ZRTY v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 315
•10 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ZRTY v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 315
File number(s): SYG 602 of 2024 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 10 April 2024 Catchwords: MIGRATION – application for interlocutory injunction restraining Minister for Immigration, Citizenship and Multicultural Affairs from removing applicant from Australia on the ground that if no injunction is granted the applicant’s ability to pursue an application for review before the Administrative Appeals Tribunal will be adversely affected – whether the applicant has identified or arguably identified a legal, statutory, or equitable right which is to be determined at the trial of the proceeding and in respect of which he seeks final relief which may or may not be injunctive in nature – applicant has identified no such right – application dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 43(1)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 140
Migration Act 1958 (Cth) ss 198, 476, 500(1)(ba), 501(3A), 501C(4), 501E(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, Pt 2
Migration Regulations 1994 (Cth) Sch 2, cl 030.511
Cases cited: ABC v Lenah Game Meats Pty Ltd [2001] HCA 63
BUL23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 628
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10
Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529
MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 989
Spurr v Minister for Immigration and Border Protection [2018] FCCA 1090
Tait v The Queen (1962) 108 CLR 620
Division: General Number of paragraphs: 35 Date of hearing: 9 April 2024 Counsel for the Applicant: Mr R Sud Solicitor for the Applicant: Legal Aid NSW Solicitor for the Respondent: Mr Z Chami of Clayton Utz
Table of Corrections 11 April 2024 In paragraph 26 “2013” is replaced with “2023”. ORDERS
SYG 602 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ZRTY
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
10 APRIL 2024
THE COURT ORDERS THAT:
1.The application for interlocutory relief is dismissed.
2.Subject to orders 3 and 4:
(a)The application is dismissed.
(b)The applicant pay the respondent’s costs set in the sum of $4,189.38, being the amount specified in Item 2 of Division 1 of Part 2 to Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
3.Order 2 is not to take effect until 2 May 2024.
4.The parties have liberty to apply before 2 May 2024 to vary or discharge orders 2 or 3 or both.
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
INTRODUCTION
The applicant, who is currently held in immigration detention, applies for an interlocutory injunction restraining the respondent (Minister) from removing the applicant from Australia.
BACKGROUND
The applicant was born in Italy in 2000 and is therefore an Italian citizen. The applicant’s parents, however, are Moroccan and, for that reason, the applicant is also a citizen of Morocco.
The applicant entered Australia on 18 November 2018 as the holder of a working holiday visa subclass 417 (Working visa).
In March 2020, after the Working visa expired, the applicant applied for a protection visa, and on 31 August 2020 he was granted a Subclass 030 Bridging Visa C (Bridging visa). The granting of the Bridging visa was subject to the terms contained in Subclass 030 of Schedule 2 (Schedule 2) to the Migration Regulations 1994 (Cth), cl 030.511 of which relevantly provides:
(1)In the case of a visa granted to a non-citizen who has applied for a substantive visa – bridging visa:
(a) coming into effect:
(i) on grant; or
(ii)when the substantive visa (if any) held by the holder cease; and
(b) permitting the holder to remain in Australia until:
. . . .
(v)if the holder withdraws his or her application for a substantive visa or an application to the Tribunal – 35 days after the withdrawal . . .
On 9 November 2020 a delegate of the Minister cancelled the Bridging visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). The delegate made the decision on the basis of the applicant’s having been convicted in September 2020 in the Local Court of New South Wales of “Assault occasioning actual bodily harm (DV) – T2, Contravene prohibition/restrictions in AVO (domestic) (three counts) , Stalk/intimidate intend fear physical etc harm (domestic) – T2 and Destroy or damage property”, for which the applicant was sentenced to an aggregate term of one year imprisonment. The applicant’s mother was the victim in each of these offences.
On 21 January 2021 the applicant was served with notice of the cancellation of the Bridging visa and, on 16 February 2021, through his agent, the applicant sent an email to the Minister’s Department attaching a request for revocation in which the applicant identified the following matters as constituting reasons for revocation:[1]
I SUFFER WITH MENTAL HEALTH ISSUES; AT THE TIME OF THE OFFENDING I WAS SUFFERING WITH THESE CONDITIONS ALSO.
AT THE TIME OF OFFENDING IMPACTED MY DECISION-MAKING PROCESS WHICH RESULTED IN BREACHING THE AVO.
I AM REQUIRED TO REMAIN IN AUSTRALIA IN ORDER TO CONTINUE RECEIVING TREATMENT AND MEDICATION FOR MENTAL HEALTH ISSUES; MY MOTHER IS THE ONLY CLOSE MEMBER OF MY FAMILY UNIT, AND SHE RESIDES IN AUSTRALIA ON A STUDENT VISA.
I HAVE NO RELATIONSHIP WITH MY FATHER WHO RESIDES IN ITLAY [sic]. FURTHER, ALTHOUGH I HAVE A SISTER IN ITALY, SHE RESIDES IN TEMPORARY AND SUPPORTED HOUSING MEANING THAT SHOULD I RETURN TO ITALY, I WILL HAVE NO HOME TO GO TO AND NO ONE TO SUPPORT /ASSIST ME WITH MY MENTAL HEALTH ISSUES.
[1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529, at [12]
In the section headed “personal circumstances” the applicant stated:[2]
DUE TO A HISTORY OF FAMILY VIOLENCE MY MOTHER WISHES FOR ME TO REMAIN IN AUSTRALIA AS MY FATHER IN ITALY WILL LIKELY CAUSE ME HARM SHOULD I RETURN. IF I DO RETURN TO ITALY, I WILL HAVE NO PLACE TO LIVE.
[2] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529, at [13]
On 8 February 2022 a delegate of the Minister decided not to revoke the cancellation. That decision was made pursuant to s 501C(4) of the Migration Act. On 16 February 2022, the applicant applied to the Administrative Appeals Tribunal (Tribunal) pursuant to s 500(1)(ba) of the Migration Act. The powers of the Tribunal on a review are provided for by s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth):
For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
On 22 April 2022 the Tribunal set aside the delegate’s decision, and remitted the matter to the delegate for further consideration. The Minister, however, applied to the Federal Court of Australia for constitutional writs directed to the Tribunal. On 16 December 2022, the Federal Court quashed the Tribunal’s decision, and remitted the matter to the Tribunal for determination of the application before it according to law.[3]
[3] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529
On 10 February 2023 the NSW Civil & Administrative Tribunal made an order that the applicant’s mother and the Public Guardian be appointed guardians of the applicant.
On 23 August 2023 the applicant withdrew his application for a protection visa. That meant that, had the Minister not cancelled the Bridging visa, then, by operation of cl 030.511(b)(v) of Schedule 2, the Bridging visa would have ceased effect 35 days after 23 August 2023, namely, on 27 September 2023.
On 21 February 2024 the Tribunal sent an email to the applicant and the Minister requesting the parties provide to the Tribunal their available dates in April and May 2024. Mr Grosart, the lawyer for the applicant, has deposed that he expects the matter will be listed for hearing before the Tribunal in April or May or, given the passage of time, in June 2024.
It is common ground that on 3 April 2024 the Minister’s Department provided to the applicant a document headed “Notice of Intention to Remove from Australia”, which included the following:
I wish to advise you that you are liable for removal from Australia under the following provision of the Migration Act 1958:
s198 (5)
Arrangements have been made for your removal. It is anticipated that you will be removed from Australia on or after Wednesday 10 April 2024. The Department will monitor these arrangements until your departure to ensure your removal can be effected as intended, including confirming that valid travel documentation is available, that you are medically fit to travel and that you do not have any outstanding legal matters impacting on your removal.
If you wish to raise any matter relevant to the Department’s ability to remove you, please discuss this with your case manager or removal officer. An information sheet on the removal process is attached for your reference.
Subsection 198(5) of the Migration Act provides:
An officer must remove as soon as reasonably practicable an unlawful non‑citizen if the non‑citizen:
(a) is a detainee; and
(b)neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;
regardless of whether the non‑citizen has made a valid application for a bridging visa.
Section 195 of the Migration Act provides:
(1) A detainee may apply for a visa:
(a)within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b)if he or she informs an officer in writing within those 2 working days of his or her intention to so apply—within the next 5 working days after those 2 working days.
(2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.
Mr Grosart has also deposed that the applicant has been diagnosed with schizoaffective disorder and polysubstance abuse with unconfirmed diagnoses of cognitive impairment and dysexecutive functions; and Mr Grosart further deposes that the applicant’s mother proposes to apply for a Subclass 445 (Dependent Child) visa. At the hearing on 9 April 2024 counsel for the applicant said that this was an error. Counsel said that the applicant’s mother intended to apply for a Subclass 802 Child visa (Child visa).
PRINCIPLES
This Court has power under s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act) to grant, among other things, “interlocutory orders, as the Court considers appropriate”. That includes the power courts of equity have traditionally exercised to grant injunctions to “keep matters in statu quo until the rights of the parties can be determined at the hearing of the suit”.[4] Where an interlocutory injunction is sought for this purpose, “it is necessary to identify the legal (which may be statutory) or equitable rights which are to be determined at trial and in respect of which there is sought final relief which may or may not be injunctive in nature”;[5] and a court will grant an injunction if it is satisfied:[6]
(a)there “is a serious question to be tried or that the [applicant] 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 [applicant] will be held entitled to relief”;
(b)the applicant “will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted”; and
(c)the “balance of convenience favours the granting of an injunction”.
[4] Sir Frederick Jordan Chapters on Equity in New South Wales, quoted by Gleeson CJ in ABC v Lenah Game Meats Pty Ltd [2001] HCA 63, at [9]
[5] ABC v Lenah Game Meats Pty Ltd [2001] HCA 63, at [91]
[6] Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148, at page 153 (Mason ACJ)
This does not exhaust the circumstances in which the Court may make an interlocutory order under s 140 of the FCFC Act. Potentially relevant is the observation Dixon CJ made in argument in Tait v The Queen that he had “never had any doubt that the incidental powers of the Court can preserve any subject matter, human or not, pending a decision”.[7] In that case the High Court granted an adjournment:[8]
without giving any consideration to or expressing any opinion as to the grounds upon which they are to be based, but entirely so that the authority of this Court may be maintained and we may have another opportunity of considering it.
[7] Tait v The Queen (1962) 108 CLR 620, at page 623
[8] Tait v The Queen (1962) 108 CLR 620, at page 625
Tait has been applied by the judges of the Full Federal Court in a number of cases in which applications have been made to restrain the Minister from removing unlawful non-citizens from Australia. That includes the judges sitting in the Full Federal Court in Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC.[9]
[9] Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34
In MZAPC the primary judge (Feutrill J) granted an interlocutory injunction restraining the Minister from removing the applicant (detainee) to India in aid of claims for relief the detainee made based on the High Court’s judgment in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[10] Having found the detainee’s claims raised a serious question to be tried, the primary judge granted an injunction restraining the Minister from removing the detainee from Australia in circumstances where the primary judge accepted that Minister was bound by s 198 of the Migration Act to remove the applicant from Australia. The detainee relied on a number of matters as favouring the granting of an injunction. These included the following:[11]
(1)If the injunction is not granted, he will be deprived of the possibility of being granted a visa by the Minister under section 195A, or of having any further for protection considered if his s 48B request is successful.
(2)He fears that he will be harmed if he returns to India. He fears harm from money-lenders from whom he has borrowed a substantial sum of money and that they will injure or kill him. He also considers that his health will suffer because he will not be able to obtain care and medications for mental illness from which he suffers.
[10] Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10
[11] MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 989, at [54]
In relation to the first of these matters, the primary judge said:[12]
However, while remote, any possibility of the grant of a visa under s 195A would be lost if the applicant were removed from Australia. These proceedings are a step along the way to bringing to fruition that remote possibility. Thus, removal from Australia would practically deprive the applicant of the subject matter of the proceeding (his interest in remaining in Australia). That may be a factor taken into account in a consideration of the balance of convenience: CPK20 at [14] (Mortimer J). The third matter may also fall into this category but it is not of any real weight as it has no real connection with issues raised in the proceedings.
[12] MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 989, at [57]
The primary judge considered the second of the matters “of the most significance”.[13] The primary judge accepted the detainee’s evidence that, if returned, the detainee “will face economic hardship and physical and mental health disadvantages if he were returned to India” and, “[s]ignificantly, he is likely to be subjected to harassment, intimidation and potentially violence in connection with debts he owes to money-lenders”.[14] The primary judge also considered relevant the applicant’s ability to conduct his proceeding from India:[15]
In my view, the applicant’s ability to represent himself and, if legally represented, maintain his instructions, will be significantly impeded if he were removed from Australia. In such circumstances, there is a very real prospect that due to physical harm or medical ailment he would not be able to continue to prosecute these proceedings from India.
[13] MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 989, at [58]
[14] MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 989, at [65]
[15] MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 989, at [67]
The Minister applied for leave to appeal and, although leave to appeal was granted, a majority dismissed the appeal. The majority said:[16]
The state of the authorities is such that even though the requesting party accepted that there is a present duty to remove him from Australia, interlocutory relief may be granted to restrain the removal of the requesting party from Australia pending the determination of claims to relief which, if granted, would require action to be taken which may give rise to the possibility of the Minister acceding to the request. This is not because of a claim that the making of a request of itself qualifies the duty imposed by s 198(6) to remove (a claim rejected by each of Colvin, Rares and Wigney JJ) but because of a claim that there has been a Davis-type excess of authority in rejecting a request which, if upheld, gives rise to the future possibility that relief may be granted that requires steps to be taken to reinvigorate that request and, consequently, the possibility of the request being acceded to thereby, at that time, bringing the party making the request outside of the operation of s 198(6).
In short, if the requesting party is successful in obtaining the relief that he seeks then the Court's ability to grant relief that he seeks (which would reinstate him to the position that he should have been if his Past Requests had not been dealt with in a manner that exceeded executive authority) will be frustrated if the statutory duty is performed in the interim. For reasons that have been given, the claim to that relief is arguable. Admittedly, that relief would only put the requesting party in the position where his request was before the Minister at a time when he had not been removed from Australia. However, it was not the case that there was no claim of a kind that might support the interlocutory injunction that was granted.
If follows that there is a foundation for the grant of interlocutory injunctive relief in the present case. In the language of Mortimer J (as the Chief Justice then was) in CPK20, the interlocutory relief granted by the primary judge had a substantive connection to the controversy between the parties.
THE PARTIES’ SUBMISSIONS
[16] Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34, at [133]-[135]
Applicant’s submissions
The applicant applies for the injunction in aid of the application for review of the delegate’s decision made on 8 February 2022 not to revoke the cancellation of the Bridging visa that is currently pending before the Tribunal. The applicant submits that unless the injunction is granted, and as a consequence he is removed to Italy, he will lose all medical and social support he currently has in Australia and, therefore, he will be unable to properly prosecute and participate in his application for review before the Tribunal.
The applicant accepts that, even if he were to succeed on his application for review of the delegate’s decision not to revoke the cancellation of the Bridging visa, the Bridging visa would not be revived. The applicant submits, however, that continuing with the application for review before the Tribunal would not be futile. The applicant’s mother intends to apply for the grant to the applicant of a Child visa, but s 501E(1) of the Migration Act would prevent the applicant making such application unless the Minister’s decision to cancel the Bridging visa is revoked. The applicant also relies on the judgment of Judge Kendall in Spurr v Minister for Immigration and Border Protection, [17] to which I will refer later in these reasons.
[17] Spurr v Minister for Immigration and Border Protection [2018] FCCA 1090
Minister’s submissions
The Minister submits the applicant has not identified any claim for final relief in aid of which the interlocutory injunction the applicant seeks can be granted. The Minister further submits that the granting of the injunction would be futile because, even if the applicant succeeds in his application for review, he would not have any visa because, having withdrawn his application for a protection visa, the Bridging visa expired on 27 September 2023.
The Minister relies on the judgment of Judge Ladhams in BUL23 v Minister for Immigration, Citizenship and Multicultural Affairs.[18] The Minister particularly relies on the following passage from her Honour’s judgment:[19]
The courts have previously recognised the public interest in the proper administration of the Migration Act and I accept the Minister’s submission that this is a relevant factor in considering the balance of convenience. In this regard, I note in particular the following comments of Judge Lucev in APF23 v Minister for Immigration, Citizenship andMulticultural Affairs [2023] FedCFamC2G 182 at [24]:
…Importantly, in the circumstances of this case, there is also the statutory provisions of s 198 of the Migration Act. The public interest in the proper administration of the Migration Act is a further reason why the balance of convenience lies against granting the granting of an injunction. This is particularly so in circumstances where s 198(6) of the Migration Act imposes an obligation on officers of the Department of Immigration and Border Protection to remove an unlawful non-citizen from Australia, with the granting of an interlocutory injunction having the effect of requiring the Minister to direct his officers to proceed in defiance of that section: see also ALY15 v Minister for Immigration and Border Protection [2017] FCA 281 at [12]. The proper administration of the Migration Act is a factor that should be taken into account in deciding where the balance of convenience lies.
[18] BUL23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 628
[19] BUL23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 628, at [51]
DETERMINATION
During the hearing on 9 April 2024 I attempted to express to the parties’ legal representatives what I understood was the basis on which the applicant applies for an interlocutory injunction. I said I understood that the applicant is seeking an injunction to restrain the Minister from removing the applicant to preserve the rights the applicant has to maintain and prosecute his application for review before the Tribunal. Stated another way, unless restrained, the Minister’s removal of the applicant would degrade the rights the applicant currently has to maintain his application for review before the Tribunal. In seeking to express my understanding of the basis on which the applicant is seeking the injunction, I had in mind the effect of the observation Dixon CJ made in argument in Tait, without my being able to recall the case itself, that the incidental powers of this Court can preserve any subject matter, human or not, pending a decision.
I have considered whether this principle applies or arguably applies to the circumstances of the case before me; and I have considered two questions. The first is whether it is reasonably arguable that the rights the applicant has in relation to his application for review by the Tribunal constitutes the subject matter of anything that is before this Court that is capable of engaging the incidental power of the Court to preserve it. That question must be answered in the negative. The applicant has not applied for any final relief other than a final injunction to restrain the Minister from removing the applicant from Australia. That claim for relief has no prospects of success because the applicant accepts that, if he succeeds on his application for review before the Tribunal, the Bridging visa will not be revived.
The second question I have considered is whether it is reasonably arguable that the right the applicant has under s 476 of the Migration Act to apply to this Court in relation to any adverse decision the Tribunal may make in relation to the applicant’s application for review is capable of constituting subject matter of this Court that is capable of engaging the incidental power of the Court to preserve it. That question, too, must be answered in the negative; it is too remote. There is simply no basis for assigning any tangible probability that the applicant will not succeed in his application for review, but that if he does not succeed, the Tribunal’s decision would be infected by jurisdictional error.
I then turn to the applicant’s reliance on Spurr. In that case the detainee claimed the Minister made a jurisdictional error in purporting to remove the detainee pursuant to s 198(5) of the Migration Act. It appears that an interlocutory injunction was granted on 16 April 2018 restraining the Minister from removing the applicant from Australia, but that is not the subject of the judgment on which the applicant relied. The judgment in Spurr on which the applicant relies concerned the determination on a final basis of the detainee’s claims for relief. Judge Kendall found that a decision made under s 198(5) of the Migration Act was a “migration decision” for the purposes of s 476 of the Migration Act, and decided, on a final basis, that the Minister’s decision was not affected by any jurisdictional error. Having arrived at the conclusion on a final basis, his Honour considered whether an injunction should be granted and, in determining that question, his Honour considered the “balance of convenience”.
Judge Kendall’s judgment in Spurr does not assist the applicant. To the extent the detainee in Spurr applied for an injunction, the detainee did so in aid of a claim for final relief the detainee had made in that proceeding. That is different from the circumstances of the case before me. The applicant is seeking an injunction in aid of the right for review that is pending before the Tribunal.
I am not satisfied the applicant has identified or has arguably identified any legal, statutory, or equitable rights which are to be determined at the trial of the proceeding that he has commenced in this Court, “and in respect of which there is sought final relief which may or may not be injunctive in nature”.[20] The applicant has identified nothing more than a final injunction that is framed largely in terms of the interlocutory injunction he seeks and, for the reasons I have already given, has no reasonable prospects of success; and the applicant in substance applies for that injunction, not in aid of any claim for relief he makes in this Court, but in aid of a right he has to pursue his application for review in the Tribunal.
[20] ABC v Lenah Game Meats Pty Ltd [2001] HCA 63, at [91]
In the event the applicant wishes to take this matter further, it is appropriate to record what I would have found had I been satisfied the applicant identified a legal, statutory, or equitable right which is to be determined at the trial of the proceeding that he has commenced in this Court. I would have found that the evidence satisfied me that the applicant suffers from acute mental and other conditions; that he is receiving care in the detention facility at which he is currently held; that he is receiving support from his mother; that, although his father is in Italy, the applicant and his father are estranged; there is no prospect of the applicant receiving any assistance from his father if the applicant were to return to Italy; and whatever assistance and support the applicant would be able to secure in Italy on his return, that would be substantially inferior to the support and care he is currently receiving, and this would substantially reduce the capacity he otherwise would have to pursue his rights before the Tribunal if the applicant remained in Australia, pending the determination of his application for review before the Tribunal. On the basis of these findings, I would have found that the balance of convenience would have favoured the granting of an injunction, even though s 198(5) of the Migration Act would otherwise require the Minister to remove the applicant from Australia.
DISPOSITION
I propose to order that the application for interlocutory relief be dismissed. Given that the final relief the applicant seeks reflects the interlocutory relief he seeks, it follows that the application should also be dismissed with costs. I also propose, therefore, to order that the application be dismissed and that the applicant pay the Minister’s costs, but on the basis that these orders not take effect until three weeks after I pronounce these orders for the purpose of permitting the parties liberty to apply to vary or discharge the orders.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 11 April 2024
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