Federal Court of Australia

Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 181

ORDERS

THE COURT ORDERS THAT:

1.    For the purposes of today's hearing, and pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), the applicant and counsel for the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) are permitted to deliver oral submissions by way of audio link.

2.    For the purposes of today's hearing only, the document that the applicant has filed headed 'Notice of Appeal from the Federal Circuit and Family Court of Australia' is to be treated as an interlocutory application for an injunction to restrain the removal of the applicant from Australia for 30 days in a proceeding seeking leave to appeal from the decision of the Federal Circuit and Family Court of Australia (Division 2) in AKJ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 129 in which the Minister has been named as first respondent and duly served.

3.    The interlocutory application is dismissed.

4.    The applicant must pay the Minister's costs of the application to be assessed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    On 2 March 2023 I dismissed what I took to be an application to restrain the removal of the applicant, Mr Kumar, from Australia in the context of an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA). These are my reasons for dismissing the application.

The bridging visa application

2    Mr Kumar is a citizen of India. He came to Australia on a visitor visa in September 2019. In November 2019 his first application for a substantive visa was made on the basis that he was part of the same family unit as his wife. This was refused in September 2021 and the Tribunal affirmed the refusal in November 2021. In the meantime Mr Kumar applied for a second substantive visa in April 2021. This was refused in July 2021 and the Tribunal affirmed that decision in October 2021. An application for judicial review was dismissed in August 2022. In addition, Mr Kumar has applied for some four bridging visas along the way, each of which was refused by both a delegate and the Tribunal. He had also obtained bridging visas to regularise his migration status while he was in prison for domestic violence and stalking offences.

3    Materially for present purposes, on 24 January 2023 Mr Kumar was an unlawful non-citizen. On that day, he received notice of the intention of the Minister for Immigration, Citizenship and Multicultural Affairs to remove him from Australia. On 3 February 2023 he applied for a bridging visa. The reason given for requiring that visa was that he had booked an aeroplane ticket to go back to India, his country of nationality, and wished to make arrangements for his departure. The date of departure stated on the ticket was 5 March 2023.

4    A delegate of the Minister refused the visa application on 3 February 2023, the same day as Mr Kumar had applied for it. Mr Kumar applied for review of that decision to the Administrative Appeals Tribunal. On 14 February 2023 the Tribunal affirmed the decision.

The Tribunal's decision

5    On 7 February 2023, the Tribunal had received what it took to be a request from Mr Kumar to postpone the hearing before it, which was then scheduled to take place on 10 February 2023. The basis of the request was that Mr Kumar was in 'quarantine' in immigration detention and there were 'network issues' which meant that he could not contact any lawyer and he was now 'back in the compound' and needed time to look for a lawyer. The Tribunal refused to postpone the hearing. On 9 February 2023 Mr Kumar again pressed for a postponement, referring to a need to find representation, a deficiency in his English, and a need to 'collect more evidence from the community'. The request was again refused.

6    The Tribunal gave reasons for its refusal. Where a visa applicant was in detention it was required to make a decision within seven working days (acknowledging that this could be extended with the consent of the applicant and such consent had been implied by Mr Kumar's requests). Mr Kumar's immigration history also showed he had experience in navigating visa applications. The Tribunal considered he should have obtained legal representation when he applied for review to the Tribunal and should have collected 'evidence from the community' when he made the bridging visa application, and that he had had adequate time to prepare the visa application and review application. The Tribunal also considered that there was little prejudice to Mr Kumar if his bridging visa application was refused as he could apply for another one after 30 days.

7    In the event, technical issues with the remote hearing on 10 February 2023 meant that the hearing was actually held on 13 February 2023 and the application for review was dismissed the next day. Essentially, it was dismissed because the Tribunal did not believe that Mr Kumar did indeed intend to depart Australia on 5 March 2023.

The FCFCOA decision

8    Mr Kumar then applied to the FCFCOA for judicial review of the Tribunal's decision. In that proceeding, Mr Kumar sought an interlocutory injunction to prevent his removal from Australia. He made that application on the same day that his Tribunal application was dismissed, 14 February 2023. The primary judge made an order restraining the removal of Mr Kumar from Australia until 17 February 2023. In the meantime Mr Kumar sought review on the basis that the refusal of the Tribunal to postpone his hearing was a denial of procedural fairness. The FCFCOA assigned a pseudonym to Mr Kumar on the basis of his previous migration history 'out of an abundance of caution' but since I have not considered it necessary to refer to that history in great detail in these reasons, I have not done the same.

9    On 22 February 2023, the FCFCOA dismissed the injunction application. Citing Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], the primary judge set out the well-known matters the court must ordinarily consider on an application for an interlocutory injunction, namely that an applicant must show a sufficient likelihood of success to justify the preservation of the status quo pending the trial, and that the inconvenience or injury which the applicant 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. Citing Morrison v Minister for Immigration and Citizenship [2007] FCA 723 at [22], her Honour also referred to the fact that those two matters are interrelated, in that the stronger the case that the decision maker made an arguable error, the less an applicant may need to establish in relation to justifying the grant of relief.

10    The primary judge accepted that Mr Kumar had established a serious question to be tried in relation to the application for judicial review. This was, in part, on the ground that the Tribunal's refusal to grant an adjournment may have been legally unreasonable. The primary judge considered that the Tribunal had not engaged with Mr Kumar's complaint that he had been experiencing network issues. This gave rise to an arguable case that the Tribunal had fallen into jurisdictional error, although the Tribunal's reasoning that he had still had time to retain a lawyer, and had experience in navigating bridging visa applications, could have caused difficulties for Mr Kumar succeeding in that case. The primary judge also considered that there was an arguable case that the Tribunal fell into jurisdictional error by reasoning that Mr Kumar would suffer little prejudice because he could apply for a bridging visa again after the expiry of 30 days when, in fact, he was liable to be removed from Australia in the meantime. But again, her Honour acknowledged that there were arguments that the Minister could raise to the effect that this was not an error, although not arguments so compelling as to mean that there was not a serious question to be tried.

11    The primary judge also accepted that there was a reasonably arguable case that the Tribunal had breached s 359A of the Migration Act 1958 (Cth), which required it to give Mr Kumar clear particulars of information that it considered would be the reason, or part of the reason, for affirming a decision under review. The information in question here was information about the status of a domestic violence order against Mr Kumar, which had been obtained in court in January 2023 in favour of his wife. Because Mr Kumar has been in prison or immigration detention since January 2021, the Tribunal was not satisfied that he necessarily knew about that particular domestic violence order. But it did not consider the domestic violence order to be relevant to the review. Once again, her Honour considered that the omission of the Tribunal to follow the s 359A process in relation to the domestic violence order documents meant that Mr Kumar had a reasonably arguable case sufficient to give rise to a serious question to be tried, however her Honour acknowledged that the Minister had arguments to the contrary, on the basis that the domestic violence order had not been material to the Tribunal's decision.

12    Nevertheless, the primary judge did not consider that the balance of convenience was in favour of granting the injunction. Her Honour acknowledged that if she refused the injunction, it was unlikely that Mr Kumar would have an opportunity to depart Australia voluntarily or to see his children before he departed. He has two very young children who are in Australia. There was no suggestion that they (or their mother, Mr Kumar's wife) would accompany him to India if he were to obtain the bridging visa to permit his voluntary return. Her Honour considered it possible, despite the domestic violence order, that if the bridging visa were to be granted Mr Kumar may be able to see the children 'through his lawyer'. It did not appear, however, that he had a lawyer at the time of the FCFCOA hearing, since he was self-represented in that court, albeit his grounds of review were evidently drafted with some legal assistance.

13    The primary judge also considered the effect of refusing to grant a visa on the judicial review application, and found that it could proceed by video or telephone even if Mr Kumar were to be removed to India. Her Honour acknowledged, however, that this would take away the basis for the bridging visa application and so arguably render the judicial review application futile. This would, she said, in ordinary circumstances, tip the balance of convenience in favour of Mr Kumar. But in this case, the Minister had identified the obligation on Department officers under s 198(6) to remove Mr Kumar as an unlawful non-citizen and that an interlocutory injunction would 'have the effect of requiring the Minister to direct his officers to proceed in defiance of that section'. Referring to CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [14]-[15] (Mortimer J), the primary judge took into account the public interest in the due administration of the Migration Act. Her Honour took into account in particular that Mr Kumar's last 'substantive visa' application (a term her Honour evidently used to distinguish it from a short term bridging visa) was finally determined by the Tribunal some 18 months ago and his application for judicial review dismissed some six months ago and that, due to statutory bars, he may have exhausted his options to obtain a substantive visa onshore. Her Honour noted that even if the judicial review application were successful, Mr Kumar would remain an unlawful non-citizen liable to be removed from Australia and that any interlocutory injunction would be lifted once the application had been granted.

14    The primary judge also considered the fact that the stated purpose of the bridging visa application was to enable Mr Kumar to make arrangements to depart Australia anyway. Her Honour found that the main difference from his point of view would be the manner in which he would leave and, in particular, the possibility that if the bridging visa were granted he might be able to see his children before he left. Her Honour referred to Arkan v Minister for Immigration and Multicultural Affairs [2000] FCA 1134 (Tamberlin J) and Lewai v Minister for Immigration and Multicultural Affairs [2001] FCA 1309 (Hely J), in each of which it was found (in her Honour's summary of the latter case) 'that there was little real benefit in delaying the applicants' departure until they could satisfy the Minister that they had made suitable arrangements for departure'.

15    The primary judge found that this was also the position in Mr Kumar's case. Her Honour acknowledged that granting the injunction may have left open the possibility that he could briefly see his children before he departed Australia, if both the judicial review application and the merits review were decided in his favour and if there were no legal impediments to his seeing his children. Her Honour said that Mr Kumar's desire to see his children was understandable and she accepted that it would be upsetting to him if he did not have an opportunity to see them. But there was no evidence before her that he would be able to establish any meaningful relationship with them in circumstances where his departure from Australia was imminent. Her Honour acknowledged that the cases in which a similar approach had been taken, Arkan and Lewai, were cases where the Court had found that there was no serious question to be tried, but she proceeded on the basis that her finding that there was a serious question nevertheless did not prevent her finding that the balance of convenience favoured the Minister, so that injunctive relief should nevertheless be refused.

The present proceeding

16    The matter came before me on the evening of 2 March 2023 in circumstances of urgency. The Minister planned to fly Mr Kumar to Sydney later that night so that he could then fly from there to India early on the morning of 3 March 2023. Mr Kumar has not been legally represented in this proceeding and it appears that he tried to commence an appeal from the primary judge's decision by filing documents on 28 February 2023, but those documents were rejected by the Court's registry. Given his impending departure, however, they were accepted for filing on 2 March 2023, and the matter thus came before me as duty judge. At the time of the hearing Mr Kumar was in a holding area at the immigration detention centre, awaiting his departure for the airport, so the hearing proceeded by audio link, with the assistance of an interpreter.

17    Although the documents commencing the appeal were accepted for filing, there were numerous substantial defects in them. The Minister had not been named as a respondent, there was no evidence that he had been served, there were no grounds of appeal specified at all, and the documents did not seek leave to appeal from what was an interlocutory decision. Nevertheless, the Minister did appear at the hearing by counsel (via audio link) and I directed that, for the purposes of the hearing on 2 March 2023 only, the relevant procedural requirements were to be dispensed with (reserving to the Minister, however, the ability to make submissions about the absence of grounds of appeal). As a result, the hearing proceeded on the basis that Mr Kumar sought leave to appeal from the primary judge's decision and sought an injunction restraining his removal pending resolution of that application for leave and any appeal.

18    In a similar vein, and in view of the urgency, both parties gave what amounted to evidence from the bar table without objection. The Minister also relied on an affidavit of Ashley Burgess affirmed on 2 March 2023.

The parties' submissions

19    Mr Kumar's 'notice of appeal' did not seek an interlocutory injunction in terms. But it could be inferred that an injunction restraining his removal from Australia is what he sought. That appeared from the circumstances of his impending departure, and from one order sought in the notice, a 'Writ of Prohibition, Restraining the 1st respondent, his employees, officers, delegates or Agents from acting upon or giving effect to the decision'. In oral submissions I obtained clarification from Mr Kumar as to what he wanted the Court to do and he confirmed that he wanted another month in Australia so that he would have time to 'put up my case'. He said that his flight should be cancelled so that he had time to prepare his case.

20    I explained to Mr Kumar that in order to obtain an injunction he would need to point to something that the primary judge got wrong in her decision, and would also need to address me on the harm he said would be caused if an injunction were not granted. In that regard I drew his attention to the fact that his visa application was on the basis that he was going to be leaving Australia on 5 March 2023 anyway, so it could be said that if he were removed involuntarily two days earlier, that would not make any difference.

21    In response to the first question (what did the primary judge get wrong?) Mr Kumar alleged that both before and after the Tribunal's decision he had been placed in a position in immigration detention where he did not have facilities to prepare his application properly. This appeared to include reiteration of the complaint he made before the Tribunal about network issues impeding his preparation of his application for review. Mr Kumar said that he had only become aware two hours previously that he was going to be removed that night. He also pointed out that he did not have good English and repeated that he needed 'justice' so that he could prepare his application. He wanted 'one more chance' to prepare everything in a proper manner. So his submissions, while understandable in the circumstances, did not address the question of what appealable errors the primary judge was said to have made. There was no suggestion that any of the difficulties to which he referred affected his application in the FCFCOA, where the primary judge gave him a period of time (understandably short in the circumstances) to file additional documents, of which he took advantage, and where it appeared that he had legal assistance to draft his grounds.

22    When asked why a bridging visa, if granted, would make any difference, Mr Kumar essentially repeated the same submissions. He also said that he would have no opportunity to see his children again.

23    The Minister opposed the grant of any injunction. Counsel for the Minister submitted that even though Mr Kumar did not have the ideal circumstances to prepare his case, he had been able to prepare documents and send them to the Court. He submitted that the real issue was not a lack of facilities but that Mr Kumar was a self-represented litigant who was unable to articulate any error on the part of the primary judge. Counsel pointed out that Mr Kumar had said nothing about whether he would seek or be able to obtain legal assistance if given more time. He had, however, had the opportunity to get that assistance for both the Tribunal and FCFCOA applications.

24    The Minister further submitted that there was no serious question to be tried. The primary decision, counsel submitted, was made properly in accordance with correct legal principles and with proper regard to the facts of the case. The primary judge had adjourned for a few days to permit the parties to prepare and present their cases as they saw fit. There was no error in articulating the test for the grant of interlocutory injunctions or in the application of the test to the facts.

25    As for the balance of convenience, the Minister submitted that Mr Kumar had applied for the bridging visa on the sole ground that he wished to make appropriate arrangements to depart Australia on 5 March 2023. He had booked a flight on that date. Counsel for the Minister did not submit that if the matter were remitted to the Tribunal, Mr Kumar and the Tribunal would be bound to approach the review on the basis of that date. He accepted some extension might be possible. But, counsel submitted, in seeking an injunction Mr Kumar was still only seeking to delay the inevitable. As put by the primary judge at its highest, this might have given him the possibility of seeing his children. On the other side of the balance of convenience, there would be cost and inconvenience to the Department which, counsel submitted, was not trivial. That was in a context where Mr Kumar had been 'on a removal pathway' since the beginning of the year and his removal on other occasions had been cancelled for various reasons. Counsel submitted that the removal of unlawful non-citizens as promptly as possible was an important element of the administration of the Migration Act, reflected in the statutory duty imposed by s 198 of the Act.

26    In reply, Mr Kumar submitted again that he was not given a proper opportunity to put up his case. At the same time, he said he would book his ticket again and make his own arrangements to travel by himself. But he said he needed more time.

Disposition

27    I decided not to grant any interlocutory injunction because I did not consider that Mr Kumar had a serious case to be tried and also I did not consider that the balance of convenience favoured him.

28    I made that evaluation conscious that Mr Kumar had been given little time to prepare any application after he had been given notice of the intention to remove him. Mr Burgess's affidavit contained evidence of concerns held by Department officers that if too much notice were to be given of the intention to remove him, Mr Kumar might be a danger to himself and others. Previous scheduled removals had been cancelled for such reasons. But while he may not have received formal notice until shortly before he made his application, he must have been aware that his removal was imminent and that it would be in his interests to make any application he wished to make to prevent that as soon as possible after the FCFCOA decision on 22 February 2023. This is evidenced by the fact that it seems he did try to file an appeal on 28 February 2023, before he was given written notice of the removal he was attempting to restrain.

29    In relation to a serious question to be tried, Mr Kumar's notice of appeal contained no grounds, and when asked what errors the primary judge had made, he did not identify any. Of course he is a self-represented litigant with little or no command of English, and due allowance must be made for that. But I did not consider that due allowance extended to speculating that legal assistance which Mr Kumar might obtain might identify an arguable error. That is especially so where Mr Kumar's submissions gave no indication that he intended to seek legal assistance or that he had any prospect of obtaining it. This was pointed out by counsel for the Minister, so if Mr Kumar had any such intention to seek legal assistance he had an opportunity to say so in reply, but did not.

30    In any event, no error is apparent on the face of the primary judge's reasons. Her Honour found in Mr Kumar's favour, in effect, in relation to whether there was a serious question to be tried on the judicial review application, so he could not have complained about that aspect of the decision. As for the balance of convenience, I respectfully agree with her Honour's reasoning and need not repeat it. In addition, it must be recalled that her decision was a discretionary one so to succeed on any appeal (assuming leave to appeal were to be granted), Mr Kumar would need to show an error of the kinds described in House v The King [1936] HCA 40; (1936) 55 CLR 499. No such error is apparent. I therefore did not consider that Mr Kumar had a serious case to be tried on any appeal from the primary decision.

31    The factors that I was required to weigh in considering the balance of convenience on the application before me are the same as those that pertained to the application before the primary judge, and I have already expressed agreement with her Honour's reasoning about them. But I would emphasise three matters. The first is that Mr Kumar was (on his case) going to be leaving Australia soon anyway. The second is that, as revealed by the reasoning of the primary judge, success on both the judicial review application and a subsequent merits review application would only give Mr Kumar the possibility of briefly seeing his children again. While his unhappiness at not seeing his children will no doubt be real, the chance that not granting an injunction would deprive him of any real opportunity to see them was small.

32    The third matter is that the public interest in the due administration of the Migration Act is not trivial. In CPK20, after referring to the fundamental principle that the court should take whichever course appears to carry the lower risk of injustice if its decision should turn out to have been 'wrong', Mortimer J said (at [15]):

In public law, evaluating the 'risk of injustice' to the repository of a public power may involve a different kind of evaluation. The risk of injustice may, in such circumstances, relate to the frustration of legislative intention within a legislative scheme, or the interruption of the course otherwise contemplated by law. Nevertheless, consideration of which course has the lower risk of injustice may still provide useful guidance to the Court in assessing whether it is appropriate to grant interlocutory relief.

33    With that in mind, Mr Kumar's migration history as recounted at the beginning of this judgment, is relevant. No doubt in many cases, different to this one, the public interest I have mentioned will not weigh as heavily in the balance as countervailing factors. But in light of that history, and the other two matters I have emphasised, I consider that in this case it did weigh heavily. There was a high likelihood that if the injunction were not granted, Mr Kumar would have again been able to delay the inevitable, and so to frustrate the statutory scheme. That, combined with my assessment that there was no serious case to be tried, led me to dismiss what I took to be his application for an interlocutory injunction, with costs.

Associate:

Dated:    6 March 2023