Federal Court of Australia

Merriman v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 834

ORDERS

THE COURT ORDERS THAT:

1.    The time for compliance with paragraph 1 of the orders made on 23 July 2024 (by which the respondents must file and serve an outline of written submissions of no more than five pages in length with any supporting affidavits) is extended to 4.00 pm AWST on 13 August 2024.

2.    The time for compliance with paragraph 2 of the orders made on 23 July 2024 (by which the applicant must file and serve an outline of written submissions in reply of no more than five pages in length with any supporting affidavits) is extended to 4.00 pm AWST on 27 August 2024.

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

REASONS FOR JUDGMENT

JACKSON J:

1    On Thursday, 18 July 2024 I heard, as duty judge, an application for the continuation of an interlocutory injunction pending the outcome of an application for leave to appeal from a decision of the Federal Circuit and Family Court of Australia (Div 2) (Circuit Court). The primary judge dismissed an application for an interlocutory injunction pending the outcome of an application for judicial review in that court, and ordered costs against the applicant. In turn, the application for judicial review concerns a decision of a delegate of the first respondent (Minister) to cancel a Subclass 651 eVisitor visa that the applicant held. The Minister opposed the application for continuation of an interlocutory injunction in this Court.

2    I was due to deliver judgment on the application at 2.15 pm on Tuesday, 23 July 2024. Approximately an hour before that time, the applicant's solicitors emailed my Chambers saying that their client did not require a further extension of the injunction. At the 2.15 pm listing, counsel for the applicant sought to withdraw the application for the continuation of the interlocutory injunction on the basis that:

(a)    the applicant had made a new application for a partner visa which, if accepted as a valid application, would disengage the Minister's power to remove him from Australia;

(b)    the Minister had told the applicant that he would give him 48 hours' notice of any intention to remove him from Australia, and had given no such notice at the time of the hearing; and

(c)    if such a notice was given, the applicant reserved his right to seek to bring the matter back on.

3    On the basis that the applicant did not press the application for the continuation of the interlocutory injunction, I made no order on 23 July 2024, other than to program submissions and any affidavits as to costs. I told the parties that their submissions should address the relevance, if any, of the Court's discretion to order costs in the present circumstances, given that I had prepared reasons and had been ready to deliver judgment.

4    The Court has not been apprised of any further developments in the matter since then and the applicant has made no attempt to seek a further injunction. It would appear that the parties remain in dispute as to the costs of the application that was to be determined on 23 July 2024, and possibly also as to the procedural consequences of the applicant's indication at the hearing that the application was withdrawn.

5    In the circumstances, I consider it appropriate to publish the reasons that would have been delivered at the judgment hearing on 23 July 2024, so that the parties can frame their costs submissions accordingly. Ordinarily, it is not appropriate to determine substantive issues that were or remain in dispute between the parties in order to resolve a question of costs: see Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84; (2018) 97 NSWLR 681 at [8] (Basten JA). And while it is a 'highly questionable use of judicial time to prepare a judgment on a matter that has been settled' (Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company [2021] FCAFC 110; (2021) 290 FCR 110 at [8]), that consideration falls away in unusual circumstances like these, where the judgment was ready for delivery (see also Hub Street at [8]).

6    Above all, I consider that it would be artificial in these particular circumstances for the parties to make submissions on costs without knowing what the outcome would have been, and without knowing the reasons for that outcome. It would be all the more artificial for the Court to determine the costs dispute without regard to that outcome. Out of fairness to the parties, they should be put on notice as to what the result would have been, and of the reasons, and so given an opportunity to address those matters in their submissions as to costs. An extension of a week will be given on each of the programming deadlines to permit that to occur.

7    I therefore publish the following reasons, being the reasons I was ready to deliver on 23 July 2024.

Procedural history

8    Some procedural history is necessary to set the present application in context. The primary judge refused the application for an interlocutory injunction in circumstances of urgency on Friday, 12 July 2024. The urgency arose because the eVisitor visa had been cancelled at Perth Airport on Wednesday, 10 July 2024, the applicant was held in detention, and the Minister had expressed an intention to remove him from Australia early on the morning of 13 July 2024.

9    An application for judicial review of the delegate's decision was filed in the Circuit Court on Thursday, 11 July 2024. The Circuit Court having refused to grant an interlocutory injunction on Friday, 12 July 2024, an application for an injunction was made informally to this Court on the same evening. At a hearing convened shortly afterwards, Banks-Smith J granted an interim injunction until 4.30 pm on 16 July 2024.

10    The Circuit Court had not, of course, had an opportunity to publish reasons at that point, and this Court proceeded on the basis of a note of the primary judge's reasons prepared by a solicitor acting for the Minister. When reasons or a judgment transcript were still not available by the morning of 16 July 2024, I determined that it would be necessary in order to conduct an orderly hearing of the injunction application to extend the interim injunction until 5.00 pm on 18 July 2024. The primary judge's reasons for decision have since been published and the parties had an opportunity to file affidavits and written submissions.

11    I relate this procedural history partly so as to dispose at the outset of a submission counsel for the applicant made to me, namely that to decline to extend the present interim injunction further would involve a review of the exercise of discretion that led to the order that Banks-Smith J made on the night of Friday, 12 July 2024. Counsel submitted that her Honour determined that the injunction should be granted pending the outcome of the application for leave to appeal.

12    That submission is contradicted by the terms of Banks-Smith J's order itself. On its terms it would have expired at 4.30 pm on 16 July 2024, had I not extended it for a short time to permit the hearing to proceed on an orderly basis on 18 July 2024.

13    As such, declining to extend the injunction would involve neither reviewing her Honour's exercise of discretion nor upsetting the status quo. The discretion the Court exercised on Friday, 12 July 2024 was a discretion to grant an injunction for a short period of time, after hearing the application for an injunction in circumstances of great urgency, so that the application could be pursued in a more orderly way. On 16 July 2024, that injunction was extended for a short additional period for the same purpose. At the hearing on 18 July 2024 I listed the application for judgment on 23 July 2024 and extended the injunction until 5.00 pm on the same day to preserve the position until then. If not further extended, the injunction will expire at that time. Declining to make a further order will therefore involve no review of the orders made on 12 July 2024. It will simply be to let the orders as extended take their course. The onus is on the applicant to persuade me to extend the injunction further.

14    Counsel for the applicant also relied on the transcript of the hearing before Banks-Smith J but it does not support his submission. It is clear from the transcript that her Honour, after expressing some necessarily tentative views about matters going to the merits of the application for an interlocutory injunction, granted one for a short period so that the position could be properly considered, including with the benefit of the transcript of the hearing before the primary judge. Her Honour did not consider it appropriate at that point to deny the applicant the ability to pursue the leave application. None of that means that her Honour determined that there was sufficient merit in the application for leave to appeal to mean that an injunction should be granted until that application was heard. If that had been her Honour's view, that is what the order would have said. I proceed on the basis that the onus is on the applicant to persuade me that it is appropriate to continue the injunction past the date of this judgment.

Principles governing interlocutory injunctions

15    The well-established principles for the grant of an interlocutory injunction were summarised in Frigger v Trenfield [2019] FCA 1746 at [6]. In so far as they are relevant presently, they are:

…

(2)    Where an applicant seeks interlocutory relief, it is necessary to demonstrate that:

(a)    there is a serious question to be tried as to the applicant's entitlement to relief;

(b)    the applicant is likely to suffer injury for which damages will not be an adequate remedy; and

(c)    the balance of convenience favours the granting of an interlocutory injunction.

Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] (Gleeson CJ and Crennan J).

(3)    The applicant must show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial: ABC v O'Neill at [65] (Gummow and Hayne JJ); Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 at [9] (Beech J).

(4)    The likelihood of success required is dependent upon the nature of the right being asserted and the practical consequences that are likely to flow if the injunction is granted: ABC v O'Neill at [71]; Twinside at [9]; Apotex Pty Ltd v Cipla Limited [2017] FCA 1627 at [40] (Beach J).

(5)    The resolution of the question of where the balance of convenience and justice lies requires the court to exercise a discretion: Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [65] (Dowsett, Foster and Yates JJ). The court will weigh up the injustice which might be suffered by the respondent if the injunction is granted and the applicant later fails at trial, against the injustice which might be suffered by the applicant if the injunction is not granted and the applicant later succeeds at trial: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 623; Twinside at [11].

…

(7)    The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience. The apparent strength of the parties' substantive cases will often be an important consideration to be weighed in the balance: Samsung Electronics at [67]. As the apparent strength of the applicant's case diminishes, the balance of convenience moves against the making of an order: Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49 at 54-55; Twinside at [11].

…

16    It is also helpful to recall the summary of fundamental principle that Hoffmann J (as he then was) gave in Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 at 680:

The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the 'wrong' decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong' in the sense I have described.

17    The arguments before me proceeded on the basis that this was the fundamental principle to be applied here.

The particular procedural framework

18    The recitation of established principles just given does not, however, exhaust the matters that the Court must bear in mind in exercising its discretion on the present application. The particular procedural context of this application requires further comment so that there is clarity about precisely what the Court is now asked to decide.

19    The context in which the injunction is sought is an application for leave to appeal. Leave to appeal is necessary because the applicant wishes to appeal from an interlocutory decision to refuse an interlocutory injunction. If leave is granted, the appeal will be from that decision, not from any decision on the underlying application for judicial review. If any appeal is allowed in substance, the outcome will probably be that this Court grants an injunction pending the outcome of the application for judicial review. While remitter of the injunction application to the primary judge is a possibility, it is unlikely. So if the appeal is allowed, what would return to the Circuit Court would be the substantive application for judicial review of the delegate's decision.

20    At present, therefore, I am being asked to exercise a discretion to grant an injunction until the outcome of an application for leave to appeal from a decision refusing an injunction. In Minister for Immigration, Citizenship and Multicultural Affairs v MZAPC [2024] FCAFC 34, Colvin J and I recently had occasion to describe the nature of the jurisdiction the Court exercises in interlocutory injunction applications in the migration context in the following way:

[100]    So, where, as in the present case, the relief sought is public law relief, the Court has power 'in an appropriate case, to make an interim order which will, in practical effect, preserve the subject matter of a dispute pending its final resolution, or otherwise maintain the status quo so as to enable a court to do justice between the parties': Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu [2000] HCA 23 at [7] (Gleeson CJ).

[101]    It may be accepted that, in determining whether to grant an interlocutory injunction, the Court does not act on the basis of an assessment of what may be thought to be fair or just of a kind that is unanchored from the existence of some claim or right recognised by the Court: Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380. There must be regard to the nature of the claim and the ultimate relief that might be granted if the claim was to be upheld when determining whether it is appropriate to grant an interlocutory injunction and, if so, in what terms.

21    Elsewhere in the same judgment the Court's jurisdiction was described (at [116]) as one 'to preserve the subject matter and the integrity of its own processes so that it may effectively exercise its jurisdiction to adjudicate a controversy and, by its judgment, grant orders that have efficacy'. And still elsewhere (at [126]) it was described as the Court's 'inherent jurisdiction to ensure that its processes are not frustrated by granting interlocutory relief to preserve the subject matter in dispute and to enable it to perform its function as a court'.

22    The immediate focus of the jurisdiction the Court is exercising at present is thus to preserve the efficacy of any final relief that this Court might grant. Generally, to preserve the efficacy of the Court's processes it may be necessary to preserve the subject matter of the dispute. That can be expressed in terms of preserving the status quo. But the status quo is not preserved for its own sake; it is preserved only to the extent that it is necessary to ensure that the Court can do justice between the parties in the controversy that has been brought before it. Proper identification of the subject matter of the dispute that is sought to be preserved by making or continuing an injunction is crucial.

23    Therefore the purpose of any injunction I might grant would be to preserve the efficacy of any final relief granted in this Court. But as has been said, if that final relief were to be granted, it would be in the form of allowing the appeal and, it is likely, substituting for the primary judge's orders an order granting an injunction until the Circuit Court determines the application for judicial review. Putting it another way, the subject matter of the immediate dispute that is to be preserved is the applicant's asserted right to obtain the injunction he had sought from the Circuit Court, pending the outcome of the application for judicial review.

24    Three other features of the procedural context should also be pointed out. While they may be obvious, they are fundamental. The first is that to obtain leave to appeal, the applicant will usually need to satisfy the Court that the primary judge's decision is attended with sufficient doubt to warrant its reconsideration by the appellate court, and that substantial injustice will result if leave is refused (assuming the decision to be wrong): Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398.

25    The second feature is that the primary judge's decision was discretionary, so in order to demonstrate sufficient doubt about his decision, and to demonstrate error on any appeal, the applicant must have regard to the principles in House v The King (1936) 55 CLR 499 at 505. In any appeal the appellant would therefore need to demonstrate that the primary judge acted on a wrong principle, or allowed extraneous or irrelevant matters to guide or affect him, or mistook the facts, or did not take into account some material consideration, or made a decision that was unreasonable or plainly unjust so that the Court could infer that there had been a failure properly to exercise the discretion.

26    The third feature is that, where an interlocutory order does not determine the rights of the parties, it is usually an exercise of discretion on a point of practice and procedure, so that the following observations of Jordan CJ in Re Will of FB Gilbert (dec.) (1946) 46 SR (NSW) 318 at 323 apply:

I am of opinion that … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.

27    In Paringa Mining & Exploration Co plc v North Flinders Mines Ltd (1988) 165 CLR 452 at 457-458, Mason CJ, Brennan and Gaudron JJ said that these considerations weighed strongly 'and rightly so' when the High Court had refused an application for an injunction pending an application for special leave to appeal.

28    It follows from all the above that, to be satisfied that it is appropriate to grant an injunction here, the applicant must satisfy me that he has a serious case for:

(a)    obtaining leave to appeal (applying the principles in Decor and, in relation to the question of doubt about the correctness of the primary decision, the principles in House); and

(b)    obtaining an order allowing the appeal against the primary judge's orders (applying the principles in House and Gilbert).

29    Then, taking into account the strength of the case as disclosed, and the balance of convenience (that is, the risk of injustice), I must decide whether it is necessary to extend the injunction in order to preserve the efficacy of the appeal being allowed, or otherwise to do justice between the parties in the controversy that is before this Court.

30    It is, further, important to appreciate that, in order for the appeal to be allowed, it will not be enough to make out a case that the primary judge erred in the exercise of his discretion. For if that is established, this Court will likely re-exercise the discretion, as has been said. If the result of doing so is that the Court determines that the injunction should still have been refused, then there will be no need to displace the orders of the primary judge and the appeal will be dismissed.

31    Therefore, another thing the applicant must demonstrate in order to obtain the injunction he now seeks is that he has a serious case to persuade this Court that it would be appropriate to re-exercise the primary judge's discretion so as to grant the injunction pending the outcome of the Circuit Court proceeding. So quite apart from any error the primary judge may have committed in assessing the balance of convenience as it pertained to that injunction (the one sought in the Circuit Court), the balance of convenience as it appears to this Court will be important to the outcome of the application for this injunction in this Court.

32    It is convenient to consider the questions of a serious question to be heard and the balance of convenience through the prism of the applicant's proposed grounds of appeal. It will then also be necessary to assess the relevance to the balance of convenience of some affidavit evidence that the applicant put before this Court that was not before the Circuit Court. I will then return to consider how these considerations play out in the context of the framework outlined above.

Proposed ground of appeal 1A - the best interests of minor children

33    I will not summarise the factual background or the primary judge's reasoning, which are both, of course, to be found in the primary judgment. At this point it is only necessary to understand that in an interview that the delegate held with the applicant at the airport after giving him notice of the intention to cancel the visa, the applicant asserted that he was in a relationship with an Australian citizen called Boni, and also made an assertion about the effect on Boni and her children if he were to be returned to the United Kingdom. Evidence before this Court established that Boni is Veronica Kathleen Hill.

34    The first ground of review in the Circuit Court related to those matters; it is:

The decision of the delegate of the first respondent … was vitiated by a constructive failure to exercise jurisdiction in failing to give bona fide consideration to the best interests of the applicant's partner's children, or a denial of procedural fairness.

35    The applicant filed an amended proposed notice of appeal in this Court, by which he would raise as his first ground:

The learned primary Judge, in evaluating whether amended ground [of review] 1 enjoyed a sufficient prospect of success, erred in misunderstanding or misapplying the principle that an administrative decision-maker, in the exercise of a statutory discretion, will treat the best interests of a child as a primary consideration.

Particulars

1A.1    The learned primary Judge at [39] reasoned that the principle is engaged where 'great hardship' is discernible, and 'that that hardship is usually [] identif[able]'. But no such limitation is found in Articles 3 and 9 of the United Nations Convention on Rights of the Child. Nor therefore required (or permitted) under Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273.

1A.2    The learned primary Judge at [39] reasoned that the principle 'usually' applies where there exists a relationship of loco parentis or 'some special relationship'. But no such limitation is found in Article 3 of the Convention. Nor therefore required (or permitted) under Teoh.

1A.3    The learned primary Judge at [39] reasoned that 'that [('great')] hardship is usually [] identifi[able]', or must able to be 'discern[ed]'. But a decision made knowing the interests of a child would be affected without making obvious enquires may vitiate the decision: Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 290, 321[.]

36    This relies on the principles established by the majority judgments in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. In summary, they are that although Australia's ratification of the Convention does not make the primary interests of children who are Australian citizens a mandatory consideration for administrative decision makers, it does give rise to a legitimate expectation that the interests of the children will be taken into account as a primary consideration in decisions that concern them. As such, if a decision maker does not proceed on the basis that the best interests of the children are a primary consideration and does not give affected persons notice of the intention not to proceed in that way, so that they have an opportunity to respond, there will be a denial of procedural fairness: see Teoh at 291-292 (Mason CJ and Deane J), 302-303 (Toohey J), 304-305 (Gaudron J).

37    It is also relevant that Mason CJ and Deane J held, in effect, that the notion of when an administrative decision 'concerns' children in accordance with the Convention should be given a wide scope: at 289; see also Toohey J at 302. In that case, therefore, although the relevant decision was to refuse resident status to the respondent (due to a criminal conviction), the decision nevertheless relevantly concerned his minor children who were Australian citizens. Chief Justice Mason and Deane J said that the legitimate expectation would arise on an objective basis if it 'is reasonable in the sense that there are adequate materials to support it' (at 291).

38    With respect, I am satisfied that there is a serious question whether the primary judge erred in his application of these principles. That is primarily based on a submission that the applicant made in this Court that, the delegate having identified that visa cancellation may cause hardship for Ms Hill's children, it followed that the effect of the decision on their interests was sufficient to mean that the delegate was required to give notice to the applicant if the delegate had intended to proceed without treating their interests as a primary consideration.

39    It is possible to put that argument together with one of the attacks that the applicant makes on the primary judge's reasoning in the proposed ground of appeal in order to arrive at an arguable case that his Honour misapplied the principles above. It is true that his Honour did, at [39], arguably misstate the effect of the Convention, which does not require 'great hardship' to be established before those principles are engaged. But that statement (made in an ex tempore decision delivered in circumstances of great urgency) needs to be read fairly in context. The impugned paragraph [39] is:

In this case, one needs to have some regard to what it is that causes a Court to have to consider the best interests of a child as being primary. This is usually where the person, or the applicant, is in loco parentis of children or has some special relationship with children. In such a case, it is whether a decision-maker can discern that the absence of the applicant in the children's life may be something that causes great hardship, and that hardship is usually able to be identified. If those aspects are satisfied, the interests of the children must be considered as primary considerations as to whether the visa ought be cancelled.

40    It would be wrong to place too much emphasis on the term 'great hardship'. When the paragraph is read as a whole, his Honour is probably making the point that something needs to be identified that means it would be adverse to the interests of relevant children for the non-citizen to be absent from the children's lives. That is confirmed by posing the question as whether the decision maker can discern that the absence of the non-citizen 'may be something that causes great hardship' (emphasis added).

41    Nevertheless, it can be argued, as the applicant does, that the delegate's acknowledgement that the children might experience hardship means that there was a sufficient likelihood that they would be affected by the cancellation of his visa so that their interests were a primary consideration. His Honour found, in effect, that the applicant was not living with Ms Hill, and that it was the delegate (or interviewer) who asked questions about the children - not the applicant who volunteered information about them to start with - and that the applicant had said in text messages that he was happy to go away because he had no family here. This all makes it arguable that in coming to apply the test, his Honour found that the connection between the applicant and Ms Hill's children was not such as to mean that their interests were a primary consideration. Since that is arguably inconsistent with the delegate's acknowledgement that the children might experience hardship, I am satisfied that it is arguable that his Honour erred in his application of the principles.

42    I do not, however, accept a submission the applicant made that it was incorrect of the primary judge to have proceeded on the basis that the applicant had not volunteered information about the children, but that the interviewer had asked questions about them: primary judgment at [49]. That is an accurate assessment of what is revealed by the interview transcript, as follows:

As you're aware, I've got an apartment in Australia here. Bonnie, who lives in Fremantle. We're in the process of applying for a partner visa. If I'm not allowed to stay today, that's, I'm guessing, will be the end of the relationship, because there will be no further work for us to continue. I've got money, so I've got no reason to work. It's entirely up to you guys where you move forward. If I can, I'm happy to lodge a substenent [?] visa today, which will give me different rights as with my partner, but the call is yours. If not, I'll be happy just to get on a plane and go back to London.

INTERVIEWER: Ok, I'm just writing that down.

[MR MERRIMAN]: It's going to cause vast upset though for Bonnie and her family, and those kids.

INTERVIEWER: So, Bonnie has kids?

[MR MERRIMAN]: Yep, which I am, obviously - she's allowed me into her life, her children's life. We're in the process of applying for a partner visa, as but like I said, whatever. It's done now. I can see the way you guys can interpret these, but a message can be interpreted in many ways.

INTERVIEWER: How many kids does she have?

[MR MERRIMAN]: Four.

43    Further, I am not persuaded that there is a serious case that his Honour erred when he said that the principles 'usually' apply when the person directly affected by the decision has a parental or other special relationship with the children. The qualification 'usually' means that the statement is, on its face, correct (cf. proposed ground 1A.2).

44    I am also not persuaded that there is a serious case that the primary judge erred to the extent that he did not apply some principle that 'knowing the interests of a child would be affected without making obvious enquires may vitiate the decision' (cf. proposed ground 1A.3). That asserted principle is taken from the dissenting judgment of McHugh J, and is not part of the ratio of Teoh as I have described it. The applicant submitted that the proposition also found favour in the majority judgment of Mason CJ and Deane J. But, to the contrary, that passage (at 290) is critical of reasoning that the decision maker in that case had denied natural justice on that basis. While Toohey J seemed to have some sympathy for this argument, his Honour expressly did not decide on that basis (see 302-303). And Gaudron J agreed with Mason CJ and Deane J that the decision maker was not required to initiate inquiries (at 305). Further, the applicant has not established that any reasonable inquiries that could have been made by the delegate were put to his Honour.

45    I also do not accept that a serious case arises from the applicant's submission that, in premising his decision on there being a need for the decision maker to discern or identify that the applicant's absence from the children's life would cause them great hardship, the primary judge 'inverted' Teoh. The applicant submits that there is an obligation on decision makers to treat the best interests of the children as a primary consideration, however it may arise. But while that is so, it overlooks the basic point that it is necessary for the decision maker to first identify that there are children with a sufficient connection to the directly affected person so as to engage the principle in Teoh. There must be adequate materials to support it. In my view, all the primary judge was doing in [39] of the primary judgment was to acknowledge that basic reality. While, as Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 establishes, it is not necessary for the non-citizen to raise the point for it to be relevant, it is still usually necessary for the non-citizen to identify facts and circumstances relevant to the decision: see Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [23]. The serious question to be heard does not arise from his Honour's statement of the principle in that regard, but rather from his possible error in applying it as identified above. That error is capable of amounting to acting on a wrong principle as described in House.

46    Despite that possible error, there is much to be said for the proposition that the primary judge's final assessment of the strength of the first ground of review was correct. His Honour said (at [52]):

It seems to me that it will be very difficult for the applicant to succeed on ground 1. That is not to say that he will not, but it is not a matter where there is a strong or undeniable and identifiable jurisdictional error.

47    Read fairly, here the primary judge is not dismissing the ground out of hand. He is just saying that it is not a strong case of jurisdictional error.

48    With respect, I share that assessment. That is because it is open to contend, as counsel for the Minister did before me that the delegate did, in any event, proceed on the basis that the best interests of Ms Hill's children were a primary consideration. The delegate acknowledged that the visa cancellation may cause hardship for the children, and such a brief reference must be assessed in light of the relatively brief treatment of visa cancellation decisions conducted in migration clearance at ports of entry: see Minister for Immigration and Border Protection v Srouji [2014] FCA 50 at [21] (Jagot J).

49    In summary, therefore, I consider that while proposed ground of appeal 1A does disclose a serious question to be heard that the primary judge erred, it is not a strong case.

Proposed ground of appeal 2A - balance of convenience

50    The applicant's proposed ground of appeal concerning the primary judge's application of the balance of convenience test is:

The learned primary Judge, in finding the balance of convenience favoured removal from Australia, misunderstood [his] jurisdiction under s 476 of the Migration Act, or constructively failed to exercise jurisdiction, or denied procedural fairness, by not evaluating the extent to which the subject matter of the proceeding may be lost in law or in reality, and/or the connection between the relief sought and the 'matter' engaging jurisdiction.

Particulars

2A.1    The learned primary judge reasoned that the applicant could not be released from detention, or failed to engage with the applicant's submission that he could be released from immigration detention, or failed to consider whether he would be deprived of the possibility of release under s 195A of the Migration Act.

2A.2    The learned primary judge did not consider whether, were he to succeed in quashing his visa cancellation overseas before his temporary visa expires in March 2025, upon removal from Australia, the applicant would be subject to 'special return criterion' 5002 precluding his return for 12 months in any event.

2A.3    The learned primary judge erred in not recognising that the subject matter of the proceedings included the vindication of the best interests of Australian children, and his removal would deny their interests.

2A.4    The learned primary judge did not perform an evaluation of whether removal or non-removal carried with it the lower risk of injustice.

2A.5    The learned primary judge erred in reasoning that the possibility of the applicant remaining in detention at a detention centre far away from the applicant's partner and children weighed against granting the injunction, in that where the applicant might be detained is solely within the power of the first respondent.

51    In relation to the first of these particulars, in oral reply submissions counsel for the applicant had submitted to the primary judge that it was possible for the Minister to exercise a non-compellable power to grant the applicant a visa under s 195A of the Migration Act 1958 (Cth). The primary judge expressed the view that the applicant could not be granted a visa in that way while he was in immigration detention, and did not refer to the submission in his reasons for decision. His Honour did not engage with the possibility that a visa might be granted under s 195A. In that respect it is arguable that he erred.

52    It remains the case, however, that the applicant had put no material before the primary judge to establish that this possibility was anything more than speculative. The Minister cannot be compelled to consider exercising the power to grant the visa: see MZAPC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 877 at [10] (Colvin J). Further, in evidence before me there were information materials apparently published by the Department indicating that it is unlikely that the Minister would consider exercising it in this case. These materials say that a request can be made if the requesting person has 'had a merits review tribunal decision'. This applicant has not had one. They also say that the 'Minister has indicated that it is inappropriate to consider ministerial intervention requests from person[s] who may be eligible to apply for a Partner visa'. In this case, the applicant maintains that he is eligible to apply for a partner visa and his counsel informed me from the bar table that a grant of a bridging visa pending the grant of a spousal visa was imminent.

53    So whether or not the primary judge erred in his understanding of the applicant's eligibility for a visa to be granted under s 195A, on the evidence before me at least the possibility that he would receive one, and would be released from detention, is remote. That evidence was not before the primary judge, meaning that there was nothing before his Honour to indicate that there was a real chance that a visa of that kind would be granted. While each case depends on its own facts, I note that Mortimer J conducted a similar analysis in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [66].

54    It is convenient at this stage to also comment on another possible avenue that the applicant raised as one through which he would be able to live in the community in Australia while his application for judicial review proceeded, namely that the Minister could make a residence determination under Part 2 Division 7 Subdivision B of the Migration Act. There was no evidence before the primary judge or before this Court as to the circumstances in which that might happen or to what extent that was likely. Nor did the applicant demonstrate that a residence determination will mean that he is not an unlawful non-citizen, so that he is not liable to removal after 13 March 2025 anyway. As with the hypothesis of success on a s 195A request, this possibility can be given no weight.

55    As for the application of 'special return criterion 5002' (proposed ground 2A.2), that is a criterion that applies to applications to grant a visa: see the analysis in EEI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1071 at [4]. Specifically, this criterion applies to an application for an eVisitor visa by force of reg 2.03(1) and item 651.214 in Schedule 2 of the Migration Regulations 1994 (Cth). But the applicant pointed to nothing to indicate that special criterion 5002 would apply if a person seeks to re-enter Australia under a subsisting visa. If the applicant were successful in his application for judicial review of the delegate's decision, the decision to cancel his visa would be set aside. His eVisitor visa, permitting him to enter Australia, would be restored by force of the Circuit Court's decision. Special return criterion 5002 would not be engaged. Also, the relevance of the criterion was not put to the primary judge. I do not accept that special return criterion 5002 was relevant to his Honour's assessment of the balance of convenience.

56    The applicant's broader case in this Court as to balance of convenience is that the eVisitor visa that was cancelled would have expired on 13 March 2025 had it not been cancelled. He submits by reference to evidence about the Circuit Court's caseload that his application for judicial review to that court will not be determined before then. He says that it is 'vanishingly unlikely' that the application will be determined before the visa expires.

57    That is, in effect, a submission, out of the applicant's own mouth, that the Circuit Court proceeding that he is fighting to preserve is vanishingly unlikely to be of any use. The applicant made no submission that the position would be any different depending on whether he was, or was not, in detention. To the extent that he might put an inference that the Circuit Court would deal with the application more quickly if he were a detainee, there is still no plausible basis to think that means that it will be resolved in time to permit the outcome to be of any use to the applicant. The applicant acknowledges that it can be inferred that priority will be given to detainees, but did not engage with the likelihood that there will be many detainees whose applications in the Circuit Court significantly predate his, meaning that they may be given higher priority.

58    Despite submitting that there was no way that the Circuit Court application would be resolved before 13 March 2025 when the eVisitor visa would expire, counsel for the applicant articulated a path of reasoning as to why the injunction should be extended. This depended on the applicant receiving a visa under s 195A of the Migration Act before the eVisitor visa expired (or, possibly, a residence determination). He would then not be an unlawful non-citizen liable to removal (although query that in the case of a residence determination). Then he could apply for a partner visa, or choose to leave voluntarily, meaning that any subsequent application for a visa would not be subject to special criterion 5002, preventing him from applying for a visa for 12 months from the date of his involuntary removal.

59    But the efficacy of this course for the applicant depends entirely on him receiving a visa under s 195A of the Migration Act. For if he does not receive a visa that way, then after the date on which his eVisitor visa would have expired, he will become an unlawful non-citizen liable to removal. That will be so even on the assumption that his judicial review application will subsequently be successful. If an injunction were to be granted pending the outcome of the judicial review application, the Minister would have good prospects of having that injunction dissolved after 13 March 2025, because there would be no subsisting lawful interest of the applicant that is protected by it. And I have found that the chance that the applicant will receive a visa under s 195A is speculative.

60    There may also be a more fundamental difficulty with the path of reasoning. As set out above, the purpose of granting an interlocutory injunction in an application for judicial review is to preserve the position to the extent that is necessary in order for the Court to do justice between the parties in the controversy that they have brought before the Court. On the applicant's argument, the most straightforward interest he has that is liable to protection on that basis - the restoration of his eVisitor visa - is of no value, because the application for judicial review will not be resolved before the visa would have expired.

61    Whether the broader interest that the applicant seems to be seeking to protect by this application - his interest in not being removed as an unlawful non-citizen - requires him to be kept in Australia is doubtful. If he is removed now as a (putative) unlawful non-citizen, it may be that if his judicial review application is successful, that would mean that the decision to cancel his visa is a nullity, so that he is not 'a person who has been removed from Australia under section 198, 199 or 205 of the Act' in the words of special return criterion 5002 (emphasis added): Migration Regulations Schedule 5. If so, keeping him in Australia will not preserve any interest liable to be protected by the judicial review application.

62    In that regard, counsel for the applicant referred me to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19; (2021) 273 CLR 21, a case where the High Court held that the removal of the respondent in fact was effective to mean that she was a 'behaviour concern non-citizen' so that she did not meet the criteria for a certain kind of visa. However the definition of 'behaviour concern non-citizen' relevantly refers only to 'a non-citizen who … has been removed or deported from Australia' simpliciter, meaning that all was required was that the non-citizen had been removed in fact. The position may be different under the relevant words of special return criterion 5002 that have been emphasised above.

63    Nevertheless, I did not receive full argument on that point, so I will not treat it as an answer to the applicant's balance of convenience case. It is sufficient to accept the first answer given above: the applicant's case as to balance of convenience depends on the hypothesis that he receives a visa under s 195A of the Migration Act, and that hypothesis is mere conjecture.

64    To return to the proposed grounds of appeal, by ground 2A.3 the applicant seeks to contend that the primary judge erred in not recognising that the subject matter of the proceeding included the vindication of the best interests of Australian children. I do not consider that this presents any serious reason to doubt the correctness of the primary decision. It seems to imply that, like an administrative decision-maker exercising the executive power, a court will err if it does not give notice of an intention to proceed without taking the best interests of the children into account. But the applicant cited no authority suggesting that the requirements in Teoh apply to judicial decision makers as they do to administrative ones. In any event, as outlined above, the primary judge determined that there was no strong indication on the materials before the delegate to suggest that the interests of the children would be significantly affected by the removal of the applicant from Australia, and there was no additional material to that effect before his Honour. Despite the delegate's reference to 'hardship', in this context the primary judge was entitled to form his own view based on the evidence before him.

65    Next, the applicant contends (proposed ground 2A.4) that the primary judge 'did not perform an evaluation of whether removal or non-removal carried with it the lower risk of injustice'. There is no merit in that. At [56]-[63] the primary judge considered the balance of convenience in an orthodox way, weighing up the various considerations his Honour identified to be relevant, including the fact that the applicant would likely remain in detention and quite possibly at a place not permitting visits from Ms Hill and her children, the applicant's wish stated to the interviewer that he be put on a plane out of Australia, the fact that he could pursue the judicial review application from overseas, and the Minister's statutory obligation to remove the applicant from Australia. There was no need for his Honour, separately and explicitly, to set out his evaluation of which course carried with it the lower risk of injustice.

66    Finally, the applicant seeks to contend (para 2A.5) that the primary judge erred in reasoning that the possibility of the applicant remaining in detention at a detention centre far away from the applicant's partner and children weighed against granting the injunction. The applicant submits that where the applicant might be detained is solely within the power of the first respondent. It is not clear what point is being made there. On the assumption that the first respondent may lawfully detain the applicant at a place that is not convenient for Ms Hill and her children to visit, that outcome is one that was properly capable of being considered by the primary judge. His Honour simply reasoned that it was not possible to know where the applicant would be held, and whether visits would be feasible: at [58]-[59]. No basis for doubting that factual conclusion has been demonstrated.

Further evidence going to balance of convenience

67    At the hearing, the applicant sought to rely on an affidavit he affirmed on 16 July 2024 as well as affidavits that each of Ms Hill and Julia Catherine Rummer affirmed on 15 July 2024. I admitted these into evidence over the objections of the Minister, because I considered that they may be relevant to this Court's consideration of the balance of convenience, even though, as new evidence, they could not be relevant to whether the primary judge erred.

68    Each of the affidavits goes to the question of whether the applicant's presence in Australia was necessary, or helpful, to Ms Hill and her children or to Ms Rummer and her family. Ms Rummer is a friend of the applicant who suffers from a number of medical conditions, including multiple sclerosis. The applicant was living with her and her family before he went to Bali on his recent trip, and she deposes to assistance she has received from him, including acting as her carer and being a positive influence on her younger son. She also deposes to the reality of the applicant's relationship with Ms Hill and Ms Hill's children. Ms Hill and the applicant similarly depose to the reality and duration of those relationships, and his support for her and his relationship with her children. The applicant further says that he had tried to lodge an application for a spousal visa in respect of Ms Hill but it was invalid because a form required from her had not been included. He also lodged a request for ministerial intervention, presumably seeking a visa under s 195A.

69    Counsel for the Minister made clear that her client disputed the veracity of much that was in the affidavit of the applicant, at least. But even if it is assumed that everything in the affidavits is true, they do not assist the applicant, for the simple reason that if he is in detention, he will not be able to continue to provide care to Ms Rummer or support to Ms Hill and, as the primary judge reasoned, his ability to maintain a relationship with them and Ms Hill's children will at least be significantly curtailed. Having found, as I have, that the possibility of the applicant being released into the community is speculative, it follows that whatever role the applicant played in the lives of Ms Rummer and her family and Ms Hill and her children before he was detained will not be able to continue. I acknowledge that the applicant relied on the affidavits also as evidence of compassionate grounds of the kind that might persuade the Minister to exercise his power under s 195A, but in light of the guidelines referred to above, and the personal, non-delegable and non-compellable nature of the Minister's power, in my view that possibility remains speculative.

70    The applicant seemed to make a broader appeal to the interests of Ms Hill, Ms Rummer and their families as third parties who will be affected by any decision to deny him an injunction. But this Court has no broad supervisory jurisdiction to ameliorate any hardship to those individuals by ordering that the applicant stay in Australia, much less that he be released into the community so that he can continue to support them. Since the applicant has given no reason to think that the Minister will grant him a visa under s 195A, his ongoing detention means that the interests of Ms Hill, Ms Rummer and their families will not be advanced significantly by granting the injunction that is within the Court's power. Despite assertions made from the bar table, there was no evidence suggesting that it was likely that the applicant will be able to see Ms Hill during that time or that doing so will have any meaningful effect on the welfare of the children. As I have said, no reason to doubt the primary judge's reasoning on this point has been demonstrated.

71    For that reason, a submission by the applicant that his primary ground of appeal is directed at vindicating the interests of the children, and that this is a special interest that can displace other considerations, does not take his position very far. The injunction he seeks is unlikely to promote their interests. It is only likely to see him held in detention until 13 March 2025 when, absent any intervening development, and independently of any administrative decision where the children's interests may be treated as a primary consideration, the applicant will become an unlawful non-citizen liable to be removed from Australia. Counsel for the applicant submitted that an injunction to protect the exercise of a jurisdiction to vindicate the best interests of the children 'displaces all other factors'. He was unable to cite any authority for that proposition, but even if it is accepted, the applicant still faces the problem that the injunction he seeks is unnecessary to protect the exercise of that jurisdiction, which can occur when the applicant is overseas, and it is not likely to advance the interests of the children in the meantime.

72    A further comment on the applicant's affidavit is warranted. Nowhere does he say that if he is detained, he will stay in Australia until his judicial review application is determined, or until he otherwise obtains a visa enabling him to be released into community. In light of his apparent pessimism about the likely timing of the resolution of his application in the Circuit Court, a common sense inference is that, rather than spend months or years in detention so as to seek to preserve whatever rights he might perceive are given to him by the cancelled eVisitor visa, the applicant is likely to return to the United Kingdom voluntarily.

73    The applicant has given no evidence contradicting the inference that he is not likely to stay in Australia if he must remain in detention, when he was in a position to give that evidence. So it is likely that if an injunction is granted, the applicant will not stay in Australia anyway. That provides a further, strong reason not to extend the injunction.

Concluding analysis

74    For the reasons given, I do not consider that there is a serious question to be heard for the applicant to obtain leave to appeal. While it might be arguable that the primary judge misstated the principle in Teoh, the overall case that the delegate fell into jurisdictional error is not strong. And while his Honour arguably misstated the circumstances in which a person is eligible to request the exercise of the Minister's discretion under s 195A of the Migration Act, the existence of that speculative possibility does not give reason to think that his Honour erred in his overall assessment of the balance of convenience.

75    I therefore consider it unlikely that the Court will conclude that there is sufficient doubt concerning the primary judgment to warrant leave to appeal. Further, the conclusions reached above in connection with the balance of convenience mean that the applicant has not identified any substantial injustice that might follow if the primary judgment is wrong. Fundamentally, the applicant will be able to pursue his application from overseas, and the path of reasoning that would see him restored to the community in Australia, and so not subject to special return criterion 5002 (on any application for a different visa), is speculative. The conclusion that there is no serious question to be heard concerning leave to appeal is reinforced when the principles in Gilbert are brought to mind.

76    Still less is there a serious question to be heard that the proposed appeal would be allowed, with the appellate court's discretion exercised to grant the injunction that the primary judge refused. That is especially so in light of the matters canvassed above as to the balance of convenience, and the principles stated in Gilbert.

77    Those same matters mean that the balance of convenience as it appears to this Court weighs against the further extension of the injunction. On his own evidence and submissions, his application for judicial review of the delegate's decision will be futile unless he receives a visa via a different avenue by 13 March 2025. And there is no reason on the evidence to think that possibility is anything more than speculative.

78    If the position is analysed in the terms outlined by Hoffmann J in Films Rover, there is little risk of injustice to the applicant arising out of the possibility that the Court may make the 'wrong' decision.  The likelihood that, contrary to the discussion above, this Court will grant leave to appeal, allow the appeal and grant an injunction to keep the applicant in Australia until the determination of the application in the Circuit Court is small.  And even an injunction granted on those terms would be liable to be dissolved as soon as the eVisitor visa expires on 13 March 2025, which the applicant himself submits will almost certainly happen before the judicial review application is determined.

79    The application for further extension of the injunction that was granted on 12 July 2024, and extended on 16 July and further on 18 July, is refused. I will hear the parties as to costs.

Associate:

Dated:    30 July 2024