CSJN v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 752

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CSJN v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 752

File number(s):	SYG 734 of 2025
Judgment of:	JUDGE CAMERON
Date of judgment:	14 March 2025
Catchwords:	MIGRATION – Injunction to prevent removal – relevant considerations.
Legislation:	Migration Act 1958 (Cth) ss 198, 501, 501CA
Cases cited:	Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5
Division:	General
Number of paragraphs:	19
Date of hearing:	14 March 2025
Place:	Sydney
Counsel for the Applicant:	Mr C Honnery
Solicitor for the Applicant:	Northam Lawyers
Counsel for the Respondent:	Mr J Walker
Solicitor for the Respondent:	HWL Ebsworth Lawyers

ORDERS

SYG 734 of 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CSJN

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

SECRETARY OF DEPARTMENT OF HOME AFFAIRS

Second Respondent

THE RELEVANT OFFICERS ACTING UNDER SECTION 198 OF THE MIGRATION ACT 1958

Third Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	14 MARCH 2025

THE COURT ORDERS THAT:

1.Until further order, the Court restrains the Minister of Immigration and Multicultural Affairs, the Secretary of the Department of Home Affairs, and any of their delegates, officers, service or agents from taking any action under s 198 of the Migration Act 1958 (Cth) to remove applicant from Australia pending the final determination of these proceedings.

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

1. On 21 June 2024 the applicant’s Class WC Subclass 030 Bridging C visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Act) following her being sentenced to a term of imprisonment of two years and two months.  She sought the revocation of that decision, but a delegate of the first respondent (Minister) decided under s 501CA of the Act not to revoke it. She has applied to the Administrative Review Tribunal (Tribunal) for review of that departmental decision and her Tribunal review is listed for hearing over two days, commencing 27 March 2025. 

2. On 11 March 2025, the applicant was advised that the Minister’s Department intended to remove her from Australia on 18 March 2025.  Requests for postponement of the removal have been refused. 

3. The applicant has now filed in this Court an application for interlocutory and final relief to prevent her removal from Australia while she is “engaged in proceedings under the Act”.

4. These reasons concern the application for urgent interlocutory relief. 

5. I note the Minister has submitted that the Court does not have jurisdiction in this matter, but I am satisfied that a decision to remove a person is a migration decision under the Act and so the Court does have jurisdiction.

   RELEVANT LEGISLATION

6. Section 198 of the Act provides for the removal of unlawful non-citizens from Australia “as soon as reasonably practicable”.

7. Section 501 of the Act relevantly provides:

   501      Refusal or cancellation of visa on character grounds

   Decision of Minister or delegate—natural justice applies

   …

   (2)       The Minister may cancel a visa that has been granted to a person if:

   (a) the Minister reasonably suspects that the person does not pass the character test; and

   (b) the person does not satisfy the Minister that the person passes the character test.

   Decision of Minister—natural justice does not apply

   …

   (3A)     The Minister must cancel a visa that has been granted to a person if:

   (a) the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

   (ii) paragraph (6)(e) (sexually based offences involving a child); and

   (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

   …

   Character test

   (6) For the purposes of this section, a person does not pass the character test if:

   (a) the person has a substantial criminal record (as defined by subsection (7)); or

   …

   Substantial criminal record

   (7) For the purposes of the character test, a person has a substantial criminal record if:

   …

   (c) the person has been sentenced to a term of imprisonment of 12 months or more; or

   …

8. Section 501CA of the Act relevantly provides:

   501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

   (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

   (2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

   (a) would be the reason, or a part of the reason, for making the original decision; and

   (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

   (3) As soon as practicable after making the original decision, the Minister must:

   (a)       give the person:

   (i) a written notice that sets out the original decision; and

   (ii) particulars of the relevant information; and

   (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

   (3A)     The notice under subsection (3) must be given in the prescribed way.

   (4)       The Minister may revoke the original decision if:

   (a) the person makes representations in accordance with the invitation; and

   (b)       the Minister is satisfied:

   (i) that the person passes the character test (as defined by section 501); or

   (ii) that there is another reason why the original decision should be revoked.

   (5) If the Minister revokes the original decision, the original decision is taken not to have been made.

   (6) Any detention of the person that occurred during any part of the period:

   (a) beginning when the original decision was made; and

   (b) ending at the time of the revocation of the original decision;

   is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

   (7) A decision not to exercise the power conferred by subsection (4) is not reviewable by application under Part 5.

   RELIEF SOUGHT

9. The interlocutory order sought by the applicant was:

   1.An injunction restraining the Minister for Immigration and Multicultural Affairs, the Secretary of the Department of Home Affairs, and any of their delegates, officers, servants or agents from taking any action under s 198 of the Migration Act 1958 (Cth) to remove the applicant from Australia pending the final determination of these proceedings.

10. The final orders sought by the applicant were:

    An injunction restraining the Minister for Immigration and Multicultural Affairs, the Secretary of the Department of Home Affairs, and members of their department, officers, delegates or agents from making [sic] taking any action to remove the application under s 198 of the Migration Act 1958 (Cth) while the applicant is engaged in proceedings under the Migration Act 1958 (Cth).

    A declaration this it is not reasonably practicable to remove the applicant under s 198 of the Act while the applicant is engaged in proceedings under the Migration Act 1958 (Cth).

    A writ of certiorari or an order to quash or set aside the decision made on or about 11 March 2025 to remove the Applicant from Australia under section 198 of the Migration Act 1958 (Cth) (“the Act”).

    Costs.

    CONSIDERATION

11. In the amended application, it was alleged that the decision to remove the applicant from Australia on 18 March 2025 was beyond power on the basis that the proposed removal was not reasonably practicable and so was not authorised by section 191 of the Act. It was alleged that lack of practicability arose out of the fact that the applicant was engaged in a review proceeding that was pending before the Tribunal which might result in the revocation of the cancellation. It was also submitted that matters that the Tribunal was required to consider under Ministerial Direction 110 assumed the presence of the applicant in Australia and that the time limits applicable to procedural steps in the Tribunal review also assumed the presence of the applicant in Australia.

12. It was further alleged that if removed next week the applicant faced adverse practical and legal consequences as set out in the second affidavit of her solicitor. 

13. The points raised by the applicant were essentially rolled up in a conclusory paragraph of her amended application, namely:

    Further and in the alternative, properly construed, neither section 198(2B) of the Act nor any other subsection in 198 of the Act requires or permits the removal of the applicant while her request for the revocation of her visa cancellation is yet to be determined by the Tribunal in accordance with section 501CA(4) of the Act.

14. The primary purpose of an interlocutory injunction is to keep matters as they are until the rights of the parties are determined at the hearing of the application for substantive relief.  An applicant for such interlocutory relief must demonstrate that there is a prima facie case or a serious question to be tried, that he or she will suffer irreparable injury for which damages will not be adequate compensation if an injunction is not granted, and that the balance of convenience favours the granting of an injunction. 

15. The interlocutory injunction sought is intended to preserve the status quo so that the applicant might argue her claim that it is not reasonably practicable for her to be removed from Australia.  The matter in issue is whether the Court should protect the integrity of the Tribunal’s process by ensuring its capacity to effectively exercise its jurisdiction invoked in a proceeding pending before it: cf: Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5 at [25]. It is arguable that the reasonableness of the practicability of removal of the applicant, in circumstances where the Act provides for a right to merits review, is subject to the working out of that process and that it is not reasonable for the Minister to remove a person from Australia before their rights to remain are finally determined, both on a merits basis and on a legal basis. I query whether it is reasonable for the Minister to be the arbiter of that process by effectively removing the applicant from it physically, particularly where, were the applicant to be successful in her Tribunal review but was offshore, it would be a hollow victory because s 82(8) of the Act provides:

    (8)A visa to remain in, but not re-enter, Australia that is granted to a non-citizen in Australia ceases to be in effect if the holder leaves Australia. 

    and a Bridging Visa Class C does not permit a person to enter Australia.

16. I also have regard to the evidence concerning the disruptive effect that removal of the applicant would have on the Tribunal review in which she is engaged, given the hearing timetable that has been set by the Tribunal. 

17. In the circumstances, and in the context of the Tribunal’s merits review being concerned with the applicant’s bridging visa, not with any other visa that she might choose to seek at a later time were she to be overseas, I am persuaded that damages would not be a sufficient remedy if an injunction were not granted. 

18. Overall, I consider the balance of convenience to lie in favour of the granting of the injunction. 

19. I note that the applicant has offered to give the usual undertaking as to damages but in the circumstances, I am not going to make the order subject to such an undertaking.  The relevant circumstances are that the applicant is presently an unlawful non-citizen in detention in Villawood Immigration Detention Centre and I infer, in no position to make good any undertaking that she might make in that regard.  On that basis, I consider such an undertaking to be pointless.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       26 May 2025