Federal Court of Australia Mukhtar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1497 File number: NSD 1817 of 2024 Judgment of: KENNETT J Date of judgment: 17 December 2024 Date of publication of reasons: 19 December 2024 Catchwords: PRACTICE AND PROCEDURE – application for interlocutory injunction – where applicant has lived in Australia for over 20 years – where applicant's permanent visa cancelled by Minister – where applicant's removal imminent – where applicant claims Administrative Appeals Tribunal denied him procedural fairness – where applicant requires extension of time to bring proceeding – whether real issue to be tried – whether balance of convenience favours the grant of an injunction restraining the Minister from removing applicant from Australia Legislation: Migration Act 1958 (Cth) ss 477A, 501, 501CA Cases cited: Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; 101 FCR 20 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 18 Date of hearing: 17 December 2024 Counsel for the applicant: The applicant appeared in person Counsel for the respondents: G Gutmann (solicitor) Solicitor for the respondents: MinterEllison ORDERS NSD 1817 of 2024 BETWEEN: ALI MUKHTAR Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: KENNETT J DATE OF ORDER: 17 DECEMBER 2024 THE COURT ORDERS THAT: 1. The application for an interlocutory injunction be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (ex tempore, revised from transcript) KENNETT J: 1 The applicant is a national of Fiji. He arrived in Australia in 2001 aged 18 and has lived in Australia since then. The applicant was the holder of a Subclass 101 (Child) visa. This is a subclass of permanent visa which allows the holder to leave and return to Australia. 2 The applicant has a long history of criminal offending beginning in 2003. In December 2022, he was convicted of several serious offences involving family violence against his then partner and was sentenced to a term of 30 months imprisonment. As a result, in March 2023, his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act). The applicant requested that the cancellation be revoked under s 501CA of the Act. A delegate of the Minister decided not to revoke the cancellation. In May 2024, the applicant applied to the then Administrative Appeals Tribunal (Tribunal) for review of that decision. 3 The Tribunal's decision was delivered on 8 August 2024 with written reasons provided on 15 August 2024. The Tribunal upheld the delegate's decision not to revoke the visa cancellation. 4 The applicant, who is in immigration detention, filed an application for an extension of time to commence proceedings seeking judicial review of the Tribunal's decision. The documents that he filed are dated 9 December 2024, but the court's records indicate that they were lodged for filing on 16 December 2024. 5 He has made an oral application for an interlocutory injunction to prevent his removal from Australia. That removal is scheduled for tomorrow, 18 December 2024. 6 An interlocutory injunction of this kind is granted for the purpose of preserving the status quo pending the outcome of a proceeding. If the applicant is successful in obtaining an extension of time and then successful in the substantive application, he will obtain a re-hearing of his case in the Tribunal. If he succeeds there, the revocation decision may be revoked and his visa may be restored to him. The purpose of pointing this out is to note that, because the visa is a permanent visa, it would be possible for him (if ultimately successful) to hold the visa while overseas and to use it to return to Australia. His proceeding in this Court therefore does not become otiose if he is removed from Australia. The grant of an injunction preventing removal from Australia is therefore not necessary in order to preserve the status quo in any strict sense. 7 Conducting the proceeding in this Court and potentially then in the Tribunal would obviously be much more difficult for the applicant if he is in his home country of Fiji rather than in Australia, but it has not been shown to be impossible. Facilities for appearing by video link can be assumed to exist and legal representation in Australia may be able to be obtained. Material before me indicates that the applicant's mother lives in Fiji, which suggests that he may not be entirely without support there. More generally, the applicant contended in the Tribunal and before me that he would face significant hardship in Fiji. He made one claim in the Tribunal in relation to his Indian ethnicity which the Tribunal considered might raise an issue concerning Australia's protection obligations. However, that claim is not currently in issue. The applicant has not sought a protection visa, for example, and its assessment is, in any event, a matter for the Executive. There is evidence before me that the assessments made so far by government officials have not brought to light a prospect of the applicant suffering significant harm in Fiji. 8 I thus proceed on the basis that removal from Australia would significantly disadvantage the applicant in the conduct of the proceeding but would not render the proceeding unviable or otiose. That is necessarily the focus of the present decision, not the merits of the broader question whether the applicant should be allowed to stay in Australia or not. 9 With this in mind, I turn to consider whether there is a real issue to be tried and where the balance of convenience lies. 10 Currently, the applicant has before the Court only an application to extend time. The limitation period under s 477A of the Act expired in mid-September and the extension required is therefore significant but not remarkable. The applicant proposes to argue that he faced difficulties arising from his lack of legal representation and family support, his own mental health issues, and worries about his sister's medical condition. I express no view at present on the cogency of this explanation except that it is not obviously without substance. A judge of this Court would quite likely, although not inevitably, be prepared to grant the extension if persuaded that the applicant's substantive proceeding had sufficient merit. 11 The substantive application which the applicant seeks to file has been drafted by him and does not identify grounds of review with any precision. The grounds as presently formulated are as follows. In conducting the hearing the Administrative Appeals Tribunal did not provide the applicant with procedural fairness. Particulars 1. - The Tribunal overlooked substantial, clearly articulated submissions, or failed to consider relevant matters. 2. – the Administrative Appeals Tribunal in listing the hearing on a date when the [sic] 3. The Tribunals failed to comply with s 499(2A) of the Act and misunderstood, or misapplied, Direction 110; and/or denied the applicant procedural fairness. 12 In his oral submissions, the applicant referred to an inability to provide the submissions and witness statements that the Tribunal had ordered him to file. While the tribunal did comment on this at paragraph 23 of its reasons, its reasons also record that the applicant gave oral evidence and submissions and that the Tribunal, for its part, was satisfied that he had had a reasonable opportunity to present his case. 13 This course of events does not point to a failure by the Tribunal to provide procedural fairness. The written material that the Tribunal had asked the applicant to file had more to do with fairness to the other side than fairness to the applicant himself. It appears that he was able to say what he wanted to say by way of oral submissions and to give oral evidence. Lack of legal representation in the tribunal is not itself a denial of procedural fairness: Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; 101 FCR 20 at [28]–[36]. 14 My own brief examination of the Tribunal's reasons has not disclosed any failure to apply the relevant statutory criteria or other reviewable error. This can only be stated as a very preliminary view. I have not, for example, seen the material before the Tribunal or received evidence about the conduct of the proceeding in the Tribunal. Experience in this area of the law shows that an administrative decision that initially appears to be sound may be brought undone by the careful arguments of counsel. Thus, it is not possible to say that the applicant has no prospect of succeeding in his substantive proceeding. 15 However, the case as currently presented does not point to any arguable error by the Tribunal. Only very limited reliance can be placed on the possibility that a coherent argument might be identified upon further study of the matter. As things presently stand, it seems unlikely that the applicant would succeed either in obtaining an extension of time or in prosecuting his case to a successful outcome. 16 As to the balance of convenience, the grant of the injunction would certainly assist the applicant in preparation and presentation of his case and would save him from the hardship of being removed to a country where he has not lived since his youth. On the other hand, the grant of the injunction would result, unless a bridging visa were granted, in the applicant being kept in immigration detention for what may be a considerable time at public expense while his case is heard and determined. The costs to the taxpayer of his detention are, on the face of it, unlikely to be recovered. 17 In circumstances where: (a) the proceeding has been commenced out of time and appears to have no or very limited prospects of succeeding; and (b) the proceeding could, albeit with difficulty, be prosecuted while the applicant is overseas and would have a useful result if successful, I have come to the conclusion that the grant of an interlocutory injunction to prevent removal is not justified. 18 The application is therefore dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett. Associate: Dated: 19 December 2024