DCG16 v Minister for Immigration, Citizenship and Multicultural Affairs

1. The title of the proceeding be amended to describe the first respondent as the Minister for Immigration, Citizenship and Multicultural Affairs.
2. The applicant's claim for interlocutory relief is dismissed.
3. The applicant pay the first respondent's costs of the interlocutory application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 The applicant arrived in Australia as an unauthorised maritime arrival on 2 January 2013. On 24 January 2020 the Department of Home Affairs ("Department"), notified the applicant of an intention to remove him from Australia today (4 February 2020). The Department has made arrangements for the applicant to be flown out of Australia at approximately 10 pm tonight. 2 Yesterday, the applicant filed an originating application. He seeks final relief in the following terms. 1. A writ of certiorari quashing the decision and orders of the Federal Circuit Court in the matter of DCG16 v Minister for Immigration & Anor [2017] FCCA 285 made on 20 February 2017. 2. A writ of mandamus directing the Federal Circuit Court to determine the Applicant's application for an extension of time according to law. 3. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings. 3 The applicant also seeks the following interlocutory relief which is the subject these reasons: 1. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from removing the Applicant from Australia pending determination of the application for extension of time or any period of appeal or taking the other action the subject of the proceedings. 4 The applicant's claim for interlocutory relief is somewhat ambiguously expressed. I will proceed on the basis that the applicant seeks that the first respondent ("Minister") be restrained from removing him from Australia pending the hearing and determination of his claims for final relief. I will also proceed on the basis that the applicant's claim for interlocutory relief is directed to preserving the subject matter of the proceeding. 5 The applicant's claims for final relief, in substance, seek to challenge a decision made by a judge of the Federal Circuit Court ("primary judge") and published as DCG16 v Minister for Immigration [2017] FCCA 285. In that decision, the primary judge dismissed the applicant's application made under s 477(2) of the Migration Act 1958 (Cth) for an extension of time in which to make an application for the judicial review of a decision made by the Immigration Assessment Authority ("Authority") not to grant the applicant a Safe Haven Enterprise (XE790) Visa ("Visa"). 6 The relevant background is that on 23 April 2016 the applicant applied for the Visa. On 13 July 2016 a delegate of the Minister refused the application for the Visa. The matter was then referred to the Authority and, on 25 August 2016, the Authority affirmed the delegate's decision not to grant the applicant the Visa. 7 On 10 October 2016 the applicant filed an application for an extension of time in the Federal Circuit Court. That application was refused by the primary judge on 20 February 2017. I note that the primary judge's decision to refuse the application for an extension of time was made one month shy of three years ago. 8 The applicant has not instituted an appeal from the decision of the primary judge. If he had, this Court would by reason of s 476A(3) of the Migration Act have had no jurisdiction to deal with it. The applicant has instituted a judicial review proceeding and the jurisdiction of this Court to deal with an application of that kind is not put in contest by the Minister and is supported by authority: see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [26]-[27] (Mortimer J). 9 The applicant is not legally represented and appeared today with the assistance of an interpreter. I will shortly deal with the submissions made by the applicant which I need to address. 10 The Minister opposed the application for an interlocutory injunction primarily on the basis that the applicant has failed to identify any seriously arguable jurisdictional error in the decision of the primary judge. In support of the proposition that the applicant must show that there is a serious question to be tried in relation to the final relief claimed and that the balance of convenience favours the granting of the injunction sought, the Minister relied on the observations made by Gleeson CJ in Re The Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu [2000] HCA 23 at [7]: The proceedings presently before the Court, that is to say, the applications for urgent injunctions, invoke the Court's 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. The principles according to which such a power will be exercised are well established. As Mason ACJ pointed out in Castlemaine Tooheys Ltd v South Australia, the principles which are to be applied in the exercise of the discretionary power to grant or refuse an interlocutory injunction in private law cases are also applied in public law cases, notwithstanding that different factors may arise for consideration in giving practical effect to those principles. The applicants must show that there is a serious question to be tried in the principal proceedings, and that the balance of convenience favours the granting of an injunction. 11 As I have said, the applicant appeared unrepresented but assisted by an interpreter. There appeared to be some issue as to the capacity of the applicant to understand the Hindi interpreter assisting him, despite the applicant confirming to me that he did. It has also been suggested to the Court by a person who accompanied the applicant as a friend, that the applicant may have difficulty understanding the proceeding and the matters at issue because of mental health issues. 12 I am mindful of the fact that the applicant may well have been disadvantaged in his ability to properly understand both the nature of the proceeding and what was being required of him. I have tried to take into account that possible disadvantage and deal with it as best as I can in the circumstances at hand. 13 For the following reasons, I am satisfied that the applicant's claims for final relief are not supported by a serious issue to be tried. It may be that where interlocutory relief is directed to preserving the subject matter of a proceeding, a lower threshold is appropriate. However, even applying a lower threshold - that the applicant's claim for final relief has some prospect of success - I am not satisfied that that threshold has been met. 14 Neither the originating application nor the affidavit in support of it identified any error at all (jurisdictional or otherwise), which the applicant asserts was made by the primary judge. When the applicant was asked to identify any error in the primary judge's decision he raised two matters. He stated that the primary judge had denied him time to obtain legal representation. He also asserted that the primary judge did not properly consider para 47 of the reasons for decision of the Authority. Taking an approach most favourable to the applicant, I will treat the second alleged error as an allegation that the primary judge failed to identify jurisdictional error in the reasoning of the Authority at para 47 of its reasons. 15 As to the error asserted in relation to the obtaining of legal assistance, there is no reference in the reasons of the primary judge to any application made by the applicant seeking an adjournment or time to obtain legal assistance. Some four months passed between when the application to the Federal Circuit Court was made and the hearing of that application and the publication of the decision of the primary judge. No explanation has been given, nor is it apparent from the reasons of the primary judge that any explanation was given to the primary judge as to why the applicant had not sought legal assistance during that period. More pertinently there is just no basis before me to support the assertion that any application for an adjournment to obtain legal assistance was made and therefore, there is no basis for thinking that any error (let alone jurisdictional error) in relation to such an application could have been made by the primary judge. 16 As to the other asserted error relating to para 47 of the reasons of the Authority, again, there is no indication in the reasons of the primary judge, nor any other basis for accepting that the applicant raised para 47 before the primary judge and relied upon it as erroneous. Nor is it apparent to me that any serious issue of jurisdictional error arises from the analysis made by the Authority at para 47 of its reasons. 17 A further matter relied upon by the Minister to support the contention that the applicant's prospects of success on his claims for final relief are not seriously arguable is the delay involved in the making of this application. The Minister is correct to say that the constitutional writs sought by the applicant by way of final relief are discretionary remedies. Although I would have arrived at the same conclusion without relying upon the delay involved, there is force in the Minister's submission that, absent an appropriate explanation for the delay, the delay of nearly three years may well be fatal to the applicant's claims for final relief. 18 Given the possible disadvantage to the applicant by his lack of legal representation and the possibility that he has otherwise suffered disability in putting his case due to linguistic or other difficulties, I have not only considered the asserted errors identified by the applicant, but have carefully perused the decision of the primary judge in search of relevant error. As the authorities demonstrate, a relevant error in support of the constitutional writs which are sought, would be that the primary judge misunderstood or misconstrued the power he was called upon to exercise, so that the Federal Circuit Court exceeded its jurisdiction or failed to exercise its jurisdiction: see MZABP at [59] (Mortimer J). 19 In this case, the primary judge exercised his power to consider whether an extension of time should be granted by reference to the provisions of s 477 of the Migration Act. Section 477(1) provides that an application in relation to a "migration decision" must be made to the Federal Circuit Court within 35 days of the date of the migration decision. Section 477(2)(a) provides that the time given may be extended where the Federal Circuit Court considers that, "it is necessary in the interests of the administration of justice". 20 Having carefully considered the reasons of the primary judge, I am satisfied that those reasons demonstrate that the primary judge was well aware of the terms of the power he was called upon to exercise, and that he neither misunderstood or misconstrued that power. 21 It is evident, both from [1] and also from [37] of the primary judge's reasons, that his Honour considered whether or not the interests of justice required that an extension of time be granted. The primary judge approached the task of considering whether it was in the interests of justice to grant an extension of time by considering firstly, whether an acceptable explanation for the delay had been given and secondly whether there was any merit or any reasonable prospect of success in the application for judicial review made by the applicant. As Mortimer J said in MZABP, at [62], "it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success". The primary judge made no apparent error in identifying the statutory task he was required to perform. Nor was that task erroneously performed. It is clear, including from [30] of the primary judge's decision, that the primary judge correctly assessed the issue of whether there was any merit in the applicant's application on the basis that all that the applicant needed to establish was an arguable case of jurisdictional error. 22 I can see no basis upon which it may be said that there is a serious issue to be tried that the primary judge misunderstood or misconstrued the power he was called upon to exercise so as to result in the Federal Circuit Court exceeding its jurisdiction or failing to exercise its jurisdiction. There is nothing to support the conclusion that the applicant has any prospect of success in obtaining the final relief he seeks 23 In those circumstances, it is not necessary for me to address the question of the balance of convenience. 24 The applicant's application for an interlocutory injunction must be dismissed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.