Axu16 v Minister for Immigration
[2017] FCCA 1553
•14 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXU16 v MINISTER FOR IMMIGRATION | [2017] FCCA 1553 |
| Catchwords: MIGRATION – Application for injunctive and other relief – Iraqi citizen – deportation order – where none of the grounds of the application are made out – whether serious issue to be tried – whether application has sufficient prospects of success – where balance of convenience lies – where no reasonable prospects of success or serious issue to be tried – where applicant has significant criminal record which resulted in revocation of residence visa. |
| Legislation: Federal Court of Australia Act 1976 (Cth), s.32AB Migration Act 1958 (Cth), ss.48A, 48B, 91X, 197C, 198, 476, 476A, 501 |
| Cases cited: ALY15 v Minister for Immigration & Border Protection [2017] FCA 281 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; (1986) 60 ALJR 679; (1986) 67 ALR 553 |
| Applicant: | AXU16 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 363 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 5 July 2017 |
| Date of Last Submission: | 5 July 2017 |
| Delivered at: | Perth |
| Delivered on: | 14 July 2017 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the Respondent: | Mr P R Macliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS (as made on 5 July 2017)
The name of the applicant be amended to “AXU16” on all documents in the proceedings.
The application be dismissed.
Formal written reasons for judgment be published electronically from Chambers at a later date.
The applicant pay the first respondent’s costs in the sum of $3606 by 3 August 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 363 of 2017
| AXU16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
By order of the Federal Court made on 4 July 2017 under s.32AB of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”) the Federal Court transferred these proceedings, in which it had no jurisdiction, to this Court. The Federal Court’s power to transfer proceedings in respect of which it has no jurisdiction to hear the subject matter of the proceedings to this Court has been upheld in a number of cases, most recently in Whittaker v Minister for Immigration & Border Protection [2017] FCA 494 at [19] per Derrington J (and see the discussion of other cases at [9]-[18] per Derrington J).
The matter, relating to the deportation of the applicant scheduled for late in the evening of 5 July 2017, was heard by this Court on the afternoon on 5 July 2017, when the Court made the following orders:
1.The name of the applicant be amended to “AXU16” on all documents in the proceedings.
2.The application be dismissed.
3.Formal written reasons for judgment be published electronically from Chambers at a later date.
4.The applicant pay the first respondent’s costs in the sum of $3606 by 3 August 2017.
These are the Court’s Reasons for Judgment referred to in order 3 above.
In determining this matter the Court had regard for the affidavit of the applicant affirmed on 29 June 2017 (“Applicant’s Affidavit”), insofar as it related to matters of fact, and the affidavit of Peter John Corbould, a solicitor with the Minister’s solicitors, affirmed on 4 July 2017 (“Corbould Affidavit”).
The Court also had regard to those parts of the Applicant’s Affidavit which effectively constituted submissions on his part, rather than factual evidentiary material, and also to the Minister’s outline of submissions filed on 5 July 2017, as well as the oral submissions made at hearing.
At the outset of the hearing of this matter the Court made an order that the name of the applicant be amended to the pseudonym AXU16 on all documents in the proceedings, and did so given that there are various applications referred to below in which the applicant has sought protection in Australia as an alleged refugee, and in relation to which that pseudonym had previously been used in relation to the applicant.
At hearing, the applicant complained that his application for injunctive relief had been brought on too quickly, and that he was not represented by a lawyer, and in the latter regard tendered a chain of emails which were marked Exhibit 1.
The emails in Exhibit 1 are between the applicant and a person called “Lorraine” at “Legal Aid WA”, according to the emails. What the emails reveal is that, obviously as a consequence of some contact from the applicant, Lorraine sent the applicant an email at 4.13pm on 4 July 2017 (the day immediately preceding the hearing of the injunction application) in which the applicant was asked to send his “negative decision and any other documents you need the lawyer to see” and “the time your hearing is on tomorrow”. At 5.07pm on 4 July 2017 a further email from Lorraine to the applicant indicates that she has given all of his documents to the lawyer “to see tomorrow morning”.
The applicant’s protest that the hearing was brought on too quickly, and that he was not represented, must fail, because:
a)this was an application for urgent injunctive relief to prevent a deportation, and therefore the applicant must have expected, and the Court is certainly obliged, to deal with the matter expeditiously, which it did;
b)no lawyer filed a notice of appearance for the applicant or sought to appear for the applicant;
c)the emails from Lorraine at Legal Aid WA in Exhibit 1 do not indicate that Legal Aid WA were acting, or intended to act, for the applicant. The emails do no more than establish the fact that a lawyer might “see” the applicant’s documents on the morning of the hearing of the injunction application, if that happened, what, if anything then happened is not in evidence;
d)in relation to an application for urgent injunctive relief made on 29 June 2017 the applicant did not seek the assistance of Legal Aid WA until the afternoon of 4 July 2017, that is after the matter had been heard in the Federal Court, and it can be inferred that the applicant’s delay in seeking assistance from a lawyer may have prevented any assistance being provided; and
e)there is, as the Court explained to the applicant at hearing, no right to legal representation in this Court on applications for judicial review of administrative decisions under the Migration Act 1958 (Cth) (“Migration Act”): Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [35] per Wigney J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J; WZATU v Minister for Immigration & Anor [2016] FCCA 2247; (2016) 314 FLR 416 at [25] per Judge Lucev.
It follows, therefore, that nothing turns upon the speed with which the injunction application was listed, or the fact that the applicant was not legally represented.
Factual background
The factual background to the application is as follows:
a)the applicant is a citizen of Iraq who was born on 14 November 1976 and who first arrived in Australia on 3 February 2003 as the holder of a Class XB Subclass 200 Refugee visa (“Refugee Visa”);
b)on 5 December 2007 the applicant was convicted in the District Court of Queensland at Beenleigh of 10 counts of indecent treatment of children under the age of 16. He was sentenced to serve 18 months imprisonment on each count concurrently;
c)on 15 September 2009 the applicant was granted a Class BB Subclass 155 (Five Year Resident Return) visa (“Resident Return Visa”) and his Refugee Visa ceased;
d)according to the record of the applicant's movements held by the Department of Immigration and Border Protection (“Department”):
i)in the period between late September 2009 and late August 2013, the applicant departed and re-entered Australia on a number of occasions, and was absent from Australia for an extended period between 28 September 2009 and 11 October 2012; and
ii)the applicant remained continuously in Australia after his last arrival on 26 August 2013;
e)on 28 November 2013 the Minister for Immigration & Border Protection (“Minister”) personally cancelled the applicant's Resident Return Visa (“Visa Cancellation Decision”) under s.501(2) of the Migration Act, which provides for cancellation of a visa by the Minister on character grounds;
f)on 30 December 2013 the applicant commenced proceedings in the Federal Court for judicial review of the Visa Cancellation Decision. The application for judicial review of the Visa Cancellation Decision was subsequently dismissed by the Federal Court (in view of the order made by this Court in relation to using a pseudonym in lieu of applicant’s name it is not appropriate to refer to the date or citation for that Federal Court judgment);
g)on 24 April 2015 the applicant applied to the Department for a Protection (Class XA) visa (“First Protection Visa Application”). The First Protection Visa Application was assessed as invalid by officers of the Department, and on 11 May 2015 the applicant made another Protection Visa application (“Second Protection Visa Application”) which was assessed as a valid application;
h)on 2 November 2015 the applicant’s Second Protection Visa Application was refused by a delegate (“Delegate’s Decision” and “Delegate respectively) of the Minister. The applicant applied to the Administrative Appeals Tribunal (“AAT”) for review of the Delegate’s Decision and on 8 March 2016 the AAT affirmed the Delegate’s Decision not to grant the applicant a Protection Visa (“AAT Decision”);
i)on 20 April 2016 the applicant applied to this Court for an extension of time in which to file an application for judicial review of the AAT Decision (“Extension of Time Application”);
j)on 7 November 2016 this Court made an order refusing the Extension of Time Application (but it does not appear that Reasons for Judgment were published);
k)on 16 March 2017 the applicant made a further Protection Visa application (“Third Protection Visa Application”). The Department initiated a request on behalf of the applicant for Ministerial intervention under s.48B of the Migration Act and on 23 March 2017 the request was finalised without being referred to the Minister for his personal consideration;
l)the Third Protection Visa Application was deemed invalid pursuant to s.48A of the Migration Act;
m)on 24 May 2017 the Department conducted a 'pre-removal clearance' and assessed that the applicant's removal to Iraq did not raise concerns relating to Australia's non-refoulement obligations;
n)on 28 June 2017 the applicant was given a 'notice of intention to remove from Australia' that he be removed from Australia pursuant to s.198(6) of the Migration Act (“Removal Decision”);
o)on 29 June 2017 the applicant lodged an application with the Federal Court seeking to review the Removal Decision (“Current Application”);
p)the Current Application was listed for hearing before the Federal Court at 10.30 am on 4 July 2017;
q)the Minister filed a notice of objection to the competency of the Current Application on 4 July 2017 on the grounds that pursuant to s.476A(1) of the Migration Act the Federal Court did not have jurisdiction in relation to the Current Application;
r)the Federal Court seemingly held that it did not have jurisdiction in relation to the Current Application, and made an order pursuant to s.32AB(1) of the FCA Act transferring the proceeding to this Court; and
s)arrangements were in place for the applicant's removal from Australia on 5 July 2017.
Relief sought
The details of the relief sought in the Current Application are as follows:
1.An injunction issue directed at the Minister for Immigration and Border Protection and restraining him from removing me from Australia until after the Hearing and determination of this Appeal.
2.An injunction issue directed at the Minister for Immigration and Border Protection restraining him and his Department from returning me to IRAQ as I am a Refugee.
3.The Writ of Habeas Corpus issue requiring the Minister and his Department to produce my body in person physically at all hearings of this proceedings before that Federal Court of Australia, as I am a self-represented Litigant.
4.An order that the decision to have me removed from Australia by the Minister be set aside or quashed.
5.The Minister for Immigration and Border Protection to commence an International Treaties Obligation Assessment (ITOA) to assess whether Australia owes me non-refoulment obligations
Grounds
The grounds as set out in the Current Application are as follows:
1.The Purported Decision of the Minister of Immigration and Border Protection (Respondent) and His Department on 28 June 2017 is legally unreasonable in that it is vitiated by judicial Error and has denied me Procedural Fairness.
2.The Minister for Immigration and Border Protection failing to take into consideration that I Have been found to be a Refugee through the United Nations by the High Commissioner for Refugee on 19 February 2013.
3.The Minister for Immigration and Border Protection’s NOTICE OF INTENTION TO REMOVE FROM AUSTRALIA is a Breach and Violation of the UNHCR of the Refugee Convention.
4.The Minister for Immigration and Border Protection’s NOTICE OF INTENTION TO REMOVE FROM AUSTRALIA is a Breach and Violation of the 1951 Geneva Convention which is the main international instrument of Refugee Law.
6.The Minister for Immigration and Border Protection has made a judgment without Properly considering my particular circumstances with an International treaties Obligation Assessment (ITOA) before consider my removal.
The grounds of the application do not include a paragraph 5.
Consideration
Ground 1
Section 198(6) of the Migration Act provides that an officer must remove, as soon as reasonably practicable, an unlawful non‑citizen who meets the requirements of paragraphs (a) to (d) of s.198(6) of the Migration Act.
The applicant meets all the requirements for removal pursuant to s.198(6) of the Migration Act as:
a)he is an unlawful non-citizen who is a detainee;
b)his Second Protection Visa Application was a valid application;
c)the grant of the Protection Visa was refused on the Second Protection Visa Application and has therefore been finally determined; and
d)he has not made another valid application for a Protection Visa or other substantive visa.
The applicant’s removal from Australia is mandatory. A decision that the applicant be removed pursuant to s.198(6) of the Migration Act:
a)does not require that an applicant have an opportunity to be heard before such a decision is made; and
b)requires only the satisfaction of the statutory criteria.
Ground 1 is therefore not made out.
Ground 2
Ground 2 refers to a failure by the Minister to take into account that the applicant had been found to be a refugee by the United Nations High Commissioner for Refugees (“UNHCR”). This relates to a document in the Applicant’s Affidavit said to have been issued by the UNHCR on 19 February 2013 (“UNHCR Refugee Document”) which confirms that in 1999 the applicant and his mother were registered with the UNHCR, and that he and his mother were recognised as refugees and were resettled to Australia on 1 February 2003.
The UNHCR Refugee Document has no bearing on the applicant’s mandatory removal under s.198(6) of the Migration Act. The applicant’s Second Protection Visa Application made on 11 May 2015, was made on the basis of his alleged recent circumstances, and was refused by the Delegate, and the Delegate’s Decision was affirmed on review by the AAT. It is also important to recognise that this Court’s refusal of the Extension of Time Application to apply for judicial review of the AAT Decision would ordinarily have required a review of the merits or the arguability or prospects of success of an application for judicial review of the AAT Decision, albeit one that might be necessarily preliminary and impressionistic, but which also recognises that it will rarely be in the interests of the administration of justice to extend time to file an application which has little or no prospect of success: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [48] per Wigney J; MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [6] per Mortimer J.
The officer who made the Removal Decision was therefore not required to consider the UNHCR Refugee Document which relates to the applicant’s refugee status in 1999 and 2003 and which was assessed by the AAT, which found that in 2015, on the basis of the Second Protection Visa Application, the applicant was not entitled to a Protection Visa, and that Australia did not have protection obligations to the applicant either under the Refugees Convention or the complementary protection provisions of the Migration Act. Further, and any in any event, the officer was required to remove the applicant if he satisfied the statutory criteria in s.198(6) of the Migration Act.
Ground 2 is therefore not made out.
Ground 3
Ground 3 asserts that the removal notice is a breach and violation of the Refugees Convention.
No particulars have been provided of Ground 3, and for that reason alone it cannot succeed: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J.
In any event, the applicant’s claims that he was owed protection obligations by Australia on the basis of being a refugee were considered by the AAT in assessing his Second Protection Visa Application. Additional claims that the applicant made after the AAT Decision were further reviewed by an officer of the Department on 24 May 2017. The officer who made the Removal Decision was not required to reassess the applicant’s refugee claims. The officer was only required to determine if the applicant satisfied the statutory criteria in s.198(6) of the Migration Act. In any event, s.197C of the Migration Act provides that, for the purposes of s.198 of the Migration Act, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen and that an officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under s.198 of the Migration Act arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
Ground 3 is therefore not made out.
Ground 4
Ground 4 alleges that the Removal Decision is a breach and violation of the 1951 Geneva Convention which is the main international instrument of Refugee Law. This 1951 Geneva Convention is the Refugees Convention referred to in Ground 3. Accordingly, Ground 4 of the application is simply a repetition of Ground 3, and for the same reasons cannot be made out.
Ground 6
Ground 6 (there is no Ground 5) asserts that the Minister has made a judgment concerning the applicant’s removal from Australia without properly considering the applicant’s circumstances by means of an International Treaties Obligation Assessment (“ITOA”). In relation to this ground:
a)there is no requirement under the Migration Act for an ITOA to be conducted before an applicant is removed pursuant to s.198(6) of the Migration Act. An unlawful non-citizen must be removed as soon as practicable if they satisfy the criteria in s.198(6)(a)-(d) of the Migration Act;
b)section 197C of the Migration Act provides that, for the purposes of s.198 of the Migration Act, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen and that an officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under s.198 of the Migration Act arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen;
c)the applicant’s protection claims were raised in his Second Protection Visa Application, and were considered by the Delegate and reviewed by the AAT, and were found not give rise to protection obligations either in relation to the Refugees Convention or the complementary protection provisions of the Migration Act; and
d)the additional protection claims which the applicant made subsequently to the AAT Decision were reviewed by an officer of the Department on 24 May 2017, who concluded that the applicant’s removal to Iraq did not raise concerns relating to Australia’s non‑refoulement obligations, and that his case did not warrant referral for any Departmental protection assessment.
In the above circumstances, there was no legal requirement for an ITOA to be conducted before the decision was made to remove the applicant from Australia to Iraq pursuant to s.198(6) of the Migration Act.
Ground 6 is therefore not made out.
Injunctive relief
In Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; (1986) 60 ALJR 679; (1986) 67 ALR 553; CLR at 153 Mason ACJ (“Castlemaine Tooheys”) principles governing the grant or refusal of interlocutory injunctions were summarised, and referred to a plaintiff having to show “that there is a serious issue to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief”. For the applicant’s application for injunctive relief to prevent his removal from Australia on 5 July 2017 to be granted requires that the grounds of Current Application demonstrate a prima facie case that it has a sufficient likelihood of success to preserve the status quo pending the hearing of the application: BTA15 v Minister for Immigration & Border Protection [2017] FCA 422 at [9] per Gilmour J; ALY15 v Minister for Immigration & Border Protection [2017] FCA 281 at [3] and [4] per Jessup J. An applicant seeking an interlocutory injunction is not required to show that it is more probable than not that the applicant will succeed at final hearing: it is sufficient that the applicant show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the hearing of the application: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57; (2006) 80 ALJR 1672; (2006) 229 ALR 457 at [65] per Gummow and Hayne JJ.
For the reasons set out above, the applicant’s grounds of application do not demonstrate a prima facie case that he has a sufficient likelihood of success to justify the preservation of the status quo pending the hearing of the application. Nor do they demonstrate a serious issue to be tried.
In circumstances where:
a)the applicant’s protections claims have been assessed and found wanting by the AAT, and where there was insufficient prospects of success in the AAT Decision for this Court to grant the Extension of Time Application;
b)the Minister made a personal decision to cancel the applicant’s Resident Return Visa on character grounds under s.501(2) of the Migration Act because of the applicant’s criminal record, and in particular, that part of it which constituted the ten counts of indecent dealing with children under the age of 16;
c)section 198(6) of the Migration Act, read with s.197C of the Migration Act, evinces a powerful parliamentary intention to preclude the prevention of the removal from the Commonwealth of Australia of unlawful non-citizens; and
d)imminent arrangements were in place to remove the applicant from Australia,
the balance of convenience would not in the Court’s view have favoured the grant of an injunction in any event: Castlemaine Tooheys CLR at 154-157 per Mason CJ.
Conclusion and orders
The Court has concluded that for the reasons set out above, none of the five grounds of Judicial Review Application have sufficient likelihood of success to warrant the granting of an interlocutory injunction, and that the balance of convenience also does not favour the grant of an interlocutory injunction preventing the applicant’s removal from Australia on 5 July 2017. It follows that the Current Application must be dismissed, with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 14 July 2017
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