AQX15 v Minister for Immigration

[2015] FCCA 1310

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQX15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1310

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – whether the Tribunal failed to consider an integer of the applicant’s claim – no jurisdictional error – application dismissed.

Legislation: 

Judiciary Act 1903 s.78B
Migration Act 1958 ss.36(2)(a), 36(2)(aa), 411, 414, 420, 476

ACCC v CG Berbatis Holdings Pty Ltd and Others [1999] 95 FCR 292

Applicant: AQX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1230 of 2015

Judgment of: Judge Street

Hearing date: 15 May 2015

Date of Last Submission: 15 May 2015

Delivered at: Sydney

Delivered on: 15 May 2015

REPRESENTATION

The applicant  appeared in person

Solicitors for the First Respondent: Mr A. Markus
Australian Government Solicitor

ORDERS

1. The application in a case is dismissed.

2. The application be dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

3. The applicant to pay the first respondent’s costs in the sum of $600.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1230 of 2015

AQX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application in a case in respect of which injunctive relief is sought to restrain the Minister from removing the applicant.  The applicant has been issued with a notice of intention to remove him from Australia on 18 May 2015. 

2. In support of the application in the case, the applicant relies upon a letter sent on 12 March 2014 identifying a limited disclosure that occurred.  That limited disclosure or data breach was a matter that was identified and dealt with by the delegate in respect of an application for a protection visa that was refused and was also dealt with by the Tribunal in a hearing on 3 September 2014.. 

3. The Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. The issue of the data breach was clearly a matter of which the Tribunal took into account and the applicant’s desire to no re-agitate that issue does not give rise to any justiciable matter before this court. No application was made under s.476 or s.477 in respect of the Tribunal’s decision.

4. The application in the case, refers to s.61 of the Constitution in relation to an allegation of a representation flowing from the letter of 12 March 2014. I am satisfied that there is no real or substantive issue arising under the Constitution that falls within s.78B of the Judiciary Act 1903. The issues sought to be raised by the applicant involving the Constitution are unarguable and falls within the categorisation of being frivolous or vexatious or an abuse of process as identified in the ACCC v CG Berbatis Holdings Pty Ltd and Others [1999] 95 FCR 292. Accordingly, there’s no requirement for the giving of any s.78B notice.

5. The letter dated 12 March 2015 does not give rise to any representation or give rise to any right to injunctive relief.  The first respondent moved from immediate show cause hearing in respect of the application filed in the proceedings.  The originating application identifies a future decision or other action by the Minister or an officer under the Migration Act concerning an offshore entry person, albeit that the applicant is not an offshore entry person.  It is the case, under s.474, that there is a broad definition of “decision” and there has clearly been served a notice of intention to remove the applicant.

6. Whilst I accept the force of the submission on behalf of the first respondent that the injunctive relief requested appears colourable in relation to the declaratory relief, I am satisfied that this Court does have jurisdiction to entertain the application. However, the application is one in respect of which the grounds advanced are hopeless. Section 197C of the Migration Act provides as follows:

   (1)  For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

   (2)  An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.

7. That section makes clear, in relation to s.198, that there no issue of  non-refoulement that can arise in the context of the duty under s.198 to remove a person as soon as reasonably practicable who the Minister asks in writing to be so removed.

8. I am satisfied that the application fails to disclose any arguable case and should be dismissed under r.44(12).  I am satisfied that there is no prima facie case for any injunctive relief and, indeed, no basis to grant any interlocutory relief. I am clearly satisfied that the application fails to disclose any arguable case. Accordingly it is appropriate to dismiss the application in a case and to dismiss, under r.44(12), the application..

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  19 May 2015