Mitchell v Minister for Immigration, Citizenship and Multicultural Affairs

1. The name of the respondent in the title of the proceeding be the Minister for Immigration, Citizenship and Multicultural Affairs.
2. The respondent be restrained from removing the applicant from Australia pending the hearing and determination of the applicant's application for an extension of time to file an application for review of the decision of the respondent made on 20 April 2020.
3. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 On or about 12 July 2023, the Department of Home Affairs served the applicant with a notice of intention to remove him from Australia pursuant to s 198 of the Migration Act 1958 (Cth). The applicant's removal is scheduled for 2 August 2023. The applicant is a citizen of the United Kingdom, who arrived in Australia on 8 December 1981, when he was five years old. On 14 May 2019, the applicant's Return (Residence) (Class BB) visa was cancelled under s 501(3A) of the Act following his conviction in the Supreme Court of Victoria for the offence of manslaughter for which the applicant was sentenced to 10 years' imprisonment. 2 On 20 April 2020, the respondent (Minister) made a decision not to exercise his power under s 501CA(4) of the Act to revoke the cancellation of the applicant's visa (the Decision). On 26 July 2023, the applicant filed an application with the Court seeking an extension of time in which to lodge an application for review of the Decision. The applicant also filed a draft originating application for review of the Decision together with an affidavit that he made on 25 July 2023, upon which he now relies. 3 In his affidavit, the applicant indicated that he had urgently made an application to the Federal Court to avoid removal from Australia. It is apparent, though not set out expressly, that what the applicant seeks is effectively an interlocutory order that the Minister be restrained from removing the applicant from Australia pending the hearing and determination of the applicant's application for an extension of time. That is the only matter which I deal with on this urgent listing. 4 The applicant is unrepresented and is currently in immigration detention. He appeared by video conference and made submissions this morning. The Minister was represented by counsel and provided the Court with an outline of submissions and also expanded orally upon those submissions. 5 The test on an application for an interlocutory injunction has been helpfully set out in the Minister's outline of submissions. The relevant principles are well known: see, eg, Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ); CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 870 at [11]-[13] (Thawley J). On such an application, the Court will consider, first, whether there is a serious question to be tried. That requires the applicant to show that there is a sufficient likelihood that the applicant will succeed at the final hearing to justify the preservation of the status quo pending the final hearing. Second, the Court will consider the question of balance of convenience, namely, whether the inconvenience or injury that the applicant would suffer if the injunction is refused is outweighed by the inconvenience or injury that the respondent would suffer if the injunction is granted. The two limbs are interrelated and the relative strength of one or other of the limbs is relevant to the overall consideration of whether an injunction should flow: CPK20 at [13] (Thawley J). 6 I need not say very much at all on the question of balance of convenience. The Minister accepts that the balance of convenience lies with the applicant in that, if the interlocutory injunction is refused, he will be removed from Australia. The Minister in that respect does not point to any prejudice that would affect the Minister's position should an injunction be granted. The strength of the balance of convenience and the extent to which it favours the applicant is relevant. In my view, the balance of convenience strongly favours the applicant. 7 I reach that conclusion based on matters which seem uncontroversial, including because they appear to have been accepted in the statement of reasons of the Minister in refusing to revoke the cancellation decision. In those reasons, the Minister seems to have accepted the health difficulties which attend the applicant, including the fact that he suffers from a number of disabilities. It is also accepted that the applicant would have access to few resources and no, or little, access to family or other persons who may provide him with assistance should he be removed from Australia. In those circumstances, it seems to me likely that if the applicant is removed from Australia, he will not be in a position to pursue his application for an extension of time and that that application is unlikely to be prosecuted. In those circumstances, it seems to me that the balance of convenience lies strongly in favour of the applicant. 8 Turning to the question of whether or not the applicant has demonstrated a serious question to be tried. The applicant needs to show, in essence, that there is a serious question to be tried for him to be granted an extension of time to file his application for judicial review. 9 The test that will be applied when the Court comes to consider that application is set out in s 477A(2)(b) of the Act: (2) The Federal Court may, by order, extend that 35 day period as the Federal Court considers appropriate if: … (b) the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order. 10 The Court will not grant an extension of time unless it is necessary in the interests of the administration of justice. In considering whether to grant an extension of time, the Court is generally guided by the following factors: (1) The length of, and explanation for, the delay; (2) Any prejudice that the respondent might have suffered due to delay; and, (3) The prospects of the case succeeding if an extension were granted. 11 I would add as a relevant consideration, by reference to what I said in MZARV v Minister for Home Affairs [2018] FCA 809 at [13], "the consequences for the applicant should his application for an extension of time not be granted". The consequences here would, on any account, be severe. Namely, that the applicant would be deported from Australia. I also note in relation to the nature of the test that would likely be applied on such an application, what I said in MZARV at [14]: Both parties accept, by reference to the judgment of Mortimer J in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, that the question of whether there are reasonable prospects of success should be approached on an impressionistic basis, and that all the court need be satisfied of is that there is an arguable case in the sense that on its face the argument is not plainly hopeless. 12 In considering the likelihood or not of the applicant succeeding on his extension of time application, I have come to the view that it is arguable that, on the extension of time application, the Court would accept that the applicant has provided an explanation for his long delay. 13 I emphasise at this point, given that I only need to find a serious issue to be tried, the proper question for me is not whether the applicant will be found to have provided a satisfactory explanation for his long delay, but merely whether there is an arguable case that, on the extension of time application, the Court will accept that he has provided such an explanation. The explanation given by the applicant in his affidavit for his long delay is essentially that, in the context of his mental health difficulties, he relied on advice given to him by prison officers as to what he should do on the refusal of his application for the revocation of the cancellation of his visa. 14 He deposes that he was told by an officer that he should apply for review to the Administrative Appeals Tribunal (AAT) to appeal the Decision. He deposes that he did so. He deposes that it was only once he was released from prison that he became aware of the fact that the proper place in which he could pursue his application for judicial review was this Court, rather than the AAT. The Minister has made a submission which contested the veracity of that evidence. However, I am not persuaded that the evidence relied upon by the Minister is insufficient to persuade me that it is not arguable that, on the extension of time application, the Court will accept that the applicant has provided a sufficient explanation for his long delay. 15 Next, it is necessary for me to consider whether it is arguable that, on the extension of time application, the Court will accept that the applicant has an arguable case, in the sense that, on its face, his prospect of success is not plainly hopeless. I am of the view that it is arguable that, on an extension of time application, the Court will accept that the applicant has some merit in his application for judicial review. In argument, I raised with the Minister's counsel at least two factors in the reasoning of the Minister in refusing the application for the revocation of the cancellation of the applicant's visa which may found error. 16 The first concerned the fact that the Minister made a finding in relation to the applicant's risk of reoffending which starkly conflicts with the finding made by the sentencing judge. In circumstances where the Minister made his finding without expressly disagreeing with the finding of the sentencing judge, there is room for an arguable contention that there was a failure by the Minister to properly consider the finding made by the sentencing judge. The second matter raised related to whether, having recognised that by reason of the applicant's arrival in Australia at the age of five and his residence in Australia for some 36 years, the Australian community may afford higher tolerance of criminal conduct, the Minister actually went on to give any significance to that recognition in reasoning to the conclusion that the Minister did. 17 It seems to me that at least those two factors in the Minister's reasoning make it arguable that, on the extension of time application, the Court will accept that the applicant has an arguable case. Finally, it is arguable, as the Minister accepts, that there will be no particular prejudice to the Minister if an extension of time were granted. For those reasons, I am satisfied that there is a serious question to be tried. Given that the balance of convenience also favours the applicant, it is appropriate that the interlocutory relief sought be granted. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromberg.