Levy v Minister for Immigration

[2020] FCCA 2754

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEVY v MINISTER FOR IMMIGRATION [2020] FCCA 2754

Catchwords:
MIGRATION – Expedited hearing – urgent application for interlocutory relief to restrain the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs from deporting the applicant to New Zealand – request for revocation of cancellation of visa on character grounds – substantive application seeks an extension of time in aid of a declaration that the Minister has not performed his duties under s.501CA(3) of the Migration Act 1958 (Cth) and a writ of mandamus requiring the Minister to perform his duties under s.501CA(4) of the Act – exercise of Minister’s discretion to cancel Class TY Special Category (subclass 444) visa on character grounds – applicant convicted of multiple serious offences – applicant sentenced to 30 months imprisonment – applicant received notice of cancellation of visa on 14 January 2019 – where application for extension of time brought 19 months after notification of cancellation – no proper explanation for delay – whether extension of time to hear substantive application in the interests of the administration of justice – whether there is a serious question to be tried – consideration of merits of substantive application – where applicant has significant criminal record resulting in cancellation of visa – where no reasonable prospects of success – where the balance of convenience does not favour the applicant – no serious issue to be tried demonstrating jurisdictional error – no prima facie case – interim injunction discharged – application for injunctive relief pending determination of judicial review application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth) r.44.12

Migration Act 1958 (Cth), ss.189, 477(1), (2), 501(3A), (6), (7), 501CA(1), (3), (4)
Migration Regulations 1994 (Cth), reg.2.52(2)(b)

Cases cited:

Australian Broadcasting Corporation v O’Neil (2006) 227 CLR 57;
[2006] HCA 46
Beecham Group Ltd v Bristol Laboratories Pty (1968) 118 CLR 618;
[1968] HCA 1
Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464
DPP v Levy [2018] VCC 1925
EFX17 v Minister for Immigration [2018] FCCA 3178
MZABP v Minister for Immigration & Border Protection [2015] FCA 1391
MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203

Plaintiff M168/10 v Commonwealth [2011] HCA 25
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

Applicant: LENNY LEVY

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: MLG 3293 of 2020

Judgment of: Judge C. E. Kirton QC

Hearing date: 11 September 2020

Date of Last Submission: 11 September 2020

Delivered at: Melbourne

Delivered on: 8 October 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Order 2 of the Orders made on 11 September 2020 be discharged.

2. The Applicant’s application for an interlocutory injunction preventing the Respondent, by himself or his servants or agents from removing the Applicant from the Commonwealth of Australia pending the conclusion of this proceeding is dismissed.

3. Pursuant to r.44.12 of the Federal Circuit Court Rules 2001, the application be listed for a “show cause” hearing on a date to be fixed (Hearing).

4. By 4:00 pm on 28 October 2020, the Respondent file and serve one copy of a bundle of relevant documents (Court Book) in electronic form and for that purpose, the Court Book:

   (a)Be in portable document format (pdf);

   (b)Be capable of being searchable for specified text;

   (c)Have an index and be paginated;

   (d)Have each entry in the index bookmarked; and

   (e)Be set so that when opened:

   i)         It displays at 100% zoom; and

   ii)        The bookmarks menu is displayed.

5. The Respondent file one hard copy of the Court Book no earlier than 8 weeks, and no later than 6 weeks prior to the Hearing.

6. The Applicant file and serve the following 28 days before the Hearing:

   (a)Any amended application with proper particulars of the grounds of the application;

   (b)Any supplementary court book; and

   (c) Written submissions.

7. The Respondent shall file and serve written submissions 14 days before the Hearing.

8. Each party has liberty to apply for a further directions hearing or for the Hearing of an application in a case on a date on 3 working days’ notice to the other parties. The appointment shall be obtained from the Court.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3293 of 2020

LENNY LEVY

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant is a citizen of New Zealand.  He was granted a Class TY Subclass 444 Special Category (Temporary) visa (Special Category Visa) on 18 November 2007 upon arrival in Australia[1].  On 14 January 2019 a delegate of the Respondent (Delegate) cancelled the Applicant’s Special Category Visa under s.501(3A) of the Migration Act 1958 (Cth) (Cancellation Decision)[2].

   [1] Affidavit of Melinda Anne Jackson, filed 11.9.20 (Jackson Affidavit) at [3].

   [2] Jackson Affidavit at [6].

2. On 4 September 2020 the Applicant was given notice that he was to be removed from the Commonwealth of Australia on or after 11 September 2020[3].  On 10 September 2020 the Applicant filed an application in this Court (Application), which came before the Court on an urgent basis on Friday 11 September 2020.  By the Application the Applicant seeks an interlocutory injunction restraining the Respondent (Minister) from removing him from the Commonwealth of Australia until the conclusion of this proceeding. The substantive application is an application for an extension of time of some 19 months, in which to bring an application for a declaration that the Minister has not performed his duties under s.501CA(3) of the Migration Act 1958 (Cth) (Act) in relation to the Cancellation Decision and for mandamus requiring the Minister to perform his duties under s.501CA(4) of the Act according to law.

   [3] Jackson Affidavit at [12] and Annexure MAJ-5.

3. The Minister accepted that this Court has jurisdiction in this matter.

4. On 11 September 2020 the Court heard the Applicant’s urgent application for an interlocutory injunction against the Minister to prevent the Applicant from being removed from Australia, pending the final determination of his challenge to the Cancellation Decision (Interlocutory Hearing). The application for an interlocutory injunction was opposed by the Minister. The Minister argued that there was no serious issue to be tried and that the balance of convenience did not favour the granting of an interlocutory injunction. At the Interlocutory Hearing orders were made preserving the status quo, whilst the Court considered its decision in relation to the application for the interlocutory injunction. At the Interlocutory Hearing Orders were made by the Court that included:

   a)Until further order, the Minister, was restrained by himself or his servants from removing the Applicant from the Commonwealth of Australia;

   b)Adjourning the Application to a date to be fixed for delivery of judgment; and

   c)Reserving costs.

5. The Court now delivers its judgment reserved at the Interlocutory Hearing, in relation to the Applicant’s application for an interlocutory injunction.

Synopsis

1. I have determined that:

   a)The Order made at the Interlocutory Hearing restraining the Minister, by himself or his servants from removing the Applicant from the Commonwealth of Australia until further order, be discharged.

   b)The Applicant’s application for an interlocutory injunction preventing the Minister, by himself or his servants or agents from removing the Applicant from the Commonwealth of Australia, pending the conclusion of this proceeding be dismissed.

Documents Relied on by the Parties

1. The Applicant relied on the Application and an affidavit, dated 9 September 2020 and filed on 10 September 2020 (Applicant’s Affidavit). At the Interlocutory Hearing the Applicant deposed to the truthfulness of the contents of the Applicant’s Affidavit[4] in accordance with Joint Practice Direction 2: JPD 2 of 2020 – Special Measures in Response to COVID-19 Electronic Filing, Viewing of Subpoenas, Annexures to Affidavits, Signatures on Documents and Affidavits, and Fees (Practice Direction).  The Applicant’s Affidavit was read into evidence[5]. 

   [4] Transcript P2:L12-P3:L6.

   [5] Transcript P3:L33-35.

2. The Application seeks the following interlocutory order:

   An injunction preventing my removal from Australia until the conclusion of these proceedings.  I have been notified in writing by the Respondent that my removal from Australia has been scheduled for a date on or after Friday, 11 September 2020.

3. The Application seeks an extension of time.  The relevant Migration decision is described in the Application as being:

   RESPONDENT’S PUR[ORTED NOTIFICATION OF DECISION *****

   (Without alteration)

4. The Application seeks the following final orders:

   1.A declaration that the Respondent has not performed his duties under s 501CA(3) of the Migration Act 1958 (Cth) (“the Act”) in relation to the decision of the Respondent, by his delegate, made on 14 January 2019 to cancel the Applicant’s Subclass 444 (Special Category) visa under s 501(3A) of the Act.

   2.A writ of mandamus issue requiring the Respondent to perform his duties under section 501CA(3) of the Act according to law.

   3.Respondent pay the Applicant’s costs. 

5. The Minister relied upon the Affidavit of Melinda Anne Jackson, a lawyer employed by the Australian Government Solicitor, filed on 11 September 2020 (Jackson Affidavit). At the Interlocutory Hearing Ms Jackson deposed to the truthfulness of the contents of the Jackson Affidavit[6] in accordance with the Practice Direction.  The Jackson Affidavit was read into evidence[7].

   [6] Transcript P3:L11-31.

   [7] Transcript P3:L35-37.

Applicable Legal Principles – Interlocutory Injunctions

1. The applicable principles in relation to interlocutory injunctions were restated in a joint judgment by Gummow and Hayne JJ in Australian Broadcasting Corporation v O’Neil[8] (ABC v O’Neil) (with whom Gleeson CJ and Crennon J agreed on the point)[9].  In  ABC v O’Neil Gummow and Hayne JJ said:[10]

   [8] (2006) 227 CLR 57 at 81-84 [65]-[72]; [2006] HCA 46.

   [9] (2006) 227 CLR 57 at 81-84 [19]; [2006] HCA 46.

   [10] ABC v O’Neill at [65] and [70]-[71].

   65 The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd - . This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:

   "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted."

   By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. […] With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

   "How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks."

[…]

70 When Beecham and American Cyanamid are read with an understanding of the issues for determination and an appreciation of the similarity in outcome, much of the assumed disparity in principle between them loses its force. There is then no objection to the use of the phrase "serious question" if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham, depends upon the considerations emphasised in Beecham.

71  However, a difference between this Court in Beecham and the House of Lords in American Cyanamid lies in the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient. The critical statement by his Lordship is "[t]he court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried". That was followed by a proposition  which  appears to reverse matters of onus:

“So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought." (emphasis added)

Those statements do not accord with the doctrine in this Court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.

(Citations omitted)

1. In Plaintiff M168/10 v Commonwealth[11] Crennan J adopted the principles explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd[12] and restated in ABC v O’Neil, in the context of an immigration case.  In Plaintiff M168/10 v Commonwealth Crennan J also said:[13]

   19 It may be as well to mention that the second inquiry to be made in respect of an application for an interlocutory injunction is an inquiry into what is commonly encompassed by the expression “the balance of convenience”, about which the parties in these cases are not in dispute.  The plaintiffs made reference to Bullock v Federated Furnishing Trades Society of Australasia (No 1)[14], where a Full Court of the Federal Court noted that the two inquiries in Beecham need not be considered in isolation from each other and a marked balance of convenience may be an important consideration.

   [11] [2011] HCA 25 at [15]-[19].

   [12] (1968) 118 CLR 618; [1968] HCA 1 (Kitto, Taylor, Menzies and Owen JJ).

   [13] Plaintiff M168/10 v Commonwealth of Australia [2011] HCA 25 at [19].

   [14] (1985) 5 FCR 464 at 472.

Relevant Legislation – Cancellation of Visa and Revocation

1. Section 501 of the Act sets out the grounds on which the Minister may refuse or cancel a visa based on character grounds. Relevantly s.501 provides:

   501   Refusal or cancellation on character grounds

   […]

   (3A)The Minister must cancel a visa that has been granted to a person if:

   (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph 7(a), (b) or (c); or

   (ii)  […]; and

   (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

   […]

   Character test

   (6)For the purposes of this section, a person does not pass the character test if:

   (a)the person has a substantial criminal record (as defined by subsection (7));

   […]

   Substantial criminal record

   (7)For the purposes of the character test, a person who has a substantial criminal record if:

   […]

   (c)the person has been sentenced to a term of imprisonment of 12 months more; or

   […]

1. A person whose visa has been cancelled under s.501(3A) may, pursuant to s.501CA of the Act, make representations to the Minister about having that decision revoked. Section s.501(3A) relevantly provides:

   501CACancellation of visa – revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

   (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

   […]

   (3)As soon as practicable after making the original decision, the Minister must:

   (a)give the person, in the way that the Minister considers appropriate in the circumstances:

   (i)   a written notice that sets out the original decision;

   (ii)  […]; and

   (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

   (4)The Minister may revoke the original decision if:

   (a)the person makes representations with invitation; and

   (b)the Minister is satisfied:

   (i)   that the person passes the character test (as defined by section 501); or

   (ii)  that there is another reason why the decision should be revoked.

2. Regulation 2.52 of the Migration Regulations 1994 (Cth) sets out the time limits for the making of representations. Regulation 2.52 provided:

   2.52 Refusal of cancellation of visa – representation in respect of revocation of decision by Minister (Act, s 501C and 501CA)

   […]

   (2)      The representations must be made:

   […]

   (b)for a representation under paragraph 501CA(3)(b) of the Act - within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act.

Background Facts

1. In the Application the Applicant alleges the following as the grounds for his extension of time application (Extension of Time Grounds):

   1.I am unable to access a fee charging lawyer and I have been attempting to access free assistance from Victoria Legal Aid and community legal centres.

   2.I am held in an immigration detention centre and I have only now been able to access advice and assistance to apply to the Court.   

2. In the Application the grounds of the substantive application are stated to be as follows (Grounds of Application):

   1. The purported invitation and notification dated 4 March 2020 prepared by the respondent for s 501CA (3) was not given to the Applicant, and that, therefore, the 28 day time period for the making of representations to the Minister, pursuant to s 501CA (4) of the Act, about why the Minister should revoke the cancellation decision, did not commence at that time.

   Particulars

i.     [INSERT YOUR EXPLANATION OF WHY YOU BELIEVE YOU DID NOT RECEIVE THE DEPARTMENT’S NOTIFICATION LETTER DATED 14 JANUARY 2019]

ii.    [INSERT YOUR EXPLANATION OF ANY OTHER BASIS ON WHICH YOU BELIEVE THE DEPARTMENT’S CANCELLATION LETTER DAYED 14 JANUARY 2019 DID NOT COMPLY WITH THE LAW]

(Without alteration)

1. The Applicant’s Affidavit is very short and states as follows:

   1.I am the applicant in these proceedings.

   2.I am applying for judicial review of the notification of the decision to cancel my visa.

   3.By letter dated 14 January 2019 an Officer of the Department of Home Affairs sent a letter to the prison I was held notifying me of the cancellation of my Subclass 444 visa and inviting me to make representations of why that decision should be revoked. Annexure LL1 is a copy of this letter.

   4.[Insert your reasons for why you say you did not receive the Department’s notification letter dated 14 January 2019].

1. The issue in this case alleged in the Grounds of Application is that the relevant invitation and notification prepared by the Minister for the purposes of s.501CA(3) of the Act (Cancellation Notice)[15], was not given to the Applicant. The Grounds of Application refer to the Cancellation Notice with an incorrect date of “4 March 2020”. The correct date of the Cancellation Notice is “14 January 2019”. The correct date of the Cancellation Notice is referred to in the final orders sought in the Application and also in paragraph 3 of the Applicant’s Affidavit. The Cancellation Notice is also annexed to the Applicant’s Affidavit. I therefore intend to treat the reference to the date of “4 March 2020” as an error in the Grounds of Application and the date should be “14 January 2019”.

   [15] Jackson Affidavit at [6] and MAJ-1, pp 7-11.

2. The Applicant has previously applied for and been refused a permanent visa whilst in Australia.  On 9 November 2010 the Applicant lodged a Child Residence visa application, which was refused by the Minister’s Department (Department) on 5 June 2014. On 29 October 2018 the Applicant was convicted in the County Court of Victoria at Melbourne of carjacking, attempted robbery and unlicensed driving and was sentenced to 30 months imprisonment[16].

   [16] Jackson Affidavit at [4]-[5].

3. The Minister claimed that the Cancellation Notice and attached documents were given to the Applicant in prison on 14 January 2019. The Minister produced an email dated 14 January 2019 from a staff member from the G4S Government Functions Team to the Department attaching an acknowledgment of receipt, which the Applicant had refused to sign[17].

   [17] Jackson Affidavit at [6]-[7] and Annexure MJ-2.

4. The Cancellation Notice asserted that the Applicant did not pass the character test for the following reasons:

   a)On information before the Department, the Applicant had a substantial criminal record within the meaning of s.501(6)(a) of the Act on the basis of s.501(7)(c) of the Act. The basis alleged was that on 29 October 2018 in the County Court of Victoria at Melbourne, the Applicant was convicted of carjacking and sentenced to a term of imprisonment of 30 months; and

   b)On the information available the Delegate was also satisfied that at the time of the Cancellation Decision the Applicant was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

5. At the Interlocutory Hearing the Applicant did not take issue with either of the matters alleged in the Cancellation Notice.

6. From 14 January 2019 to 26 February 2020 the Department did not receive any information or documents from the Applicant or any person representing him. On 26 February 2020 the Department received an email from the Applicant’s newly appointed representative, Refugee Legal[18].

   [18] Jackson Affidavit at [8]-[9] and Annexure MAJ-3.

7. On 30 April 2020 the Applicant was released from criminal custody and was detained by Australia Border Force (ABF) under s.189 of the Act and is now in detention at Melbourne Immigration Transit Accommodation[19].

   [19] Jackson Affidavit at [10].

8. On 12 August 2020 an officer of ABF sent an email to the Department in relation to the Applicant’s removal from Australia[20].  The officer stated that:

   When I spoke to [the Applicant] he stated that his previous criminal lawyer had the documents to lodge the revocation however lost them.

   [20] Jackson Affidavit at [11] and Annexure MAJ-4.

9. On 4 September 2020 an ABF officer handed the Applicant a Notice of Intention to Remove from Australia. The Minister produced the Notice to Remove from Australia and an email from Serco Immigration Services, dated 4 September 2020, which stated that the Applicant had refused to sign the mail receipt book[21].

   [21] Jackson Affidavit at [12] and MAJ-5.

10. The Applicant was scheduled to be removed from Australia on a flight departing on 15 September 2020[22].

    [22] Jackson Affidavit at [13].

11. At the Interlocutory Hearing the Applicant was invited to make submissions in support of his application for an interlocutory injunction. In relation to the Cancellation Notice the Applicant said as follows[23]:

    [23] Transcript P14:L26-39.

    MR LEVY : […] I mean in regards to the relocation package, I sent it

    off to my lawyer to – because I bought him to help me with it – my

    criminal lawyer. And he told me to sent it to him so he can finish it off

    or check over it. And anyway - - -

    HER HONOUR:   Okay

    MR LEVY:So he didn’t sent it off in time.

    HER HONOUR:  All right. When do you say you sent it to your lawyer?

    MR LEVY:     This was like when I – as soon as I got the papers last hearing.

    (Without alteration)

12. The Applicant also informed the Court that he couldn’t read or write properly and that he thought that he left school when he arrived in Australia from New Zealand when he was in about grade 6 or 7[24].

    [24] Transcript P15:L15-27.

Consideration

1. The Applicant has sought as his substantive application an extension of time of some 19 months, in which to bring an application for a declaration that the Minister has not performed his duties under s.501CA(3) of the Act in relation to the Cancellation Decision and for mandamus requiring the Minister to perform his duties under s.501CA(4) of the Act according to law. Pursuant to s.477(1) of the Act, the Applicant had 35 days from the date of the Cancellation Decision on 14 January 2019 to bring his application.

2. Section 477(2) of the Act provides that the Court may order that the 35 day period be extended if the conditions in s.477(2) of the Act are satisfied. Section 477(2) of the Act provides:

   477Time limits on applications to the Federal Circuit Court

   […]

   (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3. The matters the Court will most often consider in relation to s.477(2) of the Act are (SZTRY v Minister for Immigration and Border Protection)[25]:

   a)The length of delay and the Applicant’s reasons for delay;

   b)Any prejudice which would be suffered by the Minister; and

   c)The merits of the proposed appeal, whether the appeal is “hopeless and destined to fail” (SZTES v Minister for Immigration and Border Protection)[26].

   [25] [2015] FCAFC 86 at [6].

   [26] [2015] FCA 719.

4. The Court will consider each of these matters in turn.

   Explanation for the Delay

5. The Application should have been made within the 35 day period as prescribed by s.477(1) of the Act. That time expired on or about 19 February 2019. The Applicant has filed the Application in this Court on 10 September 2020, and is therefore nearly 19 months out of time. This is a significant period of delay.

6. The Extension of Time Grounds provide an explanation that the Applicant was unable to access a fee-charging lawyer and has been attempting to access assistance from legal aid.  These grounds are however unsupported by any affidavit evidence as to what steps were taken by the Applicant over a period of nearly 19 months, to access legal representation. It is apparent from the Jackson Affidavit that the Applicant had obtained some legal representation by 26 February 2020[27], and yet it was nearly 7 months later that the Application was filed on the eve of the Applicant’s pending deportation. No explanation is provided in the Applicant’s Affidavit for this delay. At the Interlocutory Hearing no further evidence was provided by the Applicant by way of explanation for the delay. Overall, the Court considers that the significant delay and the Applicant’s insufficient explanation does not weigh in favour of an extension of time being granted.

   [27] Jackson Affidavit, at [9] and MAJ-3.

   Prejudice

7. The Minister argued that there was prejudice to the Minister relevant to this consideration.  This prejudice is referred later in these reasons for Judgment in relation to the consideration of the balance of convenience.  The Court is prepared to consider that there was minimal prejudice to the Minister.  Overall the Court considers that this factor weighs in somewhat in favour of an extension being granted.

   Merits

8. The merits of the substantive application generally carry the most weight in determining whether an extension should be granted: MZZIV v Minister for Immigration & Border Protection[28].  When considering the merits of the substantive application, the Court has done so at a reasonably impressionistic level: MZABP v Minister for Immigration & Border Protection[29].

   [28] [2013] FCA 1203 at [6].

   [29] [2015] FCA 1391 at [62]-[63].

9. In this case the Grounds of Application allege that the Cancellation Notice was not given to the Applicant and therefore the 28 day time period for the making of representations to the Minister pursuant to s.501CA(4) of the Act has not commenced. No particulars of this allegation are provided in sub-paragraphs (i) and (ii) of the Grounds of Application. Further in the Applicant’s Affidavit the Applicant fails to depose that he did not receive the Cancellation Notice. The Applicant’s Affidavit concedes that the Cancellation Notice was sent to the prison where the Applicant was detained[30].   

   [30] Applicant’s Affidavit at [3].

10. At the Interlocutory Hearing the Applicant admitted that he had received the Cancellation Notice and then sent it to his criminal lawyer, as set out in paragraph 30 above. This evidence is similar to the account that the Applicant is alleged to have provided to an ABF officer on or about 12 August 2020 and referred to in paragraph 27 above.

11. The Court has also considered the matters raised by the majority of the Full Court of the Federal Court in EFX17 v Minister for Immigration[31], in relation to s.501CA(3) of the Act and distinguishes that case from the present case. In the present case at the Interlocutory Hearing the Applicant claimed that he couldn’t read or write properly[32].  The Court has before it the Reasons for Sentence of Judge Hogan in the County Court of Victoria in the matter of DPP v Levy, dated 29 October 2018[33] (Reasons for Sentence).  Judge Hogan exhaustively detailed the Applicant’s circumstances in the Reasons for Sentence.  The Applicant has been subject to a number of psychological tests in recent years.  Judge Hogan concluded that the Applicant had a low functioning intellectual capacity[34], however nowhere in the Reasons for Sentence did Her Honour mention the Applicant being illiterate. 

    [31] [2018] FCCA 3178.

    [32] Transcript P15:L15-27.

    [33] Jackson Affidavit Annexure MAJ-1, pp. 13-28.

    [34] Reasons for Sentence [10].

12. The Court therefore rejects the Applicant’s assertion that he is unable to read or write.  The Court also notes that the Applicant’s Affidavit did not include an attestation clause to indicate that the Applicant was illiterate.  The Court is satisfied that the Applicant sufficiently understood the nature of the contents of the documents that he admits that he was served with on 14 January 2019.  The Applicant forwarded these documents onto his criminal lawyer for assistance.  There is no evidence before the Court from the Applicant’s criminal lawyer.    

13. The Court is unable to be satisfied on the evidence presently before it, that the Applicant has demonstrated that there is an arguable case an impressionistic level.  This weighs against the granting of an extension of time.

14. On the evidence presently before the Court, due to a failure to explain the delay and a lack of merit in the substantive application, the Court is not persuaded that it is arguable that it would be in the interests of the administration of justice to extend time under s.477(2) of the Act.

15. The Court therefore finds that the Applicant has not demonstrated that there is a serious issue to be tried that there has been jurisdictional error.  The Applicant has therefore not made out a prima facie case for the relief claimed: ABC v O’Neil[35].

    [35] ABC v O’Neil at [65], [70]-[71].

Balance of Convenience

1. The Court now turns to consider the balance of convenience.

2. The Minister submitted that this was not a case of non-refoulement or where harm to the Applicant is alleged because of the removal of the Applicant from Australia. The Applicant is to be removed to New Zealand.   The Court accepts the Minister’s submission.

3. The Minister also submitted that the Applicant would be able to continue to pursue the substantive application for an Extension of Time from New Zealand. In the event that the Extension of Time Application was successful, the application for final relief in this proceeding is also able to be pursued from New Zealand. If the Applicant was successful and the Cancellation Decision was revoked, it would be open for the Applicant to return to Australia[36].  The Court accepts those submissions.

   [36] Transcript P4:L26-P5:L2.

4. The Minister also submitted that there had been inconvenience to the Minister in relation to this application. It was submitted that the cancellation of the Special Category Visa took place over one and a half years ago and that the Application was filed on the eve of the Applicant’s pending deportation[37].  Due to the urgency of the Minister having to prepare a response to the Application, the Minister was unable to provide evidence of any costs thrown away by way of any aborted removal arrangements for the Applicant. The Minister submitted that whilst these were not “grave” inconveniences to the Department, they were still matters the Court should consider in the balance of convenience. The Court accepts that the Minister may have incurred some costs as a result of the aborted deportation on 15 September 2020 and that due to the urgency of Interlocutory Hearing the Minister did not have time to address the Court in relation to any such costs.

   [37] Transcript P5:L22-26.

5. The Court concludes that having regard to each of these matters, the balance of convenience does not favour the granting of the interlocutory injunction.

Conclusion

1. Orders will be made as set out under the heading ‘Synopsis’ in paragraph 6.  Procedural Orders will also be made for the further conduct of the proceeding.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC

Associate: 

Date: 8 October 2020