CAH25 v Minister for Immigration, Citizenship and Multicultural Affairs

[2025] FedCFamC2G 528

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CAH25 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 528

File number(s):

ADG 81 of 2025

Judgment of:

JUDGE GERRARD

Date of judgment:

14 April 2025

Catchwords:

MIGRATION – protection visa – application for injunction to restrain the Minister from removing the applicant from Australia – delay – whether applicant afforded meaningful opportunity to appear – impact of mental health issues on ability to appear – serious issue to be tried established – balance of convenience – interlocutory injunction granted  

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 140

Migration Act 1958 (Cth) s 189, 425

Cases cited:

The Applicant in WAD 230/2014 v Minister for Immigration and Border Protection [2014] FCA 1351

Castlemaine Tooheys v South Australia (1986) 161 CLR 148

Katoa v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs (2022) 276 CLR 579

Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 553

Minister for Immigration, Citizenship and Multicultural Affairs v NDBR [2024] FCAFC 114

SZQBN v Minister for Immigration and Border Protection [2014] FCA 686

Division:

Division 2 General Federal Law

Number of paragraphs:

58

Date of last submission/s:

13 April 2025

Date of hearing:

14 April 2025

Place:

Adelaide

Applicant:

Self-represented with the assistance of a Swahili interpreter

Counsel for the First Respondent:

Rachel Francois

Solicitor for the First Respondent:

Minter Ellison

Second Respondent:

Submitting appearance, save as to costs

ORDERS

ADG 81 of 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CAH25

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE GERRARD
DATE OF ORDER:	14 APRIL 2025

THE COURT ORDERS THAT:

1.Until further order, the first respondent, and the first respondent’s servants and agents, be restrained from removing the applicant from Australia.

2.The first respondent file and serve an affidavit annexing the transcript of the hearings before the second respondent on or before 28 April 2025.

3.The matter be listed for a case management hearing on 12 May 2025.

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).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE GERRARD:

1. The application before the Court is for an interlocutory injunction to restrain the first respondent, the Minister, from removing the applicant from Australia at 8.00 am tomorrow, 15 April 2024.

2. The court is satisfied that an interlocutory injunction should be granted restraining the Minister from removing the applicant from Australia. The following are the Court’s ex tempore reasons for judgment which the Court reserves the right to edit or amend prior to any necessary written publication.

3. The applicant has an open application before the Court seeking an extension of time to seek judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. That application was filed on 20 February 2025.

4. The application in a proceeding seeks an injunction restraining the Minister from removing the applicant until his application for review of the Tribunal’s decision is finalised. It is also said to be sought to allow the applicant to find legal representation and to give him, in his words, “time to recover psychologically from mental breakdowns”.

5. The Minister opposes the application in a proceeding, and in an email to the Court dated 11 April 2025, advised that the Minister “will not undertake not to remove the applicant whilst their judicial review application is on foot”.

6. The extension of time application is, as is often the case with self-represented applicants, brief and not couched in the familiar language of jurisdictional error. The grounds of the application are stated as:

   (a)Consideration of a well-founded fear of persecution upon return due to my sexuality and mental health; and

   (b)Consideration of claims and evidence provided.

7. The application for an extension of time seeks an expedited hearing for the following reason:

   “I believe an error was made with my decision outcome. I wasn’t mentally competent at the time I was diagnosed with depression and anxiety as a result of substance abuse which rendered me mentally disoriented and incoherent to represent myself at the hearing.”

8. The grounds for the application for an extension of time continue this theme:

   “I wasn’t mentally upright for a significant period of time at the time of the application and process. I did not have all my support documents with me.”

9. In the Court’s view, read fairly and together, the applicant essentially argues that he was denied a meaningful opportunity to give evidence and present arguments in accordance with s 425 of the Migration Act 1958 (Cth) (the Act) on the basis that the Tribunal did not properly consider that the applicant’s ability to participate in the hearing was impacted upon by his mental health issues.

   BACKGROUND

10. It is not necessary for the purposes of these reasons to set out in detail the background of the application, but some matters should be noted. Much of the background is taken from the Minister’s outline of submissions, which the Court is grateful for.

11. The applicant is a citizen of Kenya who arrived in Australia on 5 November 2013 on a Student (Class TU) (subclass 572) visa.

12. On 29 November 2018, the applicant applied for a Protection (Class XA) (subclass 866) visa which was refused by a delegate of the Minister on 10 February 2020.

13. On 4 March 2020, the applicant applied to the Tribunal for a review of the decision.

14. The applicant’s engagement with the Tribunal was somewhat erratic. The Tribunal details this at [22]-[39] of its reasons (without alteration, save for anonymisation of identifying details):

    [22] On 4 March 2020, the applicant applied for a review of the delegate’s decision and provided a copy of his protection visa decision record by hand. The Tribunal is satisfied that the delegate’s decision is reviewable under s 411(1)(c) of the Act.

    [23] On 1 September 2022, the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 11 October 2022.

    [24] The applicant provided a hearing response dated 6 September 2022, advising that he had been having regular toothaches, which may affect his ability to take part in the hearing. He also said that he was in the process of collecting his documents, which he would submit by 4 October 2022, and he gave the names of two witnesses, his partner [name], with whom he has been trying to start a family, and [name], a close friend.

    [25] On 3 October 2022, the applicant submitted:

    •A letter from his mother dated 7 September 2022. She said her husband (the stepfather) had married a 30-year-old girl in 2018 and his behaviour deteriorated so much that he could become very angry and insult everyone. Her son started getting stressed as other stepfamily members started mistreating him and he wished to leave the country. She took out a loan in 2019 but COVID-19 affected her business and there is a balance of the loan she has been unable to pay. She asked that her son be granted a protection visa to continue his studies as she cannot sustain him given her current debt.

    •A letter dated 2 September 2022 from [financial institution] addressed to his mother about overdue loan arrears and seven pages of account statements.

    •An article by [names] ‘Assessing mental health literacy of primary health care workers in Kenya: a cross-sectional study’, International Journal of Mental Health Systems (2021).

    [26] The applicant appeared before the Tribunal on 11 October and 9 November 2022 and 12 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Martin Njeru, a friend of the applicant.

    [27] The hearing on 11 October 2022 was adjourned to allow the applicant to provide evidence to support his new claim that he is homosexual.

    [28] On 4 November 2022, the applicant provided a handwritten note with the names of witnesses: [doctor] at [workplace], [name] and [name], the lawyer in charge of house sale in Kenya along with a Kenyan phone number. He further wrote that he ‘was not sure how to send a video I have got in my phone which am comfortable to show at the hearing since my phone cannot access the internet at the moment’. He provided the following attachments:

    •A copy of a script for Venlafaxine 75 mg Capsule, modified release dated 3 November 2022 prescribed by [doctor], and

    •A medical certificate signed by [doctor] and dated 3 November 2022 stating:

    This is to certify that I saw [name] today and it is my opinion that he is/and have (sic) been suffering from severe Anxiety and Depression for at least the last 12 months. He has now taken the first steps towards addressing these issues and I will follow his progress.

    [29] The hearing on 9 November 2022 was adjourned after the applicant said that he was feeling unwell after starting his new medication on 5 November 2022; his symptoms were diarrhoea, sweating when sleeping and headaches every now and then.

    [30] On 9 November 2022, after the hearing, the applicant advised that [name], his partner, was booking tickets for them to travel to Canberra on 17 November 2022 to provide biometrics for new passports.

    [31] On 29 November 2022, the Tribunal invited the applicant to a resumption of the adjourned hearing on 14 December 2022. The Tribunal also sent him SMS reminders about the hearing five business days and one business day before the scheduled hearing.

    [32] On 13 December 2022, the applicant contacted the Tribunal and said that he did not know if he could come to the hearing the next day as he was ‘beat up over the weekend’. He said he had not attended the hospital. He was advised that any request for a postponement needed to be in writing and he should provide documentation from a registered medical practitioner. He was advised that if he did not attend, the Tribunal may dismiss his application or make a decision without taking further action to enable him to appear before the Tribunal. The applicant did not provide a request in writing to the Tribunal.

    [33] On 15 December 2022, the Tribunal advised the applicant that, as he had not attended the resumed hearing, it had decided to dismiss his application for review without further consideration of the application or the information before the Tribunal.

    [34] On 22 December 2022, the applicant requested a reinstatement of the hearing and provided a medical certificate dated 14 December 2022 stating that he was unfit for work on 14 December 2022. The Tribunal considered the applicant’s request and reinstated the application and listed the hearing to be resumed on 12 January 2023.

    [35] On 12 January 2023, the applicant appeared before the Tribunal for the conclusion of the adjourned hearing.

    [36] At the hearing on 12 January 2023, the applicant requested three weeks to provide supporting evidence. The Tribunal agreed to this request and invited him to submit information by 2 February 2023. No information was received by 2 February 2023, the applicant did not request additional time and no information had been received at the time this decision.

    [37] On 12 January 2023, at the hearing, the applicant advised that he had changed his address to [address]. The Tribunal emailed him a change of contacts details form on 12 January 2023. At the time of this decision, the Tribunal had not received a response from the applicant.

    [38] The applicant was not represented in relation to the review.

    [39] The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.

15. On 21 March 2023 the Tribunal affirmed the delegate’s decision. For present purposes, it is sufficient to record the Tribunal’s conclusion at [87] as follows (without alteration):

    [87] For the above reasons, the Tribunal finds the applicant not to be a credible, truthful and reliable witness. His evidence shows a propensity to tailor evidence in a manner to achieve his own purpose. The Tribunal finds that the applicant has fabricated and concocted his claims to achieve a favourable migration outcome. The Tribunal, therefore, does not accept that the applicant is homosexual. The Tribunal does not accept that the applicant’s memory is affected by alcohol, or that he has had a psychotic episode in Adelaide. The Tribunal does not accept that the applicant will experience serious harm or suffer significant harm in Kenya because of severe anxiety and depression. The Tribunal does not accept that the applicant’s stepfather or stepfamily will inflict serious harm or significant harm on him. The tribunal does not accept that there is a real chance that the applicant will face significant economic hardship that threatens his capacity to subsist or that he will be denied the capacity to earn a livelihood of any kind., where the denial threatens his capacity to subsist. The Tribunal does not accept that the applicant would not have anywhere to live in Kenya, and the Tribunal does not accept that the applicant’s mother is in financial difficulty.

16. On 20 November 2024, the applicant was detained pursuant to s 189 of the Act. The Court notes that there is no explanation by the Minister in respect of the elapse of time between the outcome of the applicant’s unsuccessful application to the Tribunal and his detention.

17. On 20 February 2025, the applicant lodged the application for an extension of time in this Court. It can be seen from this timeline that the extension the applicant seeks is significant.

18. Notwithstanding that application, on 8 April 2025, the Minister notified the applicant of the intention to remove him from Australia.

19. On 9 April 2025, the Minister’s representative sent email correspondence to the applicant advising:

    We are instructed that, unless the Minister is restrained from removing you by order of the Court or the Federal Court of Australia or other court of competent jurisdiction, your removal will proceed on a date to be confirmed. It is open to you to make an application to prevent your removal.

20. At 7.55 pm on 10 April 2025, the applicant made such an application.

21. On 11 April 2025, the Court sought confirmation of the time and date of the scheduled removal of the applicant from Australia. The Minister confirmed that the applicant was scheduled to be removed at 8.00 am on 15 April 2025. As observed, the Minister did not undertake not to remove the applicant pending the resolution of his proceedings.

22. Accordingly, the Court convened a directions hearing on 11 April 2025 where orders were made for the Minister to file submissions and affidavit evidence by 13 April 2025, and listed the matter for an interlocutory hearing on 14 April 2025.

23. The Minister filed submissions and an affidavit in compliance with those orders on 13 April 2025.

    INTERLOCUTORY INJUNCTIONS

24. There is no dispute that this Court has the power to grant the order sought by the applicant (s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).

25. The organising principles relevant to the consideration of such an application are well-established. They are, first, the Court must be satisfied that there is a serious issue to be tried. Second, whether damages are an adequate remedy for any injury suffered by a party. Third, whether the balance of convenience lies with granting the injunction.

26. The Minister also correctly observes that the applicant requires an extension of time. The principles for an extension of time application are different, but equally well-established. Whilst there is a requirement to consider all of the relevant circumstances in considering whether it is necessary in the interests of the administration of justice (see Katoa v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs (2022) 276 CLR 579), commonly considered matters include:

    ·The extent of the delay and the explanation for such delay;

    ·Prejudice to any party;

    ·The impact on the applicant if the time is not extended;

    ·The public interest; and

    ·The merits of the substantive application.

27. In this matter, insofar as the extension of time application is concerned, the two principle areas of concern are the extent of the delay, which is considerable, and the merits of the substantive application.

28. The applicant’s delay is lengthy and the Minister correctly cites authorities which note that in cases where there is an extreme delay, that may be enough to defeat an application which might otherwise enjoy good prospects of success.

29. However, there are matters where lengthier delays have led to the granting of an extension of time, particularly where an applicant is in immigration detention. See, for example, the decision of Gilmour J in The Applicant in WAD 230/2014 v Minister for Immigration and Border Protection [2014] FCA 1351 where the delay was two and a half years, and where the applicant had in fact sought to pursue other review rights.

30. Quite clearly, each matter turns on its own particular circumstances. In this matter, whilst the delay is lengthy, the applicant says this is a consequence of his mental health issues. Those issues are at the heart of his substantive application. For the purpose of these interlocutory proceedings, the Court accepts that those issues may constitute an acceptable explanation for that delay.

    SERIOUS ISSUE TO BE TRIED

31. The Minister submits that the extension of time application and the application for an injunction issue should both be defeated because the Minister says that there are no reasonable prospects for the application to succeed. That is, the merits of the substantive application are not sufficient for the purposes of the extension of time application and there is no serious issue to be tried in respect of the interlocutory relief which is sought.

32. The Cout disagrees. Its reasons in this respect are best encapsulated by addressing whether there is a serious issue to be tried.

33. In considering whether there is a serious issue to be tried, an applicant need not establish that their case is, on balance, likely to succeed. It need only be arguable or a prima facie case (see Castlemaine Tooheys v South Australia (1986) 161 CLR 148 at 153).

34. In the Court’s view, there is a serious issue to be tried in respect of whether the applicant was provided with a real and meaningful opportunity to be heard in the sense identified in decisions such as Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 553 (SCAR). That, in effect, is the essence of the applicant’s substantive complaint in his application. It also lies at the heart of his application for an extension of time.

35. The applicant has consistently made claims in respect of his mental health and, in particular, that it has affected his memory and his ability to represent himself.

36. The applicant provided the Tribunal with a copy of a medical certificate which certified that the applicant had been diagnosed with longstanding anxiety and depression.

1. The Tribunal was somewhat dismissive of the probity of this certificate, noting that it was only two sentences and based on a singular consultation. The Court has concerns with such a cursory dismissal of a medical document, but accepts that it is well-established that the Tribunal can have regard to expert evidence as it sees fit so long as it does so reasonably.

2. On its face, the Tribunal appears to have considered whether the applicant’s mental health issues impacted upon his ability to participate. Its reasons for doing so were minimal. At [69] of its reasons the Tribunal stated:

   [69] The Tribunal is satisfied that the applicant’s mental health has not impacted his ability to give evidence and that he is competent to participate in the review process. The applicant presented as articulate the three times he spoke with the Tribunal. He did not suggest that his mental health issues impacted his ability for give evidence and the hearing on 9 November 2022 was adjourned due to the side effects from his new medication.

3. The Minister says that there are two reasons why the Court should not accept that the applicant was denied a meaningful opportunity in the sense identified in SCAR.

4. Firstly, the Minister says that it was primarily for the Tribunal to evaluate the ability of the applicant to participate in the hearing. The Minister says the fact that the Tribunal was aware of the potential health difficulties faced by the applicant and continued with the hearings is indicative that the applicant was not denied the opportunity to participate. Secondly, the Minister says that no evidence has been adduced by the applicant in support of this.

5. In this respect, the Minister relied upon SZQBN v Minister for Immigration and Border Protection [2014] FCA 686 where the Court stated:

   [47] Considerable care needs to be exercised before a conclusion is reached that a claimant has not been afforded a “real and meaningful” opportunity to be heard. But an opportunity to be heard is no opportunity at all if a person is unable to meaningfully participate, be that inability due to mental capacity or other reason. Reasons for questioning the utility of a hearing may range from language and cultural difficulties of a claimant to a claimant’s mental condition. It would not be surprising if it were the case that many claimants experience a great deal of stress when appearing before the Tribunal. The source of that stress may itself range from the stress in advancing a claim founded upon assertions known to be untrue to the stress experienced by a genuine claimant being fearful that his claims may not be genuinely considered or evaluated. The plight of claimants cannot be underestimated: cf. Abebe v Commonwealth (1999) 197 CLR 510 at 577 to 578 per Gummow and Hayne JJ. Their personal circumstances may well expose them to a source of stress different to – and perhaps greater than – the stress which many litigants experience in any litigation.

   [48] On the facts of the present case, however, there is no foundation for any conclusion that the mental state of the appellant was such that he could not meaningfully participate in the Tribunal hearing. The highest the evidence rose in support of such a conclusion was the report of Dr de Teliga that the appellant was “often not capable of making rational decisions regarding his own situation”. The report of Dr Jacmon concluded that the appellant’s condition could be “diagnosed as mixed anxiety depressive disorder”.

   [49] At least initially, it was for the Tribunal to form its own assessment as to the ability of the appellant to participate in the hearing. As paragraph [219] of its reasons make clear, the Tribunal had read the medical reports and taken them into account. In doing so, it reached the conclusion that it could give them “little weight” and it was a matter for the Tribunal to give them such weight as it saw fit in reaching its conclusions as to the credibility of the appellant. Of present relevance is whether the medical reports support the different proposition that the appellant’s “mental capacity” was such as to deprive him of the opportunity “to give evidence and present arguments...”. Whether the test be an “inability” to give evidence rather than a claimant being denied a “meaningful opportunity to participate”, the evidence in the present appeal does not satisfy either test. Nor does an independent review of the transcript of the hearing before the Tribunal expose any reason to question the ability of the appellant to meaningfully participate in the hearing he attended. That hearing occupied over three hours. There is no reason to question the ability of the appellant to competently answer the questions being put to him by the Tribunal member.

6. Similar observations were made by the Full Court in Minister for Immigration, Citizenship and Multicultural Affairs v NDBR [2024] FCAFC 114 as follows:

   [80] As the Full Court said in BJB16 v Minister for Immigration and Border Protection (2018) 260 FCR 116 at [43] (Kenny, McKerracher and White JJ), “[g]enerally it is insufficient for applicants to show no more than a medical condition may have deprived them of the ability to put their cast to best advantage”. Dr Scally’s evidence did not go so far as to show that the respondent was incapable of having a fair hearing (cf. Minister for Immigration and Multicultural and Indigenous Affairs v SCAR(2003) 128 FCR 553 at [39]-[41]), and no evidence was adduced in the hearing below to support the proposition that there was anything in the transcript to support the notion that the respondent did not in fact understand what was put to him. While BJB16 was concerned with a Tribunal hearing to which s 425 of the Migration Act applied and whether the applicant had had a “meaningful” opportunity to be heard, it has been applied to a hearing to which s 39 of the AAT Act applies (see, for example, Karan v Minister for Home Affairs [2019] FCAFC 139 per Rares, Griffiths and Burley JJ and Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 214 per Jagot J) and no basis was advanced by the respondent to support the view that the reasoning would not be equally applicable to such a hearing.

7. These cases establish that the Court should consider whether the medical evidence establishes that the applicant was incapable of having a fair hearing, but also that it is relevant to consider whether there was anything in the transcript to support the notion that the applicant did not in fact understand what was put to him. As properly accepted by counsel for the Minister, in this matter no such transcript is before the Court.

8. The Minister’s submission that the applicant has had a lengthy opportunity to place before the Court any evidence, such as a transcript, has force. However, he has at all times represented himself, he is in detention, and there is at least a prima facie basis to assume that he has difficulties representing himself on the basis of his mental health issues.

9. Here, there is simply a very brief dismissal of the issue. What that means is that the Tribunal was alive to the fact that this was an issue. What it does not do is establish whether it was properly had regard to.

10. Whether or not that is a sufficient disposition of that issue, and it is a fundamental issue of whether the hearing was procedurally fair in all of the circumstances, is a matter for proper argument. Having regard to the approach taken by the Full Court in such matters, it should be done so having regard to the transcript of the hearing.

11. The Court is therefore satisfied that there is a serious issue to be tried.

    BALANCE OF CONVENIENCE

12. The court being satisfied that there is a serious issue to be tried, the next issue is where the balance of convenience lies.

13. The Court does not disregard the submissions made by the Minister in respect of the public interest in the proper administration of the Act, however they are, in the Court’s view, not of the same magnitude as the factors which weigh in the applicant’s favour:

14. Most importantly, the removal of the applicant from Australia would end his ability to seek judicial review of the Tribunal decision. It is true in this case that is tethered to an extension of time application following a significant delay, but nevertheless, removal effectively destroys his ability to obtain the visa he seeks.

15. In that respect, it is not unimportant that the applicant is seeking a protection visa.

16. Furthermore, the Minister’s compelling point in respect of stultifying the proper administration of the Act meets headlong with the reality that the scheduled removal stultifies the court’s ability to carry out its function in respect of an extension of time application which has been on foot since February.

17. No significant prejudice has been identified by the Minister. The Court does not have before it any evidence in respect of the validity or tenuousness of the travel document intended to be used to remove the applicant, or any evidence that it will be difficult to re-organise removal once the Court’s processes are properly completed (if the applicant is ultimately unsuccessful in that respect).

18. Whilst the Minister’s general points about the public interest can be accepted, they can be, to a degree, ameliorated by the Court expediting the hearing of this matter.

19. Accordingly, the Court finds that there is a serious issue to be tried and the balance of convenience favours an injunction being granted.

    FUTURE PROGRESS

20. The Court intends to progress this matter as expeditiously as it can. However, there are two issues which need addressing.

21. First, the Court is aware that the applicant has had no representation at any stage of this process. Given the serious issue which the Court has identified involves a significant legal argument, the Court is satisfied that it is appropriate that a pro bono referral be made. Of course, the Court cannot guarantee that the referral will meet with success. The Court will allow a period of four weeks to see if that referral is successful. The matter will be brought back shortly after that and programming orders will be made irrespective of whether the applicant has sourced representation.

22. Secondly, having regard to what was said previously, the Court is of the view that it is appropriate that a transcript of the Tribunal hearings be before it. Given the applicant is currently unrepresented, the Court is of the view that the Minister, in his capacity as model litigant, should file that transcript.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.

Associate:

Dated:       14 April 2025