Akz15 v Commonwealth of Australia and Anor (No.3)
[2015] FCCA 3285
•11 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKZ15 v COMMONWEALTH OF AUSTRALIA & ANOR (No.3) | [2015] FCCA 3285 |
| Catchwords: COSTS – Whether present case advanced on a public interest basis – whether continued detention of applicant relevant to the issue of costs – no public interest issue – costs awarded against applicant. |
| Legislation: Migration Act 1958 (Cth), ss.36, 45AA, 46A, 65, 65A, 66, 91WA, 147, 162(1), 189, 195A, 195AA, 197AB Migration Regulations 1994, reg.2.08F, cl.866.221, 866.221(2), Schedule 2 |
| Cabal v United Mexican States (No.6) (2000) 174 ALR 747 FTZK v Minister for Immigration and Border Protection [2014] HCA 26 Plaintiff S297/2013 v Minister for Immigration (2014) 88 ALJR 722 Re O’Reilly; Ex parte Australena Investments Pty Limited (1983) 50 ALR 577 Thornton v Repatriation Commission (1981) 35 ALR 485 |
| Applicant: | AKZ15 |
| First Respondent: | COMMONWEALTH OF AUSTRALIA |
| Second Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2163 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 8 December 2015 |
| Date of Last Submission: | 8 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gormly |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondents: | Mr P D Herzfeld |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The amended application is dismissed.
The applicant pay the respondents’ costs as taxed or agreed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2163 of 2015
| AKZ15 |
Applicant
And
| COMMONWEALTH OF AUSTRALIA |
First Respondent
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Second Respondent
REASONS FOR JUDGMENT
These proceedings were originally commenced in the High Court of Australia on 4 June 2015 and remitted to the Federal Circuit Court of Australia. The Court has jurisdiction as a result of the remittal pursuant to s.44(1) of the Judiciary Act 1903 and s.476B(1) of the Migration Act 1958 (Cth). The amended application seeks a declaration that the applicant’s application for a Protection (class XA) visa was not converted to an application for a Temporary Protection (class XD) visa by operation of reg.2.08F of the Migration Regulations 1994, and is part of a matter that was remitted referable to the relief sought in the initiating process for a writ of mandamus, writ of habeas corpus and damages for false imprisonment. The matter was the subject of orders on 10 September 2015 for a concurrent hearing with another matter involving this applicant’s brother, ASP15 v Commonwealth of Australia & Anor [2015] FCCA 3275.
An order was also made on 30 October 2015 for evidence in one matter to be taken to be evidence in the other subject to relevance. On 10 September 2015, in both matters, the Court ordered under r.17.02 of the Federal Circuit Court Rules 2001 all questions of fact and law other than questions of causation, appropriation and the damages are to be heard and determined first, and the matter was fixed for hearing on 8 December 2015. The Court, since that date, has heard interlocutory applications relating to claims for public interest immunity in respect of certain documents sought by the applicant and in relation to redactions of documents produced in answer to subpoenas served by the applicant.
On 10 September 2015, the Court ordered the second respondent to file and serve an affidavit identifying the alleged basis for the continuing lawful detention of the respective applicants and directions were also made for the filing and service by the applicant a concise statement of questions of fact and questions of law the applicant seeks to agitate and for a similar document to be filed by the first and second respondents.
The applicant’s statement of questions of fact and law dated 28 October 2015 was as follows:
First Questions of Law
1. Whether the second respondent Minister (the Minister) was under a duty to consider the applicant's application for a Protection (Class XA) visa within a reasonable time or any other time required by the decision making framework established by the Migration Act 1958 (the Act) including the provisions of s 65A of the Act as they applied both before and after the repeal of that section on 16 December 2014, having regard to s 7 Acts Interpretation Act 1903.
2. Whether the Minister's failure to have made a decision by the time of the commencement of proceedings or earlier was in breach of any duty to have made a decision within a 'reasonable time' or other time prescribed by law.
3. Whether the applicant's application for a Protection (Class XA) visa was converted to an application for a Temporary Protection (Class XD) visa by operation of reg 2.08F Migration Regulations 1994.
First Questions of Fact
4. What amounted to any required reasonable or other time in the circumstances of the case in the context of the decision framework established by the Act.
In the circumstances of the case relevant matters in determining the period include:
(i) The timing, provenance, quality and credibility of an allegation of murder made against the applicant.
(ii) The delay in investigating the allegation and the consequent delays in processing the visa application.
(iii) Whether it is reasonable to attribute delay in the investigation of the murder allegation to the applicant for his refusal to give his consent to the release to the Sri Lankan authorities of identifying information in circumstances where the investigation related to the application of the exclusion provision of Article 1F of the Refugees Convention.
Remedy
5. A Writ of Mandamus directing the Minister to consider and determine the applicant's application for a Protection (Class XA) visa according to law.
Second Questions of Law
6. Whether the applicant's detention since 14 October 2014 or later was under and for the purposes of the Act or was unlawful.
7. Whether since the Minister's decision under s 46A of the Act on 2 October 2012 to permit the applicant as an 'offshore entrant' (now 'unauthorised maritime arrival') to apply for a Protection (Class XA) visa the applicant was detained under the Act for the purpose of receiving, investigating and determining an application for a visa.
8. Whether the lawfulness of the detention depended on the identified purpose of the detention being pursued and carried into effect as a soon as reasonably practicable.
Second Questions of Fact
9. Whether the purpose of the applicant's detention was pursued and carried into effect as soon as reasonably practicable having regard to the circumstances of the case in the context of the decision making framework established by the Act.
In the circumstances of the case, relevant matters in determining the period 'as soon as reasonably practicable' include:
iv. The timing, provenance, quality and credibility of an allegation of murder made against the applicant.
v. The delay in investigating the allegation and the consequent delays in processing the visa application.
vi. Whether it is reasonable to attribute delay in the investigation of the murder allegation to the applicant for his refusal to give his consent to the release to the Sri Lankan authorities of identifying information in circumstances where the investigation related to the application of the exclusion provision of Article IF of the Refugees Convention.
Remedy
1. A writ of habeas corpus.
2. Damages for false imprisonment from 14 October 2014, including aggravated and exemplary damages for the length and remoteness of the false imprisonment and the failure to provide information of the reasons for the applicant's continued detention and the resulting mental anguish and anxiety suffered by the applicant.
The respondents filed the following response in relation to the questions framed by the applicant as follows:
The respondents' response to the applicant's statement of questions of fact and law filed 28 October 2015 is as follows:
1. As to paragraph 1:
(a) the respondents say that, on the application for an order to show cause dated 4 June 2015 as presently framed, no question arises as to the continued application of s 65A of the Migration Act 1958 (Cth) following its repeal;
(b) the respondents say further that they would not oppose an amendment to the application for an order to show cause to raise this question; and
(c) otherwise, the respondents agree that the question of law stated in paragraph 1 arises.
2. The respondents agree that the question stated in paragraph 2 arises but they say that it is, or involves, a question of fact.
3. As to paragraph 3:
(a) the respondents say that, on the application for an order to show cause dated 4 June 2015 as presently framed, question 3 does not arise; and
(b) the respondents say further that they would not oppose an amendment to the application for an order to show cause to raise this question.
4. The respondents agree that the question stated in paragraph 4 arises.
5. As to paragraph 5, the respondents say that a further question of law which arises is:
What, if any, remedy should be ordered if the questions stated in paragraphs 1 to 4 are answered favourably to the applicant?
6. The respondents agree that the question stated in paragraph 6 arises but they say that it is, or involves, a question of fact.
7. The respondents say that, so far as the question stated in paragraph 7 goes beyond the question stated in paragraph 6, it does not arise.
8. The respondents agree that the question stated in paragraph 8 arises.
9. The respondents agree that the question stated in paragraph 9 arises.
10. As to paragraphs 1 and 2 under the heading “Remedy” on page 4, the respondents say that a further question of law which arises is:
What, if any, remedy should be ordered if the questions stated in paragraphs 6 to 9 are answered favourably to the applicant?
The affidavit evidence filed by the respondents establish that the applicants remained in detention in circumstances where the applicant’s alleged converted application for a Temporary Protection visa remains under consideration by the Minister. The applicant is a citizen of Sri Lanka. The applicant arrived at Christmas Island on 17 February 2012 and, as an unauthorised maritime arrival, was detained pursuant to s.189 of the Migration Act 1958. By operation of s.46A of the Migration Act 1958, the applicant was prevented from making a valid application for any visa. On 21 March 2012, the applicant attended an irregular maritime arrival entry interview.
Between March 2012 and May 2012, the Department of Immigration and Border Protection received information from a number of sources alleging the applicant had been involved in people‑smuggling activities. Allegations were also received to the effect that the applicant had killed a man in Sri Lanka. Those allegations were to the effect that the applicant and his brother, had suffocated a 20 year old man by burying his head in the sand in a beach near their home. Those allegations were referred to the Australian Federal Police (AFP) for investigation. The applicant and his brother were also the subject of an AFP report identifying the use of aliases by both brothers. The applicant and his brother were also the subject of complaint as to intimidating other detainees and demanding money. The applicant was also found to be using an unauthorised mobile phone whilst in detention.
On 29 August 2012, the applicant was referred to the IMA complex protection cases team for the preparation of a submission to the second respondent for consideration as to whether the Minister should exercise the powers under s.46A(ii) of the Act, to lift the bar imposed by s.46A(i). On 11 September 2012, the Attorney General’s Department issued a Criminal Justice Stay Certificate in relation to the applicant, pursuant to s.147 of the Act.
The Criminal Justice Stay Certificate was issued on the basis of ongoing investigations by the AFP into allegations that the applicant had been involved in people‑smuggling. On 20 November 2012, the AFP advised the Department that there was insufficient evidence to support prosecution of the applicant for people‑smuggling offences and, as a result, the applicant’s Criminal Justice Stay Certificate was cancelled pursuant to s.162(1) of the Act.
On 2 October 2012, the Minister exercised his power, under s.46A(ii) of the Act, to permit the applicant to apply for a Protection (class XA) visa. On 2 November 2012, the applicant lodged an application for a Protection visa with the Department. The applicant attended an interview with the Department on 21 November 2012, in the course of which the applicant alleged that his original passport had been collected and thrown away, and alleged that he had never been abroad. In fact subsequent evidence supports that it was the applicant who collected the passports of other unauthorised maritime arrivals travelling on a boat skippered by the applicant’s father and crewed by the applicant.
When the applicant was first interviewed, the applicant admitted he did not tell the truth about where his mother was and that she was, in fact, in another country. The applicant also did not tell the truth about his father, who had in fact been sailing on the boat on which the applicant arrived at Christmas Island, and the applicant had falsely suggested he was dead. These admissions of false information provided by the applicant impact on the applicant’s credibility in relation to his denial of serious offences and are relevant to the ongoing consideration of the applicant’s application.
The applicant alleged that his father was the captain of the boat and that he was one of the crew who organised the sailing of the boat, and that he was the person who had gathered the passports and thrown them into the sea. There was an obvious inconsistency in the role the applicant had played in relation to the disposal of his passport which was first identified in this interview.
One of the claims raised by the applicant was that there was a court case, involving a girl who was under the age of 16. The case involves the applicant and his brother in the alleged abduction and rape of the 15 year old girl. The applicant proffered an explanation that although the case was continuing, it was a vendetta by the underage girl’s parents against him. The applicant also alleged certain incidents occurred involving the LTTE and the CID and that his brother had assisted in paying bribes to help the applicant. In response to a question in the interview as to serious concerns that the applicant was one of the organisers of a people-smuggling venture together with his father, the applicant said:
Yeah, I never wanted to organise smuggle people and earn money. When I came to this country I had other great problem, great concern. That’s why I came to this country.
The answer by the applicant was clearly open to construction of an admission of being involved in the organising of the people-smuggling as well has having another great problem behind him coming to Australia. The applicant denied that he had been involved in violent crime in Sri Lanka and denied that he was wanted for murder in Sri Lanka. The applicant was, however, unable to identify the other great problem, except a reference to his “broken love and second problems” and “one other or other problems”. The applicant alleged that he had eloped with the underage girl. The boat on which the applicant had sailed out of the harbour was a boat organised by a friend of the applicant’s and that the applicant was in charge of the satellite phone and the navigation equipment and that the applicant had collected the passports from the other passengers which passports were thrown into the sea by the applicant. The applicant alleged his father was principally sailing the boat.
On 28 December 2012, the applicant’s case was referred to the Complex Case Resolution Section of the Department for consideration of whether a submission should be prepared for the Minister relating to possible intervention of s.195A and s.197AB of the Act. Between December 2012 and September 2013, various inquiries were made by officers of the Department to ascertain the status of investigations being undertaken by the AFP in relation to the alleged murder. On 4 January 2013, a delegate of the applicant refused to grant the applicant a protection visa on the basis he was not a person to whom Australia had protection obligations under s.36 of the Act, and cl.866.221 of Schedule 2 of the Migration Regulations 1994.
On 16 January 2013, the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision. On 15 April 2013, the RRT remitted the matter for re-consideration with the direction that the applicant satisfy s.36(a) of the Act. The decision of the Refugee Review Tribunal did not expressly address art.1F(b) of the Convention that provides, relevantly:
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
…
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
Both the alleged offence of murder and the alleged offences of abduction and rape of the underage girl by the applicant are alleged offences by the applicant and brother that would fall within art.1F(b) as would the offence of people smuggling. In the present case, there was an AFP report identifying that the allegation of murder was the subject of credible evidence. The Tribunal made an adverse credit finding as to the applicant not being an honest witness. The source of the serious allegation of murder was the subject of a particular informant and, regard could be had to the principles applied in FTZK v Minister for Immigration and Border Protection [2014] HCA 26 at [5] as to the scope of what may be strong evidence, relevantly:
The evidence did not have to be of such weight as to meet either the criminal or civil standard of proof. It was not necessary that the decision-maker be satisfied that the alleged crime has been committed.
It suffices to say, in my opinion, that a different decision in relation to art.1F(b) in relation to the applicant and his brother was open. The records produced in answer to the subpoenas by the applicant indicate that the informant subsequently left Australia. The applicant, although initially providing an authority to permit verification of his criminal record in Sri Lanka to be obtained, withdrew that consent. This withdrawal of consent prevents Australian authorities from verifying the nature or evidence underlying the charges against the applicant and his brother. It is also relevant in this regard to take into account that the applicant and his brother, according to the AFP records, have used a number of different aliases.
On 17 April 2013, the applicant was referred to the Australian Security Intelligence Organisation (ASIO) for the completion of a public interest criterion PIC 4002 security check. The PIC 4002 provides that an applicant must not be assessed by ASIO to be directly or indirectly a risk to security within the meaning of s.4 of the Australian Security Intelligence Organisation Act 1979. Section 36(1B) of the Migration Act 1958 provides as follows.
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ).
That security assessment was one in respect of which it was not until 21 July 2015 that ASIO issued a non-prejudicial security assessment in respect of the applicant. I find that this time taken to perform the assessment was reasonable given the seriousness of the allegation involving the applicant and his brother.
Evidence was given by Ms Russack, the Director of the Protection Visa Procedures Section, that the period of detention was a matter that impacted upon the speed at which the matters were processed by ASIO and that, in this case, both applicants, as a result of the time spent in detention, were placed on a priority 30 list. A key plank in the applicant’s case is the proposition that the assessment by ASIO that issued the non-prejudicial security assessment on 21 July 2015 could have and should have occurred at an earlier point of time. I reject that contention and find that the time taken for the assessment was reasonable given the seriousness of the offences that the applicant was allegedly involved.
On 5 July 2013, the applicant was assessed as meeting the guidelines for referral to the Minister for consideration under s.197AB. However, that was deferred pending the outcome of the inquiries made by the department regarding the status of the AFP investigations in relation to the allegation of murder.
On 9 September 2013, the applicant attended an interview with two officers of the department at which allegations were put to him that he had been involved in the murder of a man in Sri Lanka. In response to the proposition put to the applicant that there was a male person who was killed in Sri Lanka by having his head placed in the sand until he suffocated to death the applicant responded that he was not a person who would try to kill another person. The applicant in response to the question of whether he had heard of anyone killed in this way said:
I can’t say at once because in Sri Lanka there are many people killed in the past and many who are missing so I can’t say if there are other people that are killed in this way.
The applicant maintained that the Department could get information from the Sri Lankan authorities as to “whether I did a crime like this or not”, he should be punished by the Sri Lankan authorities in his country. The applicant maintained that he was a family man and led a very good life in his country. This answer might be thought to be surprising given the allegation of abduction and rape of the underage girl.
On 24 October 2013 the applicant signed a consent form permitting the department to disclose his name and date of birth to the AFP for the purpose of disclosing the same to law enforcement authorities in Sri Lanka. Following representations made by the applicant’s solicitor on 29 October of whether the consent was properly obtained, those inquiries were not able to be pursued. This means the applicant has prevented authorities verifying with Sri Lankan authorities the nature of any alleged offences against the applicant or the evidence in support of the same.
On 14 December 2014, the Migration Amendment (Unauthorised Maritime Arrival) Regulations 2013 inserted a new clause, 866.221(2) in Schedule 2 of the Regulations. That clause imposed criteria that must be satisfied for the Minister to determine an application for a protection visa, being that
The applicant:
(a) held a visa that was in effect on the applicant’s last entry into Australia, and
(b) is not an authorised maritime arrival, and
(c) was immigration cleared on the applicant’s last entry into Australia.
On 4 February 2014, the delegate to the Minister refused to grant the applicant a protection visa on the basis that he failed to satisfy cl.866.221(2). On 29 February 2014, the applicant applied to the RRT for a review of the delegate’s decision. On 25 March 2014, the applicant was again referred to ASIO for a security check. On 27 March 2014, the earlier regulation was disallowed in relation to cl.866.221(2). On 22 April 2014, the applicant’s case was referred for his consideration of whether to exercise his powers to intervene under s.195AA and s.197AB of the Act. On 30 May 2014, the Minister declined to consider intervening under s.195A to grant the applicant a Humanitarian Stay (Temporary) (subclass 499) visa for 12 months or under s.197AB of the Act to place him in community detention which was notified by letter dated 11 June 2014.
On 18 July 2014, the second RRT remitted the matter for consideration:
…with the direction that the applicant satisfies clause 866.221(2) of the Migration Regulations.
That decision did not engage in any consideration of issues under art.1F or of the allegations of the applicant and his brother’s involvement in people-smuggling or alleged murder or alleged abduction and rape of an underage girl. Clause 866.221(2) provides:
(2) The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.
On 6 August 2014, the referral to ASIO was updated with notes concerning the RRT remittal.
On 15 December 2014, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy) Act 2014 amended the Migration Act 1958 and Migration Regulations1994 by operation of a new s.45AA of the Act. Under the new reg.2.08F of the Regulations, the applicant’s protection visa application was taken to be, and always to have been, a valid application for a Temporary Protection (Class XD) visa.
On 14 April 2015, the Migration Amendment (Protection and Other Measures) Act 2015 inserted s.91WA into the Act which relevantly provides, as follows:
(1) The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a) the applicant provides a bogus document as evidence of the applicant's identity, nationality or citizenship; or
(b) the Minister is satisfied that the applicant:
(i) has destroyed or disposed of documentary evidence of the applicant's identity, nationality or citizenship; or
(ii) has caused such documentary evidence to be destroyed or disposed of.
(2) Subsection (1) does not apply if the Minister is satisfied that the applicant:
(a) has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and
(b) either:
(i) provides documentary evidence of his or her identity, nationality or citizenship; or
(ii) has taken reasonable steps to provide such evidence.
(3) For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.
In the present case, the applicant is a person, who might be said to fall within s.91WA, having disposed at sea of his passport.
The Department wrote to the applicant on 31 July 2015 advising that it had received information that the applicant had destroyed or disposed of documentary evidence of his identity and nationality or citizenship, and invited the applicant to provide an explanation for the destruction. The Department informed the applicant that if the Minister was not satisfied the applicant had a reasonable explanation, and the applicant did not produce or take reasonable steps to produce such evidence, then his temporary protection visa application must be refused, under s.91WA of the Act.
On 5 August 2015, the applicant was referred for health and character checks, which are ongoing. Another plank in the applicant’s argument is that these health and character checks could have been implemented as a matter of possibility prior to the receipt of the ASIO non‑prejudicial security assessment. While Ms Russack properly conceded that such a step was possible, I accept that was not the practice that was followed by the Department and was not practicable. I also find that the character check was something that, relevantly, may be informed by and take into account matters raised in relation to the ASIO assessment. I find that the practice of the Department was reasonable.
Further, the health check is something that must be ascertained at the time of application. I reject the applicant’s submission that it was practical for the Department to conduct the health and character checks prior to receipt of the ASIO non‑prejudicial security assessment. I find that it was reasonable for the Department to await the ASIO non‑prejudicial security assessment in relation to the applicant, prior to referring the matter for health and character checks.
There has been correspondence between the Department and the applicant’s solicitor in relation to the s.91WA issue. In substance, the applicant’s case is that the detention of the applicant, following the expiry of 90 days after the remittal of the matter on 18 July 2014, is in substance a failure by the second respondent to consider the applicant’s application within a reasonable time and a breach of the 90 day time required under s.65A of the Act, as it then was.
Section 65A was repealed on 16 December 2014. That amendment was one that was expressly stated to apply to any visa applications made before the commencement of the repeal provision. Up to the time of repeal, s.65A was in the following form:
(1) If an application for a protection visa:
(a) was validly made under section 46; or
(b) was remitted by any court or tribunal to the Minister for reconsideration;
then the Minister must make a decision under section 65 within 90 days starting on:
(c) the day on which the application for the protection visa was made or remitted; or
(d) in the circumstances prescribed by the regulations—the day prescribed by the regulations.
(2) Failure to comply with this section does not affect the validity of a decision made under section 65 on an application for a protection visa.
In determining whether or not the second respondent’s time taken in determination of the applicant’s application for a visa is unreasonable, I take into account the principles identified in Plaintiff S297/2013 v Minister for Immigration (2014) 88 ALJR 722 at [37]. I also take into account the footnote reference in that decision the reference to another decision of the High Court in Re O’Reilly; Ex parte Australena Investments Pty Limited (1983) 50 ALR 577 which at [578] relevantly provides a reference to a decision in Thornton v Repatriation Commission (1981) 35 ALR 485 at [492] where Fisher J, referring to whether there has been an unreasonable delay, said:
The question is whether there are circumstances in which a reasonable man might consider render this delay justified and not capricious. In the first instance it is, on the evidence, a delay for a considered reason and not in consequence of neglect, oversight or perversity.
The time taken in the determination of the applicant’s visa in the present case is justified in circumstances where there had not been performed the ASIO assessment prior to 21 July 2015 and where checks as to health and character are still required. I do not regard the time taken by ASIO to carry out the assessment, given the seriousness of the allegations involving the applicant and his brother, both as to murder, rape, abduction and people-smuggling, as capable of being said to be either delay or unjustified delay. I am further satisfied that the time taken for the determination by ASIO cannot be said to be capricious and it is, in my opinion, reasonable not to carry out health and character checks until receipt of the assessment by ASIO in relation to the applicant.
In my opinion, the ongoing consideration of the application for a temporary protection visa in relation to the applicant is not one that is unreasonable delay and was the time taken was for considered reasons in respect of the requirements for an ASIO assessment and health and character checks, in circumstances of very serious alleged offences. Those alleged offences included the alleged abduction and rape of an underage girl by the applicant and his brother, as well as the alleged murder of a 20 year old man by the applicant and his brother. In these circumstances, the time taken cannot be said to be due to neglect, oversight or perversity.
I reject the applicant’s proposition that the time taken in determining the applicant’s application for the converted temporary protection visa was unjustified or capricious. I find that the time taken in the processing of the applicant’s application was for a considered reason in relation to the need for an ASIO clearance in respect of this applicant and other necessary checks. It was reasonable to require such a clearance in circumstances where the applicant, notwithstanding his denial to the contrary, had potentially been involved in people smuggling and where there is an allegation that the applicant had been involved in the murder of a person with his brother, and also where the applicant allegedly was the subject of proceedings in Sri Lanka relating to the abduction and rape of a 15 year old girl.
In my opinion, the time taken for processing the applicant’s application cannot be said to be due to neglect, oversight or perversity. Whilst I accept that the application was not processed within the 90 days after remittal of the matter by the second Tribunal, the seriousness of the alleged offences involving the applicant and his brother are circumstances in which it was reasonable for the respondents to await the ASIO clearance and other checks. I find that the requirements of the Migration Act1958 could not have been properly addressed in the 90 day period for this applicant under s.65A. Further, as s.65A has been repealed, there is no basis for any alleged breach of duty by the Minister under that provision in the processing of the application. The time taken for the processing of the applicant’s application including health and character checks and ASIO clearance has, in my opinion, to date been reasonable.
I find that the continued detention of the applicant is lawful and for the purpose of processing the applicant’s temporary protection visa, that remains under consideration and as such the applicant’s continued detention is for the purposes of the Migration Act 1958. Counsel for the applicant put that the matter was only the subject of further steps once these proceedings had been commenced. I do not accept that contention and I find the placing of the applicant on the Priority 30 list occurred prior to commencement of the proceedings.
An argument was advanced to the effect that the visa application was not one that had been converted by reg.2.08F of the Migration Regulations 1994. Regulation 2.08F(4) was introduced by an amendment on 19 September 2015 and it is apparent from the amendment of the Regulations that it was to apply to any pre‑conversion application and had application to the applicant’s application in the present case.
I accept the respondents’ submission that the Act that introduced reg.2.08F specified that the regulation could be amended or repealed by the Governor-General. I reject the argument that the amendment introduced on 19 September 2015 was in any way repugnant or inconsistent with the Act. I take into account, in this regard, the object of the Act in s.4.
I reject the applicant’s argument that, as a matter of construction, reg.2.08F had no application to the applicant’s applicant for protection. It is apparent from the work done by reg.2.08F that the applicant’s application was converted to that of a temporary protection visa in the present case.
I reject the applicant’s submission that such a construction leaves no work for other provisions in the Regulations. I reject the applicant’s submission that the explanatory memorandum or explanatory statement assists either in the applicant’s alleged construction or in the allegation of inconsistency.
I accept the respondents’ submission that insofar as the refusal by the delegate, notwithstanding its reversal by the Tribunal, might be said to have been a decision under s.65 within reg.2.08F(3)(a), that application of the applicant is taken not to have been the subject of a decision under s.65 because of the work done by reg.2.08F(4).
Accordingly, the applicants have failed to make out any entitlement to the declaratory relief. The application of the applicant for a protection visa has been converted by operation of reg.2.08F of the Migration Regulations 1994 to a Temporary Protection (Class XA) visa. It was suggested by the respondents that the Court might make a declaration reflecting the Court’s finding that the applicant’s visa application has been converted. No such declaration was sought by any process filed by the respondents and I do not accept that it is necessary to make any such declaration as the reasons given dispose of the applicant’s argument that the application had not been converted.
For the reasons given, the applicant’s continued detention is lawful and is for the purpose of assessment of the applicant’s application under the Migration Act 1958. There is no foundation to support the grant of a writ of mandamus or a writ of habeas corpus. Accordingly, no issue of damages for false imprisonment arises. The applicant has been and remains in lawful detention.
There was no order for separate determination of the questions identified above. However it is useful to summarise the findings made above in relation to the questions raised by the applicant.
In answer to question 1, the Minister remains under a duty to determine the applicant’s application within a reasonable time and the time taken to date in considering the applicant’s application has been reasonable.
In answer to question 2, there has been no breach of duty by the Minister in the determination of the applicant’s application. There was good cause for the Minister not being able to determine the matter within the 90 day period under s.65A prior to the repeal of that provision.
In answer to question 3, the application for a Protection (class XA) visa has been converted to an application for a Temporary Protection (class XD) visa by operation of reg.2.08F of the Migration Regulations 1994.
In answer to question 4, the seriousness of the allegations involving the applicant and his brother are circumstances whereby the time taken to date by the Minister in considering the application has been reasonable and it is reasonable for the Minister to further deliberate upon the applicant’s application.
In answer to question 5, there has been no failure of the Minister to act according to law. The expiry of the period of 90 days under s.65A, which was repealed, does not give rise to any remedy in this case.
In answer to question 6, the applicant’s detention since 14 October 2014 has been and continues to be for the purposes of considering the applicant’s application under the Migration Act 1958 and is reasonable.
In answer to questions 7, 8 and 9, the continued detention of the applicant since 2 October 2012 has been and continues to be for the purposes of considering the applicant’s application under the Act and is lawful.
It was submitted that the issue of art.1F was no longer a matter in issue and that the Minister would be bound by the Tribunal’s determination that the applicant was a person in respect of whom Australia had a protection obligation. Section 65 of the Migration Act 1958 requires the Minister to take into account the criteria prescribed by the Act and Regulations. In the present case, neither Tribunal addressed whether art.1F applied to the applicant in light of the allegation of the murder of the 20 year old man by the applicant and his brother and in light of the allegation of rape and abduction of the 15 year old girl by the applicant and his brother.
Section 65 is not in my opinion limited to new matters in relation to whether the applicant is a person to whom Australia owes a protection obligation and in circumstances the present case where neither Tribunal addressed considerations under art.1F, it would be contrary to the objects of the Act under s.4 to hold that the Minister was precluded from revisiting that issue. I accept the submissions of the respondents that further steps may be required as a matter of procedural fairness in relation to any further consideration of whether the applicant falls within art.1F.
On the material before the Court an adverse finding in relation to the applicant under art.1F would in my opinion be open. In this regard I have taken into account the adverse finding that the applicant was not a witness of truth and was found by the Tribunal not to be reliable or credible as well as the alleged conduct of intimidation of detainees by the applicant and his brother and alleged involvement in people smuggling and the use of aliases by the applicant and his brother.
Even if a different view was taken in relation to art.1F and s.65, an adverse finding in relation to s.36(1C) that the applicant is a danger to Australia’s security appears to be open, albeit again further steps to afford the applicant procedural fairness may be required. In my opinion the Minister is not precluded under s.65 from considering further art.1F in relation to the applicant or s.36(1C) in the continuing consideration of the applicant’s application.
The Court heard argument in relation to costs. The applicant contended that there was an important public interest factor as well as the liberty of the applicants involved, and that no adverse order for costs should be made, consistent with Cabal v United Mexican States (No 6) (2000) 174 ALR 747 at [22].
These are proceedings in which it is apparent that significant costs have been incurred by the respondents in meeting the application that has been advanced in circumstances where it was obvious that the applicant was and remains the subject of various very serious alleged offences. I do not regard the pursuit of the proceedings by the applicant in the present case to have been one being advanced on a public interest basis. Whilst I take into account the entitlement of the applicant to bring proceedings before the Court to determine whether or not there has been unreasonable delay, in the present case given the serious alleged offences against the applicant and important public purpose of the Migration Act 1958 to protect the Australian public, it is appropriate to order the applicant to pay the respondent’s costs, as taxed or agreed.
The amended application is dismissed and the applicant is ordered to pay the respondents’ costs as taxed or agreed.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 11 December 2015
7
6