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

Federal Court of Australia|2020-01-30|Before: Smith J

The applicant's interlocutory application filed 22 January 2020 be dismissed with costs.
Order 3 of the orders made by the Court on 24 January 2020 be vacated. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BANKS-SMITH J: 1 This matter has come before me by way of an application for urgent interlocutory relief restraining the Minister or his officers from deporting the applicant to China. The applicant does not currently hold a valid visa and is held in immigration detention. 2 In short, the applicant arrived in Australia in 1997 and held a number of short stay or temporary work visas, the last of which expired in 2001. 3 In August 2005 the Refugee Review Tribunal found that the applicant was owed protection obligations. The protection obligations were found to arise out of the applicant's association with a well-known political dissident and activist. The Refugee Review Tribunal accepted that in 2004 a campaign that began in 1998 against CPD leaders, activists and members continued such that it was foreseeable that the applicant may be jailed because of his political opinions. In October 2005 he was granted a Class XA Subclass 785 temporary protection visa (TPV). 4 Prior to expiry of the TPV the applicant applied for both a class XA Subclass 866 protection (permanent) visa and a class CD Subclass 851 resolution of status visa (RoS visa). 5 In January 2009 the applicant was granted the RoS visa and withdrew his protection visa application. 6 In 2013 the applicant was convicted of drug related offences, possession of unauthorised weapons and dealing with proceeds of crime, and sentenced to a term of imprisonment of 6 years and 4 months. 7 The applicant's RoS visa was mandatorily cancelled by the Minister on 24 November 2015 under s 501(3A) of the Migration Act 1958 (Cth). 8 The applicant subsequently applied for the cancellation decision to be revoked, and on 22 November 2016 a delegate of the Minister refused to revoke the decision. That refusal decision was ultimately quashed by consent in April 2018: AUZ18 v Minister for Immigration and Border Protection [2018] FCA 2117. 9 In January 2017 the applicant also applied for a protection visa (he was entitled to make such an application as he held no other valid visa). The delegate of the Minister refused the application in June 2017. In October 2017 the Administrative Appeals Tribunal affirmed the decision of the delegate, disbelieving many of the applicant's claims as to his political activities and finding no credible evidence that the Chinese authorities had any adverse interest in him. The Federal Circuit Court dismissed an application for review: FEB17 v Minister for Immigration and Border Protection [2018] FCCA 390. There has been no appeal from that decision. 10 On 7 January 2019 a delegate of the Minister again decided not to revoke the 24 November 2015 cancellation of the RoS visa. That refusal decision was the subject of a review in the Administrative Appeals Tribunal which on 1 April 2019 affirmed the decision under review. 11 On 5 August 2019 Thawley J of this Court dismissed a judicial review application from the decision of the Administrative Appeals Tribunal: GKQK v Minister for Home Affairs [2019] FCA 1223. 12 As is apparent from that summary, the applicant has a long history of applications relating to his visa status. The solicitors for the Minister prepared a chronology of those applications and filed it by way of an affidavit with copies of the supporting decisions. For ease of reference, I have attached as Schedule A to these reasons a copy of the chronology, less attachments. I have had regard to the various previous decisions that are referred to in the chronology.

Application for extension of time to appeal 13 On 14 November 2019 the applicant filed an application for an extension of time to appeal from the decision of Thawley J. 14 On about 16 January 2020 the applicant received a letter from the Department referring to the extension of time application but informing him that arrangements had been made for his removal from Australia on 25 January 2020. 15 On 20 January 2020 the parties exchanged and signed a minute of proposed consent orders to dismiss the application for an extension of time. 16 On 22 January 2020 the applicant filed an application for an injunction to restrain his removal from Australia. An affidavit in support was provided (which seems to have been signed by the applicant on 14 January 2020). 17 From a procedural perspective it was unclear why the applicant signed a minute of proposed consent orders to dismiss his application for an extension of time if he wished to challenge his deportation. The matter came before me as duty judge on 23 January 2020 and I asked the applicant to clarify the applications he was seeking to make. I note the applicant is unrepresented and attended in person and had the assistance of an interpreter. The applicant told me at the hearing that he did not need an extension application and was relying on only his injunction application. I adjourned the hearing for a short period so that the applicant could properly consider the course he wished to take and file any further papers. Accordingly, I granted a short interim injunction to defer any deportation in order to provide an opportunity for both parties to consider the procedural issues, noting that although the minute of proposed consent orders had been received, the Court had not made any orders dismissing the extension application. 18 As explained below, for the purpose of today's hearing I have proceeded on the basis that the extension of time application remains on foot.

Matters raised by the applicant 19 I now turn to the matters that the applicant seeks to rely upon. 20 First, I note that the grounds contained in the applicant's first affidavit in support of his proposed appeal are convoluted and difficult to follow. They appear to repeat matters agitated before the primary judge as to: (1) various conspiracies that are said to colour his criminal convictions and; (2) alleged bias on the part of the Administrative Appeals Tribunal. 21 The affidavit also refers to a third matter, being the nature of the RoS visa. The applicant says that an RoS visa was intended to confer the same benefits as a protection visa, citing the first instance decision in BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288 at [24]. That is not an issue that was raised before the primary judge. There was no argument before the primary judge based on the manner in which the Administrative Appeals Tribunal had considered protection obligations said to be owed to the applicant, or Australia's non-refoulement obligations (matters which I note had been addressed by the Administrative Appeals Tribunal, which relevantly took into account the refusal of the protection visa). 22 By a further affidavit filed on the eve of the first hearing before me, the applicant raised another matter. He seeks to rely upon the decision of Rares J in BAL19 v Minister for Home Affairs [2019] FCA 2189 published on 24 December 2019. In summary, in BAL19 Rares J found that s 36(1C) of the Migration Act precludes the exercise of s 501 powers to refuse a protection visa application, that being the position since amendments to the Act in 2014 introduced the specific criterion for protection visas in s 36(1C) of the Act. 23 The applicant provided written submissions for the purpose of his application before me today. It is clear from those submissions that the applicant now relies upon alleged jurisdictional error arising only as a result of the application of BAL19. 24 It is also clear that the applicant relies upon the first instance decision in BHA17 as the basis for asserting that a RoS visa is a form of protection visa. He accordingly asserts that he is owed protection and non-refoulement obligations and having that having regard to BAL19 it was not open to the Minister to cancel his RoS visa under s 501(1).

Principles on this application 25 Having regard to the fact that the applicant is self-represented and the importance to him of this application, I will treat the application as an application for interlocutory relief preventing the Minister or his officers from removing the applicant from Australia pending the determination of the application for an extension of time to challenge the decision of the primary judge, being a challenge which would require a grant of leave to rely upon a matter not raised before the primary judge. Accordingly, I assume for the purpose of this application that the extension application remains on foot. The Minister accepted at the hearing before me that it was appropriate to proceed in this manner. 26 Therefore it is important to note that this is not the hearing of the extension of time application itself but rather the hearing of an application for an injunction pending the hearing (or other determination) of the extension of time application. That observation is relevant to the issue of delay. 27 In considering whether to grant an extension of time for an appeal under r 36.03 of the Federal Court Rules 2011 (Cth), the Court will be guided by the following factors: the length and explanation for the delay; any prejudice that the respondent might suffer due to delay; and the prospects of the case succeeding if an extension were granted. There are many authorities to this effect: see in particular Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (Wilcox J); and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ). The proposed appeal should have such prospects of success so as not to render the extension of time an exercise in futility: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9] (Lee, R D Nicholson and Finkelstein JJ). 28 The applicant has not explained the delay in bringing the application for the extension, although I invited him to do so. That delay was some three months. It is apparent that the applicant does not understand the significance of the need for an extension of time to appeal and his focus is on the injunction application, no doubt sharpened by the notice that he is to be deported imminently. 29 I acknowledge that the delay reflected in the need for an extension of time to appeal is not inordinately lengthy. There has not to date, however, been any adequate explanation. 30 This is not a matter where the question of damages or prejudice arises. 31 The more relevant issue for this application is the strength of the case that might be put at a final hearing, and whether there is a serious question or a prima facie case that an appeal might be allowed if an extension is granted. 32 The principles on an application for injunctive relief are well known and need not be repeated: see Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65]; Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [52]-[67]; and as summarised in Ocean Dynamics Charter Pty Ltd v Hamilton Island Enterprises Limited [2015] FCA 460 at [26]-[34]. 33 In this case the ultimate merits of an appeal, a matter relevant on the extension application, are to be assessed having to the submissions and the decisions in BAL19 and BHA17.

Consideration - BAL19 and BHA17 34 The effect of the decision in BAL19 is best revealed by the following paragraphs from the reasons: [85] … However, the 2014 Amendments carefully codified the criteria for a protection visa in ss 35A(6) and 36 in order to divorce other parts of the Act and the Refugees Convention. In my opinion, those criteria deal exhaustively with the criminal history and behaviours of an applicant for (or holder of) a protection visa so as now to exclude the availability or operation of s 501 and its analogues, including the pre-existing s 501H, as a basis to refuse to grant a protection visa: Nystrom 228 CLR at 571-572 [2]. .. [88] I am of opinion that, since the 2014 Amendments, s 501(1) is not, and is not intended or expressed to be, relevant to determining whether or not a person, in accordance with ss 35A(6) and 36, is entitled to (or may be refused) under s 65(1) a protection visa as a refugee (as now defined in the Act) or to whom Australia otherwise owes protection obligations. Rather, s 36(1C) is a specific criterion applicable only to an applicant for a protection visa and it precludes the Minister using s 501(1) or its analogues as a basis to refuse to grant a protection visa: Anthony Hordern 47 CLR at 7; Nystrom 228 CLR at 571-572 [2]. 35 Two features of BAL19 are particularly relevant: (1) the decision in issue in BAL19 was a visa refusal, rather than (as in this case) a visa cancellation; and (2) BAL19 concerns a protection visa, rather than a RoS visa. 36 As to the first point, it is acknowledged that Rares J in BAL19 comments on the power to cancel visas, and not only the power to refuse them: see, for example at [64], [84]. 37 However, as to the second point, BAL19 would only assist the applicant if it can properly be argued that a RoS visa is a protection visa and subject to the specific criterion for protection visas in s 36(1C) of the Migration Act (I also note for completion that BAL19 is the subject of an appeal filed by the Minister but I understand that it has not yet been listed for hearing). 38 Importantly, the first instance decision in BHA17 was the subject of an appeal by the Minister: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; (2018) 260 FCR 523. That appeal was dismissed but the Minister's arguments with respect to earlier identification as a refugee and the nature of a RoS visa were upheld. It is those parts of the reasons of the Full Court to which I must have regard, and not the first instance decision relied upon by the applicant. 39 The relevant facts in BHA17 are similar to those relating to the applicant. The visa applicant in BHA17 was granted a TPV of the same type issued to the applicant in this case. A criterion of that particular visa was that the applicant be a person to whom Australia owed protection obligations. In 2009 the visa applicant was granted a RoS visa of the same type as was granted to the applicant in this matter. On 21 December 2015, a delegate of the appellant cancelled the RoS visa under s 501(3A) of the Migration Act. Part of the basis of the cancellation decision was the fact that in 2012 the visa applicant had been sentenced to a maximum of 6 years and 4 months imprisonment for drug offences. 40 The Full Court considered in detail the history and nature of TPV and RoS visas, including the criterion for a RoS visa at the time it was granted. The Court noted that it was not essential for a protection claim to be established for the grant of a RoS. Although holders of a TPV were entitled to a RoS and so had established protection claims, holders of different subclasses of visa where no protection claim was required were also entitled to a RoS. The Court said: [129] The criteria for the grant of the RoS visa that was cancelled did not include any visa criterion that the respondent was, at the time the visa was granted, still a refugee. Rather, the purpose of RoS visas was to resolve the temporary visa status of TPV holders and, importantly, the holders of the three other subclasses of visa which gave a right to a RoS visa being granted without requiring any further refugee status determination. That temporary status had left those visa holders uncertain as to their future right to remain in Australia. It was no part of that scheme to resolve the refugee status of former TPV visa holders, either by confirming, or by not confirming, the refugee status that had been found to exist at the time of, and for the purpose of, the grant of the TPV. The temporary right to remain in Australia was to be resolved by replacing temporary visas (including, but not limited to, TPVs) with a new class of permanent visa based upon the bare fact of holding the relevant class of temporary visa, subject only to certain formal, health and public interest criteria being met. This, quite deliberately, avoided the need for any further refugee status assessment or determination process, be it by way of confirmation or non-confirmation of that status. … [132] The grant of the RoS visa did not bestow, or continue the bestowing of, refugee status upon the respondent. Nor did it require, or even permit, any continued recognition of a prior finding of having attained refugee status, and, accordingly, did not constitute the same. No part of the RoS visa criteria, and therefore no part of the grant or refusal of that visa, required the decision-maker to make, or refuse to make, any determination of the respondent's refugee status, even for the purpose of that status continuing. In those circumstances, there cannot have been any requirement, as part of the revocation decision-making process apart from considering representations made under s 501CA(4), to consider the respondent's refugee status. 41 Taking into account those reasons, and viewing the grounds at a reasonably impressionistic level (consistent with MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]), in my view the applicant would not have a sufficiently strong case on any appeal. My assessment is that, contrary to the applicant's submission, he is not in the same position as a person who has had a protection visa revoked. The grant of the RoS visa did not bestow refugee status upon him. Furthermore, the RoS visa was granted in 2009 (prior to the 2014 amendments to the Act referred to in BAL19) and s 36(1C) was not a criterion for the grant of that visa. Accordingly BAL19 does not apply to his particular circumstances. Therefore, I am not persuaded that the applicant has advanced a sufficient basis for an interlocutory injunction restraining his removal from Australia until the determination of an extension application. Even if an extension were not required, I am not satisfied that the applicant has advanced grounds that would justify the grant of an interlocutory injunction. 42 I have not overlooked the question of the balance of convenience (as to which no submissions were made) but in the circumstances of this case and in light of the lack of a sufficient basis on the merits for granting interlocutory relief, that issue would not change my determination. The grounds are not sufficiently persuasive to justify an order that has the effect of preventing the Minister's officers from carrying out a mandatory statutory task.

Conclusion 43 The application should doc be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.

Respondent's chronology (1) The applicant arrived in Australia on 4 March 1997, as the holder of a Class UC Subclass 456 Business (Short Stay) (temporary) visa. That visa ceased on 2 April 1997. (2) On 2 April 1997 the applicant applied for a second Class UC Subclass 456 Business (Short Stay) (temporary) visa, which was granted the same day. (3) On 2 June 1997 the applicant applied for a Class UC Subclass 457 Temporary Work (Skilled) (temporary) visa, and was granted a Class WA Subclass 010 Bridging A (temporary) visa in association with that application. (4) On 30 June 1997 the applicant was granted the Class UC Subclass 457 Temporary Work (Skilled) (temporary) visa. That visa ceased on 30 July 2001, rendering the applicant an unlawful non-citizen on 31 July 2001. (5) On 9 May 2005 the applicant was detained by officers of the Department under s 189(1) of the Migration Act 1958 (Cth), and he subsequently applied for a Class XA Subclass 866 Protection (permanent) visa. (6) On 6 June 2005 the protection visa application was refused by a delegate. The applicant sought review, and on 22 August 2005, the then Refugee Review Tribunal found that the applicant was owed protection obligations. (7) On 14 October 2005 the applicant was granted a Class XA Subclass 785 Temporary protection visa. That visa was substituted by the Department due to identity concerns, and would cease on 14 January 2009. (8) On 1 September 2008 the applicant applied for both a Class XA Subclass 866 Protection (permanent) visa and a Class CD Subclass 851 Resolution of Status (permanent) visa. (9) On 14 January 2009 the applicant was granted a Class CD Subclass 851 Resolution of Status (permanent) visa. Consequently, he withdrew the application for a protection visa on 20 January 2009. (10) On 24 November 2015 the applicant's Class CD Subclass 851 Resolution of Status (permanent) visa was mandatorily cancelled under s 501(3A) of the Migration Act. On 16 December 2015, the applicant requested revocation of that cancellation. (11) On 22 November 2016 the Assistant Minister refused to revoke that cancellation under s 501CA(4) of the Migration Act. The applicant was notified the same day. (12) On 4 January 2017 the applicant made an application for an extension of time to seek judicial review of the Assistant Minister's decision in the Federal Circuit Court of Australia. (13) On 18 January 2017 Judge Barnes made orders extending time and transferring the matter to the Federal Court of Australia by consent. (14) Also on 18 January 2017 the applicant made a third application for a Class XA Subclass 866 Protection (permanent) visa. (15) On 15 June 2017 a delegate of the Minister refused the applicant's application for a protection visa on the basis that he was not a person in respect of whom Australia has protection obligations. (16) The applicant sought review of that decision in the Administrative Appeals Tribunal (Migration and Refugee Division), and on 20 October 2017 the Tribunal affirmed the delegate's decision to refuse the applicant a protection visa. (17) On 19 February 2018 the Federal Circuit Court dismissed an application for judicial review of that Tribunal decision: FEB17 v Minister for Immigration and Border Protection [2018] FCCA 390. (18) On 30 April 2018 the Hon Justice Farrell made orders quashing the decision not to revoke the mandatory cancellation of the applicant's resolution of status visa by consent. Her Honour's orders included the following notation: The respondent accepts that the Non-Revocation Decision was affected by error. The Reasons for Decision at [23] indicate that the respondent proceeded on the basis of only a possibility that the applicant might be owed protection obligations under the Refugees Convention, in circumstances where the Refugee Review Tribunal had found, on 22 August 2005, that the applicant was a person to whom Australia owed those obligations. In proceeding on the basis of a mischaracterisation of the applicant's history, in terms of whether there had been an express finding that protection obligations were owed to him in 2005, the respondent's consideration of whether the cancellation of the applicant's visa should be revoked, pursuant to s 501 CA(4) of the Migration Act 1958 (Cth), miscarried. See AUZ18 v Minister for Immigration and Border Protection [2018] FCA 2117. (19) On 6 December 2018 the applicant made application to the Federal Court of Australia for a writ of mandamus directed at the Minister to make a decision under s 501CA(4) of the Migration Act concerning the cancellation of his resolution of status visa. (20) On 7 January 2019 a delegate of the Minister refused to revoke the mandatory cancellation of the applicant's resolution of status visa. On 13 January 2019, the applicant sought review of that decision in the Administrative Appeals Tribunal. (21) On 4 February 2019 the Hon Justice Flick dismissed the applicant's application for a writ of mandamus by consent. (22) On 1 April 2019 the Administrative Appeals Tribunal (General Division) affirmed the delegate's decision not to revoke the mandatory cancellation: GKQK and Minister for Home Affairs [2019] AATA 614. (23) The applicant sought review of the Tribunal decision in the Federal Court of Australia, and on 5 August 2019 the Hon Justice Thawley dismissed his application for judicial review of the decision of the Administrative Appeals Tribunal on 1 April 2019: GKQK v Minister for Home Affairs [2019] FCA 1223. (24) The applicant does not hold a visa that is in effect and is an unlawful non-citizen within the meaning of s 14 of the Migration Act. He is currently held in immigration detention at Yongah Hill Immigration Detention Centre pursuant to s 196 of the Migration Act.

Migration Act 1958(Cth)ss 36, 501

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