BXI23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 660
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BXI23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 660
File number(s): SYG 1128 of 2023
SYG 1165 of 2023Judgment of: JUDGE MANOUSARIDIS Date of judgment: 25 July 2023 Catchwords: MIGRATION – applications for interlocutory injunction to restrain Minister from removing applicant from Australia – whether serious question to be tried – applications dismissed. Legislation: Migration Act 1958 (Cth) ss 48B, 116(1), 140, 476, 477(1), 477(2)
Migration Regulations 1994 (Cth) reg 2.43(1)(oa), Sch 2, cls 050.212, 050.223, 050.618
Cases cited: BYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 63
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029
Division: General Number of paragraphs: 68 Date of hearing: 24 July 2023 Place: Sydney The Applicant: Appeared in person, with the assistance of an interpreter, by video Counsel for the First Respondent: Ms K McInnes, by video Solicitor for the First Respondent: Australian Government Solicitor ORDERS
SYG 1128 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BXI23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
25 July 2023
THE COURT ORDERS THAT:
1.The application for an order that the first respondent be restrained from removing the applicant from Australia is dismissed.
2.The proceeding be listed for directions at 9:30 am on 8 August 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
ORDERS
SYG 1165 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BXI23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE Manousaridis
DATE OF ORDER:
25 July 2023
THE COURT ORDERS THAT:
1.The application for an order that the first respondent be restrained from removing the applicant from Australia is dismissed.
2.The proceeding be listed for directions at 9:30 am on 8 August 2023.
[Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).]
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen in India. He is currently being held in immigration detention, and is due to be removed from Australia on 27 July 2023. The applicant now applies for an interlocutory injunction to restrain the first respondent (Minister) from removing him from Australia.
That application is made in aid of two applications for relief. The first is an application (EOT application) the applicant filed on 14 July 2023 for an order under s 477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s 477(1) of the Act for making an application to this Court for remedies under s 476 of the Act in relation to a decision the second respondent (Tribunal) made on 23 July 2020. By that decision, the Tribunal affirmed the decision of a delegate of the Minister to cancel a Subclass 500 (Student) visa (Student visa). The second application (BV application) is one the applicant filed on 24 July 2023 for remedies under s 476 of the Act in relation to a decision of the Tribunal made on 21 July 2023 affirming the decision of a delegate of the Minister not to grant the applicant a Bridging E (Class WE) visa (Bridging visa).
The application for an injunction came to my attention as duty judge in the afternoon of 14 July 2023, in response to which I listed that application for hearing before me at 2:15 pm on 18 July 2023. At the time I listed the application for an injunction I understood the Minister intended to remove the applicant from Australia on 20 July 2023. Shortly before the hearing, however, I was made aware that the applicant was not due to be removed from Australia until 27 July 2023, and that, at the hearing I had listed on 18 July 2023, the Minister intended to apply for an adjournment of the applicant’s application for an injunction.
The applicant, who is not legally represented, appeared at the hearing at 2:15 pm on 18 July 2023 by video; and he was assisted by an interpreter who was present in person. Ms Kent appeared for the Minister by video. Both the applicant and Ms Kent applied for an adjournment of the hearing of the application for an interlocutory injunction. I set that application down for hearing at 4:15 pm on 24 July 2023.
In the morning of 24 July 2023 I was made aware that the applicant filed the BV application. I instructed my Associate to request the Registry to list that application before me at 4:15 pm on 24 July 2023. I heard the application for an interlocutory injunction at the hearing that commenced at 4:15 pm on 24 July 2023 on the basis that the applicant applied for an interlocutory injunction in aid of the claims he made in both the EOT and the BV applications. I reserved my judgment at the conclusion of the hearing, and listed the applications for an injunction for judgment at 2:30 pm on 25 July 2023.
At 2:30 pm on 25 July 2023 I made an order in each of the EOT and the BV applications dismissing the applicant’s application for an order that the Minister be restrained from removing the applicant from Australia. I made those orders on the basis of a draft of these reasons for judgment, noting that I would publish a final version by 5:00 pm on 25 July 2023. This is the final version of the draft reasons for judgment on the basis of which I pronounced my orders.
BACKGROUND
The EOT application
The applicant arrived in Australia on 16 March 2014 holding a Student visa that was valid to 21 September 2017. The applicant was granted three more Student visas, the last of which was granted on 15 November 2017. That Student visa was valid until 14 October 2020.
On 30 November 2018 the applicant was charged with one count of possessing child abuse material. On 5 February 2020 the applicant pleaded guilty on the basis of which he was convicted, and sentenced to a Community Corrections Order for two years.
On 2 June 2020 a delegate of the Minister cancelled the applicant’s Student visa. The delegate did so pursuant to s 116(1)(g) of the Act and reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth) (Regulations). Paragraph (g) of s 116(1) provides that, subject to exceptions it is not relevant to set out, the Minister may cancel a visa if the Minister is satisfied that a prescribed ground for cancelling a visa applies to the holder. Subregulation 2.43 of the Regulations prescribes number of grounds for cancelling a visa. These include the ground prescribed in reg 2.43(1)(oa) of the Regulations, which provides:
For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
. . . .
(oa)in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)--that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any);
Tribunal’s reasons
The Tribunal found that the ground for cancelling the Student visa provided for by reg 2.43(1)(oa) of the Regulations was satisfied; but decided, in the exercise of its discretion, that the applicant’s Student visa should be cancelled. In determining whether it should exercise its discretion in favour of cancelling the Student visa, the Tribunal said it had regard to the circumstances of the applicant’s case, and matters in the “Department’s Procedural Instructions, formerly known as its Procedures Advice Manual or PAM3, ‘General visa cancellation powers’”.[1]
[1] Reasons for Decision, [19]
The Tribunal had regard to the following matters:
(a)The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to travel to or remain in Australia. The Tribunal accepted the applicant’s evidence of his circumstances in Australia, and of the importance to him of completing his studies in Australia; but the Tribunal did not accept that these matters provided a compelling need for the applicant to remain in Australia. The Tribunal relied on the applicant’s having acquired several qualifications; the applicant has not made significant academic progress in his bachelor studies (although in part due to events not in his control); the Tribunal was not convinced his Australian qualifications would not assist him to obtain employment in India, or that he could not continue his studies in India; and the Student visa is a temporary visa intended to grant the applicant a short-term stay in Australia to study and then return home. These matters weighed in support of the cancellation of his Student visa.[2]
(b)The extent of the applicant’s compliance with his visa conditions. The Tribunal accepted the applicant had complied with his visa conditions, and that this weighed against the cancellation of his Student visa.[3]
(c)The degree of hardship that may be caused to the applicant and any family members. The Tribunal accepted that the cancellation of the applicant’s Student visa will cause his parents considerable emotional hardship, and also financial hardship in the sense that they may perceive the money they have spent on the applicant’s education did not result in his achieving the level of qualifications they expected, and that this may adversely impact on the applicant’s ability, as the eldest son, to supports his parents in the future. This weighed against the cancellation of his Student visa.[4]
(d)The circumstances in which the ground for cancellation arose. After setting out the circumstances in which the applicant came to be charged with possessing child abuse material, the Tribunal concluded it was not convinced that the circumstances in which the ground for cancellation of the Student visa were beyond the applicant’s control. The Tribunal found the evidence revealed there were a number of actions the applicant could have taken or avoided, and a number of enquiries the applicant could have made, to prevent the circumstances that led to the cancellation of his Student visa. This consideration weighed in support of the cancellation of the applicant’s Student visa.[5]
(e)The applicant’s past and present behaviour towards the Department of Home Affairs (Department). The Tribunal accepted the applicant has been truthful and cooperative in his dealings with the Department; and that this consideration weighed against the cancellation of the applicant’s Student visa.[6]
(f)Whether there are persons in Australia whose visas would be cancelled under s 140 of the Act if the applicant’s Student visa were cancelled. The Tribunal accepted the applicant’s evidence that there is no person who is dependent on the applicant’s Student visa. The Tribunal found that this consideration neither weighed for or against the cancellation of the Student visa.[7]
(g)Mandatory legal consequences following cancellation. The Tribunal found that, on the applicant’s Student visa being cancelled, the applicant will be detained for significantly longer than he may have been detained in “COVID-19 free circumstances”. This consideration weighed against the cancellation of the Student visa.[8]
(h)Whether Australia has obligations under relevant international agreements. Including non-refoulement obligations. The Tribunal accepted the applicant’s submissions that these considerations do not apply to him. The Tribunal found that this consideration neither weighed for nor against the cancellation of the Student visa.[9]
[2] Reasons for Decision, [26]
[3] Reasons for Decision, [30], [31]
[4] Reasons for Decision, [39]
[5] Reasons for Decision, [68]-[69]
[6] Reasons for Decision, [73], [74]
[7] Reasons for Decision, [75], [76]
[8] Reasons for Decision, [83], [84]
[9] Reasons for Decision, [88]
After considering whether there were any other relevant matters, the Tribunal concluded as follows:[10]
The Tribunal finds that those considerations that weigh in support of the cancellation of the applicant’s visa, namely the applicant’s lack of compelling reason to stay in Australia and the circumstances in which the ground for cancellation arose, outweigh those considerations which weigh against the cancellation of the applicant’s visa.
For these reasons, when considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
[10] Reasons for Decision, [93], [94]
Application
In the EOT application the applicant stated the following grounds on which he applies for an extension of time:
1. I am … the applicant in this proceeding.
2. I am seeking extension of time in this proceeding as I could not continue with my application earlier due to my poor mental health. I was going through severe depression and anxiety.
3. My mental health had deteriorated due to seeing the hanging body of my roommate, which used to haunt me all the time so I could not do anything.
4. I had no prior knowledge of federal court proceedings.
5. My representative who acted on my behalf in the AAT did not inform me that I can appeal to a Federal Circuit Court within 35 days.
The EOT application contains the following grounds of application:
1.The second respondent acted beyond its jurisdiction by not implementing the Ministerial Direction 69 while determining that the applicant being a student, his entire career depends on his studies as if he does not complete it here, he will be forced to discontinue his studies he get a gap. It would be difficult for him to accomplish this elsewhere.
2. The second respondent has acted beyond its jurisdiction by saying that the applicant has not been punished in the manner in which he should have been punished by a criminal court.
3. The Second Respondent has acted beyond its jurisdiction after providing a letters of support that the Applicant has no connection to the Australian community.
4. The Tribunal accepts that the applicant is genuinely remorseful for what occurred but did not exercise its discretionary power in deciding whether the visa should be granted after the applicant had shown remorse for his offence.
5.The second respondent has not taken into account the hardship that the applicant would have to face (financial, psychological, emotional or other hardship) to the applicant and any family member.
6. The Tribunal did not take into account the deteriorating mental health of the applicant that the applicant was suffering from major depressive disorder with anxious distress.
7. Tribunal made unfair decision.
Protection visa application proceedings
On about 23 August 2020 the applicant applied for a Protection visa. A delegate of the Minister refused that application on 2 September 2020; and, on 16 October 2016, the Tribunal affirmed that decision. The applicant applied to this Court for judicial review of the Tribunal’s decision, but on 15 February 2021 that application was dismissed. The applicant unsuccessfully appealed to the Federal Court of Australia (Federal Court) against this Court’s dismissal of his application for judicial review; and, on 10March 2022 the High Court dismissed the applicant’s application for special leave to appeal from the Federal Court’s dismissal of his appeal.
On 28 June 2022 the applicant lodged two Ministerial intervention requests. These were finalised without referral. On 3 July 2023 the applicant lodged a further Ministerial intervention request, and this remains pending.
Preparatory steps to remove applicant from Australia
On 16 March 2023 the applicant refused to sign a “Request for Removal from Australia” form. On 21 June 2023, the International Obligations and Complex Cases Section of the Department completed a “Pre-Removal Clearance” investigation, and advised that the applicant’s involuntary removal from Australia to India did not raise concerns in relation to Australia’s non-refoulement obligations. On 4 July 2023 the International Health and Medical Services issued a “Health Discharge Summary”, which advised there were no physical or mental issues that would be an impediment to the applicant’s removal from Australia.
BV application
As I have already noted the BV application relates to the Tribunal’s affirmation of a decision made by a delegate on 21 July 2023 not to grant the applicant a Bridging visa. The delegate’s refusal was the fourth occasion on which the applicant had been refused a Bridging visa.
To have been entitled to the grant of a Bridging visa the applicant had to meet one of the alternatives set out in cl 050.212(2)-(9) of Schedule 2 (Schedule 2) to the Regulations. Relevant to these reasons is cl 050.212(4)(a), which provides that “the applicant has applied for judicial review of a decision in relation to a substantive visa, other than a decision to refuse to grant a visa”. Under cl 050.223, the Minister must be satisfied that if a bridging visa is granted to an applicant, “the applicant will abide by the conditions (if any) imposed on it”. Clause 050.612A of Schedule 2 provides that condition 8101 must be imposed on a visa granted to a person who meets cl 050.212(4)(a), and the Minister may impose any one or more of conditions 8201, 8207, 8401, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548. Further, cl 050.618 of Schedule 2 provides that condition 8564 may be imposed in addition to any other condition.[11] Condition 8101 provides that the “holder must not engage in work in Australia”.
[11] Reasons for Decision, [36]
Relevant to these reasons are the following conditions (Relevant Conditions):
8101 The holder must not engage in work in Australia.
8207 The holder must not engage in any studies or training in Australia.
8401 The holder must report:
(a) at the time or times; and
(b) at a place or in a manner;
specified by the Minister from time to time.
8506 The holder must notify Immigration at least 2 working days in advance of any change in the holder’s address.
8564 The holder must not engage in criminal conduct.
Tribunal’s reasons
The Tribunal considered that the Relevant Conditions should be imposed on a bridging visa, if granted to the applicant. The Tribunal then considered whether it is satisfied the applicant would abide by each of the Relevant Conditions.
The Tribunal found the applicant will not abide by condition 8101.[12] The Tribunal relied on the following matters:
(a)Although the Tribunal acknowledged the applicant had provided various statements of financial and other support by the applicant’s parents in India, his brother in Portugal, and his cousins and friends in Australia, the Tribunal found there was no evidence that these persons:[13]
(i)have offered any specific amount of money to the applicant for the purpose of remaining in the Australian community;
(ii)understand the applicant’s proposed living arrangements in the Australian community, along with the indefinite nature of the period for which the applicant would not be permitted to work in Australia, and therefore require ongoing financial support; and
(iii)have the capacity to provide financial support to the applicant on an ongoing basis, taking into account their own personal circumstances and other financial commitments.
(b)The applicant has demonstrated a commitment to remaining in Australia, and has expressed little interest in departing Australia. Although the Tribunal was not in a position to determine when the applicant would exhaust his judicial review options, there is a distinct possibility that it may be in the order of two to three years. In those circumstances, the Tribunal said it was difficult to understand how the applicant will be in a position to abide by condition 8101.[14]
(c)The Tribunal was not persuaded that the offers of accommodation made to the applicant are reliable or durable. The Tribunal referred to two persons who said they were willing to provide accommodation to the applicant, and that they would do so until such time as the applicant could find a job, which they expected he would be able to find within a fortnight of being released from detention. The Tribunal found that these people had little understanding of the applicant’s circumstances and the reality that he would not be permitted to work in Australia.[15]
[12] Reasons for Decision, [44]
[13] Reasons for Decision, [39]
[14] Reasons for Decision, [40]
[15] Reasons for Decision, [41]
The Tribunal found the applicant will not comply with condition 8506, namely, that he will notify the Department at least 2 working days in advance of any change in his address. The Tribunal first noted “the applicant’s evidence of a previous non-compliance issue for failing to advise the Department of a change of address when he moved house in 2020”.[16] The Tribunal then found there is some risk the applicant will change his address if released into the community, particularly because, the Tribunal found, the applicant’s plans to live with others in the Australian community are unclear.
[16] Reasons for Decision, [47]
Of particular concern to the Tribunal was that those offering support to the applicant themselves live with others, including children; and these persons have not given persuasive evidence they are aware of the various reporting requirements that will apply to the applicant, given that his details appear on the Child Protection Register in New South Wales. Those requirements include that the New South Wales police be advised of the applicant’s address, along with the names and dates of birth of any children living at that address. For these reasons, the Tribunal found it is highly likely the applicant would be required to relocate once in the community because the offers of accommodation that have been made are not reliable or durable.[17]
[17] Reasons for Decision, [48]
The Tribunal also referred to the applicant’s having expressed a determination to remain in Australia and pursue all avenues to remain onshore until such time as they have been exhausted; and also to the applicant’s having stated at the hearing before the Tribunal that he does not want to return to India, although he acknowledged the possibility that he could live in a country nearby India if he had to leave Australia. The Tribunal found there is a real risk that the applicant will not comply with condition 8506 “if it no longer meets his purpose”.[18]
[18] Reasons for Decision, [49]
The Tribunal also found there is a likelihood the applicant would cease to comply with condition 8401; and that is because the Tribunal found that, should the applicant be unsuccessful in any of his current or future judicial review applications and Ministerial intervention requests, there will be a strong incentive for the applicant to hide in the community.[19]
[19] Reasons for Decision, [50]
Finally the Tribunal considered whether the applicant would abide with the visa conditions if a security were required. The Tribunal referred to the applicant’s evidence that he would be prepared to pay a bond of $10,000, and his friend in India, Mr RS, would provide him with the funds. The Tribunal found, however, that it had little insight into the applicant’s financial arrangements, and it does not believe the applicant has given a truthful, reliable, and complete account of his proposed activities in Australia on release from immigration detention; and the Tribunal noted it had raised with the applicant at the hearing that the applicant had not previously raised the possibility that Mr RS was willing and able to provide financial assistance, and there was no documentary evidence contained within the material the applicant provided to the Tribunal to support the claim that such funds were available. The Tribunal was not satisfied that a bond of $10,000 or any security amount will act as an incentive for the applicant to comply with the visa conditions.
Application
The BV application contains the following grounds of application:
1.The tribunal erred in concluding that the delegate had made an error of law in not taking into account the evidence provided by the applicant and in refusing to grant the bridging visa
2.The tribunal erred in concluding that the delegate had made a mistake of law in telling the applicant that if he had to report to different states in Australia the applicant could not do so
3.The tribunal erred in concluding that the delegate had made a legal error in deciding that the applicant could engage in the work because of its relationship with the community and the applicant skills
4.The tribunal erred in concluding that the delegate had made an error of law in deciding that the applicant could be illegal in community after his ministerial intervention had ended
5.The tribunal erred in concluding that the delegate had made an error of law in deciding that the applicant did not trust the Australian justice system
6.The member of Administrative Appeal Tribunal was very aggressive in whole interview
PRINCIPLES FOR GRANT OF INTERLOCUTORY INJUNCTION
This Court has power under s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to grant, among other things, “interlocutory orders”. That includes the power courts of equity have traditionally exercised to grant injunctions to preserve the status quo pending the determination of a claim for a legal remedy.
The principles which guide the exercise of that power are well established: a court will grant an interlocutory injunction if it is satisfied that:[20]
(a)there “is a serious question to be tried or that the [applicant] has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the [applicant] will be held entitled to relief”;
(b)the applicant “will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted”; and
(c)the “balance of convenience favours the granting of an injunction”.
[20] Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148, at page 153 (Mason ACJ)
I will apply these principles in relation to each of the EOT and the BV applications.
EOT APPLICATION
I will assume that if the applicant has a prima facie case, the applicant will suffer irreparable injury for which damages will not be an adequate remedy, and that the balance of convenience would favour the granting of an injunction. The critical question is whether the EOT application discloses a serious question to be tried.
The EOT application is an application for an order under s 477(2) of the Act that the 35 day period provided for by s 477(1) of the Act for applying to this Court for remedies under s 476 of the Act be extended. Under s 477(2) of the Act the Court may order the extension of the 35 day period prescribed by s 477(1) of the Act if two things are satisfied.[21] First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.
[21] I repeat here what I said in BYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 63, at [16]-[20]
In SZRIQ v Federal Magistrates Court of Australia Foster J said:[22]
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
[22] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, at [47]
The Federal Court has held that, on an application under s 477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[23] Further:[24]
If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[23] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63] (cases cited omitted)
[24] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [62] (cases cited omitted)
As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[25] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[26]
[25] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63]
[26] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [62]
Also relevant is the “applicable test” Steward J identified in Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[27]
The applicable test for determining whether to grant an extension of time was not in doubt. The Court must consider the extent of the delay, any prejudice a respondent might suffer because of the delay, the explanation for the delay, and the merits of the proposed application: see Singh v. Minister for Immigration and Border Protection [2017] FCA 150 at [19] and SZTRY v. Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. For the purposes of considering the issue of merit, the proposed grounds of review are examined at a reasonably impressionistic level: Guo v. Minister for Immigration and Border Protection [2018] FCAFC 34 at [27].
[27] Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029, at [4]
Extent of and explanation for delay
The 35 day period for making an application for remedies under s 476 of the Act in relation to the Tribunal’s decision expired on 27 August 2020, but the applicant applied on 14 July 2023. The delay is some 2 years and 11 months, an extraordinary delay.
The applicant seeks to explain his delay by reference to his mental state and other matters; and also to his not having the benefit of legal advice. It is not necessary to set out the material on which the applicant relies; and that is because, accepting the facts and opinions contained in the material on which the applicant relies, they do not disclose an arguably sufficient explanation for the delay in making the EOT application; and that is because they are inconsistent with the applicant’s conduct.
During the period in which the applicant did nothing in relation to the Tribunal’s decision, the applicant applied for a Protection visa, and, when his application was refused, the applicant took every step that was available to him to challenge that refusal. The applicant applied to the Tribunal for review of that decision; the applicant then applied to this Court for remedies under s 476 of the Act; and the applicant then appealed against the orders this Court made and sought special leave in relation to the orders the Federal Court made dismissing an appeal from this Court. The applicant’s conduct shows he had capacity to take such steps as he considered would be in his interests; and it also shows that he was aware that decisions of the Tribunal affirming decisions not to grant visas could be challenged by applying to a court.
No serious question arises that the applicant has a reasonable explanation for his delay.
Apparent merits
Ground 1
This ground makes two claims. The first is that the Tribunal failed to implement Ministerial Direction 69. That does not disclose any arguable case of jurisdictional error. Ministerial Direction 69 is directed to assessing the genuine temporary entry criterion for a Student visa; it does not apply to the cancellation of a visa. Even if relevant, the ground does not identify in what respects the Tribunal failed to implement Ministerial Direction 69.
The second claim may be taken to be a claim that the Tribunal failed to consider the consequences to the applicant’s studies and consequent career if the Student visa were cancelled. That claim, too, is not arguable. As I have set out in paragraph 11(a) of these reasons, the Tribunal did consider these matters.
Ground 2
Ground 2 claims the Tribunal found the applicant has not been punished in the manner in which he should have been punished by a criminal court. It is not arguable that the Tribunal made any such finding. As the Minister submits, the Tribunal made it clear that its role was not to punish the applicant.[28] The Tribunal did note that the applicant’s sentence was “relatively lenient given the seriousness of his offending”.[29] That, however, was a reference to a submission the applicant’s representative made in connection with the circumstances in which the ground for cancellation of the Student visa arose.
[28] Reasons for Decision, [20]
[29] Reasons for Decision, [67]
Ground 3
Ground 3 claims the Tribunal failed to consider letters of support which indicated the applicant had connections with the Australian community. The ground does not identify the letters of support the Tribunal did not consider. In paragraph 36 of its reasons, however, the Tribunal set out a paragraph from the applicant’s written statement in which the applicant claimed he had been in Australia for 6 years, and that he had made strong ties to the community having performed volunteer work in Australia. The Tribunal also referred to an undated character reference from the President of the Sikh Association of Sydney Inc. The Tribunal plainly considered the applicant’s statement and letters. Ground 3, therefore, is also not arguable.
Ground 4
Ground 4 appears to claim that because the Tribunal accepted the applicant expressed remorse for his offending, the Tribunal ought to have exercised its discretion against cancelling the applicant’s Student visa. It is the case the Tribunal accepted the applicant was remorseful; but it is not arguable that that ought to have led the Tribunal to exercise its discretion against cancelling the Student visa.
Ground 5
This ground claims the Tribunal failed to take into account the hardship the applicant and any family member would face if the Student visa were cancelled. That ground is not arguable. The Tribunal considered these matters at paragraphs 35, 38, 40, and 41 of its reasons for decision.
Ground 6
This ground claims the Tribunal did not take into account the applicant’s deteriorating mental health, or that the applicant was suffering from a major depressive disorder with anxious distress. These conditions are the subject of a report of a registered psychologist dated 11 July 2021;[30] and also of “court support letter” dated 25 August 2022 written by a mental health social worker and psychotherapist. These reports came into existence after the Tribunal made its decision, and therefore were not before the Tribunal. The applicant, however, has not identified any material that could arguably show that the applicant put before the Tribunal material that was relevant to his mental health, and on the basis of which the applicant contended to the Tribunal that his mental health was deteriorating, or that he suffered from a major depressive disorder with anxious distress.
[30] The report is annexed to the applicant’s affidavit made on 12 July 2023.
Ground 6, therefore, is also not arguable.
Ground 7
Ground 7 baldly claims the Tribunal made an unfair decision. This discloses no arguable claim of jurisdictional error.
Submissions at hearing
The applicant made oral submissions at the hearing. The applicant repeated the effect of some of the grounds of application; and it is not necessary to separately state those submissions in these reasons.
Conclusion
The EOT application raises no serious question to be tried. The delay in commencing the proceeding is significant; the applicant has not put forward an arguably satisfactory explanation for the delay; and the proposed grounds on which the applicant intends to rely, if an order under s 477(2) of the Act were made, do not disclose any reasonably arguable case that the Tribunal made a jurisdictional error. Thus, I would dismiss the application for an interlocutory injunction in so far as the applicant seeks it in aid of the EOT application.
BV APPLICATION
Each of the grounds is expressed in terms of the Tribunal having erred in concluding the delegate made an error, I will read this ground as omitting any reference to the delegate.
Ground 1
Ground 1 is a bald assertion the Tribunal did not take into account the evidence the applicant provided. Apart from not identifying the evidence the ground claims the Tribunal did not take into account, the ground is contradicted by the Tribunal’s reasons. In paragraph 22 of its reasons the Tribunal lists the documents the applicant provided to the Department and to the Tribunal respectively. The Tribunal referred to some of these documents in paragraphs 39 and 42 of its reasons. There is no arguable basis for claiming the Tribunal was not aware of the documents it listed; and it did not consider whether they were relevant to the applicant’s application for review.
Ground 2
Ground 2 claims the Tribunal erred in telling the applicant or making a finding to the effect that if the applicant had to report to different States in Australia, the applicant could not do so. The Tribunal made no such finding; and there is no evidence to suggest the Tribunal made any such statement to the applicant.
Perhaps this ground contains a typographical error, and is intended to claim the Tribunal found that if the applicant had to report to different states in Australia the applicant would not do so. So read, ground 2 appears to relate to the finding the Tribunal made in paragraph 50 of its reasons that, although the Tribunal noted the applicant had not sought to evade the police or otherwise avoid reporting to the Departmental officers in the past, there will be a strong incentive for the applicant to hide in the community should the applicant be unsuccessful in any of his current or future judicial review applications, and Ministerial intervention requests.
Ground 2 does not disclose any arguable case of jurisdictional error. It goes no further than asserting the Tribunal was incorrect in making these findings. Even if ground 2 is construed as a claim that it was not reasonably open to the Tribunal to make such findings, the applicant would not have reasonable prospects of succeeding on such a claim. It is beyond argument that it was open to the Tribunal to make the findings it did for the reasons it gave.
Ground 3
Ground 3 appears to be directed to the Tribunal’s findings that the applicant would not comply with condition 8101. The principal basis on which the Tribunal so concluded was that the Tribunal was not satisfied the applicant would have sufficient financial resources to remain in the community without being able to work.
Ground 3 discloses no jurisdictional error. Even if construed as a claim that it was not reasonably open to the Tribunal to conclude the applicant would not comply with condition 8101, the applicant would have no reasonable prospects of succeeding on such a claim. It is beyond argument that it was open to the Tribunal to find, for the reasons it gave, that the applicant would not comply with condition 8101 because he would not have the financial resources necessary to support himself without having to work.
Ground 4
Ground 4 appears to be directed to the Tribunal’s finding in paragraph 50 of its reasons that, should the applicant be unsuccessful in any of his current or future judicial review applications and Ministerial intervention requests, there will be a strong incentive for the applicant to hide in the community. The Tribunal made that finding “taking into account the findings above”. These include the finding in paragraph 40 of the Tribunal’s reasons that the applicant has demonstrated a commitment towards remaining in Australia, and has expressed little interest in departing Australia. It is beyond argument that it was open to the Tribunal to find, for the reasons it gave, that there will be a strong incentive for the applicant to hide in the community.
Ground 4, therefore, does not disclose a reasonably arguable case of jurisdictional error.
Ground 5
Ground 5 claims the Tribunal decided the applicant did not trust the Australian justice system. The Tribunal made no finding to that effect. Ground 5, therefore, also discloses no arguable case of jurisdictional error.
Ground 6
Ground 6 claims the Tribunal member was “very aggressive in whole interview”. The applicant has provided no particulars or details of the matters on the basis of which he claims the Tribunal member was aggressive. Ground 6 discloses no arguable case of jurisdictional error.
Conclusion
The BV application raises no serious question to be tried. Thus, I would also dismiss the application for an interlocutory injunction in so far as the applicant seeks it in aid of the BV application.
OTHER MATTERS
The applicant relied on three affidavits, two of which he filed in the EOT application, and one in support of the BV application. The applicant also relied on letters of support which he separately tendered (and which I marked as exhibit A), these being the documents, or at least appearing to be the documents the Tribunal in the BV application identified in paragraph 22 of its reasons.
Given the urgency of the application for an injunction I do not propose to identify each and every document the applicant annexed to his affidavits, or the documents that comprise exhibit A. I wish only to note that I have read the documents. I am satisfied that none of the documents raise or suggest any arguable case of jurisdictional error in the Tribunal’s decision to affirm the decision to cancel the applicant’s Student’s visa.
Finally, I should refer to the Minister’s submission that it appears the applicant may also be relying on his application for Ministerial intervention pursuant to s 48B of the Act. As the Minister correctly submits, given that the Minister does not have any duty to consider or finalise any request for intervention,[31] the applicant’s having applied for intervention under s 48B of the Act affords no ground for granting an injunction.
[31] Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; DCM20 v Secretary of Department of Home Affairs [2023] HCA 10, at [12]-[15], [19] (Kiefel CJ, Gageler and Gleeson JJ), [104]-[105] (Edelman J), [199] (Steward J), [298] (Jagot J).
DISPOSITION
I propose to order in each of the EOT and the BV application that the application for an order restraining the Minister from removing the applicant be dismissed. I will also order that the matter be listed for directions at 9:30 am on 8 August 2023.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 25 July 2023
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