Federal Court of Australia

Pokrywka v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 712

ORDERS

THE COURT ORDERS THAT:

1.    The Commonwealth of Australia is joined as the third respondent to the proceeding.

2.    The applicant's interlocutory application accepted for filing on 1 July 2024 is dismissed.

3.    The applicant's application for an extension of time accepted for filing on 1 July 2024 is referred for allocation to a docket Judge.

4.    By 4.00 pm AWST on 9 July 2024, the parties must file a minute of proposed consent orders, or if necessary, competing minutes, addressing what costs orders should be made.

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

REASONS FOR JUDGMENT

(edited from the transcript)

JACKSON J:

1    The applicant, Mr Pokrywka, seeks an interlocutory injunction to stop Border Force from removing him from Australia. His removal is scheduled for 3 July 2024. The matter has come before me as duty judge.

2    Mr Pokrywka is a citizen of the United Kingdom. In August 2019, the visa permitting him to live in Australia was cancelled, due to a serious criminal conviction involving possession of a large quantity of methylamphetamine. In October 2020, a delegate of the first respondent (Minister) refused to revoke the cancellation of the visa. In December 2020, the Administrative Appeals Tribunal affirmed that decision. On 31 October 2022, a judge of this Court dismissed an application for judicial review of the Tribunal's decision.

The basis of the application for an interlocutory injunction

3    Mr Pokrywka was self-represented when he commenced the current proceeding, but he secured the assistance of a legal practitioner, Mr Kew, on the day before the hearing, and in the circumstances of urgency, Mr Kew was given leave to represent him at this hearing. The proceeding as a whole is an application for leave to appeal from the primary judge's decision. That is necessary because Mr Pokrywka is out of time to appeal as of right. He seeks the injunction by way of an interlocutory application filed in the proceeding.

4    As best one can tell, when Mr Pokrywka commenced the proceeding his application for an injunction was put on two bases. The first was that he contended that the Tribunal's decision was wrong and that certiorari should be granted to quash it. I infer that he contended that he should not be removed from Australia until he was given the opportunity to pursue a proceeding for certiorari to its conclusion.

5    The second basis for the injunction appeared from the fact that in the interlocutory application, Mr Pokrywka cited Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10. That case concerned a personal non-delegable power the Minister has under s 351(1) of the Migration Act 1958 (Cth) to substitute a more favourable decision for the decision of the Tribunal in certain circumstances. On 27 March 2024, Mr Pokrywka made a request which the Department of Home Affairs has treated as a request for the Minister to exercise a similar personal non-delegable power in his favour. On 16 April 2024, the Department responded on behalf of the Minister acknowledging receipt of the request. I infer that Mr Pokrywka contended that he should not be removed from Australia until the request received a substantive response, alternatively until a reasonable time had elapsed to enable the Minister to consider it.

6    Since receiving instructions to act for Mr Pokrywka in circumstances of urgency, Mr Kew has not sought to amend either the grounds on which the injunction is sought, or the proposed grounds on which the 'appeal' is to be pursued. I put the word in inverted commas because it is immediately obvious that the basis on which Mr Pokrywka pursues the application for leave to appeal does not raise any proposed grounds of appeal. It is an attack on the decision of the Tribunal, for which certiorari is sought. It is, then, an attempt to make another application for judicial review, after the primary judge dismissed a previous application of that kind. It is not an appeal.

7    Nevertheless, given the urgency of the matter, I am prepared to make allowance for procedural deficiencies, even fundamental ones. It is possible to conceive of the application for leave to appeal as being based on proposed grounds of appeal that seek to raise points not raised before the primary judge. I will proceed on that basis.

8    Similarly, it is possible to conceive of Mr Pokrywka's reliance on Davis in his application for an interlocutory injunction as raising, as an aspect of the originating application, an application for prerogative relief against the Secretary of the Department arising out of the request for clemency, as Mr Pokrywka called it, of 27 March 2024. In that respect, and also because Mr Pokrywka was seeking an injunction restraining officers of the Commonwealth from removing him, it was appropriate to add the Commonwealth as the third respondent in the proceeding.

No serious case for an extension of time to appeal

9    In exercising the discretion to grant or refuse an interlocutory injunction, I must consider whether there is a serious case to be heard and where the balance of convenience lies. Those two factors are interdependent; the stronger the case, the easier it will be to satisfy the requirement as to the balance of convenience, and vice versa: see the summary of the principles in Frigger v Trenfield [2019] FCA 1746 at [6].

10    With respect, the present application for leave to appeal fails at the first hurdle, because a serious case has not been established. Mr Pokrywka seeks leave to appeal. He is some 19 months out of time. The explanation he gives for the delay in his grounds of the application for an extension of time is:

I sought the assistance of my former legal counsel, Mr. G Barnes SC, for my appeal. During my incarceration, our communications were hindered. Subsequently, Mr Barnes informed me that he would not represent me. By that time, I had surpassed the appeal deadline and lacked access to the internet and computers necessary to file an appeal on my own behalf.

11    That is vague and does not satisfactorily account for such a long delay. Nor does it say why, or when, it became possible for Mr Pokrywka to put the current application together. Also, it appeared from evidence and submissions that on 19 June 2024 he was notified of his planned removal on 3 July 2024. He lodged this application on 30 June 2024, and it was accepted for filing on 1 July 2024. It can be inferred that Mr Pokrywka was only prompted to make the application when his removal from Australia became imminent. Generally speaking, in those circumstances it would not be in the interests of justice to accede to applications for an extension of time to appeal unless the Court were positively satisfied that it was not possible for them to be made any earlier.

12    In addition to that, as has been mentioned, if Mr Pokrywka were to be given leave to appeal out of time, he would also need leave to raise grounds not raised before the primary judge. He would need to satisfy the Court that it is expedient in the interests of justice to grant leave, in face of the general principle that it is fundamental to the due administration of justice that the issues between the parties are ordinarily settled at the trial: Coulton v Holcombe (1986) 162 CLR 1 at 7; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[47].

13    Generally speaking, the merits of any proposed new grounds are an important aspect of the decision as to whether it is expedient in the interests of justice to grant leave. While it is not for me to determine the matter finally on an application for an interlocutory injunction, the submissions advanced on Mr Pokrywka's behalf do not satisfy me that he has a serious case for leave to appeal on any proposed new grounds. The submissions rely upon Mr Pokrywka's family connections with Australia, and in particular, the interests of his youngest daughter who is presently 12 years old. But the Tribunal considered those matters, as it was bound to do under Direction 79: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA: see paragraphs 98-116 of the Tribunal's decision. The Tribunal gave particular attention to the best interests of Mr Pokrywka's youngest daughter, and it also addressed the interests of other minor children, and the strength, nature and duration of Mr Pokrywka's family ties.

14    Mr Kew submitted that it appeared from the Tribunal's reasons that no reports concerning Mr Pokrywka's daughter's interests, such as a report from a psychologist, had been considered by the Tribunal. That appears to be correct, as at paragraph 104(b) of the Tribunal's reasons it said that there was no independent evidence of the effect that ongoing separation would have on the child. The Tribunal also (at para 103) referred to a letter that had been provided by the principal of the daughter's primary school. And the Tribunal also mentioned that the daughter is being seen by a psychologist, but does not mention a report from that psychologist.

15    The fundamental difficulty with relying upon the Tribunal's lack of consideration of such a report, in this case, is that there is no reason to think that any such report was before the Tribunal. Even taking into account the fact that the Tribunal's processes are not adversarial in nature, it was Mr Pokrywka's responsibility to present such materials to it. That arises from the nature of the statutory power the Tribunal is exercising in cases of this kind, and in particular, the way that that statutory power is invoked. It is the power under s 501CA(4) of the Migration Act to revoke a decision to cancel a visa in circumstances of this kind if, relevantly the person whose visa is cancelled 'makes representations' in accordance with an invitation issued to the person under s 501CA(3). If the representations of the person do not include psychological reports of the kind referred to by Mr Kew, then it is difficult to see how the Tribunal can fall into jurisdictional error for not referring to any reports of that kind: see Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [69] (Flick and Rangiah JJ, Logan J agreeing generally).

16    On that basis, and even if the significant procedural impediments to Mr Pokrywka relying on a ground of that kind are set to one side, there does not appear to me to be an arguable case that the primary judge's decision should be reversed on grounds not put to his Honour.

17    It follows from the above that there is no serious case for an extension of time to appeal.

No serious case for an injunction in reliance on Davis

18    The other possible basis for Mr Pokrywka's application for an injunction that I have mentioned was also canvassed in submissions before me today. There is material before me, in an affidavit of Georgina Ellis filed today, to indicate that:

(a)    as has been said, on 27 March 2024, Mr Pokrywka made a request, framed by him as a request for 'clemency from being deported to the UK';

(b)    that request has been treated as a request for the Minister to exercise his personal non-compellable discretion under s 195A of the Migration Act to grant a visa to Mr Pokrywka as a person in detention; and

(c)    the request has been provided to the office of the Minister - an email dated 2 July 2024 from an officer of the Department of Home Affairs says that the submission 'is with the Minister for consideration'.

19    To the extent there is any ambiguity as to whether the provision of the request to the Minister's office is equivalent to referring it to the Minister personally, counsel for the Minister submitted that, put at its highest, it is arguable that there is a duty on the Secretary representing the Department of Home Affairs to refer requests of the present kind to the Minister for consideration: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; (2021) 288 FCR 23 at [259]-[262] (Charlesworth J, Griffiths J agreeing, with the High Court appeal subsequently allowed on different grounds). It is that duty that is arguably compellable by mandamus: see the discussion of the issue in HBMH v Commonwealth of Australia [2023] FCA 1527 at [11], [30]-[44]. The evidence establishes that officers of the Department, on behalf of the Secretary, have discharged that duty.

20    Mr Kew did not take issue with that reasoning. Therefore, it does not appear to me that there is a serious case to be tried on the second basis potentially put by Mr Pokrywka, as I have described it.

Balance of convenience and discretionary factors

21    In those circumstances it is not necessary to canvass thoroughly the balance of convenience and other discretionary factors. However, two matters are worthy of mention.

22    The first has already been raised, namely, that there has been a long delay between the primary judge's decision in October 2022 and the making of this application by Mr Pokrywka, which delay has not been satisfactorily explained. Even if the timing of the application is considered relative to 19 June 2024, when Mr Pokrywka was notified of his removal, there has been no explanation of why it took some 10 days for this application to be brought after that time. In short, the unexplained delay in making the present application is a discretionary factor against granting it.

23    The second discretionary factor worthy of mention is that, as counsel for the Minister pointed out, it will still be open to Mr Pokrywka to pursue his application for leave to appeal, even after he is removed to the United Kingdom. I say immediately that I do not underestimate what I am sure will be very significant practical impediments that Mr Pokrywka will face after being removed from Australia, the country where he has lived since he was 12 years old, to a country that is unfamiliar to him, where he will need to establish necessary social and other supports. But I put some, albeit not great, weight on the fact that his removal to that country will not render the present application for leave to appeal nugatory.

Conclusion

24    For those reasons, and principally because I do not consider, with respect, that a serious case to be heard has been established, the application for an interlocutory injunction is dismissed. The application for leave to appeal will be referred to the Court's National Operations Registry for allocation to a docket judge in due course.

Associate:

Dated:    3 July 2024