DDC24 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 519
•7 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DDC24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 519
File number: MLG 1576 of 2024 Judgment of: JUDGE BLAKE Date of judgment: 7 June 2024 Catchwords: MIGRATION – Urgent interlocutory application to restrain removal from Australia – where applicant seeks extension of time to file judicial review application – whether prima facie case exists – HELD application for injunction and application to extend time for filing refused. Legislation: Migration Act 1958 (Cth) ss 198, 477(1), 477(2). Cases cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
BXI23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 942
CYE16 v Minister for Immigration [2018] FCCA 1467
FEL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 331
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176
MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203
MZZLD v Minister for Immigration and Border Protection (2016) FCA 1201
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
SZSPI v Minister for Immigration and Border Protection (2014) 233 FCR 279
SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 6 June 2024 Place: Melbourne via Microsoft Teams Solicitor for the Applicant: Self-represented litigant Advocate for the Applicant: In Person Counsel for the Respondents: Ms McInnes Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1576 of 2024 BETWEEN: DDC24
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
7 JUNE 2024
THE COURT ORDERS THAT:
1.The Application filed 31 May 2024 (MLG1576/2024) (‘Application’) is amended to permit the Applicant to seek relief in the form of an interlocutory injunction to prevent his removal from Australia, pending the determination of the Application.
2.The Applicant’s application for an interlocutory injunction is dismissed.
3.Permission to extend the time for filing of the Application be refused and the Application be otherwise dismissed.
4.The Applicant pay the First Respondent’s costs of the proceeding fixed in the amount of $4,189.38.
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 BLAKE:
This matter has been listed urgently before me. The Applicant filed an application in this Court on 31 May 2024 (‘Application’). In the Application, the Applicant seeks to extend the period of time in which to file an application for judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) dated 10 April 2024. It is also accepted (though not expressly sought in writing) that he seeks an interlocutory injunction to prevent his removal from Australia by the Minister which is scheduled to occur on 11 June 2024.
For the reasons that follow, I have determined not to grant an interlocutory injunction, and have also decided not to extend the time for the filing of the Application.
BACKGROUND
The Application was accompanied by an affidavit of the Applicant, and he also placed before the Court a further affidavit. Prior to the hearing, the Minister also filed an affidavit of his solicitor affirmed 5 June 2024. The following background is taken largely from the affidavits.
The Applicant last arrived in Australia on 26 July 2018 as the holder of a student visa which was valid until 15 March 2019.
On 12 March 2019, the Applicant applied for a further student visa which was granted on 16 March 2019 and ceased on 15 March 2020.
On 13 March 2019, the Applicant lodged an application for a post-study work visa which was granted on 4 February 2021 and ceased on 4 February 2023. Upon cessation of this visa, the Applicant became an unlawful non-citizen.
On 6 September 2023, the Applicant was granted a Bridging E visa which ceased on 20 September 2023. Upon cessation, he became an unlawful non-citizen.
On 23 October 2023, the Applicant was located and placed into immigration detention.
Between 27 November 2023 and 10 May 2024, the Applicant applied for five Bridging E visas, all of which were refused or deemed invalid.
On 30 November 2023, the Applicant lodged a protection visa application. The application was refused on 21 December 2023 (‘refusal decision’).
On 2 January 2024, the Applicant sought a review of the refusal decision in the Tribunal. On 11 April 2024, the Tribunal affirmed the refusal decision.
The Applicant says he was unable to read and translate the decision of the Tribunal when he received it. He also says he became stressed and physically unwell.
In the last week of April 2024, the Applicant says he was advised by a friend to lodge an application with the Court and to contact Victoria Legal Aid.
The Applicant deposes that in the first week of May 2024, he telephoned Victoria Legal Aid. He says he was told to contact the Asylum Seeker Resource Centre (‘ASRC’). He says he was advised by Victoria Legal Aid that they would ask the ASRC to contact him.
The Applicant deposes that on 17 May 2024, Victoria Legal Aid emailed the ASRC about his matter and asked them to provide assistance.
On 17 May 2024, the Applicant refused to sign a ‘Request for removal from Australia’ form and remains involuntary towards his removal.
On 21 May 2024, the Applicant was informed that he was to be removed from Australia pursuant to section 198 of the Migration Act 1958 (Cth) (‘Act’). The Notice of Intention to Remove from Australia was issued to the Applicant by telephone.
The Applicant deposes that on 24 May 2024, the ASRC called him and provided him with an appointment at their general clinic. The Applicant says that he attended the appointment by telephone on 29 May 2024.
On 31 May 2024, the Applicant filed the Application. The Application was filed outside the time limit prescribed by section 477(1) of the Act. Appropriately, the Applicant in his Application asked the Court to extend the time for filing, as provided for under section 477(2) of the Act. Subsequent to the filing of the Application, an urgent Court hearing was arranged.
Before me, the Applicant appeared unrepresented and was assisted by an interpreter. He relied on the Application, the unsworn affidavit he filed with the Court on 31 May 2024, and a sworn affidavit dated 5 June 2024 that he provided to the Court during the hearing. Both the affidavits are in similar terms, the significant difference being that the second one is sworn and appears properly witnessed.
The Minister relied on a written outline of submissions and the affidavit of his solicitor. I confirmed during the course of the hearing that the Applicant had both of these documents. The Minister also filed, minutes before the hearing commenced, a Court Book. Given the late filing of that document, I have not had regard to it.
LEGAL PRINCIPLES
Injunction to prevent removal
The principles relating to the grant of an injunction are well-established: see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; MZZLD v Minister for Immigration and Border Protection (2016) FCA 1201. In short, the Court must be satisfied that:
(a)there is a serious question to be tried or that an applicant has made out a prima facie case in the sense that if evidence remains as it is at this time, that there was a probability that the action would be such that an applicant might be entitled to the relief; and
(b)the balance of convenience favours the grant of the injunction.
The question of whether such an injunction will be granted inevitably turns on its own facts and circumstances: see SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140; (2014) 233 FCR 279; FEL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 331.
The application to extend time
Pursuant to section 477(2) of the Act, this Court may extend the 35-day time period for the filing of an application where the Court considers it is in the interests of the administration of justice to do so.
The expression ‘in the interests of the administration of justice’ is not defined in the Act. This Court has, however, adopted the non-exhaustive principles set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 (see also SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6], SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [46]-[48], and SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15]-[19]) when determining whether an extension of time should be granted. The principles to be considered include the following:
(a)the extent of the delay;
(b)any explanation for the delay;
(c)any prejudice to the Respondents; and
(d)whether the substantive case is ‘sufficiently arguable’ to warrant the extension of time. It is seldom in the interests of justice to exercise the discretion to extend time where an appeal has little or no prospects of success: see MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6] and [16]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [48].
CONSIDERATION
Prima facie case
The Applicant requires an extension of 16 days. The delay on his part has been slight. In circumstances where the Act permits an application to be made to extend the time for filing, and in circumstances where the delay is short, I reject the Minister’s submission that this short delay of itself weighs against the grant of an extension of time.
The Applicant has proffered three reasons for the delay. First, he says that he was unable to read and translate the Tribunal’s decision. That assertion needs to be weighed against the following matters. First, the Applicant was able to correspond with the Department and the Tribunal in writing about his claims. Second, the Applicant was able to lodge various applications for visas. Third, the position of the Applicant (a non-English speaker) is common to those who seek to challenge decisions under the Act, yet the time limit imposed by the legislature is 35 days. Fourth, the Applicant was provided with information about translation services available to him to access by the Tribunal. Fifth, the Applicant, on his own evidence, was aware in the last week of April that he could bring an application to this Court, but yet did not do so for another month.
The second reason proffered by the Applicant is that he was unwell. I can appreciate that the Applicant would have been stressed and upset at the decision. There is no independent evidence, however, that the Applicant was physically or mentally unwell to the extent that he could not file an application. On this issue, I also note that the evidence before the Court in the form of a ‘Fitness To Travel’ assessment indicates that the Applicant was certified as fit to travel on 20 May 2024.
The third reason proffered by the Applicant is that he had difficulties obtaining legal assistance while in detention. Once again, that is a difficulty common to many in immigration detention, however, the Parliament has seen fit to impose a 35-day time limit. Moreover, the Applicant was aware at the end of April 2024 (within the 35-day time limit) that he had the option to make an application to the Court, but did not do so. This, in circumstances where the Applicant has historically demonstrated some aptitude to make applications to third parties, including to the Department for visas, and to the Tribunal.
In the circumstances, I am not satisfied that the Applicant has an acceptable explanation for the delay.
The Minister did not contend that he would be prejudiced if an extension of time were granted. Accordingly, this factor weighs in favour of the Applicant.
It is then necessary to consider the merits of the Application, including whether the Application is sufficiently arguable.
The Grounds in the Application are as follows:
1.The decision of the Tribunal:
a.it is affected by an error of law; and
b.denied the applicant procedural fairness.
2.I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.
These Grounds of Review of themselves are unparticularised. That is a sufficient basis upon which they could be dismissed: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]. I also note that identical grounds of review have appeared in other cases in this Court and have been described as ‘meaningless’, an observation with which I agree: see CYE16 v Minister for Immigration [2018] FCCA 1467 at [19]-[20].
I invited the Applicant to expand upon these Grounds of Review orally before me. He submitted, inter alia, that his uncles and family members had possessed his home and his land, and that they would see to it that he was jailed if he returned. He also said a friend of his had been targeted and was in jail in Assam. He said he feared being placed in prison for supporting his friend if he was sent back to India. He said the movement that his friend was involved with, and that he was accused of being involved with, had been labelled a terrorist group.
The claims by the Applicant of a land dispute with family members, and his fear of being put in prison, were claims he raised with the Tribunal. At paragraphs [47]-[52] of its reasons, the Tribunal considered these claims. At paragraph [52], the Tribunal gave the Applicant an opportunity to provide further information about these claims. Ultimately, having considered the claims, the Tribunal dismissed them at [77] because, among other things, there was no supporting evidence. To the extent then, that the Applicant claims that the Tribunal failed to consider these claims, that submission would not appear to be sufficiently arguable, and has little to no prospect of success. To the extent the Applicant cavils with the facts as found, this Court is not permitted to undertake a merits review, and the point has little to no prospect of success.
The claims by the Applicant about the imprisonment of his friend in Assam and the organisation that his friend is in, and that he may be seen to be a supporter of, were considered by the Tribunal at paragraphs [43]-[46] of its reasons. These issues arose in a context where the Applicant claimed to fear harm on the basis of his support for the Shiromani Akali Dal (‘SAD’) party and the Khalistan movement. At paragraph [45] of its reasons, the Tribunal provided the Applicant with an opportunity to provide supporting evidence of his relationship with Basant Singh, another imprisoned man who the Applicant claimed to be good friends with, however, the Applicant did not provide that evidence to the Tribunal. The Tribunal ultimately at [69] did not accept that the Applicant was an advocate, member or supporter of the SAD party and/or the Khalistan movement. The Tribunal noted that the Applicant did not claim that he proposed to actively advocate for the SAD party or the Khalistan movement on his return to India at [69], and ultimately did not accept (given the absence of corroborating evidence) that the Applicant was a personal friend of Basant Singh, or that the authorities would impute him with being associated with Basant Singh at [70]. To the extent then, that the Applicant claims the Tribunal failed to consider his claims, that submission would not appear to be sufficiently arguable, and has little to no prospect of success. To the extent the Applicant disputes the factual findings of the Tribunal and wants this Court to make different findings, this Court cannot engage in a merits review, and the point has no prospect of success.
I also invited the Applicant during the hearing to identify how he was denied procedural fairness. He was unable to meaningfully expand upon this Ground. A review of the Tribunal’s reasons discloses that the Applicant was afforded procedural fairness. He attended the hearing. He presented arguments. He raised new claims with the Tribunal that were explored and considered by the Tribunal. He was given an opportunity to submit information after the Tribunal hearing. The Tribunal also gave the Applicant an opportunity to discuss Country Information. Accordingly, the assertion that the Applicant was denied procedural fairness is not sufficiently arguable.
Ground 2 of the Application is not a proper Ground of Review. It is not sufficiently arguable, and has no prospect of success.
Having regard to the matters above, the Applicant has not established a prima facie case. There is not, in my view, a probability that the Applicant would be entitled to the relief he seeks, be that the extension of time application, or the substantive application for judicial review.
Balance of convenience
I accept there is prejudice to the Applicant if the injunction is not granted. He will be removed from Australia to India, something he wishes to avoid. The Applicant, however, has no right to be here. He is in immigration detention. His removal from Australia is required by section 198 of the Act. His visa application has been ‘finally determined’ within the meaning of Act. The Minister correctly submits that there is a public interest in the proper administration of the Act, and that the legislative intent behind section 198 of the Act would be frustrated by the grant of an interlocutory injunction. Accordingly, the balance of convenience weighs against the grant of the injunction sought by the Applicant.
DISPOSITION
The Applicant’s application for an interlocutory injunction must be dismissed.
There remains a question of whether the Applicant’s application for an extension of time should be refused. I have found the Applicant’s application for an extension of time to not be sufficiently arguable. While the circumstances were different, in BXI23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 942, Rares J considered an application for leave to appeal and the refusal of an interlocutory injunction. Rares J noted there was no reason to doubt the correctness of the trial judge’s refusal to grant an interlocutory injunction in circumstances where the Applicant had also sought an extension of time. At paragraph [18] of the reasons, Rares J went on to observe that it was ‘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’.
I have found the Applicant’s substantive application before the Court not to be sufficiently arguable, and to have little or no prospects of success. I have also found that while the delay was short, and while the Minister suffers no prejudice, the Applicant does not have an acceptable explanation for the delay. In circumstances where it would appear to be open to me to dismiss the application for an extension of time, I regard it as appropriate to make an order dismissing the application by the Applicant to extend the time for filing. Orders will be issued to that effect.
COSTS
The Applicant has been entirely unsuccessful. The Minister seeks costs, in accordance with scale, in the amount of $4,189.38. In those circumstances, it is appropriate to make an order for costs in favour of the Minister in the amount of $4,189.38.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate: IC
Dated: 7 June 2024
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