BAW15 v Minister for Immigration

[2015] FCCA 1681

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAW15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1681

Catchwords:
ADMINISTRATIVE LAW – Application for interlocutory injunction to prevent removal from Australia – application for judicial review out of time – relevant considerations.

Legislation:

Migration Act 1958, ss.36, 417, 474, 477

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: BAW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1628  of 2015

Judgment of: Judge Cameron

Hearing date: 16 June 2015

Date of Last Submission: 16 June 2015

Delivered at: Sydney

Delivered on: 16 June 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms D. Watson of Australian Government Solicitor

ORDERS

1. Until further order, the first respondent, by himself or by his department, officers, delegates or agents, be restrained from removing the applicant from Australia.

2. The matter be listed for further directions on a date to be advised by the registry.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1628 of 2015

BAW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for an urgent interlocutory injunction to prevent the removal of the applicant from Australia tomorrow evening. 

2. The applicant claims to fear persecution in Iraq on the basis, he alleges, that he is perceived by Shia militia to be a former member of the Ba’ath Party and a supporter of the Saddam Hussein regime.  He claims that he has been threatened, that his two sons were killed as a means of striking at him and that he may be killed if he returns.  He also claims that he may be regarded as a spy if he returns from a Western country. 

3. In May 2012 the applicant arrived in Australia by boat.  On 23 August 2012 he applied to what is now the Department of Immigration and Border Protection for a protection visa.  This was refused by a delegate of the first respondent (“Minister”) on 14 January 2013.  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and now seeks judicial review of the Tribunal’s decision of 12 June 2013. 

Present situation

1. The applicant is presently in detention at the Villawood Immigration Detention Centre.  As I have said, he is due to be removed from Australia tomorrow evening and has sought urgent injunctive relief to prevent that removal.  Given the circumstances of the matter, the Court needs to determine whether there is a serious question to be tried and whether the balance of convenience favours the granting of the injunction sought.

2. A complicating aspect of the matter is the fact that the application for review of the Tribunal’s decision has been brought nearly two years out of time. The Court has no jurisdiction to entertain the application for judicial review unless it is satisfied that it is in the interests of justice that it do so. I note in that connection that the formalities required by s.477(2)(a) of the Migration Act 1958 (“Act”) have been met. 

Tribunal decision

1. The Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. In reaching that conclusion, the Tribunal expressed the following findings and reasons:

   a)it appeared that Shia militias were no longer attacking former Ba’athists;

   b)the Tribunal did not accept that the applicant had been identified as a Ba’athist or supporter of the Saddam Hussein regime;

   c)the applicant’s evidence about the threats and harassment he claimed to have encountered was vague, shifting and changed at different stages of the visa process;

   d)there was no credible evidence to indicate that the applicant’s sons were killed because the applicant had been suspected of involvement with the Ba’ath Party;

   e)the applicant had not explained satisfactorily how he had been able to avoid execution or serious harm immediately after the fall of Saddam Hussein in 2003 if he had really been viewed as a Ba’athist;

   f)the Tribunal had doubts that he had been threatened and did not accept that he had received letters or telephone calls making threats;

   g)the Tribunal also considered that if the applicant’s safety had been seriously compromised or he had been at risk, he had remained in Iraq sufficiently long for anybody who really intended to harm him to have done so;

   h)the Tribunal did not accept that the applicant would be accused of spying or be the subject of adverse attention amounting to persecution for that reason if he returned to Iraq and it did not think that he faced a real chance of persecution on suspicion of being a spy because he had spent time in a Western country or for any identifiable Convention reason;

   i)the Tribunal rejected the applicant’s adviser’s submission about the general lack of security in Iraq and other difficulties, such as lack of employment opportunities, on the basis that there was no evidence to suggest that returnees to Iraq constituted a particular social group or were subjected for a Convention reason to the difficulties asserted.  Moreover, the evidence indicated that the applicant could return to the Basra area where he and his extended family had lived for years and where Shia form the majority of the population.  The Tribunal concluded that Basra was relatively peaceful and that the possibility that the applicant would be harmed in a bomb attack directed specifically as Shias in Basra or the surrounding area was too remote and insubstantial to constitute a real chance;

   j)as to the general lack of security in Iraq, the Tribunal was satisfied that the applicant would not be targeted personally or as a member of a group for any Convention reason; and

   k)the Tribunal was satisfied that although in Iraq civilian deaths remained at a high level and there were problems with essential services and infrastructure, any risk was one faced by the population generally, and was not faced by the applicant personally, and the evidence did not suggest that the applicant himself faced a real risk of being the victim of such an incident. 

Application to the Court

1. The grounds of the application which the applicant would wish to ventilate in this Court were pleaded as follows:

   1.     The tribunal deprived me from natural justice.

   2.     The Member did not consider many aspects of my claims.

2. As explained to the applicant at the hearing of this application, the Court’s role is not to reconsider his application for a protection visa. Its task is to determine whether the Tribunal was guilty of jurisdictional error as that is the only basis upon which the Tribunal’s decision may be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

Delay

1. In his submissions to the Court the applicant said that in the nearly two year period between the Tribunal’s decision and the filing of the present application he had sought Ministerial intervention pursuant to s.417 of the Act. Ms Watson, who appeared for the Minister, advised the Court that the s.417 request had been made on 17 February 2014 and finalised a month later on 17 March 2014. The applicant submitted that another cause of the delay was a motor vehicle accident he had suffered in June 2014 but he said that he had not been admitted to hospital except for the treatment that he received on the day of the accident.

2. It appears, also based on Ms Watson’s submissions, that the applicant remained lawfully in Australia until 1 September 2013 when the second of two bridging visas, whose operation post-dated the Tribunal’s decision, ceased.  He remained unlawfully in the community until detained last week.  I understand from Ms Watson that the applicant was told yesterday, 15 June 2015, that he was to be deported tomorrow, 17 June 2015, and has today, 16 June 2015, filed his application for judicial review. 

3. I am not persuaded that the matters raised by the applicant provide a satisfactory explanation for the delay in commencing this case.  While I accept that it would be difficult for the applicant to bring an action, he has plainly been able to do so at short notice and it seems unlikely, if he had wished to act with sufficient promptness earlier, that he could not have done so, particularly as at that point he was in the community and not in detention. 

Reasonable prospects of success

1. In his address the applicant did his best to expand on the two grounds which he would seek to prosecute if the application were to proceed in its present form.  It must be said, without intending any disrespect to the applicant, that he was not able to give those allegations any particular substance. 

2. What the applicant did say was that in the circumstances he was underprepared and had not had an opportunity to seek legal advice on his application.  As he explained it to the Court, essentially, he had been told yesterday that he was leaving tomorrow.  He filed his application and today he was told by officers at the detention centre that he was to get in a car and come to court this evening. 

3. The applicant’s claims for substantive relief by way of judicial review are so formulaic and insubstantial that they do not disclose an arguable case, let alone a case with reasonable prospects of success, and would be dismissed if pressed at a final hearing.  As the applicant made perfectly plain in his submissions, which I accept, his application was prepared in a hurry and he has not had an opportunity to seek legal advice.   It would not be appropriate to dismiss this matter at a first court date because of this pleading deficiency and in many ways this hearing is only a first court date.  It is this consideration which weighs most heavily in my mind.  As I said, I accept, as the Minister submitted, that the explanation for delay is not satisfactory but such considerations can fade into insignificance in the face of a compelling case for judicial review.

Serious issue to be tried

1. In the applicant’s present situation, I do not think that there is any way that he could present a compelling case for judicial review.  It is therefore too early to tell whether there is a serious issue to be tried.  As an unrepresented litigant operating in a foreign language, in a legal system with which he is unfamiliar, and in a hurry, too much should not be made of the deficiency in the pleading. 

Balance of convenience

1. Given the circumstances, including the potential harm which could befall the applicant if the Tribunal has made an error, in the circumstances, I find that the balance of convenience favours the granting of the injunction sought. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  18 June 2015