EHM24 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 997
•10 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EHM24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 997
File number(s): SYG 1428 of 2024 Judgment of: JUDGE LAING Date of judgment: 10 October 2024 Catchwords: MIGRATION – application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal – related application for an interlocutory injunction preventing removal of the applicant from Australia – arguable case that s 425 of the Migration Act 1958 (Cth) was breached – time extended – injunction granted Legislation: Migration Act 1958 (Cth) ss 198, 424A & 425 Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Merriman v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 834
Minister for Immigration & Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Tchoylak v Minister for Immigration & Multicultural Affairs [2001] FCA 872; (2001) 111 FCR 302
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of hearing: 4 October 2024 Place: Sydney Appearing for the Applicant: Via Audio-Visual Link Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1428 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EHM24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
4 OCTOBER 2024
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), time be extended in this matter up to and including the date of the application, filed on 27 June 2024.
2.The first respondent, by himself, his officers, employees, and agents, be restrained from removing the applicant from Australia before the determination of these proceedings.
3.The reasons for judgment in relation to the above orders be published at a later date.
4.The application be listed for final hearing on 29 November 2024 at 10:00am.
5.The applicant has leave to file and serve any amended application, evidence and submissions by 15 November 2024.
6.The first respondent file and serve any evidence and submissions by 22 November 2024.
7.Liberty to apply on such notice as circumstances warrant.
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 LAING:
These proceedings concern an application for an extension of time in which to seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Subclass 866) visa (protection visa).
On 30 September 2024, my Associate sent a listing notice to the parties proposing to list the matter for hearing of the extension of time application (and any final hearing) in November. In a response sent that evening, the applicant advised that he had received a Notice of Intention to Remove from Australia. Removal was scheduled to occur on 8 October 2024. In the circumstances, the matter was brought on urgently. At the listing on 2 October 2024, the applicant made an informal application for an interlocutory application restraining his removal from Australia. I listed the matter for hearing of that application concurrently with the extension of time application, on 4 October 2024. This was in circumstances where (a) both applications required consideration of the merits of the proposed underlying substantive application; and (b) if the injunction were not granted and the applicant were removed from Australia, the proceedings would be rendered futile: see Tchoylak v Minister for Immigration & Multicultural Affairs [2001] FCA 872; (2001) 111 FCR 302 at [48]-[49].
At the hearing of these interlocutory applications on 4 October 2024, I granted the extension of time as well as the interlocutory injunction that had been sought. I reserved my reasons for doing so. These are those reasons.
BACKGROUND
The applicant is a citizen of Malaysia, who applied for a protection visa on 2 January 2018.
On 12 February 2018, the Delegate refused the application.
On 1 March 2018, the applicant applied to the Tribunal for review of the Delegate’s decision. The applicant attended hearings before the Tribunal on 15 April 2024 and 17 April 2024.
On 26 April 2024, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal set out the background to the matter at [1]-[7] of its decision. This included reference to the cancellation of the applicant’s Subclass 030 Bridging C visa, following his conviction for cultivation of a large quantity of cannabis and sentence to 4 years’ imprisonment. The Tribunal summarised the criteria and evidence before it at [8]-[23], before reasoning as follows at [24]-[33]:
24.For the reasons that follow, I have a number of concerns with the applicant's evidence and claims to fear harm from unlicensed money lenders.
25.First, the applicant left his wife alone in Malaysia after claiming at the hearing that she was the one who accumulated all the debt. The Tribunal has considered whether a husband who feared for his own safety would leave his wife in danger whilst travelling to Australia for his own safety. When asked how he could leave his wife, he said that she had a new man in her life, and that he had helped her with the debt. This response still does not address the question as to why he would leave his wife with all the debt and danger while he travelled overseas.
26.Secondly, the applicant did not report to the police. He has no documentation as to the loans, the amounts, the amount he has paid, photos of any alleged activity by the money lenders such as the photos of the applicant posted near his home, or the red paint splashed.
27.Thirdly, the applicant first arrived in 2016 and did not apply for a protection visa until 2018. He was unlawful from 3 March 2017 until he applied for the protection visa on 2 January 2018. The Tribunal considers that if the applicant had a genuine fear of the money lenders in Malaysia, he would have applied for a protection visa when he first arrived in Australia and not waited for two years prior to applying.
28.Fourthly, the applicant's evidence was inconsistent. First, he said that his wife accumulated the debt, then he said he took out loans as he had to pay his staff. When asked why he came to Australia, the applicant's first response was because it is good. He did not say he was fearful of the money lenders in Malaysia.
29.Give the overall concerns with his evidence and the lack of documentation, the Tribunal does not accept that the applicant owes $200,000 AUD to money lenders Malaysia, nor that his ex-wife accumulated all this debt. It follows that the Tribunal does not accept that the applicant would face harm from the money lenders or anyone else upon return to Malaysia.
30.Given these findings the Tribunal does not accept that if the applicant returns to Malaysia, he will face a real chance of persecution from unlicensed money lenders, or anyone associated with them. The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).
31.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
32.Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Having regard to the above, the Tribunal affirmed the Delegate’s decision (at [34]).
PRINCIPLES
The principles regarding the grant of an interlocutory injunction were recently considered by Jackson J in Merriman v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 834 at [15]:
15.The well-established principles for the grant of an interlocutory injunction were summarised in Frigger v Trenfield [2019] FCA 1746 at [6]. In so far as they are relevant presently, they are:
...
(2)Where an applicant seeks interlocutory relief, it is necessary to demonstrate that:
(a)there is a serious question to be tried as to the applicant's entitlement to relief;
(b)the applicant is likely to suffer injury for which damages will not be an adequate remedy; and
(c)the balance of convenience favours the granting of an interlocutory injunction.
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] (Gleeson CJ and Crennan J).
(3)The applicant must show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial: ABC v O'Neill at [65] (Gummow and Hayne JJ); Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 at [9] (Beech J).
(4)The likelihood of success required is dependent upon the nature of the right being asserted and the practical consequences that are likely to flow if the injunction is granted: ABC v O'Neill at [71]; Twinside at [9]; Apotex Pty Ltd v Cipla Limited [2017] FCA 1627 at [40] (Beach J).
(5)The resolution of the question of where the balance of convenience and justice lies requires the court to exercise a discretion: Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [65] (Dowsett, Foster and Yates JJ). The court will weigh up the injustice which might be suffered by the respondent if the injunction is granted and the applicant later fails at trial, against the injustice which might be suffered by the applicant if the injunction is not granted and the applicant later succeeds at trial: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 623; Twinside at [11].
…
(7)The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience. The apparent strength of the parties' substantive cases will often be an important consideration to be weighed in the balance: Samsung Electronics at [67]. As the apparent strength of the applicant's case diminishes, the balance of convenience moves against the making of an order: Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49 at 54-55; Twinside at [11].
…
The principles regarding applications for extensions of time have been considered in a number of cases, including BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (BTI15) and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 (Katoa). The Court is required “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”: BTI15 [40] (per Jagot and Halley JJ); see also Katoa at [12] (per Kiefel CJ, Gageler, Keane and Gleeson JJ). Whilst the matters to which regard may be had are not expressly confined by the Migration Act 1958 (Cth) (Act), matters that are frequently considered include the length of and explanation for delay, any prejudice, and the merits of the proposed substantive application: see BTI15 at [25]-[26] (per Logan J) and Katoa at [40] (per Gordon, Edelman, and Steward JJ).
CONSIDERATION
There is a serious question to be tried
In considering whether there is a serious question to be tried, I am mindful that in order for the applicant’s substantive application to succeed, he would need to be granted an extension of time. The application was filed less than a month out of time, in circumstances where the applicant was in immigration detention and has claimed to have experienced some difficulties with lodging the application in this context. In support, the applicant has tendered correspondence with the Federal Court Registry seeking guidance on 30 May 2024, and the Registry’s response on 31 May 2024 providing guidance and noting that the applicant was (then) within time. In an affidavit filed with his application, the applicant explained that he had tried to lodge an application with the Federal Court within time, but this was rejected on the basis that it needed to be filed with this Court.
The delay in this case is not particularly extensive and no specific prejudice has been identified by the Minister beyond the circumstances of the applicant’s residence in detention. In my view, the outcome of the extension of time application in this matter falls to be determined by reference to the merits of the proposed substantive application.
The grounds raised in the proposed substantive application are as follows:
1.Denial of procedural fairness: a). I applied for a protection visa on 2 January 2018, but on 12 February 2018, a delegate of the Minister for Home Affairs refused to grant me the visa under s65 of the Migration Act 1958 (Cth) (the Act). After my release from prison, I was taken into immigration detention . I appeared before the Tribunal on 17 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from my daughter. Unfortunately, my partner was unable to give evidence as she had to return to work. b). Throughout the process, I faced significant barriers to preparing my case. Due to being in detention, I had very limited access to resources, legal advice, and proper information about the requirements for my hearing. My attempts to secure a legal representative were unsuccessful due to financial hardship and the refusal of my application to Legal Aid NSW. c). I did not have any valuable items or cash to support legal costs, leaving me without any legal assistance. d). The Tribunal did not provide me with clear instructions on what evidence or documentation I needed to bring to support my case. e). As a result, I attended the hearing with only oral testimony, unaware of the importance of submitting had evidence. This lack of guidance and support to present my case effectively.
2.Non-compliance with direction: a). The Tribunal conducted the hearing with the assistance of an interpreter in Mandarin and English. However, I did not receive adequate instructions from the Tribunal on the necessary preparations for the hearing. b). Due to my detention status and the absence of personal belongings such as a mobile phone and computer, I was unable to gather and present crucial evidence. c). The Tribunal failed to comply with procedural directions by not ensuring I had the necessary resources and understanding to present a comprehensive case. d). This non-compliance with procedural requirements further hindered my ability to effectively participate in the hearing and present my arguments.
3.Unreasonableness or irrationality: a). The Tribunal's decision was based on my oral presentation, despite being aware of my precarious situation and the threats I faced from a loan shark in Malaysia. b). The focus on my past relationship with my ex-partner rather than the genuine threats to my safety was unreasonable and irrational. c). The Tribunal did not give due consideration to the full context of my situation and the dangers I faced. d) Additionally, the Tribunal's decision did not take into account the significant barriers I faced in preparing my case due to my detention and lack of resources. e). The decision to refuse my protection visa was made without properly considering all the relevant evidence and circumstances.
Proposed grounds 1 and 2
Proposed grounds 1 and 2 contended that the applicant was denied the ability to participate effectively in the hearing before the Tribunal and present his arguments. This was by reference to his lack of access to resources whilst in immigration detention. Reference was made to the fact that his partner was unable to give evidence, as she had to return to work. The applicant contended that because the Tribunal did not give him clear instructions, he was unaware of the importance of submitting documentation. He also referred to being impeded in gathering such evidence due to his lack of access to personal belongings whilst in detention.
I understood these grounds to raise a contention that the applicant was denied the hearing required under s 425 of the Act. That provision requires that applicants be provided with a “real and meaningful opportunity” to make arguments and present evidence before the Tribunal: Minister for Immigration & Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [37]-[38]. In cases where the Delegate decides the matter on a different basis to the Tribunal, it will require the Tribunal to have sufficiently identified the relevant issues on the review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25]-[50].
The applicant suggested that he was denied a meaningful hearing because of how difficult it was to present his case from detention without legal assistance. However, there is no right to legal assistance before the Tribunal. Although it is possible that, in an extreme case, limitations associated with detention arrangements could be said to have resulted in an applicant being deprived of the hearing required under s 425 of the Act, the applicant has not identified a sufficient basis for finding that this arguably occurred in the present case.
The Tribunal’s procedural fairness obligations were limited under Part 7 of the Act. They did not extend to requiring the Tribunal to identify with precision what the applicant ought to do in order to advance his best possible case. In any event, the applicant was provided with general written information about the review process and his ability to provide further information or evidence: affidavit of Bethany Rose McNamara affirmed on 3 October 2024. The hearing invitation sent to the applicant on 19 March 2024 encouraged him to “provide all documents [he intended] to rely on to support [his] case” (CB 59).
It is apparent that the applicant attended two hearings before the Tribunal. Although the applicant noted that he had been required to attend a hearing on two days’ notice, this was a resumed hearing following an earlier, truncated hearing in respect of which the evidence indicates that greater notice had been given. It is not apparent, and the applicant did not contend, that he (for example) asked the Tribunal for some additional opportunity to put forward particular material. This was despite the Tribunal asking the applicant at the hearing on 17 April 2024 if he wanted to send further documents by email (transcript, p 16). The applicant has not specified why he was prevented from doing so by reference to his detention arrangements (beyond general references to a lack of access to his belongings). It is not apparent that the applicant raised with the Tribunal that he needed any additional time or accommodation in this regard.
I accept that the applicant’s partner expressed during the hearing on 17 April 2024 that she needed to return to work and that she therefore did not give detailed evidence to the Tribunal (transcript, p 10-11). This was acknowledged by the Tribunal at [3] of its decision. However, it is difficult to see how this could be said to have resulted in relevant error on the part of the Tribunal. This is in circumstances where the applicant does not appear to have sought for his partner to be given further opportunity to provide evidence to the Tribunal, nor indicated what further evidence she might have been able to provide.
I also accept that the applicant wrote to the Tribunal asking if the Tribunal held relevant documents in relation to his review application (at CB 75). The Tribunal wrote back, explaining the types of documents held by the Tribunal and how to request access to the Tribunal’s file. The Tribunal also provided information on how to request access to the Department’s file, although noted that it could not guarantee that documents would be released to the applicant prior to his hearing (at CB 78-79). Although the applicant drew attention to this correspondence, he did not explain how this response could be said to demonstrate relevant error on the part of the Tribunal. In circumstances where it is not apparent that the Tribunal’s obligations under s 424A of the Act were enlivened, nor that the applicant further pursued his request for documents or sought additional time in which to do so, it is not apparent how the Tribunal could be said to have breached its procedural fairness requirements under the Act or acted in a manner capable of demonstrating legal unreasonableness.
It follows that I am not persuaded that the above matters raise a serious question to be tried.
However, grounds 1 and 2 also invite consideration of whether the applicant was sufficiently on notice of the issues on the review. This is in circumstances where the Delegate decided the matter on a different basis to the Tribunal. The Delegate did not express any doubt regarding the factual basis of the applicant’s claims, but found against the applicant on the basis that (a) his claimed fear of harm was not for a Convention reason; and (b) he was able to access state protection. In contrast, the Tribunal rejected the factual basis of the applicant’s claims on credibility grounds. This was by reference to four main credibility concerns, which were identified by the Tribunal at [25]-[28] of its decision:
(a)first, that the applicant had left his wife alone in Malaysia despite claiming that she was the one who accumulated the debt. The Tribunal did not consider that the applicant’s reasons for doing so had been adequately explained (at [25]);
(b)secondly, “the applicant did not report to the police” and lacked documentation in support of his claims (at [26]);
(c)thirdly, the applicant’s delay in applying for protection (at [27]); and
(d)fourthly, the applicant had given inconsistent evidence regarding the accumulation of the debt and had not stated that he was fearful of money lenders at the Tribunal hearing when explaining why he came to Australia (at [28]).
I accept the Minister’s submission that, based upon the transcripts in evidence, the Tribunal raised to the applicant in general terms the possibility that his factual claims may be in issue. The Tribunal indicated this, generally, by stating (at p 5 of the transcript of the 15 April 2024 hearing):
MEMBER: An officer at the Department of Home Affairs has looked at your claims and may have accepted or questioned parts of those claims.
MEMBER: I’m looking at all the information afresh, so I don’t rely upon the findings of the Department in either accepting or denying elements of your claims.
The Tribunal stated (at p 16 of the 17 April 2024 transcript), when explaining the “possible outcomes” of its deliberations:
MEMBER: Or if I find- Or if I find that your claims cannot be substantiated, then I will affirm the original decision not to grant you a Protection Visa.
The Tribunal also framed some questions in a way that indicated the applicant’s claims were potentially being doubted, for example, by asking “why if you were so fearful about what would happen to you in Malaysia that you came to Australia for protection, why you waited two years to put in for a Protection Visa?”.
The combined effect of the above appears to have put the applicant on notice that the veracity of his factual claims may be in issue, despite this not being in issue before the Delegate.
In these circumstances, I do not see how it could be argued that the Tribunal was under an obligation to specifically put to the applicant that corroborative documentary evidence might strengthen his case. As noted above, the Tribunal did invite the applicant to provide any documentary evidence that he wished to rely upon.
However, a further matter that could arguably be identified as an issue concerns the reporting of the situation with the money lenders to the police. This was a focus of the applicant’s oral submissions to the Court. In oral submissions, the applicant indicated that he had, in fact, reported the issue to police and that he was able to provide evidence of this.
Although the Delegate was not satisfied that the applicant was unable to access state protection, they did not find that the applicant had not previously reported to the police nor identified this as a matter capable of bearing upon his credibility. The Minister did not identify any part of the transcripts in which the Tribunal asked the applicant whether he had reported the situation to the police, or (if not) why he had not done so.
The Minister accepted that these issues were not specifically raised to the applicant by the Tribunal at hearing. However, the Minister submitted that the potential for this inference to be drawn would have been sufficiently obvious as a possible conclusion, given the Tribunal’s general statement that it was not bound by the findings of the Delegate and would be looking at the information afresh. The Minister submitted that the applicant would have also been aware, from the matters raised with him, that the Tribunal might make different factual findings regarding his claims. The Minister observed that this is a different case, factually, from SZBEL. The Minister submitted that it is a case in which the Delegate had decided the matter on a different basis to the Tribunal, which did not involve determination of the truthfulness of the applicant’s factual claims. The Minister observed that various parts of the transcripts indicated credibility concerns that may be held by the Tribunal, including where the Tribunal (a) sought to explore the applicant’s reasons for coming to Australia and fearing harm; (b) questioned the applicant’s concern for his wife’s safety; and (c) questioned why the applicant had not raised at hearing the group from which he had claimed to fear harm when explaining why he could not return to Malaysia.
I accept that the applicant was on notice that the Tribunal may not accept the veracity of his claims, which were not doubted by the Delegate. The Tribunal’s questioning of the applicant regarding the leaving of his wife, his delay in applying for protection, the accumulation of the debt and the reason the applicant had come to Australia was also sufficient to identify the potential for these matters to be in issue. So much is apparent from the transcripts that are in evidence.
However, it is at least arguable that the Tribunal’s approach was not sufficient to indicate to the applicant that also in issue was whether he had reported his problems to the police in Malaysia and, if not, why. In these circumstances, it is arguable that s 425 of the Act was breached, resulting in jurisdictional error.
I consider that a ground of this nature has sufficient merit to warrant a finding that the applicant has raised a serious question to be tried.
Proposed ground 3
For completeness, I note that I have not been persuaded that such a question has been raised under proposed ground 3. That ground contended that the Tribunal’s findings against the applicant, made by reference to his oral evidence, were legally unreasonable or irrational. In particular, the ground objected to the Tribunal’s focus on the applicant’s relationship with his former partner. However, it is unclear how it could be said to have been relevantly closed to the Tribunal to have harboured concerns with the applicant’s evidence at hearing about leaving his wife in Malaysia whilst fleeing himself, despite claiming at hearing that she was the one who had accumulated the debt. It seems tolerably clear that it was open to the Tribunal to have not considered that this had been adequately explained by the applicant. This was in circumstances where the applicant’s attempt at explanation (that she had a new man in her life who had helped her with the debt) appeared to relate to events that had taken place after the period in issue.
Proposed ground 3 also contended that the Tribunal failed to give adequate consideration to the applicant’s situation, including the difficulties he faced in preparing his case from detention. A general assertion was made that the Tribunal failed to properly consider the relevant evidence and circumstances. Whilst the Tribunal was clearly aware of the applicant’s residence in detention, it is not apparent that the applicant raised any specific difficulty, or requested any specific accommodation, that might have rendered the approach taken by the Tribunal legally unreasonable. For example, it does not appear from the transcripts of the Tribunal hearings that the applicant sought additional time, or some other exercise of discretion, in order to facilitate presentation of his case. The applicant has not identified any particular evidence or circumstances that were raised to the Tribunal, that it failed to consider. None are apparent to me. In these circumstances, I have not been persuaded that proposed ground 3 raises a serious question to be tried.
Balance of convenience
In written submissions, the Minister contended that the balance of convenience favoured refusal of the injunction. This was by reference to the Minister’s obligations under s 198 of the Act, as well as the potential need to cancel arrangements made to remove the applicant.
As was sensibly acknowledged by the Minister’s Counsel at hearing, however, those submissions were premised upon acceptance of the Minister’s submission that there was no serious question to be tried. The Minister accepted that the balance of convenience would favour the applicant if the Court were minded to find, as I have found, that there is a serious question to be tried. The underlying visa application in this case was one for a protection visa. If the applicant is removed from Australia, then the relief sought in his application to this Court would become futile. This is in a context where the applicant has claimed that he will be at risk of harm if he is returned to Malaysia. Damages would not be an adequate remedy in result.
I therefore concluded that the balance of convenience favoured grant of the injunction.
Grant of the extension of time
Even if the applicant’s explanation were regarded as not entirely satisfactory, the delay in this case was reasonably limited. Further, for the reasons given above, the merits of the proposed substantive application supported the grant of the extension of time. I was accordingly satisfied that it was necessary in the interests of the administration of justice to make the order extending time.
CONCLUSION
For the above reasons, an injunction has been granted in this matter restraining the applicant’s removal from Australia before determination of these proceedings. An extension of time has also been granted, with timetabling orders being made setting the matter down for a final hearing.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 10 October 2024
1
16
1