Guggal v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1096
•20 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Guggal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1096
File number(s): MLG 1817 of 2023 Judgment of: JUDGE RILEY Date of judgment: 20 October 2023 Catchwords: MIGRATION – 457 visa – applicant seeking injunction restraining his removal from Australia – applicant successful in his most recent Tribunal application – applicant’s visa having expired – no serious question to be tried. Legislation
Migration Act 1958, s.198(5) and (6) Division: Division 2 General Federal Law Number of paragraphs: 16 Date of hearing: 20 October 2023 Place: Melbourne Advocate for the Applicant In person Solicitor for the Applicant None Advocate for the First Respondent David Brown Counsel for the Second Respondent No appearance Solicitor for the First and Second Respondents Australian Government Solicitors Office ORDERS
MLG 1817 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KAMALJEET SINGH GUGGAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
20 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application for an interlocutory injunction restraining the Minister from removing the applicant from the Commonwealth of Australia be dismissed.
THE COURT ORDERS BY CONSENT THAT:
2.The application filed on 19 October 2023 be dismissed.
THE COURT FURTHER ORDERS THAT:
3.The applicant pay the Minister’s costs of the application fixed in the sum of $1,000.
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 RILEY:
This is an application for an injunction restraining the Minister from removing the applicant from Australia. The application was filed on 19 October 2023. The substantive application seeks to challenge a decision of the Administrative Appeals Tribunal that was made on 13 September 2023.
The applicant needs a one-day extension of time in which to file the application. When considering an extension of time application, the court considers the length of the delay, the reasons for the delay, whether there is any prejudice to the other party, and the prospects of success of the substantive application.
The delay was very short. The reason given in the application for the delay was mental health issues. The Minister did not suggest that he would be prejudiced by any extension of time. The prospects of success are discussed below.
The essential issue that needs to be determined is whether there ought to be an injunction restraining the Minister from deporting the applicant. In considering an application for an interlocutory injunction, the court has to consider the balance of convenience, whether there is a serious question to be tried, and the prospects of success of the substantive application.
In migration matters, the balance of convenience generally strongly favours an applicant. That is the case in the present matter where, if the applicant is deported, that will probably be the end of the matter.
In terms of whether there is a serious question to be tried, it seems that the applicant was actually successful in the proceeding before the Administrative Appeals Tribunal that he is now seeking to review. The applicant’s section 457 visa had been cancelled. The applicant sought review by the Tribunal, which upheld the cancellation. The matter was reviewed in this court, which upheld the Tribunal’s decision. However, the decision of this court was overturned in the Federal Court. The matter returned to the Tribunal, which set aside the cancellation of the applicant’s 457 visa. That is, the applicant was successful before the Tribunal. However, the applicant’s visa had already expired.
The applicant was held in immigration detention from 20 March 2019 until 15 June 2020. On that date, he was taken into prison for a six-month term of imprisonment following his conviction for indecent assault. On 2 November 2020, he returned to immigration detention as his visa had expired on 7 March 2019.
Although the applicant has purported to seek review of the Tribunal decision made on 13 September 2023, as stated above, he was successful in that application. It makes no sense for him to seek review of a Tribunal decision in which he was successful.
It follows that there is not before this court a serious question to be tried, and it cannot be said that the applicant has good prospects of success because there is nothing for him to ventilate in this court.
The applicant also said that he was advised by the department to seek a bridging visa E and he has in fact applied for it. However, the mere fact of an application for a bridging visa E does not prevent the Minister deporting a person.
The applicant also said that the notice of proposed deportation that he was given on 6 October 2023 said that the deportation would occur under s.198(6) of the Migration Act 1958 (“the Act”). However, he said that at 7pm on 19 October 2023 he was given another notice saying that the deportation would actually occur under s.198(5) of the Act. The Minister submitted that this was a typographical error and did not have any effect in substance on the applicant.
I asked the applicant what difference it would have made to him if s.198(5) of the Act had been referred to in the original notice. He was not able to identify any difference that it would have made to him.
I am not persuaded that the issue about the change in the subsection mentioned in the notice is a reason for restraining the deportation in this case. It seems to me that it probably was a typographical error that has had no real world impact on the applicant.
The applicant said that he wanted to get advice from a lawyer. The notice of deportation was dated 6 October 2023. It is now two weeks later. The applicant could have sought advice in that two-week period. He told the court that he received some assistance from an organisation called Viva Immigration. His application looks as though it was prepared with some legal assistance, or at least the assistance of a migration agent. It seems to me that the applicant has had ample opportunity to seek professional assistance if he wished to have it.
CONCLUSION
I do not consider that the substantive application has a reasonable prospect of success. For that reason, I would not grant the extension of time.
In relation to the issue of the deportation, it seems to me that while the balance of convenience favours the applicant, there is not a serious question to be tried because the applicant was in fact successful before the Tribunal.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Riley delivered on 20 October 2023. Associate:
Dated: 27 November 2023
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