CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The application be dismissed.
2. The applicant pay the respondents' costs in the sum of $2000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THAWLEY J: 1 On 12 June 2020, Justice Mortimer dismissed the applicant's application for an interlocutory injunction to restrain the Minister from removing the applicant from Australia: CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825. Late last night the applicant filed an application for leave to appeal from her Honour's orders. The applicant sought an urgent hearing of his application and the application was listed for hearing today at 11.00am. 2 If leave to appeal were granted, that would not of itself operate to prevent the applicant from being removed from Australia. However, appropriately, the Minister accepted that the applicant ought not be removed if leave to appeal were granted. The applicant filed written submissions which addressed, in large part, reasons why he contended an interlocutory injunction ought to have been granted by Mortimer J. Those submissions also asserted error on the part of Mortimer J, but did not clearly articulate the way in which her Honour was said to have erred. On the other hand, the written submissions were supplemented by oral submissions, which sought to identify error. 3 In light of the time spent in submissions on contending that the interlocutory injunction ought to have been granted, it is appropriate to observe that an application for leave to appeal is not the occasion to attempt, in substance, to have a different Judge reconsider the application for an interlocutory injunction. 4 The applicant sought to read a further affidavit on this application, being one which was not before Mortimer J. No application was made to adduce fresh evidence. I allow the evidence on this application because it is relevant to the question of whether a substantial injustice will occur if leave to appeal were refused. 5 The background facts can be found in the comprehensive reasons of Mortimer J. It is not necessary to repeat them in detail. It is sufficient to observe that it is Saturday, 13 June 2020 and the applicant is to be deported from Australia to the United Kingdom on Monday, 15 June 2020. He finds himself in that position after having his visa cancelled and being unsuccessful in challenging that cancellation. He has also fully, but unsuccessfully, ventilated an application for a protection visa. 6 Having been unsuccessful in these attempts, the applicant asked the Minister to exercise his "personal" power under s 351 of the Migration Act 1958 (Cth) to substitute a different decision to that which had been made by the Administrative Appeals Tribunal in relation to the visa cancellation. Section 351 authorises the Minister to substitute a more favourable decision to one given by the Tribunal if the Minister considers it in the public interest to do so. 7 On 18 May 2020, an officer of the Department of Home Affairs, acting on a recommendation made by another officer on 5 May 2020, decided not to refer the request for ministerial intervention to the Minister. 8 The applicant commenced proceedings in this Court on 5 June 2020 seeking review of the decision not to refer his request for ministerial intervention. His case is that the decision was legally unreasonable. It is against the background of those proceedings that the applicant wished to restrain the Minister from having him deported and made his application which was determined yesterday by Mortimer J. 9 Justice Mortimer's decision was an interlocutory one and, accordingly, the applicant requires leave to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The question of whether leave to appeal should be granted turns on whether: (1) the decision giving rise to the orders from which the applicant wishes to appeal is attended with sufficient doubt to warrant its being reconsidered by a Full Court; (2) substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. 10 As was stated in Décor at 399, these two issues are interrelated: [T]he sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations. 11 The issue before Mortimer J was whether or not to grant an interlocutory injunction. The principles applicable to such relief may be briefly stated. There are two main inquiries. The first is whether the applicant has a prima facie case in the sense of "a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial"; this does not mean the applicant must establish that they are more probable than not to succeed at trial: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ) and [19] (Gleeson CJ and Crennan J). As Katzmann J observed in SZTZM v Minister for Immigration and Border Protection [2017] FCA 534 at [39]: What will be sufficient will depend on "the nature of the rights [the applicant] asserts and the practical consequences likely to flow from the order he seeks": Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622. 12 The second main inquiry is whether the inconvenience or injury the applicant would be likely to suffer if an injunction were refused outweighs the injury the respondent would suffer if the injunction were granted: O'Neill at [65], citing Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. 13 Consideration of the two main inquiries cannot be conducted completely independently of each other, because "an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even" and "[a] more doubtful claim (which nevertheless raises 'a serious question to be tried') may still attract interlocutory relief if there is a marked balance of convenience in favour of it": Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472 per Woodward J (Smithers and Sweeney JJ agreeing at 467 and 469 respectively); see also ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363 at [28] (Charlesworth J). 14 As to the first inquiry, Mortimer J accepted that the decision of a departmental officer not to refer a request to the Minister for consideration could be subject to judicial review, referring to Jabbour v Secretary, Department of Home Affairs (2019) FCR 438 and Alfred v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 457. 15 Her Honour concluded, however, that "while the matters raised in the originating application, and in argument, might be described as a 'serious question' in the sense of being arguable" they had "real difficulties"; the probability of the applicant succeeding at trial was "low": J[63]. 16 Her Honour had also stated that the argument made on behalf of the applicant was "not without merit", an observation upon which the applicant placed particular reliance in this application. 17 In reaching the conclusion that the probability of succeeding at trial was "low", her Honour relied in particular on four matters: (1) Her Honour observed that the recommending officer's recommendation was just that: a recommendation. "That may well explain why the reasoning is as detailed as it is: the function of the recommending officer is to assist the determining officer and to ensure the determining officer turns her or his mind to the necessary and appropriate range of factors the Guidelines require": J[59]. (3) The criteria in s 4 of the Minister's Guidelines on Ministerial Powers (s351, s417 and s501J) contained obvious evaluative aspects. "For a recommendation and decision to be made, a departmental officer must evaluate the material and exercise her or his own judgment. To do so in detail rather than peremptorily may reflect good administrative practice, not legal error": J[60]. (4) The qualitative aspects of the first dot point of s 4, which was most prominent in the way the applicant framed his case, and is important in terms of the section itself are set at a high level, inviting real consideration; doing so in detail might, again, reflect "good administrative practice, not legal error": J[61]. (5) It was not suggested that there was anything irrational in the reasoning of the recommending officer, or in the adoption of that recommendation by the determining officer. Accordingly, in terms of legal unreasonableness, the focus was on the outcome of the assessment. It was unlikely a Court would conclude that no reasonable departmental officer could have reached the conclusion that the applicant's circumstances were not unique or exceptional in the way the Guidelines required: J[62]. 18 As to the second main inquiry, balance of convenience, Mortimer J carefully considered the competing considerations which had been advanced. Her Honour's reasons included: [65] I accept the applicant's distress at the prospect of being removed to the other side of the world from his daughter is genuine. I accept he has, at least, a genuine aspiration to spend time in person with her, and to be involved in her life. I accept he genuinely believes this will be more difficult to achieve if he is located in the United Kingdom. [66] However, given the reality of his circumstances in Australia, I am not persuaded there is a qualitative difference in the short and medium term in the nature and extent of the interaction he can have with his daughter. The applicant is in immigration detention. If this interlocutory application were granted, the Court is required to act on the basis he would remain in immigration detention until this proceeding was concluded. Despite his counsel's submission, although the Minister has a power to grant the applicant a visa which would result in his release from detention (see s 195A) there is no basis in the evidence to find there is any reasonable prospect that power will be exercised. Therefore, for the purposes of this application, the counterfactual is that the applicant will remain in immigration detention for the duration of this proceeding. … [68] In oral submissions, the Minister stated that no visitors are currently able to attend detention centres. The recommendation memorandum states that "[t]here is no evidence [the applicant's] ex-wife and child have ever visited him in the detention centre". That is over a period of two years. [69] Even if the COVID-19 restrictions were lifted, there is no basis for the Court to find there is a reasonable prospect the applicant's former partner will bring his daughter to see him in person. As the Minister submitted, the applicant may hope that will occur, but it is no more than an aspiration. [70] In other words, the modes of communication with his daughter are likely to remain those which can also be undertaken from the United Kingdom. Indeed, the applicant's freedom in the United Kingdom may in fact allow him better quality access to telephone and internet. The Family Court orders will remain in place, and I see no basis in the evidence to find the applicant's former partner would seek to deny him the kind of contact he has had to date, or would be likely to contravene the orders of the Family Court. Indeed, her evidence as extracted above suggests she may be comfortable with increased communication if there is no chance of personal encounters between her and the applicant. [71] Whether or not the applicant is able to retain legal representation, this proceeding can be prosecuted by him from the United Kingdom. Over the last three months this Court has conducted hearings, including witness trials, entirely through the use of Microsoft Teams. Many litigants have had to deal with final hearings, and appeals, occurring in this form. It may be that if the applicant retains counsel, by the time the final hearing occurs, counsel can appear in person. If not counsel can appear by Microsoft Teams. If the applicant is self-represented, he can appear by Microsoft Teams from the United Kingdom. If he remained in Australia by reason of an interlocutory injunction, and in immigration detention, he would have had to conduct his proceeding in that way as well. … [76] This is also a situation where the applicant has had a full opportunity, which he has taken, to challenge the cancellation of his visa and to explain why his conduct which occasioned the cancellation should be characterised more mildly than the cancellation decision would suggest. He has also fully ventilated an application for a protection visa based on some of the considerations which he has raised in his ministerial intervention application, and he has challenged the refusal of that visa. Contrary to counsel's submissions, I do not consider this is a situation where the refusal of injunctive relief reflects poorly or negatively on the administration of justice. The applicant has had ample access to justice, at merits and supervisory levels. He will, as I have explained, be able to pursue this proceeding from the United Kingdom is he so chooses. … [79] The applicant did raise the fact of the current COVID-19 pandemic, and how this might affect his removal. He raised this in his ministerial intervention submission in a somewhat different way. Whatever its relevance, if any, to whether he should be granted a visa under s 351 (and that was not a matter relied on or developed in the applicant's submissions), in my opinion it is a matter clearly relevant to the balance of convenience. If there are additional, significant risks to the applicant's health which are posed by removing him to the United Kingdom while the COVID-19 pandemic continues, then this may be a factor which needs to be weighed in the balance of convenience. However, having considered the evidence in Mr Brown's second affidavit, I am satisfied that appropriate provision has been made for the applicant's return to the United Kingdom. No evidence was presented that the applicant faces any elevated risk of contracting COVID-19, such that returning to a society where the disease is still spreading poses a disproportionate risk to the applicant that should affect the balance of convenience on this application. 19 Having addressed the two main inquiries, and in further consideration of them, her Honour concluded: [80] Any grant of interlocutory relief by the Court will interrupt and override the course envisaged, and required, by the legislative scheme in the Migration Act. There must be a reasonable justification for the Court's orders to interrupt the course which Parliament intends to occur, once a person has exhausted her or his avenues to secure a visa, including review and appeal. The purpose of the grant of interlocutory relief is to ensure that the Court can, at trial, do justice between the parties in the matter which is before it … [81] Therefore, while the Court recognises the genuine distress and apprehension the applicant has about having to return to the United Kingdom, there is an insufficient prospect of injustice being caused to the applicant to justify interference with the lawful operation of the legislative scheme under the Migration Act, insofar as it requires the removal of persons in the circumstances of the applicant "as soon as reasonably practicable": see generally s 198. 20 On the application for leave to appeal presently before the Court, the applicant has not demonstrated any arguable legal error in Mortimer J's reasoning. It was submitted that her Honour was incorrect to analyse the prospects of success. Rather - it was submitted - her Honour should have asked whether there was a serious question to be tried. It was submitted that there was an inconsistency in her Honour's reasoning in stating that the argument was not without merit but concluding that there was not a serious question to be tried. This misstates her Honour's reasoning. Justice Mortimer did not conclude that there was no serious question to be tried. Her Honour concluded that the serious question to be tried, albeit not without merit, had low prospects of ultimately being accepted at trial. 21 As earlier explained, it is important to analyse the strength of the case, or the serious question to be tried, in determining what justice requires in the particular circumstances. Her Honour has not been shown to have analysed this issue in a way which is attended by sufficiently arguable error to warrant the grant of leave to appeal. 22 It was also submitted that her Honour gave too much weight to her conclusion that the serious question to be tried had "low" prospects of success at trial in determining the ultimate outcome of the interlocutory application for an injunction. 23 A number of submissions were also made to the effect that Mortimer J ought to have given more or less weight to various of the considerations relating to balance of convenience. 24 The weight to give to the respective considerations was a matter for her Honour. It has not been demonstrated that her Honour has given weight to any particular matter in a manner which would attract relief from a Full Court. The applicant has not pointed to any material error of fact, or demonstrated that her Honour failed to take into account a material consideration or that her Honour took into account an immaterial consideration. Her Honour was not shown to have attached weight to any particular matter in a way which could be said to be legally erroneous. Her Honour's conclusion was not so unreasonable as to bespeak error. 25 In the applicant's new affidavit, the applicant indicated that he had been informed of the possibility of being granted a bridging visa and referred to an email in that respect. It is relevant to note that the applicant has previously had a bridging visa cancelled. I am not satisfied that the evidence discloses a sufficient prospect of the applicant being granted a bridging visa such that a substantial injustice would result if leave to appeal were not granted. This consideration is one which is relevant to the second inquiry on whether to grant leave to appeal. 26 The applicant also made submissions to the effect that he would have difficulties instructing Australian based lawyers, should he be removed to the United Kingdom. This factor is relevant to balance of convenience and was considered by Mortimer J. It is not appropriate to revisit the issue in the sense of determining what weight I would have given this consideration if I had been determining the application for an interlocutory injunction. On the other hand, the matter is of some relevance to whether a substantial injustice would result if leave to appeal were not granted. 27 However, on that issue, it seems to me that instructing lawyers remotely from the United Kingdom is entirely feasible and it does not appear to me to place the applicant in a position of significantly greater disadvantage to the position he is already in, and would remain in, if he remained in detention rather than being deported. 28 Justice Mortimer's decision is not attended with sufficient doubt to warrant it being reconsidered by a Full Court. Substantial injustice would not result if leave to appeal were refused. 29 Leave to appeal is accordingly refused. 30 In those circumstances, the orders of the Court are: (1) The application is dismissed; and (2) The applicant is to pay the respondent's costs in the fixed sum of $2000. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.