Lum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1420

Lum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1420

The Court was satisfied that there was a serious question to be tried because the applicant had filed accepted Court documents, the proceeding was being case managed, he gave an explanation for delay based on misunderstanding the Federal Court's jurisdiction under s 476A of the Migration Act, his grounds could be refined if he obtained legal advice, and he would suffer prejudice if an extension were refused. The balance of convenience clearly favoured an injunction because removal would require him to prosecute the application offshore, there was no evidence he would be returned to Australia without cost if successful, and removal could arguably have further adverse migration...

Jurisdiction
Australia
Judgment Date
29 August 2019
Procedural Posture
Migration Application for Interlocutory Injunction in Proceeding Seeking Extension of Time to Review an Administrative Appeals Tribunal Decision / Urgent Interlocutory Application Pending Determination of Application for Extension of Time
Outcome
Interlocutory injunction granted until further order; First Respondent's name amended.
Legal Topics
['visa Cancellation' 'revocation of Mandatory Visa Cancellation' 'removal From Australia' 'interlocutory Injunction' 'extension of Time' 'judicial Review']
['migration Law' 'administrative Law'] ['visa Cancellation' 'revocation of Mandatory Visa Cancellation' 'removal From Australia' 'interlocutory Injunction' 'extension of Time' 'judicial Review']

Case Brief

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Procedural Posture

Migration Application for Interlocutory Injunction in Proceeding Seeking Extension of Time to Review an Administrative Appeals Tribunal Decision / Urgent Interlocutory Application Pending Determination of Application for Extension of Time

Legal Issues

  1. 1 ["Whether there was a serious question to be tried in relation to the applicant's application for an extension of time to review the Tribunal's decision" 'Whether the balance of convenience favoured restraining the Minister from removing the applicant from Australia pending determination of the extension of time application' "Whether the Department should proceed with removal where Federal Court proceedings challenging the Tribunal's decision were pending"]

Ratio Decidendi

The Court was satisfied that there was a serious question to be tried because the applicant had filed accepted Court documents, the proceeding was being case managed, he gave an explanation for delay based on misunderstanding the Federal Court's jurisdiction under s 476A of the Migration Act, his grounds could be refined if he obtained legal advice, and he would suffer prejudice if an extension were refused. The balance of convenience clearly favoured an injunction because removal would require him to prosecute the application offshore, there was no evidence he would be returned to Australia without cost if successful, and removal could arguably have further adverse migration...

Court Disposition

Interlocutory injunction granted until further order; First Respondent's name amended.

Orders

  • ['The name of the First Respondent be amended to be Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.' 'Until further order, the First Respondent, by himself or by his department, officers, delegates or agents, be restrained and an injunction hereby issues restraining the First...