Guggal v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2023] FCA 1596

•

23 October 2023

FEDERAL COURT OF AUSTRALIA

Guggal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1596  

Appeal from: Guggal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1096
File number: VID 875 of 2023
Judgment of: ROFE J
Date of judgment: 23 October 2023
Date of publication of reasons: 13 December 2023
Catchwords:  PRACTICE AND PROCEDURE – interlocutory injunction – application for interlocutory injunction to prevent the applicant’s removal from Australia by the second respondent – visa expired – no decision to review to reinstate visa – no serious question to be tried – application dismissed.
Legislation:  Migration Act 1968 (Cth)  
Cases cited:

 Guggal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1096

Guggal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 641

Guggal v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 89
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 15
Date of hearing: 23 October 2023
Counsel for the Applicant: The applicant appeared in person
Solicitor for the Respondent: Mr D Brown of Australian Government Solicitor

ORDERS

VID 875 of 2023
BETWEEN:

KAMALJEET SINGH GUGGAL

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:

ROFE J

DATE OF ORDER:

23 OCTOBER 2023

THE COURT ORDERS THAT:

1.The application be dismissed.

2.There be no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
Ex tempore, revised

ROFE J:

  1. This is an application for leave to appeal from a decision made by her Honour Judge Reilly on 20 October 2023 in Guggal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1096. The applicant also sought interlocutory relief in the form of an injunction to prevent his removal from Australia, which was scheduled for the morning following the hearing.

  2. This matter came before me on 23 October 2023 in my capacity as duty judge. The Court was notified of the application at 3.30 pm that day and heard the matter at 5.40 pm. The applicant was self-represented. A Punjabi interpreter was available via the telephone to assist the applicant, although it appeared that the applicant had good English speaking ability and was able to present his submissions without reference to the interpreter. The interpreter translated the Minister’s oral submissions.

  3. The applicant was the holder of a 457 (Temporary Work (Skilled)) visa, the four-year duration of which had expired.

  4. The basis for the applicant’s proposed removal from Australia was that his 457 visa had expired and therefore he was an unlawful non-citizen that had to be removed pursuant to s 198(6) of the Migration Act 1958 (Cth).

  5. By way of background, the applicant had previously been successful before this Court in appealing from a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCoA) (Guggal v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 89) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (First Tribunal) made on 18 February 2022: Guggal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 641.

  6. The First Tribunal affirmed the decision of the delegate to cancel the applicant’s 457 visa under s 116(1)(b) of the Migration Act 1958 (Cth), by reason of his purported non-compliance with visa Condition 8107. O’Callaghan J granted the applicant an extension of time, set aside the orders of the FCFCoA and quashed the decision of the First Tribunal. The matter returned to the Tribunal which, on 13 September 2023, set aside the cancellation of the applicant’s 457 visa (Second Tribunal). However, despite the applicant’s success before the Second Tribunal, the applicant’s 457 visa had already expired.

  7. The application before Judge Reilly challenged the decision of the Second Tribunal, and sought an injunction to prevent the applicant’s removal from Australia, of which he had been notified on 6 October 2023.

  8. The application to review the Second Tribunal decision was made one day outside of the 35-day limit to review a migration decision in the FCFCoA. Judge Reilly therefore treated the application as an application for an extension of time.

  9. As noted above, the Second Tribunal decision found in favour of the applicant and set aside a decision to cancel his 457 visa. The applicant’s submission to Judge Reilly was essentially that he was facing removal from Australia to India and this should be stopped. When Judge Reilly put it to the applicant that he appeared to be seeking review of a decision that was in his favour, the applicant struggled to explain the basis for that being the decision that he was seeking to have reviewed.

  10. The applicant had a further point that he put to Judge Reilly: that there was, in his view, an error in the notification that he had received from the department on 6 October 2023 putting him on notice of his planned removal. The notice of proposed deportation that the applicant was given on 6 October 2023 said that the deportation would occur under s 198(6) of the Act. However, according to the applicant, at 7.00 pm 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.

  11. The applicant made similar submissions on appeal to this Court and similarly struggled to articulate the basis for his review. Judge Reilly dismissed the application for an extension of time as she considered the substantive application had no prospects of success.

  12. The applicant was previously successful in the Federal Court and the Second Tribunal in challenging the cancellation of his 457 visa. However, his 457 visa (which was reinstated following the Second Tribunal decision) has not been cancelled by any executive decision that is subject to review — it had simply expired. Therefore, there is no Tribunal decision to review that may have the effect of reinstating his expired visa. 

  13. Ultimately, the applicant has not identified any error in Judge Reilly’s decision. Judge Reilly applied the correct principles with respect to whether she should grant the injunction. I therefore cannot grant the application to stop the deportation as there is no prospect of success in challenging Judge Reilly’s decision or the Second Tribunal decision, given that the Second Tribunal decision was in the applicant’s favour.

  14. The applicant submitted that an injunction should be granted to prevent his deportation because he has applied for a bridging visa, and he needs the chance to speak to a lawyer about this visa application. These are not reasons to grant an injunction. The mere fact of an application for a bridging visa does not prevent the Minister deporting a person.

  15. Accordingly, the application is dismissed with no order as to costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe.

Associate:

Dated:       23 October 2023

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0