Asp15 v Commonwealth of Australia and Anor (No.3)
[2015] FCCA 3275
•11 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASP15 v COMMONWEALTH OF AUSTRALIA & ANOR (No.3) | [2015] FCCA 3275 |
| 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: Australian Security Intelligence Organisation Act 1979, s.4 Judiciary Act 1903, s.44(1) Migration Act 1958 (Cth), ss.36(2)(a), 46A(1), 46A(2), 91W, 147, 195, 195A, 197AB, 476, 476B(1) Migration Regulations 1994, reg.2.08F, Schedule 2, cl.866.221 |
| AKZ15 v Minister for Immigration & Border Protection [2015] FCCA 3285 Cabal v United Mexican States (No.6) (2000) 174 ALR 747 |
| Applicant: | ASP15 |
| First Respondent: | COMMONWEALTH OF AUSTRALIA |
| Second Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2164 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 2164 of 2015
| ASP15 |
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 the 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 applicant was found to be a citizen of Sri Lanka and arrived at Christmas Island on 11 April 2012 as an unauthorised maritime arrival and was detained pursuant to s.189 of the Migration Act 1958 (Cth). By operation of s.46A(1) of the Act was prevented from making a valid application for a visa. The applicant’s brother had earlier arrived at Christmas Island as an unauthorised maritime arrival and filed similar proceedings for relief in the High Court of Australia which were remitted to this Court. Those proceedings here have been heard concurrently with these proceedings and the procedural history of the matters is identified in AKZ15 v Minister for Immigration & Border Protection [2015] FCCA 3285 at [2-3].
On 11 May 2012, the applicant attended an irregular maritime arrival interview with an officer of the Department. Between March 2012 and May 2012, the Department received information from a number of sources alleging that the applicant and his brother had been involved in people smuggling activities. Allegations were also received to the effect that the applicant and his brother had killed a man in Sri Lanka and these allegations were referred to the Australian Federal Police (AFP) for investigation. It was alleged that the applicant and his brother had suffocated a 20 year old man on a beach near the applicant and brother’s home by burying his head in the sand.
Between 27 and 29 August 2012, the applicant’s fingerprints were synched to participating Five Country Conference countries for the purpose of verifying his identity. On 6 September 2012, the applicant was referred to the IMA complex protection cases team for the preparation of a submission to the second respondent for his consideration of whether he should exercise his power under s.46A(2) of the Act to lift the bar imposed by s.46A(1).
On 13 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 there was insufficient evidence to support a 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(2) to permit the applicant to apply for a Protection (class XA) visa. On 8 October 2012, the applicant lodged an application for a protection visa with the Department. On 21 November 2012, the applicant attended an interview with an officer of the Department in relation to his protection visa application. On 21 September 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 under ss.195 and 197AB and of the Act.
Between December 2012 and September of 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 allegation of murder. On 4 January 2013, a delegate of the Minister refused to grant the applicant a protection visa on the basis that he is not a person to whom Australia had a protection obligation under s.36 of the Act and cl.866.221 of Sch.2 to the Migration Regulations 1994.
On 16 January 2013, the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. On 8 April 2013, the applicant was assessed as meeting the guidelines for referral to the Minister for consideration under ss.197AB. The referral was deferred pending the outcome of enquiries regarding the status of investigations in relation to the alleged murder.
On 12 April 2013, the RRT remitted the matter for reconsideration with the direction that the applicant satisfied s.36(2)(a) of the Act. There is no express reference by the Tribunal to consideration of art.1F of the Convention or whether there was strong evidence in relation to the allegation of the applicant and his brother having committed murder or in relation to people smuggling or in relation to the abduction and rape of an under 16 year old girl. The Tribunal did, however, express adverse findings in respect of the applicant’s credit.
On 17 April 2013, the applicant was referred to the Australian Security and Intelligence Organisation (ASIO) for completion of a public interest criterion (PIC4002) security check. PIC4002 provides that an applicant must not be assessed by ASIO to be directly or indirectly a security risk within the meaning of s.4 of the Australian Security Intelligence Organisation Act 1979. At this time, not all protection visa applicants were referred by the department to ASIO for security assessments, but rather only those persons who were regarded as presenting the high-risk profile.
On 3 July 2013, the Department wrote to the applicant advising that an external agency had requested additional information for the purpose of considering whether the applicant met the character requirements for the grant of a protection visa. The applicant was invited to provide information within 28 days. On 12 July 2013, the applicant’s solicitor responded. On 9 September 2013, the applicant attended an interview with two officers of the Department at which allegations were put to the applicant that he had been involved in the murder of a man in Sri Lanka. The alleged murder of the 20 year old man occurred at a beach that was near where the applicant and his brother were living. The applicant said that he and his brother had been living there for 1.5-2 years. The applicant alleged that this was the first time that he had heard about this which does not seem consistent with the fact that it was a matter that had been raised earlier at the first interview with the applicant. The applicant asserted that the information was false and in the context of saying that he had never done such a thing asked “I would like to know, when this incident happened, did they give you the date or anything?”. This might seem to be a rather unusual response. The applicant maintained that he was a very friendly person but agreed that he had some type of proceedings which he alleged involved an affair by his brother with a girl. The applicant said that this was not a murder case. On the material provided by the applicant’s brother the nature of the case is one of alleged abduction of a 15 year old girl and alleged rape.
On 17 September 2013, the AFP advised the Department that it had no further interest in the applicant or his brother, as they were unable to make inquiries in Sri Lanka in relation to the allegation of murder in the absence of the applicant providing formal consent to his name being provided to the Sri Lankan authorities for that purpose. On 24 October 2013, the applicant signed a consent form permitting the Department to disclose his name and date of birth to the AFP, who would then disclose this information to law enforcement authorities in Sri Lanka for the purpose of verifying information about the applicant’s identity, criminal record or claimed circumstances. Following representations by the applicant’s solicitor challenging the circumstances in which the consent was obtained, no such inquiries were able to be pursued with the Sri Lankan authorities.
On 14 December 2014, the (Unauthorised Maritime Arrival) Regulation 2013 inserted a new cl.866.221(2) in Sch.2 of the Regulations. That clause imposed criteria that had to be satisfied by the Minister to determine an application for a protection visa and that regulation was disallowed on 27 March 2014. On 4 February 2014, a delegate of the Minister refused to grant the applicant a protection visa on the basis that the applicant failed to satisfy cl.866.221(2). On 24 February 2014, the applicant applied to the RRT for review of the delegate’s decision.
On 25 March 2014, the applicant was again referred to ASIO for a security check. On 22 April 2014, the applicant’s case was referred to the Minister for his consideration of whether to exercise his powers to intervene under s.195A and ss.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) for 12 months or under ss.197AB of the Act by placing him in community detention, which was conveyed to the applicant by a letter dated 11 June 2014.
On 11 July 2014, the RRT remitted the matter with the direction that the applicant satisfies cl.866.221(2) of the Migration Regulations1994; that subclause is as follows:
866.22--Criteria to be satisfied at time of decision
…
(2) The Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant.
There was no consideration by the second RRT of art.1F or the allegation of murder by the applicant and his brother or the allegation of people smuggling by the applicant and his brother or the alleged charge the applicant and his brother were facing in respect of abduction and rape of a 15 year old girl.
On 6 August 2014, the referral to ASIO was updated with notes concerning the RRT remittal. On 15 December 2014, a new reg.2.08F of the Regulations was introduced which converted the applicant’s protection visa application to an application for a Temporary Protection (class XD) visa. That amendment had application to the applicant’s existing protection application.
On 14 April 2015, s.91W was amended by the Migration Amendment (Protection and Other Measures) Act 2015. On 21 July 2015, ASIO issued a non-prejudicial assessment in respect of the applicant. On 31 July 2015, the applicant was assessed as having complied with s.91W of the Act.
On 3 June 2015 the applicant was interviewed about the allegations of murder of the 20 person in Sri Lanka as well as the abduction and rape of the 15 year old girl and also in relation to allegations that the applicant and his brother had been intimidating detainees. The applicant proffered an explanation that the allegation of murder came from a person who he had met at a church and who the applicant had said was the strongest man who won fights and in respect of which the applicant alleges he hit him with his fist in the face because he was wrapping up drugs. That explanation is one that raises a question of credibility in relation to the murder allegation.
The applicant described the allegation of abduction and rape as being a problem with his brother eloping with a girlfriend and asserted in this regard that he never had any dealings with this brother. This answer is contradictory to the evidence of the applicant that he was living with his brother for 1.5-2 years and does not sit neatly with the fact that a case had been brought against the applicant relating to the alleged abduction and rape of the 15 year old girl.
On 5 August 2015, the applicant was referred to the AFP for character checks and to the detention health area for appropriate health checks. On the same day, the Department wrote to the applicant requesting he provide a police clearance certificate for India for the purposes of consider whether he met the character requirements to grant a protection visa. The applicant was given 28 days to respond. The applicant had identified that he had been abroad to India prior to arriving at Christmas Island.
On 6 August 2015, the AFP issued a non-prejudicial national criminal check in respect of the applicant. On 23 August 2015, the applicant’s solicitor responded to the Department’s letter of 5 August advising the applicant had been unable to obtain a police clearance in India. On 2 September 2015, the Department wrote to the applicant’s solicitor identifying that if he was unable to obtain a police clearance certificate from India, he would need to apply for a waiver. From documents tendered in exhibit C, it appears that the applicant obtained a waiver on 1 December 2015. The evidence before the Court, which I accept, is that the applicant’s application for a temporary protection visa remains under consideration.
On 10 September 2015, directions were made for the filing and service by the applicant a concise statement of questions of fact and questions of law that the applicant seeks to agitate. That statement was filed on 28 October 2015 and is 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 Inte1pretation 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 dete1mining 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 A1iicle l F of the Refugees Convention.
Remedy
5. A Writ of Mandamus directing the Minister to consider and dete1mine 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 dete1mining 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 I F 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 info1mation of the reasons for the applicant's continued detention and the resulting mental anguish and anxiety suffered by the applicant.
The respondents subsequently filed a response to that statement on 11 November 2015 which is 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?
I have taken into account s.65A and the principles referred to in AKZ15 v The Commonwealth (No.3) [2015] FCCA 3285 at [38]-[39].
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.
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.
I reject the contention that the ASIO assessment should have been completed earlier. I reject the proposition that it was unreasonable for the second respondent to await the ASIO assessment before carrying out health and character checks.
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.
For the reasons given in AKZ15 at [45-49], I find that the applicant’s application for a Protection visa was validly converted into a Temporary Protection (Class XD) visa by operation of reg.2.08F of the Migration Regulations 1994.
I find that the applicant’s continued detention is lawful and is for the purpose of considering the applicant’s application in accordance with the Migration Act 1958. I find that there is no basis for any declaratory relief as sought by the applicant. I find that there is no basis for any writ of mandamus or writ of habeas corpus. The issue of damages for false imprisonment does not arise as the applicant has been and remains in lawful detention.
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 the 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, 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).
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.
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.
I am satisfied that this is an appropriate matter in which to order the applicant to pay the First and Second Respondents’ costs as assessed or agreed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 11 December 2015
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