply for protection and now wishes to involuntarily remove him.
I accept the Minister’s characterisation of this ground as one that challenges the operation of s 48A of the Migration Act, which prevents him for applying for a further protection visa, unless the Minister exercises his power in s 48B. The application of s 48A to the applicant in the present circumstances is not because of a discretionary decision made by the Minister or one of his delegates. Rather, the application of s 48A arises by the operation of the Migration Act. I accept the Minister’s submission that a ground based on legal unreasonableness cannot succeed in relation to the application of a provision of the Migration Act, which is not a discretionary decision.
The most fundamental reason why this ground cannot give rise to a serious question to be tried is because it does not relate to or assert error in the decision which is the subject of the judicial review application, namely, the decision to remove the applicant from Australia pursuant to s 198(6) of the Migration Act.
To the extent that this ground might be viewed as challenging the manner in which his previous requests for intervention under s 48B were finalised, it is beyond the jurisdiction of the Court, for the reasons explained above.
The purpose of the applicant referring to his detention in the context of this ground is unclear. It is sufficient to observe that the applicant was detained under s 189(1) of the Migration Act, which requires that if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person. There is nothing before the Court to suggest that the applicant was not lawfully detained under s 189(1) of the Migration Act. The reference to his detention does not raise a serious question to be tried.
Ground 2 alleges that the applicant required time to make a request to the Minister to exercise his power under s 48B of the Migration Act. As can be seen from the background summary above, the applicant made a further request for the Minister to exercise his powers under s 48B on 13 July 2023, and that request is still pending. It is appropriate to read this ground beneficially and treat it as an assertion that the applicant’s request for Ministerial intervention must be finalised before he can be removed pursuant to s 198(6) of the Migration Act.
In his written submissions, the applicant submitted that rather than detaining the applicant for six years, the Minister ought to have triggered the s 198 procedure to remove the applicant six year ago, or allowed him to apply for a further protection visa. The applicant submits that it is therefore not unreasonable for the Minister to be stopped from involuntarily removing him until he can resubmit the s 48B form and apply for protection again. The applicant in his written submissions also raises questions as to the lawfulness of his detention.
There are a number of reasons why the applicant’s second ground does not raise a serious question to be tried.
First, as explained in the Minister’s submissions, the obligation in s 198(6) continues to operate even where there is a request for Ministerial intervention. In advancing this submission, the Minister relied on my recent judgment in MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 594, where I considered the same question of whether a non-citizen can be removed pursuant to s 198(6) while they have pending requests for Ministerial intervention. In that case, in finding that a pending request for Ministerial intervention does not prevent the Minister from removing an applicant under s 198(6), I referred to the recent judgment of Rofe J in Marya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 433, where her Honour said at [23]:
…As noted by counsel for the Minister, an outstanding application for ministerial intervention does not prohibit the Department from removing an individual pursuant to s 198(5) of the Act. Even if the substantive relief was granted by the Court at a future date, the applicant would not have a basis to avoid removal and would have no legal right to remain in Australia. The Minister’s obligation under s 198(5) to remove an unlawful non-citizen persists despite any unresolved application for ministerial intervention.
The same reasoning applies to s 198(6). I also accept the Minister’s submissions that the text of s 198(6) (extracted at [16] above) and its purpose and context within the Migration Act do not support any construction that the obligation in s 198(6) does not apply where there is an outstanding request for Ministerial intervention.
Second, the obligation in s 198(6) is to remove an unlawful non-citizen to whom to the subsection applies ‘as soon as reasonably practicable’. There is no evidence before me as to why the applicant was not removed at an earlier date, but that evidence is not necessary to resolve the application before the Court. The lawfulness of the decision to remove the applicant on 19 July 2023 (or some other upcoming date) is not affected by whether or not the applicant might have been removed earlier. As Counsel for the Minister submitted at the hearing, whether the applicant became liable for removal under s 198(6) recently or years ago has no impact on whether the section applies to him.
Third, the lawfulness of the applicant’s detention, which was raised in his submissions, is not in issue in this proceeding. It appears to be raised in the same context as the submission regarding why the applicant was not removed at an earlier time, and in the more general sense that the applicant feels that he has been treated unfairly because he has been detained for an extended period and is now to be removed without being afforded a further opportunity to raise further claims for protection. The applicant does not dispute that he is currently a detainee and has not identified any basis on which the obligation to detain him under s 189 of the Migration Act did not arise. The reference to his detention does not give rise to any serious question to be tried in relation to the decision to remove him pursuant to s 198(6) of the Migration Act.
Fourth, the question for the Court in considering whether the applicant’s second ground raises a serious question to be tried is not whether the applicant’s request to await the outcome of his s 48B application is reasonable, as his submissions appear to suggest. Rather, the ground directs attention to whether the decision to remove the applicant pursuant to s 198(6) is affected by jurisdictional error. Nothing raised by the applicant suggests that the decision to remove the applicant, or the steps taken to give effect to that decision, is affected by jurisdictional error. In circumstances where the obligation to remove the applicant pursuant to s 198(6) is not affected by whether there is any pending request for Ministerial intervention, and where the lawfulness of the applicant’s past detention does not fall to be considered by the Court, the matters raised by the applicant do not give rise to an arguable case of jurisdictional error.
By grounds 3 and 4, the applicant asserts that the Minister will be in breach of Australia’s non-refoulement obligations if the applicant is removed from Australia without further assessment of his protection claims.
The applicant in his written and oral submissions referred to past harm he faced in India, which appears to have been addressed in his valid protection visa application that has been finally determined. The applicant also referred to the possibility that he would face harm based on a change in circumstances in India, including in relation to the consequences of the Citizenship Amendment Act (2019) and he referred at length to the difficulties he would face without documents to prove his identity.
In his written submissions, the applicant referred at length to Australia’s obligations under the Refugees Convention, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights, and suggested that if he is removed now, Australia will be in breach of its international treaty obligations.
In considering whether this ground gives rise to a serious question to be tried, I accept that the claims for protection referred to by the applicant in his submissions to this Court extend beyond those addressed in his protection visa application that has been finally determined. The applicant in his submissions to the Court also referred to claims that were not referred to in a pre-removal clearance conducted by an officer of the Department in June 2023. I therefore accept that the applicant wishes to raise claims for protection that have not already been considered by the Minister or a delegate.
I also accept the Minister’s submission to the effect that the Court should look to the Migration Act in relation to the interpretation and adoption of Australia’s relevant obligations under international treaties. This is because treaty obligations do not form part of Australian law until they are incorporated into domestic law by statute: see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20 at [25].
The fundamental difficulty for the applicant in relation to grounds 3 and 4 arises from s 197C of the Migration Act. That section makes clear that:
(a)for the purposes of s 198 of the Migration Act, it is irrelevant whether Australia has non-refoulement obligations in respect of the applicant: s 197C(1) of the Migration Act; and
(b)the duty in s 198 to remove the applicant as soon as reasonably practicable arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of him: s 197C(2) of the Migration Act.
As mentioned above, the obligation to remove the applicant pursuant to s 198(6) is not a discretionary decision, but is rather a duty that arises under the Migration Act. Section 197C makes clear that any non-refoulement obligations Australia may owe the applicant are not relevant to the duty to remove him from Australia.
The matters raised by the applicant in relation to grounds 3 and 4, based on Australia’s non-refoulement obligations, therefore do not raise a serious question to be tried in relation to the decision to remove him pursuant to s 198(6) of the Migration Act.
Does the interlocutory relief sought by the applicant have sufficient connection with the final relief sought?
The Minister submitted that the applicant has not demonstrated that he would be entitled to an injunction on a final basis, and therefore the interlocutory relief sought does not have sufficient connection with the final relief. In advancing this submission, the Minister referred to the observation of Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [11], where his Honour said ‘a plaintiff seeking an interlocutory injunction must be able to show sufficient colour of right to the final relief, in aid of which interlocutory relief is sought’.
I accept the Minister’s submission that the applicant has not demonstrated that he would be entitled to an injunction on a final basis, whether that be to prevent his removal on a specific date, or until his request for Ministerial intervention has been determined. The applicant does not have any legal right to remain in Australia while his request for Ministerial intervention is pending.
Conclusion in relation to whether there is a serious question to be tried
For the reasons discussed, the applicant has not established that there is a serious question to be tried in relation to his judicial review application and the final relief sought by him. This factor therefore weighs heavily against the grant of an interlocutory injunction.
Where does the balance of convenience lie?
The applicant submitted that if the interlocutory injunction is not granted and he is removed to India, his life will be at stake, and the Minister will incur the financial cost of removing the applicant. On the other hand, the applicant submitted that the Minister had nothing to lose.
The Minister submitted that the public interest in the proper administration of the Migration Act is a strong reason why the balance of convenience lies against granting the injunction.
In my view, the balance of convenience favours the refusal of the interlocutory injunction, particularly when one takes into account my findings above that there is no serious question to be tried and that the applicant has not demonstrated any arguable case that he is entitled to the relief that he seeks on a final basis (which in this case is also an injunction).
The courts have previously recognised the public interest in the proper administration of the Migration Act and I accept the Minister’s submission that this is a relevant factor in considering the balance of convenience. In this regard, I note in particular the following comments of Judge Lucev in APF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 182 at [24]:
…Importantly, in the circumstances of this case, there is also the statutory provisions of s 198 of the Migration Act. The public interest in the proper administration of the Migration Act is a further reason why the balance of convenience lies against granting the granting of an injunction. This is particularly so in circumstances where s 198(6) of the Migration Act imposes an obligation on officers of the Department of Immigration and Border Protection to remove an unlawful non-citizen from Australia, with the granting of an interlocutory injunction having the effect of requiring the Minister to direct his officers to proceed in defiance of that section: see also ALY15 v Minister for Immigration and Border Protection [2017] FCA 281 at [12]. The proper administration of the Migration Act is a factor that should be taken into account in deciding where the balance of convenience lies.
While I acknowledge that the applicant has expressed a subjective fear of harm if he is returned to India, this does not tip the balance of convenience in the applicant’s favour in circumstances where s 197C of the Migration Act makes clear that any non-refoulement obligations Australia may owe the applicant are not relevant to the duty under s 198(6) to remove the applicant as soon as reasonably practicable, and where the applicant has not shown any reasonably arguable case to be entitled to the final relief that he seeks. Contrary to the applicant’s submission, I do not consider that the financial cost of removing the applicant, whether that cost be borne by the Commonwealth or recovered from the applicant, has any impact on the balance of convenience.
I find that the balance of convenience lies with refusing to grant the interlocutory injunction.
CONCLUSION
In circumstances where I have found that there is no serious question to be tried and the balance of convenience lies against the grant of an interlocutory injunction, it follows that the application for an interlocutory injunction is refused.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 18 July 2023
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