BXI23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 942
•4 August 2023
FEDERAL COURT OF AUSTRALIA
BXI23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 942
Appeal from: BXI23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 660 File number: NSD 772 of 2023 Judgment of: RARES J Date of judgment: 4 August 2023 Catchwords: MIGRATION – application for leave to appeal refusal of interlocutory injunction – where applicant applied to restrain Minister from removing unlawful non-citizen from Australia – whether applicant established prima facie case of sufficient probability of obtaining relief at trial – where no practical benefit in obtaining extension of time under s 477 of Migration Act 1958 (Cth) and setting aside cancellation of student visa that would already have expired since cancellation or refusal of bridging visa to enable such challenge – Held: application dismissed Legislation: Constitution s 75(v)
Federal Court of Australia Act 1976 (Cth) s 24(1A)
Migration Act 1958 (Cth) ss 476, 477
Cases cited: Australian Broadcasting Corporation v O‘Neill (2006) 227 CLR 57
Bienstein v Bienstein (2003) 195 ALR 225
BXI23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 660
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 22 Date of hearing: 4 August 2023 Counsel for the applicant: The applicant was self-represented Counsel for the first respondent: Ms K McInnes Solicitor for the first respondent Australian Government Solicitor ORDERS
NSD 772 of 2023 BETWEEN: BXI23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
4 AUGUST 2023
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The notice of appeal be struck out as incompetent.
3.Order 1 made on 27 July 2023 be vacated.
4.The applicant pay the first respondent’s costs to be assessed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)RARES J:
INTRODUCTION
This is an application for leave to appeal from the refusal of the Federal Circuit and Family Court of Australia (Division 2) (the Division 2 Court) to grant the applicant an interlocutory injunction to restrain the Minister from removing him from Australia to his country of nationality, the Republic of India: BXI23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 660.
On 27 July 2023, Raper J (as duty judge) ordered that the Minister be restrained up to 11:59pm today from removing the applicant from Australia. Her Honour listed this application for hearing today and made orders for the parties to file and serve submissions and all the material that was before the trial judge so that, if leave to appeal were granted, I could determine the appeal on its merits.
BACKGROUND
The applicant commenced two proceedings in the Division 2 Court. First, he sought an extension of two years, 10 months and 4 days from the 35-day period in which he could have applied for constitutional writ relief fixed by s 477(1) of the Migration Act 1958 (Cth), by lodging his application for an extension of time on 14 July 2023, under the power in s 477(2) (the extension application) to challenge the decision of the Administrative Appeals Tribunal made on 23 July 2020 to affirm the decision of a delegate of the Minister who, on 2 June 2020, had cancelled his subclass 500 (student) visa (the cancellation decision). The student visa otherwise would have remained in force until 14 October 2020. In his challenge to the cancellation decision, the applicant advanced seven grounds.
Secondly, the applicant sought constitutional writ relief to challenge another decision of the Tribunal, differently constituted, made on 21 July 2023 to affirm the decision of another delegate not to grant him a bridging E (class WE) subclass 050 visa for which he had applied on 11 July 2023 (the refusal decision). The applicant sought the bridging visa to enable him to remain in Australia while he pursued his attempt to obtain both the extension of time and challenge to the cancellation decision. He advanced six grounds of challenge to the refusal decision. The applicant sought an interlocutory injunction in both proceedings.
The trial judge heard both applications for an interlocutory injunction on 24 July 2023 and, on 25 July 2023, refused them, giving reasons. The applicant filed a notice of appeal from the trial judge’s refusal for relief in both proceedings and, subsequently, lodged for filing an application for leave to appeal to regularise his claim for appellate intervention because s 24(1A) of the Federal Court of Australia Act 1976 (Cth) requires that leave to appeal to be granted by the Court for an appellate challenge to an interlocutory decision.
I directed the Registrar to accept the application for leave to appeal for filing notwithstanding a difficulty that the applicant earlier had in verifying his affidavit in immigration detention, which he ultimately made on 2 August 2023, in support of his application for leave to appeal. That occurred on 4 August 2023 and regularised the proceeding. I will order that the notice of appeal be dismissed as incompetent, but be treated as a draft on which the applicant would rely if leave were granted.
THE TRIAL JUDGE’S DECISION
The trial judge summarised the cancellation decision, the evidence given in respect of the extension of time, the refusal decision and the applicant’s grounds for challenging both decisions, before discussing the principles for the grant of an interlocutory injunction. His Honour assumed that the balance of convenience favoured the grant of an injunction and that the applicant would suffer irreparable prejudice, for which damages would not be an adequate remedy, if he were able to establish a prima facie case for relief on his extension application.
The trial judge found that the applicant’s delay of nearly three years before seeking the extension of time was extraordinary and that he had not given a sufficiently arguable explanation for that delay. His Honour found that the applicant’s claimed explanation for his delay, being because of his poor mental health, severe depression, anxiety, experience of finding the body of his housemate after his suicide, lack of prior knowledge of Federal Court proceedings and the failure of his then representative (as solicitor migration agent) to inform him of the 35-day time limit, was inconsistent with the applicant’s own conduct. His Honour found:
40During 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.
41 No serious question arises that the applicant has a reasonable explanation for his delay.
The trial judge next reviewed and found that each ground of challenge to the cancellation and refusal decisions was not arguable and did not raise any serious question to be tried. Accordingly, his Honour refused the application for an interlocutory injunction.
CONSIDERATION
The principles that govern the grant of leave to appeal are well-established. An applicant for leave must establish that, first, the decision in question is attended with sufficient doubt to warrant the grant of leave and, secondly, substantial injustice will result from a refusal of leave to appeal: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby, and Callinan JJ.
The trial judge applied a more favourable test to the applicant (of whether there was a serious issue to be tried) than the High Court held in in Australian Broadcasting Corporation v O‘Neill (2006) 227 CLR 57 is applicable to the grant of an interlocutory injunction. There, Gummow and Hayne JJ, with whose organising principles Gleeson CJ and Crennan J agreed at 68 [19], said at 81–82 [65]:
The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd ((1968) 118 CLR 618). This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued (at 622-623) :
“The first is whether the plaintiff 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 plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”
By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument (at 620). With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal (at 622):
“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”
(emphasis added)
Gummow and Hayne JJ went onto explain (at 227 CLR 84 [71]–[72]) that “the governing consideration [is the] requisite strength of the probability of ultimate success [that] depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought”.
Here, the applicant contends that the interlocutory injunction granted by Raper J should be continued, that he should be granted leave to appeal and his appeal allowed so that the matter be remitted to the trial judge to continue by determining his application for an extension of time and challenge to the refusal decision in respect of the bridging visa.
It is necessary to appreciate what is involved in this application. Even if the applicant were wholly successful in obtaining an extension of time and setting aside the cancellation decision, there would be no practical benefit to him because that could not regularise his current status as an unlawful non-citizen. That is because the student visa, the cancellation of which he seeks to challenge, would, if restored, have expired on 24 October 2020 and, so, could not affect his status as an unlawful non-citizen today. There could be no possible utility in granting an interlocutory injunction to enable him to pursue that litigation while present in Australia in those circumstances, even if the applicant could establish that he was entitled to the final relief sought, contrary to the trial judge’s findings about the lack of any merit in the applicant’s arguments as to, first, being able to establish a basis on which the Court would extend the time under s 477(2), given his unreasonable delay, or, secondly, the weakness or the unarguability, as his Honour found, of all of the grounds of challenge to the cancellation decision.
That leaves to be considered what merit there would be in granting an injunction restraining the applicant’s removal from Australia so that he could pursue a challenge to the refusal of a bridging visa to enable him to pursue the cancellation decision while present in Australia. There is no reason why the applicant could not challenge the legal basis for the cancellation decision, if he is so minded, from India. He does not need to be present in Australia to do so. It follows that there will be no harm, let alone irreparable harm, that would follow from his removal.
Rather, the applicant contends that removing him from Australia would result in him being exposed to the kinds of issues that he sought, unsuccessfully, to raise in his protection visa application, which the delegate of the Minister refused, and his failed challenges to that decision in the Tribunal, the Federal Circuit Court, this Court and the High Court (which in March 2022 refused to grant special leave to appeal). The issues raised in that failed application for a protection visa do not provide any support for a prima facie case for the grant of an interlocutory injunction.
Moreover, the applicant claims that he would suffer some kind of prejudice in having to restart his courses were he returned to India. That is an irrelevant consideration as to whether he has any lawful right to remain here to pursue his challenges to the cancellation and the refusal decisions.
In my opinion, first, there is no reason to doubt the correctness of the trial judge’s refusal to grant an interlocutory injunction in either proceeding below. Indeed, having regard to his Honour’s findings as to the lack of a basis on which an extension of time could be granted, it is difficult to understand why his Honour did not refuse, then and there, to grant that extension in the exercise of his undoubted power under s 477(2) of the Migration Act to do so. However, that issue remains alive and can be pursued from India if the applicant continues with that application.
The Minister pointed out, however, that the applicant will not be able to pursue the refusal decision in India. That is because a condition for the grant of a bridging visa is that the applicant must be in Australia when he makes the application and when it is granted. However, there can be no irreparable or substantial inconvenience or injury to the applicant in refusing to grant the interlocutory injunction to enable him to challenge the refusal decision. That is because the purpose of his seeking to be in Australia is to challenge the cancellation decision which he is equally able to do from India as here. In my opinion, there is no basis on which the applicant could possibly succeed in his challenge to the refusal decision were I to grant leave to appeal.
The right to claim an injunction under s 476 of the Migration Act reflects the conferral on the Division 2 Court of the original jurisdiction of the High Court under s 75(v) of the Constitution. In such a case, the injunction is a constitutional writ, not merely an equitable remedy, although, ordinarily, the principles for equitable relief apply to the grant of such a writ. As Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ held in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618 [28], the grant of a constitutional writ is a matter of discretion and the same principles apply both in this Court and in the Division 2 Court. Their Honours applied what Latham CJ, Rich, Dixon, McTiernan and Webb JJ had said in The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389 at 400, namely that:
For example the writ [scil: a constitutional writ] may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.
(emphasis added)
Here, no useful result would ensue from the grant of the relief which the applicant seeks. He can pursue his challenge to the cancellation decision substantively in India as he can here. He is not entitled to an interlocutory injunction to enable him to litigate a challenge here to the refusal decision so as to enable him to have a bridging visa simply to be in this country to challenge the cancellation decision, as I have explained above.
CONCLUSION
In my opinion, if the applicant were to be granted leave to appeal, such an appeal would have no prospect of success. The decision of the trial judge is comprehensive. There is no reason to doubt its correctness and no injustice, let alone substantial injustice, would result from a refusal of leave. For these reasons, I refuse the application for leave to appeal with costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares. Associate:
Dated: 10 August 2023
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