LIL24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 238
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
LIL24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 238
File number(s): MLG 4343 of 2024 Judgment of: JUDGE BINGHAM Date of judgment: 20 February 2025 Catchwords: MIGRATION– application for interlocutory injunction to restrain the Minister from removing the applicant from Australia – prima facie case not established – balance of convenience not in favour of Applicant – Application dismissed with costs Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 140 and 198(6)
Migration Act 1958 (Cth) ss 36(2A), 424A and 424AA
Cases cited: AJH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 192
Australian Broadcasting Authority v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34; (2024) 302 FCR 159
NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292; (2003) 133 FCR 506
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156; (2011) 217 FCR 238
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of last submissions: 19 February 2025 Date of hearing: 19 February 2025 Place: Melbourne The Applicant: Appeared in person Counsel for the Respondents: Mr Hibbard Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 4343 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LIL24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
19 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Leave is granted to the Minister to file in Court the Affidavit of Mary Margaret Baras-Miller affirmed on 18 February 2025.
2.The application for an injunction restraining the Minister by himself or by his department, officers, delegates or agents, from removing the Applicant from Australia is dismissed.
3.The Applicant must pay the Respondent’s costs and disbursements of an incidental to the application in a proceeding, fixed in the sum of $3,349.37.
4.The substantive proceedings are to be listed for a directions hearing before a Migration Registrar on a date to be fixed.
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 BINGHAM:
These are my reasons for judgment made by me on 19 February 2025.
The application before the Court is for an interlocutory injunction to restrain the First respondent (Minister) from removing the applicant from Australia at 3:10pm AEDT on 20 February 2025. The application for the interlocutory relief was made by the Applicant on Monday 17 February 2025 (Interlocutory Application).
The substantive application in this matter seeks judicial review of the decision of the then Administrative Appeals Tribunal (Tribunal), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). On 20 May 2024, the Tribunal affirmed the decision of a delegate (Delegate) of the Minister not to grant the Applicant a subclass XA-866 protection visa (Protection Visa) (Tribunal’s Decision).
The Interlocutory Application was heard on 19 February 2025 in person at the Melbourne Registry (Hearing). The Applicant appeared as a litigant in person and was assisted by a Malay interpreter. Mr Hibbard of Counsel appeared for the Minister.
BACKGROUND
The Minister’s Submissions filed on 18 February 2025 accurately summarise the background to this matter at [4] to [15]. I have set out a synopsis of the salient events for the purpose of this interlocutory proceeding.
The Applicant is a citizen of Malaysia from the state of Sabah. He arrived in Australia on 21 March 2018 as a holder of an electronic travel authority visa.
The Applicant applied for a protection visa on 17 June 2018.
The protection claims pertain to the Applicant’s issues with his Islamic faith. He claimed to have been born into a Christian family. He married a Muslim woman in March 2011 and had to convert to Islam as a result. He claimed to have found it difficult to accept Islamic principles and practice in accordance with their customs. The Applicant claimed to have a desire to leave Islam but that doing so would be a criminal offence for which he could be subjected to punishment according to Islamic law.
On 10 October 2018 the Delegate refused to grant the Applicant the Protection Visa (Delegate’s Decision).
On 14 October 2018 the Applicant made an application to the Tribunal for the purpose of reviewing the Delegate’s Decision.
On 16 January 2024 the Applicant was invited to complete a pre-hearing information form and return it to the Tribunal. The Applicant elected not to have a hearing and consented to the Tribunal making a decision on the papers.
On 19 January 2024 the Applicant provided material upon which he sought to rely to the Tribunal. This material included documents that appeared to be in Malay script that required translation into English.
Between 27 March 2024 and 12 April 2024 there were various interactions between the Tribunal and the Applicant. These included unsuccessful attempts by the Tribunal to contact the Applicant by telephone. On 12 April 2024 the Applicant was advised by the Tribunal that a decision would be made shortly and that the Applicant should submit any additional material he wanted the Tribunal to consider by 19 April 2024. This correspondence again confirmed that the matter would proceed without hearing in accordance with the election of the Applicant. The Applicant requested and was subsequently granted an extension of time until 26 April 2024 to provide additional material including translations of the documents that he already submitted. On 26 April 2024 the Applicant provided translations of some but not all of the documents that he had provided to the Tribunal. The Applicant did not provide any submissions.
THE TRIBUNAL’S DECISION
On 10 May 2024 the Tribunal advised the Applicant in writing by email that it would be proceeding to make a decision and that the Applicant should provide submissions as soon as possible. No submissions were provided by the Applicant. On 20 May 2024 the Tribunal affirmed the Delegate’s Decision.
On 21 May 2024 the Applicant was informed of the Tribunal’s Decision in writing by email. This correspondence included advice that the Applicant could make an application to the Court to judicially review the Tribunal’s Decision and that such an application must be made within 35 days of the Tribunal’s Decision. The relevant date that such an application needed to be made by the Applicant was 24 June 2024. The Applicant did not make an Application to this Court within the proscribed time.
PROCEEDINGS BEFORE THE COURT
On 27 December 2024, an application made by the Applicant for judicial review of the Tribunal’s Decision and extension of time together with a supporting affidavit affirmed on 31 October 2024 were accepted for filing. Both were lodged on 19 December 2024. The application for judicial review was filed 178 days out of time.
On 17 February 2025 the Applicant made an application to this Court for among other things an urgent interlocutory injunction prohibiting his removal from Australia until determination of his judicial review application. The Applicant was scheduled to be deported at 3:10pm AEDT on Thursday 20 February 2025. It is this Interlocutory Application that is before me for determination.
THE LAW
The Court has the power under s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to grant interlocutory orders. This includes a power of equity traditionally exercised to grant injunctions to preserve the status quo, pending determination of a claim for a legal remedy: see AJH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 192 at [8].
The principles associated with the granting of an interlocutory injunction of the type sought by the Applicant are well settled.[1] Firstly, it must be established by the Applicant that there is a serious issue to be tried. This has also been referred to as a prima facie case or an arguable case in the authorities. Secondly, the balance of convenience must be served by the grant of an injunction. Both these issues are to be considered together.[2]
[1] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. [19] and [65]-[72]; Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 24; Australian Broadcasting Authority v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.
[2] Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156; (2011) 217 FCR 238, [60]-[67].
In this matter the Applicant must establish not only that there is a prima facie case that his application for an extension of time be granted, but that there is also a serious issue to be tried with respect to the substantive judicial review proceedings.
Delay
The Applicant seeks an extension of time for the filing of the judicial review proceedings of 178 days or approximately five months. This can only be described as a substantial delay in filing the proceedings. The Applicant submitted that he was unaware that a time limitation was proscribed. I do not accept this submission. On 21 May 2024 when the Tribunal advised the Applicant of the outcome of the merits review, the Applicant was also provided with a Fact Sheet which stated:[3]
[…] Applicants can apply to the Federal Circuit and Family Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
[3] Affidavit of Mary Margaret Barras-Miller affirmed 18 February 2025, “Exhibit R1”, 129.
The Applicant also submitted that he lacked legal advice.
I find that the Applicant was well aware that he was required to file a judicial review application in this Court within 35 days of 20 May 2024 and had known this since 21 May 2024. In any event ignorance of a proscribed time limit or lack of legal advice is not an acceptable explanation for delay.[4] The Applicant does not have any reasonable excuse for the delay in filing the judicial review application.
[4] Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Wigney J), [35].
Prima Facie Case
The Applicant must show that there are sufficient prospects of success not only with respect to leave to extend time but also with the substantive proceeding as such it is appropriate to consider the Applicant’sgrounds of review. The Applicant identified five grounds of review in the Application filed on 19 December 2024 and an additional ground which was identified in the Interlocutory Application filed 17 February 2025.
The submissions of the Applicant at the Hearing regarding whether there was a prima facie case focused on merit issues rather than those of jurisdictional error.
Ground 1 and 2
The Applicant alleged that the Tribunal misconstrued s 36(2A) of the Migration Act. The Applicant submitted that the Tribunal failed to assess the real harm he faced in Malaysia. He contended that he would be at risk of being subjected criminal procedures and social alienation as a person who converted to Islam and now wishing to return to the practice of Christianity. He submitted that he would be classified as an apostate. The submissions made by the Applicant focused on the merits rather than error.
The Minister submitted that the Tribunal understood and correctly applied the test for “significant harm”. It was submitted that this was clear from the Tribunal’s Decision at paragraphs [28], [29] to [30] and where the Tribunal sets out the refugee and complimentary protection criterion the Tribunal then proceeds to apply the criterion at paragraphs [42] to [45] to the findings of facts, which were open to the Tribunal, made in paragraphs [38] to [41] and [43].
It was submitted by the Minister that it is clear from the Tribunal’s Decision that the Tribunal recorded the claims made by the Applicant in his visa application and the contents of the translated documents and that there was, in the absence of corroboration, a logical and probative basis to reject the factual basis for the claims. I accept this submission.
I agree with the submission of the Minister that Ground 1 and 2 have no merit and as such the Applicant is unlikely to succeed on these grounds.
Ground 3
I agree with the Minister’s assessment of this ground as vague.
The Applicant’s submission on this ground focused on the fact that he had made an “unintentional procedural mistake” in that he elected to proceed without a hearing and to agree to the Tribunal undertaking the review of the Delegate’s Decision and determining it on the papers. He submitted that he did not realise that he had a right to a hearing before the Tribunal.
I do not accept this submission. The Applicant completed the pre-hearing form and elected not to proceed to hearing. On at least two occasions after this the Tribunal confirmed with the Applicant that it intended to proceed to determine the matter without a hearing. At no point did the Applicant contest the Tribunal’s proposed course. Despite being invited to do so the Applicant did not file any written submissions nor did he provide the additional translation of documents submitted when invited to do so.
The Applicant has not identified an error. The Applicant has limited prospects of success on this ground.
Ground 4
The error alleged at Ground 4 by the Applicant is that the Tribunal failed to investigate the Applicant’s claim, especially the grounds of persecution in Malaysia. The focus of the submissions of the Applicant with respect to this ground focused on his psychological and mental health in so far as it pertains to his removal from the country. There appears to be no nexus between the ground and the argument put by the Applicant.
I accept the Minister’s submission that there is no general duty on the Tribunal to investigate the Applicant’s claims.[5] I also accept that s 5AAA places the onus on the Applicant to particularise and provide the evidence in support of his claims. The Applicant was given adequate opportunity to put both submissions and translated documents before it. The Tribunal even granted the Applicant an extension of time to provide translated documents. He did not avail himself of the opportunity to make written submissions and only provided translations of four of the documents provided to the Tribunal. In any event the Tribunal had regard to the untranslated documents to the extent it could and found that these documents supported some of the claims made.
[5] Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41, [36] and [49].
The Applicant has been unable to identify jurisdictional error with respect to Ground 4 and has limited prospects of success with respect to this ground.
Ground 5
With respect to Ground 5 the Applicant submitted that the Tribunal violated s 424AA of the Migration Act (read with s 424A) in that he was denied a fair trial and due process. He submitted that he had a right to fairness, judgement and effective remedy. He submitted that his lack of legal representation resulted in him misunderstanding the procedure. I struggle to see how this submission supports this ground.
The Minister submitted that the Applicant has not identified the information that gave rise to the Tribunal’s obligations under s 424A of the Migration Act. The Minister further submitted that the Tribunal was not required to invite the Applicant to comment on its doubts or subjective appraisals, any inconsistencies, gaps in evidence or the country information. I accept and agree with the Minister’s submission.
There is no identifiable error. The Applicant has limited prospects of succeeding on this ground of review.
New Claim and Evidence
The new claim regarding being a member of Republic of Sabah North Borneo (RSNB) was not a claim before the Tribunal. The claim is first raised in the Interlocutory Application filed on 17 February 2025. The documentation relied upon to support the claim is dated 13 February 2025.
The new claim cannot give rise to a jurisdictional error on the part of the Tribunal as the claim and evidence was not before it.
No Prima Facie Case or Serious Issue
Based on the material before me and the submissions made, I must conclude the Applicant is unable to establish a prima facie case on either the extension of time application or the substantive judicial review application. There is no serious issue to be tried.
Balance of convenience
The Applicant submitted that the balance of convenience was weighted strongly in his favour. The reason given for this submission was that he would suffer irreversible harm, he would be deported before the review process was complete, he may be arrested tortured or killed, he was not a security risk, he would abide by the law, he had no criminal record, he was a limited burden financial burden and that the protection of human rights should be prioritised over administration.
The Minister submitted that I must have regard to the statutory duty imposed on an official by s 198(6) and referred me to the case of the Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34; (2024) 302 FCR 159 at [130] where Colvin and Jackson JJ said that “[i]n considering the balance of convenience [the Court] will have due regard to the statutory duty [in s 198] and will require a strong case or serious consequence or both in order to justify relief”.
I accept that it is not my task to consider whether the Applicant would be harmed if he were removed from Australia.[6]
[6] NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292; (2003) 133 FCR 506, [54]-[59].
In light of my finding with respect to a lack of a prima facie case for either the extension of time or the substantive judicial review there is no reasonable justification to interrupt the legislative intention under s 198(6).
I have considered the submissions made by the Minister on the financial impost on the Commonwealth and the fact that the Applicant has been certified as fit to travel. There is no medical evidence submitted by the Applicant to the contrary.
There is no material on the balance of convenience before me that is of such weight, in light of my findings regarding a serious lack of a prima facie case, which result in me finding that I should grant an interlocutory injunction in favour of the Applicant. The balance of convenience favours the Respondent. The Application for an interlocutory injection restraining deportation must be dismissed.
CONCLUSION
The Applicant has not established a prima facie case which would warrant the granting of an injunction. I have determined that the Interlocutory Application seeking an urgent injunction restraining the Minister from removing the Applicant from Australia be dismissed.
The Minister sought costs fixed in the amount of $3,349.37. The Applicant is to pay the Minister’s costs in the sum of $3,349.37.
Orders were made accordingly.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 20 February 2025
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