Perumal v Minister for Immigration, Citizenship and Multicultural Affairs

1. The Administrative Appeals Tribunal be taken to have been joined as a party to the proceedings to the extent necessary, and, as the second respondent, the Administrative Appeals Tribunal be joined as a party to the proceedings as the second respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

FEUTRILL J: 1 The applicant is a 38 year-old citizen of South Africa. He entered and has resided in Australia since 2008. In 2011 he was granted a Class BC Subclass 100 Spouse visa that permitted him to enter and remain in Australia as a non-citizen under the provisions of the Migration Act 1958 (Cth). 2 In August 2020 the applicant was convicted in New South Wales of two counts of 'common assault (domestic violence)', two counts of 'contravening prohibitions or restrictions in an apprehended violence order (domestic)' and 'stalking or intimidating (domestic)' and sentenced to an aggregated period of imprisonment of 16 months. As a consequence, in November 2020 the applicant's visa was cancelled under s 501(3A) of the Act on the ground that a delegate of the first respondent (Minister) was satisfied that the applicant did not pass the character test by operation of s 501(6)(a) (substantial criminal record) on the basis of s 501(7)(c) (sentenced to a term of imprisonment of 12 months or more) and because the applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution in Australia, for an offence against a law in Australia. 3 In November 2020, in response to an invitation of the Minister under s 501CA(3)(b), the applicant made representations seeking revocation of the decision to cancel his visa under s 501CA(4) of the Act. On 3 August 2021 a delegate of the Minister made a decision not to revoke the cancellation of the applicant's visa on the grounds that the delegate was satisfied that the applicant did not pass the character test and there was not another reason why the original decision should be revoked. On 4 August 2021 the applicant was notified of that decision and provided with certain documents, including the delegate's statement of reasons, in accordance with s 501G of the Act. Thereafter, pursuant to s 500(1)(ba) and s 500(6B) of the Act, the applicant had a right to apply to the second respondent (Tribunal) for review of the delegate's decision not to revoke the cancellation of his visa if an application to the Tribunal was lodged within nine days after the day on which the applicant was notified of the decision. 4 On 19 October 2021 the applicant lodged an application with the Tribunal for review of the delegate's decision not to revoke the cancellation of his visa. On 28 October 2021 that application was dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) because the applicant's application was made more than nine days after notification of the delegate's decision. 5 On 21 May 2022 the applicant lodged an application with the Tribunal in which he requested a review of the Tribunal's decision to dismiss his earlier application for review. On 7 June 2022 the Tribunal dismissed that application on the ground that the Tribunal had no jurisdiction to review its earlier decision. On 4 August 2022 the applicant lodged a further application for review of the delegate's decision not to revoke his visa. On 2 September 2022 the Tribunal dismissed that application on the ground that it had no jurisdiction. 6 In the meantime, by reason of the cancellation of the applicant's visa, he no longer had a right to enter or remain in Australia. Thereby he became, in the language of the Act, an unlawful non-citizen. By operation of s 189(1) of the Act if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen the officer must detain the person. Therefore, upon completion of the applicant's term of imprisonment, he was taken into immigration detention. 7 On 22 December 2022 the Full Court of the Federal Court of Australia delivered judgment in Pearson v Minister for Home Affairs [2022] FCAFC 203; (2022) 295 FCR 177. The Court (Allsop CJ, Rangiah and SC Derrington JJ) in Pearson (at [40]-[49]) concluded that a person sentenced to a term of imprisonment of more than 12 months based on an aggregate sentence 'was not sentenced (for an offence) to a term of imprisonment of 12 months or more' and, as such, fell outside the meaning of 'substantial criminal record' in s 501(6)(a) and s 501(7)(c) of the Act. As a consequence, the validity of the decision to cancel that applicant's visa on the basis of an aggregate term of imprisonment of 16 months for more than one offence was called into question. In December 2022 the applicant was released from immigration detention, presumably on the ground that, following Pearson, an officer no longer knew or reasonably suspected that the applicant was an unlawful non-citizen. 8 On 17 February 2023 the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) came into effect. The effect of the provisions of the Aggregate Sentences Act was to insert s 5AB into the Act which has the effect that s 501(6)(a) and s 501(7)(c) apply to aggregate sentences for more than one offence. Item 4 of Sch 1 of the Aggregate Sentences Act has the effect of validating the decision to cancel the applicant's visa in November 2020 on the basis of the aggregate 16-month sentence imposed in August 2020 for multiple offences. 9 On 17 February 2023 the Department of Home Affairs wrote to the applicant informing him of the Aggregate Sentences Act, its effect and that he was, again, deemed an unlawful non-citizen liable to be detained. On 23 February 2023 the applicant applied to the Tribunal for review of the 'decision' in the Department's letter of 17 February 2023. On 9 March 2023 the Tribunal dismissed the application under s 42A(4) of the AAT Act on the ground that the applicant, in substance, sought review of the decision of the delegate not to revoke the cancellation of his visa made on 3 August 2021 and the application was lodged outside the nine-day period. The applicant was notified of that decision by letter from the Tribunal dated 10 March 2023. 10 At some time after 17 February 2023 the applicant was again taken into immigration detention where he remains. Recently, the applicant was given notice that arrangements have been made for his removal from Australia on or after 26 October 2023. Section 196 of the Act provides that a person detained under s 189 must be kept in immigration detention until, amongst other things, the person is removed from Australia under s 198, deported under s 200, or granted a visa. Section 198(2B)(c)(ii) of the Act provides, relevantly, that an officer must remove an unlawful non-citizen as soon as reasonably practicable if the non-citizen has made representations to the Minister about revocation of the decision to cancel a visa and the Minister (personally or by a delegate) has decided not to revoke the cancellation decision. Accordingly, an officer now intends removing the applicant from Australia in accordance with the obligation to do so under s 198(2B) of the Act. 11 On 27 October 2023 the applicant filed an application for an extension of time to apply for a remedy for judicial review under s 476 and s 477A of the Act. The applicant filed with that application a proposed originating application for judicial review. The applicant also filed an interlocutory application for an injunction to restrain the Minister from removing him from Australia pending resolution of his application for judicial review and an affidavit in support. 12 The Minister is named as the only respondent in the proposed originating application for judicial review. However, the application for an extension of time names the Minister as first respondent and the Tribunal as second respondent to that application. Also, the proposed originating application identifies, in its terms, the decision of the delegate of the Minister made on 3 August 2021 as the decision the subject of the proposed application. As explained later, during the oral hearing it emerged that the applicant wishes to challenge the decision of the Tribunal of 9 March 2023 to the effect that it did not have jurisdiction to review the asserted decision of the Minister made in the letter of 17 February 2023. For the avoidance of any doubt, I will make an order that clarifies that the Tribunal is joined and is a party, as second respondent, to the proceedings. While the Minister was given notice of the interlocutory application for an injunction and appeared on the hearing of that application, it is evident that the Tribunal has not received notice of the proceedings. As would be expected, the Tribunal did not appear or make submissions on the interlocutory injunction application. 13 The application for an interlocutory injunction was heard on an urgent basis on the day it was filed. The Minister opposed the application and filed, read and relied upon an affidavit in opposition. 14 At the conclusion of the oral hearing, I made orders dismissing the interlocutory application for an injunction and gave a brief summary of my reasons for those orders. At that time, I indicated that I would provide more detailed explanation of my reasons after the hearing. These reasons contain that explanation. 15 There is no doubt that the Court has jurisdiction under s 23 of the Federal Court of Australia Act 1976 (Cth) to grant an interlocutory injunction of the kind the applicant has sought in his application. In SZTZM v Minister for Immigration and Border Protection [2017] FCA 534 (at [39]-[44) Katzmann J summarised the applicable principles, in the context of an application to restrain removal from Australia pending the resolution of an appeal from the Federal Circuit Court of Australia, in the following terms that equally apply to the present application. 39 An applicant for an interlocutory injunction must first show that he 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": Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ, Gleeson CJ and Crennan J agreeing at [19]). This is commonly referred to as a serious question to be tried. 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 Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622. 40 These same considerations apply in public law cases: Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu [2000] HCA 23; (2000) 171 ALR 341; (2000) 74 ALJR 830 at [7] (Gleeson CJ). … 42 Secondly, the appellant must show that the inconvenience of the injury he would be likely to suffer if the injunction were not granted outweighs the injury the respondents would suffer if it were granted. 43 These two questions are not entirely distinct. To the contrary, as the Full Court emphasised in Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238, the strength of an applicant's case is a factor to be considered in determining where the balance of convenience lies. Consequently, as Woodward J observed in Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472 (Smithers and Sweeney JJ agreeing at 467 and 469 respectively): [A]n apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. 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. 44 In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, however, Gleeson CJ observed at [18]: The extent to which it is necessary, or appropriate, to examine the legal merits of a plaintiff's claim for final relief, in determining whether to grant an interlocutory injunction, will depend upon the circumstances of the case. There is no inflexible rule. 16 Further, as Mortimer J observed in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 (at [15]) in the context of public law when considering the balance of convenience 'the "risk of injustice" to the repository of a public power may involve a different kind of evaluation. The risk of injustice may, in such circumstances, relate to the frustration of legislative intention within a legislative scheme, or the interruption of the course otherwise contemplated by the law'. 17 Taking into account that the applicant represented himself at the hearing and in the preparation of the applications and other documents he has filed in the Court, I explained to him the general principles applicable to an application for an interlocutory injunction and invited him to make submissions on what question is to be tried, and the seriousness of that question, and on the balance of convenience, and the reasons he contends his removal from Australia pending resolution of the proceedings would be unjust. 18 As the proposed originating application for judicial review identified only the Minister as the respondent and the migration decision as the decision of the delegate of 4 August 2021, I indicated at the outset of the applicant's oral submissions that this Court would not have jurisdiction under s 476A of the Act to review the delegate's decision directly. Further, an absence of jurisdiction of this Court to review that decision would be a significant difficulty for the purposes of demonstrating a serious question to be tried. The applicant then clarified that the decision he sought to challenge was the decision of the Tribunal of 9 March 2023 to dismiss his application for review of the 'decision' contained in the letter from the Department to the applicant of 17 February 2023. The applicant submitted that the Tribunal had jurisdiction to review that decision because the application was lodged within nine days of 17 February 2023. The applicant submitted that the letter of 17 February 2023, in substance, was a decision not to revoke the cancellation of his visa that he understood had been reinstated in December 2022 and then re-cancelled in February 2023. In effect, the applicant submitted that it was not 'fair' to reinstate his visa and then re-cancel it by legislation. 19 As to the balance of convenience, the applicant was not able to indicate any manner in which his application for an extension of time and, if granted, his originating application would be rendered nugatory if he were removed to South Africa. His submissions in this respect focused on the unfairness and hardship that would flow from his permanent removal from Australia if the visa cancellation decision were not revoked. The Minister made submissions, which I accept, that if, ultimately, the Tribunal were to make a decision to revoke the cancellation of his visa, the applicant would have a right to re-enter and remain in Australia. In the meantime, the applicant will not lose the right to pursue proceedings in this Court. Further, the applicant was not able to point to any evidence or make any submission that the prosecution of the proceedings would likely to be thwarted or made oppressively difficult if he were removed from Australia. Nonetheless, I am prepared to infer that by virtue of removal from Australia it will be more difficult, but not impossible, for the applicant to prosecute the proceedings from outside Australia. 20 Significantly, on the material before the Court, I am not able to identify any potential basis for judicial review of a decision of the Tribunal, the Minister or a delegate of the Minister. Under s 500(1)(ba) this Court has jurisdiction to review a decision of the Tribunal not to revoke a cancellation of a visa made under s 501CA(4) of the Act. I am also prepared to accept that this Court may also have jurisdiction to review an erroneous decision of the Tribunal to refuse to carry out a review on the ground of want of jurisdiction. However, there is no arguable error in the Tribunal's decisions to the effect that it did not have jurisdiction to review the delegate's decision to refuse to revoke the cancellation of the applicant's visa more than nine days after the applicant received notice of that decision. The letter from the Department to the applicant of 17 February 2023 contained no relevant 'decision' of the Minister or a delegate that could be reviewed under s 500(1)(ba) or any other provision of the Act. It merely informed the applicant of the Department's view of the effect of the Aggregate Sentences Act. 21 Having regard to the applicant's status as a litigant-in-person, I considered that an aspect of the applicant's submissions might be a complaint to the effect that the Aggregate Sentences Act was invalid for some reason. I contemplated whether the applicant should be given an opportunity to obtain legal assistance to amend his application or initiate proceedings challenging the validity of that legislation. However, counsel for the Minister informed me that the validity of that legislation had been unsuccessfully challenged in Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 167 (judgment delivered on 19 October 2023) and, as far as she was aware, no appeal proceedings had been instituted from that judgment. I considered Tapiki during a brief adjournment of the hearing. In Tapiki the applicant unsuccessfully argued that the validating provisions in item 4 of Sch 1 of the Aggregate Sentences Act were invalid on the grounds that those provisions involve a usurpation of or interference with the judicial power of the Commonwealth or purported to exclude the entrenched jurisdiction of the High Court. Further, that those provisions effect an acquisition of the former visa-holder's right to sue for false imprisonment otherwise than on just terms, contrary to s 51(xxxi) of the Constitution. The judgment in Tapiki was that of a Full Court (Katzmann, SC Derrington and Kennett JJ) exercising original jurisdiction. In these circumstances, the prospect that the applicant could, with legal advice, mount a viable challenge to the validity of the Aggregate Sentences Act is speculative. Accordingly, I was not minded to grant an adjournment, on my own motion, for the purpose of allowing the applicant to attempt to obtain legal advice concerning a possible challenge to the validity of the Aggregate Sentences Act. 22 While it is understandable that, in the circumstances of this case, the applicant may feel dissatisfied and frustrated about the status of his visa and how it came to be validly cancelled and that the effect of the Aggregate Sentences Act is 'unfair', I am not able to discern even the slightest issue, from the materials he has filed and his oral submissions, that could support a viable application for judicial review or other remedy in the applicant's favour. In those circumstances, it is inevitable that his application for an interlocutory injunction must be dismissed. However, I should add that even if I had considered there were viable grounds for judicial review, on the evidence and other materials before me, there would be no evident injustice resulting from the applicant's removal from Australia pending resolution of the proceedings. Indeed, there would be 'injustice' for the repository of the public power of the kind to which Mortimer J referred in CPK20 if an interlocutory injunction were granted in the circumstances of this case. That is, the balance of convenience also does not favour granting the applicant an interlocutory injunction. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.