Joshi & Minister for Immigration, Citizenship, and Multicultural Affairs
[2023] FedCFamC2G 983
•3 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Joshi & Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FedCFamC2G 983
File number(s): PEG 141 of 2023 Judgment of: JUDGE STREET Date of judgment: 3 August 2023 Catchwords: MIGRATION – INTERIM INJUNCTION REFUSED Division: Division 2 General Federal Law Number of paragraphs: 7 Date of hearing: 3 August 2023 Place: Perth Applicant: Appeared in person Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
PEG 141 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GAGANDEEP JOSHI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS AND ANOR
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
3 AUGUST 2023
THE COURT ORDERS THAT:
1.The application for an interlocutory injunction restraining the removal of the applicant from Australia is dismissed.
2.The costs of the application are reserved.
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 3 AUGUST 2023
JUDGE STREET
This is an application to restrain the removal of the applicant from Australia in circumstances where there are proceedings that were commenced on 30 June 2023 in relation to a decision of the tribunal cancelling a 457 visa. That 457 visa would have expired on 23 October 2019. In those circumstances, the respondent says there is no utility in the proceedings that can, in fact, continue, even if the applicant has been removed from Australia, and there is no prospect of the matter being the subject of any appropriate relief because the visa has expired. This issue was raised with the applicant and the applicant did not identify any reason why that would not be the case.
The applicant lodged an application for an interlocutory injunction on 30 June 2023. The applicant has explained a wrong history, by him, of endeavours to stay in the country, which include unsuccessful applications for a protection visa. The current application to this Court is one concerning a 457 visa, a temporary business visa, issued on 28 October 2015, which has been the subject of cancellation and an unsuccessful application for a review to the tribunal. The applicant has identified a number of grounds as to why he says the tribunal’s decision was the subject of error. In relation to the application for interlocutory relief, the first issue is whether the applicant has a prima facie case that warrants the Court permitting the applicant to remain in Australia and to prevent the subject matter of the proceedings being destroyed.
In the present case, the Minister has directly identified that the subject matter of the proceedings would not, in fact, be destroyed if the applicant was removed from Australia and has further identified that the outcome of the proceedings is one where because of the expiry of the visa on 23 October 2019, there would be no utility in a grant of relief in any event.
In all the circumstances, the Court is not satisfied that the applicant has a prima facie case to support the grant of an injunction. In relation to the balance of convenience, this is not a case where the applicant’s application is, in fact, of substance concerning that visa, would not be able to be pursued outside Australia.
In all the circumstances, the Court is not satisfied that this is a case where, on the balance of convenience, the applicant should be permitted to remain in Australia to pursue the proceedings which, on their face, are futile and hopeless.
The Court has also looked at the grounds in the tribunal’s decision. Independently of the above arguments, the Court is not persuaded that the grounds identified support an arguable case to support an interlocutory injunction in any event. The applicant did not identify any conduct in respect of actual or apprehended bias and on the face order the tribunal’s reasons, it is not apparent that the tribunal did other than conduct the hearing with an open mind, reasonably capable of persuasion as to the merits. No conduct has been identified by reason of which a fair-minded person might reasonably apprehend the tribunal might not bring an independent and impartial mind to the determination matter on its merits.
The applicant was unable to identify any relevant consideration that should have been taken into account that was not or any irrelevant consideration that was not taken into account. It is not apparent that the grounds have an arguable prospect of success. For this further reason, the Court is not persuaded that there is a prima facie case or sufficiently arguable case in the circumstance of this application that warrants the grant of an interlocutory injunction.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the published oral reasons for Judgment of Judge Street. Associate:
Dated: 27 November 2023
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