AJW18 v Minister for Immigration

[2018] FCCA 267

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJW18 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 267

Catchwords:
MIGRATION – Ex tempore ruling on application to restrain imminent deportation.

Legislation:

Migration Act 1958 (Cth), ss.197C, 198

Australian Broadcasting Corporation v O’Neill [2006] HCA 46
MZZFW v Minister for Immigration [2015] FCCA 1902

Applicant: AJW18

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: DIANNE ADAMS IN HER CAPACITY AS ACTING MANAGER, WESTERN AUSTRALIA IMA AND ONSHORE PROTECTION

File Number: MLG 214 of 2018

Judgment of: Judge Burchardt

Hearing date: 28 January 2018

Date of Last Submission: 28 January 2018

Delivered at: Melbourne

Delivered on: 28 January 2018

REPRESENTATION

Counsel for the Applicant: Ms N. Karapanagiotidis

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the First Respondent: Ms A. Briffa

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

MLG 214 of 2018

AJW18

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

DIANNE ADAMS IN HER CAPACITY AS ACTING MANAGER, WESTERN AUSTRALIA IMA AND ONSHORE PROTECTION
Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks by way of injunction to restrain the Minister from giving effect to an ITOA decision dated 26 February 2015.  The process that led to that decision was conducted in the absence of the applicant, who absconded in 2014.  All parties agree, expressly or implicitly, that the first issue the Court will look to is whether there is a prima facie case in the sense described in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; a test often referred to, as the parties did here, as whether there is a serious question to be tried.

2. The respondent takes something akin to a preliminary point in that it is submitted that there is no serious question to be tried. The question of the applicant’s removal, pursuant to s.198 of the Migration Act 1958 (Cth) (“the Act”), is not one to which the ITOA decision had any relevance. In that regard, counsel relied upon the decision of Judge Lucev in the matter of MZZFW v Minister for Immigration [2015] FCCA 1902 (“MZZFW”). It should be noted immediately, as his Honour recorded at paragraph [54], that that was not an ITOA case.

3. On the particular facts of the case, his Honour found that there was no jurisdiction to grant an injunction because PRC decision was not a migration decision. Counsel for the Minister in this case concedes readily of the distinction between that and an ITOA case. However, having decided that he had no jurisdiction to grant the injunction, his Honour went on to consider independently whether there was power to prevent the applicant’s removal because of s.197C of the Act.

4. At [55], his Honour, as I said, had already found he had no jurisdiction to grant an injunction because it was a PRC decision. At [58], his Honour set out the following, and I am omitting references to authorities:

   This Court has held that the effect of s.197C of the Migration Act 1958 is to preclude the Court from issuing an injunction to restrain an applicant’s removal from Australia under s.198 of the Migration Act. In SZSSFJ (No. 2) at [24] per Judge Cameron this Court found that an injunction in terms similar to that sought in these proceedings was not available in light of s.197C of the Migration Act 1958. In SZTZI, the Court found that;

   (a) Parliament’s intention in enacting s.197C of the Migration Act 1958 is to make clear that it is not the law that a person cannot be removed from Australia under s.198 of the Migration Act 1958 until claims for protection under Australia’s international law obligations have been assessed according to law;

   (b) In light of s.197C of the Migration Act 1958, an attempt to obtain injunctive relief against removal is not a bona fide indication of this Court’s jurisdiction as the application is hopeless;

   (c) Although this Court has power to grant an injunction to prevent removal, it ought not do so in a case where the relief sought in the originating application has been abandoned, and where what is sought is a declaration in respect of process that is precluded under s.197C of the Migration Act 1958 from impeding an officer’s duty to remove, as soon as reasonable practicable, an unlawful citizen under s.198 of the Migration Act.

5. I note that the respondent said here that the removal is pursuant to s.198(2) of the Act, and while, of course, Counsel for the applicant is scarcely in a position to respond in any great detail on the run, that matter does not appear to be the substance of great challenge. I note that at page 27 of the judgment in MZZFW, his Honour set out various tranches of the explanatory memorandum to the amendment by which s.197C was introduced, and at paragraph [137] of that it was recorded in general terms:

   the amendments in this item are intended to restore the situation to that arising prior to the jurisprudence noted above by making it clear that the removal powers are separate from, unrelated and completely independent of, any provisions in the Migration Act which might be interpreted as implemented Australia’s non-refoulement obligations.

6. MZZFW is not clearly wrong. I must say, I retain doubts on an intuitive level myself this Court could be prohibited from issuing an injunction, but there is simply not time to explore such reservations fully. I simply note that at the very lowest, this point tends strongly against the applicant. There must be considerable doubt, first that the ITOA is capable of being relevant to the regime under s.198, and second whether sections 198 and 197C together, once engaged, can be prevented of operation by injunction of this Court.

7. Having said that, however, I turn to the merits of the proposed application.  Ground 1, in substance, says that the ITOA power was not validly exercised because, in effect, complete reliance was placed on earlier decisions.  By way of response – there is reference to a case called SZYBX, which the Minister submitted that was on different facts – a submission I accept.

8. The ITOA did not, of course, see the applicant because she had absconded.  It noted the earlier findings of the POD and IPA, and one might inquire what else, in the circumstances, the ITOA decision-maker could have done.  To deal with a submission made, the findings of the POD and IPA set out in pages 7 to 8 of the ITOA decision do not seem to me, on so much reading as I have had the time to do, to be significantly or materially different.

9. It seems to me – emphasising as with all these matters that given the urgency of it, it is a matter of perhaps relatively preliminary impression,  but it does seem to me that the ITOA engaged independently with the questions of Catholic faith, a matter specifically referred to in ground 1, and with the other claims advanced by the applicant. 

10. Ground 2 adverts that there is a failure on the ITOA decision-maker’s part as to the question of illegal departure expressly raised, as indeed it was by the applicant.  But, at page 13 of the ITOA decision, the heading expressly reads:

    Political opinion imputed, departing Vietnam unauthorised, seeking asylum in Australia and unintentional access to her personal information.

11. The decision went on to say:

    The client claimed that she is of interest to the Vietnamese authorities for seeking asylum in Australia and for departing Vietnam illegally.

    If the client were to return to Vietnam in the future and come to the attention of Vietnamese authorities as a failed asylum seeker, I note information from the Department of Foreign Affairs and Trade (DFAT) in July 2013, which reports that the Vietnamese government’s policy on returnees is generally to impose a fine of between two and five million Vietnamese Dong and that persons who pay people smugglers to arrange for their departure are treated as victims of criminal activity rather than criminals.

12. That passage seems to me to operate directly upon the claim – at least arguably – directly on the claim that the applicant departed Vietnam unauthorised, and without reading it all out I would say, as a matter for impression again, but taken as a whole the ground made asserted, while certainly not obviously doomed to fail or hopeless, would face considerable difficulties.

13. Ground 3 relates to the issue of data protection, and I read subgrounds (d) and (e):

    (d) It was unreasonable and/or a denial of procedural fairness for the assessor to find that the Vietnamese authorities had not accessed the applicant’s information because the IP addresses did not include Vietnam.  As stated by the High Court of Australia in Minister for Immigration and Border Protection v SZTZ, ‘once downloaded from the Department’s website, the document contained in the personal information of the 9258 visa applicants could have been forwarded to and interrogated by anyone, anywhere and at any time.’

    (e) The assessor consequently failed to properly consider how the data breach may have affected the Applicant’s claims and/or whether it placed her at risk of harm upon return to Vietnam if her details were known to the authorities and/or if the authorities knew that she was in detention for having made an application for protection.

14. Counsel for the Minister referred me to extracts at page 14 of the ITOA decision in the following terms:

    Departmental advice regarding this breach of data states that the information including the affected individual’s name, date of birth and nationality as well as details about their detention in Australia may have been publicised. I accept that the client’s details may have been publically available for a short time.

    The extent of the dissemination of the data is speculative.  In any event, there is no information before me to indicate the data was accessed by or provided to the Vietnamese authorities.  I note the countries identified as the location of the IP addresses do not include Vietnam. Based on the information before me, I am satisfied any details regarding the client’s claims have not been made available to the Vietnamese authorities.  As earlier discussed, DFAT assess the Vietnamese considers that Vietnamese citizens generally seek asylum abroad for economic reasons and do not treat failed asylum seekers differently to other returnees.

    Also, it is reasonable to conclude that many if not most involuntary removals and any voluntary removals would have been held in immigration detention and that the Vietnamese authorities would be aware that Vietnamese nationals who return to Vietnam would behave been in detention. I find no evidence to indicate being in immigration detention prior to return to Vietnam, in itself, will result in persecutory harm by the Vietnamese authorities.

15. Once again, it is not possible to form any concluded views about all these matters. All I would say is that arguably those findings were open to the officer on the evidence. I should emphasise again I have not had time to conclusively assess the strengths of these grounds. I would say, however, that taken in conjunction with the s.198 point, the applicant’s case on the serious issue matter is weak at best.

16. I then turn to the balance of convenience. I have evidence from two doctors. One is a general practitioner with obstetrics experience for 10 years and a post-graduate diploma in obstetrics. He advises in the clearest and strongest terms against the applicant being flown at this stage of her pregnancy, bearing in mind her difficulties with gestational diabetes. The other is a specialist and the member of a college of some 30 years experience. He says the applicant can go. The last sentence of his document is:

    My opinion, therefore, is that the flight from Australia to Vietnam for this women in these circumstances can be undertaken.

17. The circumstances to which he refers are clearly the same circumstances as those referred to by the GP, Doctor Higgins, in his correspondence.  I note that Dr O’Dowd, the specialist relied upon by the Minister, expressly asserted the gestational diabetes would not be a contradiction to flying in these circumstances.  I further note that the respondent proposes that the applicant could fly with a midwife, and indeed I understand that is what is going to occur.

18. One might query how much use this would really be mid-flight, but in the end, the expert advice from Dr O’Dowd is that he says flight can be undertaken in these circumstances. Counsel for the Minister has pointed to the amount of monies involved in setting this charter flight up but those matters, to my way of thinking, are of marginal significance and would be of no significance if the applicant’s health was at serious risk.

19. Taking all these matters together, my conclusion is as follows: I am far from convinced that the Court has power to grant the injunction sought because of the terms of sections 198 and 197C. If I do, the applicant’s case on the serious question issue is weak. The balance of convenience is against her. In these circumstances, the application for interlocutory relief is refused.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  12 February 2018