CBF24 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 456
•29 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CBF24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 456
File number(s): SYG 754 of 2024 Judgment of: JUDGE CAMERON Date of judgment: 29 April 2024 Catchwords: MIGRATION – Injunction to prevent removal – relevant considerations. Legislation: Migration Act 1958 (Cth) Cases cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Division: General Number of paragraphs: 15 Date of hearing: 29 April 2024 Place: Sydney Counsel for the Applicant: The applicant appeared in person by videoconference Counsel for the First Respondent: Mr B. Kaplan Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 754 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CBF24
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
29 APRIL 2024
THE COURT ORDERS THAT:
1.The applicant’s application for an injunction be refused.
2.The application in a proceeding filed 26 April 2024 be dismissed.
3.The applicant pay the first respondent’s costs of the application in a proceeding fixed in the amount of $3,977.25.
4.In any transcript published of today’s proceedings, the applicant’s name be removed and replaced with the pseudonym appearing in the Court’s records.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The application before the Court today is for an interlocutory injunction to restrain the first respondent (Minister) from removing the applicant from Australia at the end of this week. The applicant arrived in Australia on 17 July 2019 and held various visas until 31 March 2021, when he became an unlawful non-citizen.
On 8 April 2021, the applicant applied for a protection visa but was unsuccessful in that application. On 6 April 2022, a delegate of the Minister (Delegate) refused the applicant's protection visa and notified him of that decision by email sent that day. On 29 March 2024, the applicant sought a review of that decision but was unsuccessful before the second respondent (Tribunal) on the basis that the Tribunal had no jurisdiction to entertain the review application made to it. The applicant had had 28 days from the date of the notification to him of the Delegate's decision within which to apply to the Tribunal for a review. The Tribunal found that the application had been brought outside the relevant time period and so, on that basis, it had no jurisdiction. The Tribunal made its decision on 8 April 2024.
The applicant commenced this proceeding on 18 April 2024, seeking review of the Tribunal's decision. On 26 April 2024, he filed an application in a proceeding seeking interlocutory orders restraining the Minister from removing him from Australia, pending determination of the application for judicial review of the Tribunal's decision.
These reasons concern the applicant's application for interlocutory relief. For the reasons which follow, the application will be dismissed.
RELEVANT PRINCIPLES
There are three criteria which ought to be considered when determining whether an interlocutory injunction of the type sought by the applicant should be granted. In abbreviated terms, those criteria are as follows:
(1)Is there a serious question to be tried?
(2)Are damages an adequate alternative to the injunctive relief sought?
(3)Does the balance of convenience favour the granting of an injunction?
These principles are discussed in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, in particular at [19] and [65] to [72].
THE PROCEEDING IN THIS COURT
In his application for judicial review, the applicant pleaded the following grounds:
1.My previous agent did not inform me about the visa refusal, and I did not receive any refusal letter.
2.In my protection visa application, the department did not request any documents from me, nor did they invite me to attend a hearing.
3.I believe the processing of the my [sic] application was unreasonable and unfair.
In his submissions to the Court today, the applicant further submitted that:
(a)it would be unfair to remove him now, before his judicial review application was determined;
(b)he had never received notification from the Minister that his visa application had been refused; and
(c)he could not survive if he returned to his home country because he had no money. He said that he had funds in an Australian bank account, which he was unable to access without attending a branch with his passport.
CONSIDERATION
Serious question to be tried
Turning to the first of the criteria for the grant of an injunction, I observe that the evidence indicates that the Tribunal correctly identified the lateness of the review application made to it by the applicant. Given the chronology of events, that would seem to have been a conclusion that the Tribunal could not avoid reaching. Further, for the following reasons, the grounds advanced by the applicant do not appear to me to show a sufficient likelihood of demonstrating jurisdictional error in relation to that conclusion to justify the preservation of the status quo, that is to say, the applicant's continuing presence in Australia.
Ground 1
In relation to the first pleaded ground of the application, the applicant’s ignorance of the Delegate’s refusal letter does not excuse his failure to comply with the time limit for the making of an application to the Tribunal. In that regard, the evidence indicates that the applicant was advised of the Delegate’s decision by an email sent to the email address he gave in his visa application which, it should be noted, is also one of the addresses for service he has provided in this proceeding.
Grounds 2 and 3
In relation to the second ground of the application, to the extent that it relates to the Tribunal, there was no call for the Tribunal to seek documents from the applicant given that its decision was a jurisdictional one, rather than one based on the merits of the visa application. To the extent that this ground relates to the Delegate’s decision, it raises questions beyond the power of this Court to address. The Court has no jurisdiction over primary decisions such as a decision to refuse a protection visa. Similar comments apply to the third pleaded ground of the application.
Further grounds raised in Court
In relation to the first of the arguments advanced by the applicant today, there is no unfairness in his removal if there is no proper reason to grant an injunction. In relation to the second matter raised today, the fact that no notification of a visa decision may have been received by the applicant is of no significance, as the evidence indicates that the relevant provisions of the Migration Act 1958 (Cth) concerning notifications of decisions by email were observed, and notification is deemed to have occurred on the day the department’s email was sent, namely 6 April 2022.
Overall, the material before the Court indicates that in its present form the applicant’s case lacks sufficient likelihood of success that the first criterion for the grant of an interlocutory injunction is satisfied.
Sufficiency of damages
Turning to the second criterion, it can be accepted in the context of an application for a protection visa that if the application were to have been well made, damages would not be adequate compensation for the injury that the applicant might suffer if the injunction sought were to be refused.
Balance of convenience
Turning to the third and final criterion, in circumstances where prospects of success appear to be seriously lacking, other matters relevant to the balance of convenience would have to be weighty in order to tip the balance in favour of the granting of an injunction. The applicant has said that he has no money and needs to access his bank accounts in order to sustain himself upon any return to his country of nationality. However, he has not adduced any evidence suggesting that the Court should be concerned at his ability to subsist in his home country, which is a reasonably wealthy one. Absent any real evidence of this, I am not willing to draw any inferences in that regard. I do not conclude that the balance of convenience favours the grant of an injunction.
CONCLUSION
In these circumstances, the application for an interlocutory injunction will be refused, and the application in a proceeding filed on 26 April 2024 will be dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 20 May 2024
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