BLS15 v Minister for Immigration & Anor
[2016] FCCA 507
•23 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLS15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 507 |
| Catchwords: MIGRATION – Judicial review – former Refugee Review Tribunal decision – refusal to grant Protection (Class XA) visa – citizen of Sri Lanka of Tamil ethnicity – whether failure to consider complimentary protection provisions – whether jurisdictional error. PRACTICE AND PROCEDURE – Application for extension of time in which to file substantive application – consideration of factors on an extension of time application – consideration of extension of time application in context of whether a serious issue to be tried. INJUNCTION – Usual principles for interlocutory injunction – whether serious issue to be tried – balance of convenience. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.15 Federal Circuit Court Rules 2001 (Cth), r.44.05 Migration Act 1958 (Cth), ss.36(2A), 36(2)(aa), 198, 256, 477, 499(2A) Migration Regulations 1994 (Cth) |
| AAH15 v Minister for Immigration & Border Protection [2016] FCA 104 Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; (1982) 46 ALR 398 BZAFV v Minister for Immigration & Anor [2014] FCCA 2808 Chen v Minister for Immigration & Anor [2014] FCCA 271 DZAEH v Minister for Immigration & Border Protection [2016] FCA 178 Harbour Radio Pty Limited v Australian Communications and Media Authority [2012] FCA 439 Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 MZZRO v Minister for Immigration & Anor [2014] FCCA 882 Suh v Minister for Immigration & Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 SZMNO v Minister for Immigration & Citizenship [2009] FCA 797 SZSPI v Minister for Immigration & Border Protection [2014] FCAFC 140; (2014) 233 FCR 279; (2014) 317 ALR 1; (2014) 144 ALD 232 SZRUG v Minister for Immigration & Anor [2013] FCCA 142 SZTAL v Minister for Immigration & Anor [2015] FCCA 64 SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 |
| Applicant: | BLS15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 341 of 2015 |
| Judgment of: | Judge Lucev |
| Hearing date: | 2 and 4 March 2016 |
| Date of Last Submission: | 4 March 2016 |
| Delivered at: | Perth |
| Delivered on: | 23 March 2016 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr RL Hooker |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS (as made on 4 March 2016)
The name of the second respondent be amended to read “Administrative Appeals Tribunal”.
The applicant’s application in a case filed 26 February 2016 be dismissed.
Reasons for Judgement to be published electronically from Chambers at a later date.
The applicant pay the first respondent’s costs in the sum of $3416 by 4 April 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 341 of 2015
| BLS15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Orders made on 4 March 2016
On 4 March 2016 this Court made the following orders in this matter:
1.The name of the second respondent be amended to read “Administrative Appeals Tribunal”.
2.The applicant’s application in a case filed 26 February 2016 be dismissed.
3.Reasons for Judgement to be published electronically from Chambers at a later date.
4.The applicant pay the first respondent’s costs in the sum of $3416 by 4 April 2016.
(“Court’s 4 March 2016 Orders”).
The following are the Reasons for Judgment referred to in order 3 of the Court’s 4 March 2016 Orders.
Application in a case
By an Application in a Case filed on 29 February 2016 the applicant seeks an interlocutory injunction preventing the applicant’s imminent removal from Australia and an “undertaking not to remove the applicant while he has ongoing matters before the courts”.
Substantive application
The Applicant’s substantive application seeks judicial review (“Judicial Review Application”) of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) affirming a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to not grant a Protection (Class XA) visa (“Protection Visa”) to the applicant.
The Judicial Review Application was not filed within time under s.477(1) of the Migration Act 1958 (Cth) (“Migration Act”), and the applicant seeks an extension of time under s.477(2) of the Migration Act in which to file the substantive application (“Extension of Time Application”). In that regard the applicant filed an affidavit affirmed 15 July 2015 (“Applicant’s Affidavit”). The content of the Applicant’s Affidavit is dealt with in greater detail below.
On 14 October 2015 a Registrar of this Court made orders listing the Judicial Review Application and the Extension of Time Application for hearing before a Judge of this Court on 22 June 2016 (“Registrar’s 14 October 2015 Orders”).
Orders in the Application in a Case
The Application in a Case first came before the Court on 2 March 2016, at which time it became evident that the applicant’s deportation was not likely to occur until 7 or 8 March 2016, and that there was some possibility that a legal practitioner or legal practitioners might, if given a little time, be able to provide some further assistance (it seeming that some assistance from a legal practitioner had already been provided) to the applicant. As a consequence, the Court, bearing in mind the judgment of the Full Court of the Federal Court in SZSPI v Minister for Immigration & Border Protection [2014] FCAFC 140; (2014) 233 FCR 279; (2014) 317 ALR 1; (2014) 144 ALD 232 at [46] per Allsop CJ, Mansfield and Besanko JJ (“SZSPI”) and DZAEH v Minister for Immigration & Border Protection [2016] FCA 178 at [8] and [10] per McKerracher J, made the following orders:
1.The hearing of the applicant’s interlocutory application be adjourned to 3pm on 4 March 2016 for:
a. any further hearing that may be necessary;
b. alternatively:
i. the publication of orders; and
ii. if available, publication of reasons for judgment.
2.The First Respondent is to bring the applicant from Yongah Hill Immigration Detention Centre to the adjourned hearing referred to in order 1, which will be held in Hearing Room 6.2, Peter Durack Commonwealth Law Courts Building, 1 Victoria Avenue Perth, Western Australia.
3.The applicant have liberty to apply urgently by email copied to the first respondent’s solicitors, to the Associate to Judge Lucev ([email protected]), and if the liberty to apply is exercised, to file and serve by email any supporting affidavit.
4. Costs of today be reserved.
(“Court’s 2 March 2016 Orders”)
Affidavits
In support of the Application in a Case
On 26 February 2016 Sally Ann Thompson affirmed an affidavit (“Ms Thompson’s Affidavit”) in support of, and which was filed with, the Application in a Case, and which annexed:
a)a copy of a “Notice of Intention to Remove from Australia” in relation to the applicant, giving the date of removal as 4 March 2016: Ms Thompson’s Affidavit at [1] and Annexure A; and
b)a copy of the Registrar’s 14 October 2015 Orders: Ms Thompson’s Affidavit at [2] and Annexure B.
Following the Court’s 2 March 2016 Orders an affidavit affirmed by Samudu Thushari Hemachandra (“Ms Hemachandra”) on 3 March 2016 (“Ms Hemachandra’s Affidavit”) was forwarded to the Minister’s solicitors, and to the Chambers of the presiding Judge. Ms Hemachandra is a lawyer, but not one presently appearing or on the record for the applicant. Other than to note that Ms Hemachandra is not presently on the record for the applicant, it is unnecessary to deal with the reasons for that being the case. At hearing on 4 March 2016 the Minister did not object to the Court taking Ms Hemachandra’s Affidavit as having been filed in Court (it not having been filed in the Registry prior to that hearing), but did object to much of the content of the affidavit on the bases set out in an email from Mr David Carroll (“Mr Carroll”), a lawyer with the Minister’s solicitors, sent to Ms Hemachandra (amongst others) and to the presiding Judge’s Chambers. That email objected to eight of the 14 paragraphs of Ms Hemachandra’s Affidavit, and for reasons which are very briefly set out in the transcript of the hearing of 4 March 2016, those objections were upheld and paragraphs 6, 8, 9, 10, 11, 12, 13 and 14 of Ms Hemachandra’s Affidavit were struck out. The gist of what remains of Ms Hemachandra’s Affidavit is that:
a)Ms Hemachandra is:
i)the Legal Practice Director of a firm called “Four Lion Legal”; and
ii)originally from Sri Lanka and speaks some limited Sinhalese, but is able to communicate in Sinhalese with the applicant, whose matter was referred to her through The Law Society’s Access to Law programme; and
b)Mr Greg McIntyre SC has also offered to assist in the matter and had provided ad hoc advice.
(See Ms Hemachandra’s Affidavit at [1], [4] and [5]).
Annexed to Ms Hemachandra’s Affidavit is a copy of an email chain of correspondence between Ms Hemachandra and Mr Carroll in October 2015. For present purposes, other than to indicate the fact that the applicant has had some legal assistance, albeit not from a lawyer presently on the record, nothing turns upon the content of the October 2015 emails.
Applicant’s Affidavit
Although not filed in support of the Application in a Case the Applicant’s Affidavit is relevant because it was filed in relation to the Extension of Time Application which the Court must consider in order to determine whether or not there is a serious issue to be tried on the Judicial Review Application.
In the Applicant’s Affidavit the applicant, amongst other things, says that he was only given the Tribunal Decision, which was handed down on 8 May 2015, on 13 July 2015. The Judicial Review Application was filed just three days later on 16 July 2015. The Applicant’s Affidavit also points out that since 22 April 2015 he has been in immigration detention, and has had no access to legal advice or any advice on what he can or should do: Applicant’s Affidavit at [4] and [9].
In opposition to the Application in a Case
The Minister opposes the orders sought in the Application in a Case and has filed two affidavits of Mr Carroll sworn 1 and 4 March 2016 (“Mr Carroll’s First Affidavit” and “Mr Carroll’s Second Affidavit” respectively).
Mr Carroll’s First Affidavit sets out certain details in relation to the proposed removal of the applicant from Australia, including that due to logistical reasons the applicant's removal had been postponed, and the applicant was due to be removed on either 7 or 8 March 2016.
In Mr Carroll’s Second Affidavit he refers to Ms Hemachandra’s Affidavit, and adds further emails to the October 2015 email chain referred to in Ms Hemachandra’s Affidavit above: see [10] above; Mr Carroll’s Second Affidavit at [3]-[6], and goes on to observe that between receipt of the last email from Ms Hemachandra on 14 October 2015 and receipt of an email from a person (who is not a lawyer) assisting the applicant on 18 February 2016 he did not receive any communication from the applicant or from any person assisting the applicant in relation to the Application in a Case: Mr Carroll’s Second Affidavit at [7].
Factual and Procedural Background
The factual and procedural background is as follows:
a)the applicant is a citizen of Sri Lanka who departed that country illegally. He lodged his application for the Protection Visa on 13 March 2013: CB 101, claiming persecution on the basis of his political opinion as detailed in the application for the Protection Visa signed by the applicant on 26 February 2013: CB 39-50 and 51-65;
b)on 27 March 2014 the Delegate refused the application for a Protection Visa: CB 136-139 and 149-160;
c)the applicant lodged an application with the Tribunal for merits review of the Delegate’s Decision: CB 188. The Tribunal conducted a hearing of that application on 4 May 2015: CB 284-287 (“Tribunal Hearing”). On 8 May 2015 the Tribunal affirmed the Delegate’s Decision for reasons published that same day: CB 295-315. The Tribunal Decision is set out in greater detail below; and
d)the Judicial Review Application was filed on 16 July 2015.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)considered the applicant’s claim that he was at risk from two brothers who were supporters of the government and had attacked him outside a CD shop in 2010. The Tribunal found that this could be characterised as a fight between young men, two of whom were drunk, in a non-political situation: CB 346 at [102];
b)notwithstanding the finding in (a) above, went on to find that, even if the incident did have a political motive, the State authorities had investigated the matter and both the applicant and one of the other men were charged. Whilst the matter had not been finalised in the domestic courts of Sri Lanka, that was as a result of neither the applicant nor the other person attending: CB 346 at [103]-[106];
c)noted that following this incident the applicant had relocated to another part of Sri Lanka where he continued to work as a driver: CB 346 at [107]-[108]. Thus, it was concluded that there is no real chance of serious harm to the applicant, were he to return to Sri Lanka, for reasons of his actual political opinion: CB 346 at [110]; and
d)had regard to the applicant’s other related claim grounding his application for the Protection Visa related to his illegal departure from Sri Lanka: CB 347-348 at [113]-[136], and to the country information, and was satisfied that the law relating to people who had departed Sri Lanka illegally was one of general application and did not constitute serious harm: CB 346-347 at [125]-[127], and accepted that the applicant would be charged and brought before a magistrate and that the remand process would not take longer than two weeks, but that any hardship for that brief period of remand would not be the result of intent or discrimination and that it would not constitute “significant harm” within the meaning of s.36(2A) of the Migration Act: CB 349 at [141]-[145].
Application in a Case for an interlocutory injunction
Test for grant of an interlocutory injunction
The test to be applied with respect to the grant of an interlocutory injunction under s.15 of the Federal Circuit Court of Australia Act 1999 (Cth) is that outlined by the High Court in Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; (1982) 46 ALR 398, namely that there be a serious question to be tried and that the balance of convenience favours the issuance of the injunction: see MZZFW v Minister for Immigration [2015] FCCA 1902; (2015) 299 FLR 22 at [62] per Judge Lucev.
Serious issue to be tried
The Judicial Review Application contains a solitary ground which contends that:
The Tribunal committed jurisdictional error by failing to [take] account of PAM3 Refugee and Humanitarian - Complementary Protection guideline as required by section 499(2A) of the Migration Act 1958 after accepting that the applicant would be detained in prison to a maximum of two weeks because of his illegal departure.
(Word in parentheses added).
This ground does not say so expressly, but would seem to rely upon the decisions of this Court in SZUQZ v Minister for Immigration & Anor [2015] FCCA 1552 (“SZUQZ”) and ARS15 v Minister for Immigration & Anor [2015] FCCA 2135 (“ARS15”).
In SZUQZ the Court dealt with grounds which alleged that the Tribunal breached s.499(2A) of the Migration Act by failing to comply with Ministerial Direction 56 (“Direction 56”), or failed to take into account a relevant consideration for the same reason. The Court observed that the crux of the grounds was that the Tribunal failed to take into account matters identified in the PAM 3 Refugee and Humanitarian Complimentary Protection Guidelines (“Guidelines”) to the extent relevant, and that in order to succeed the applicant needed to establish that the Tribunal decision in that case required the Tribunal to take account of the Guidelines, and that in failing to do so, the Tribunal breached s.499(2A) of the Migration Act, or overlooked a relevant consideration amounting to jurisdictional error: SZUQZ at [26] per Judge Driver.
In SZUQZ the Court observed that the Tribunal made express reference to the Guidelines in the attachment section of the Tribunal decision in that case only. Otherwise, there was no express mention of the Guidelines, and the Court observed that the Tribunal identified the material taken into account pursuant to Direction 56, and that that material did not include the Guidelines: SZUQZ at [42]-[43] per Judge Driver. Citing SZTMD v Minister for Immigration & Border Protection [2015] FCA 150 at [15]-[21] per Perram J (“SZTMD”) the Court in SZUQZ noted that the absence of an express reference in the Tribunal Decision to a particular matter meant that it could be inferred that the Tribunal did not consider that matter to be material to its decision: SZUQZ at [47] per Judge Driver.
In SZUQZ the Court’s judgment in SZTCV v Minister for Immigration [2015] FCCA 1677 (“SZTCV”) was distinguished on the basis that in that case the Tribunal expressly said that it had taken into consideration Direction 56 and the Guidelines: see SZUQZ at [50]-[52] per Judge Driver, citing, in particular, SZTCV at [69] per Judge Lloyd-Jones. The Court went on to observe in SZUQZ at [53]-[54] per Judge Driver as follows:
53. In my opinion, the decision in Lafu supports the proposition that consideration of the Guidelines is mandatory once the Tribunal determines that they are relevant to a particular case. The decision in SZTMD establishes that the relevance of the Guidelines is for the Tribunal to determine.
54. The Tribunal, however, cannot simply avoid that determination by silence. Neither, in this case can that determination be inferred. The Guidelines in this case were no less relevant than they were in SZTCV, where they were expressly considered. In this case they were not considered at all. The factual findings made by the Tribunal rendered the Guidelines at least potentially relevant and some engagement with the question of their relevance was necessary for the Tribunal to complete the review. The conclusion I draw is that the Tribunal failed to consider the potential relevance of the Guidelines which, if relevant, were mandatory, and hence the Tribunal overlooked a relevant consideration.
In ARS15 this Court found that the Tribunal, having identified the nature of imprisonment and prison conditions which were likely to confront the applicant on his return to Sri Lanka held that the reasoning of the Tribunal was consistent with it having failed to have regard to and engage with the Guidelines in relation to the imprisonment and prison conditions: ARS15 at [10] per Judge Street.
The Guidelines:
a)purpose is to:
i)assist decision-makers “on the law relevant to the assessment of whether Australia owes protection obligations to applicants”: Guidelines, cl.1; and
ii)elucidate the law applicable to s.36(2)(aa) of the Migration Act determinations;
b)require consideration only “to the extent that they are relevant to the decision under consideration”: Direction 56, cl.2, with “relevance” not being objective relevance to be determined as a jurisdictional fact by a court on review: SZTMD at [20] per Perram J, and therefore, any requirement imposed by Direction 56, cl.2 operates only where the Tribunal has itself formed an opinion that the Guidelines are relevant to a given exercise of its jurisdiction;
c)at cl.29, deal with imprisonment and prison conditions in such a way as to indicate that detention itself is not a breach of Article 7 of the International Covenant on Civil and Political Rights (New York, 1966) [1980] ATS 23 (“ICCPR”), but that particularly harsh detention conditions may violate Article 7 of the ICCPR;
d)indicate that a minimum level of severity is necessary, and any assessment of whether such a minimum has been reached must necessarily depend on all the circumstances of a given case; and
e)identify certain examples of when breaches of Article 7 of the ICCPR have been found, arising out of prison conditions, including that whether particular conduct or conditions amount to torture, cruel, inhuman or degrading treatment or punishment is subjective, and depends on the characteristics of the victim.
The Tribunal expressly referred to its obligations under Direction 56 and the Guidelines: CB 332 at [9] as follows:
9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian – Complimentary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
It should not lightly be inferred that the Tribunal had not read the Guidelines and failed to discharge the obligations under Direction 56: SZTCU v Minister for Immigration & Anor [2014] FCCA 1600 at [39] per Judge Cameron (“SZTCU”).
The Tribunal:
a)is an expert body, and it is not open to suggest that the Tribunal should have slavishly applied the Guidelines so to avoid an inference that it failed to take them into consideration when it is required to regularly consider and apply the Guidelines: ADO15 v Minister for Immigration & Anor [2016] FCCA 88 at [52]-[54] per Judge Smith (“ADO15”);
b)gave detailed consideration to the applicant’s complementary protection claims as regards his illegal departure, and expressly engaged with the applicable statutory definitions of “significant harm” and had regard to relevant country information; and
c)considered the characteristics of the applicant, noting that he was a single able bodied male with no physical handicaps: CB 349 at [145].
The content of the Tribunal Decision demonstrates that the Tribunal read, understood and took into account the Guidelines, particularly, regarding the likely short period of detention: CB 338 at [71]-[73] and CB 348 at [128] and [131] and CB 349 at [139]-[145]. The Tribunal’s focus on the short period of detention compels an inference that the Tribunal was applying duration-based reasoning as a centrally important factor in assessing prison conditions against Article 7 of the ICCPR as indicated in the Guidelines.
The only proper inference to be drawn is that the Tribunal, having found the applicant would be detained for only a brief period, did not consider the other parts of the Guidelines to be relevant: SZTMD at [15] per Perram J. The present circumstances are relevantly indistinguishable from SZTCU at [42] per Judge Cameron and SZTCV per Judge Lloyd-Jones cited at [23] above and ADO15 at [52]-[54] per Judge Smith. SZUQZ, in particular at [33] and [52] per Judge Driver, and ARS15, in particular at [10] per Judge Street, are distinguishable from SZTCU, SZTCV and ADO15.
The reasons of the Tribunal are not to be read with a focus upon the perception of error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 271-272, 277 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ and 294-295 per Kirby J. The absence of some kind of formulaic statement of obedience to the Guidelines cannot be invoked in an attempt to counteract the evidence of the practical influence of those guidelines upon the Tribunal’s reasoning. Similarly, excessive weight is not to be given to slight and inconsequential variations in the expression of reasoning, in materially similar cases: AUE15 v Minister for Immigration & Anor [2015] FCCA 2452 at [3]-[6] per Judge Street and ALA15 v Minister for Immigration & Anor (No. 2) [2015] FCCA 2048 at [23]-[24] per Judge Street.
In AAH15 v Minister for Immigration & Border Protection [2016] FCA 104 at [83] per Katzmann J (“AAH15”) the Federal Court had regard to the Tribunal’s conclusion that it was not satisfied that there was evidence of mistreatment of persons in the position in which the appellant was likely to find himself on his return to Sri Lanka, stating that it had “great difficulty” in accepting that there is any sound basis to argue that the Tribunal failed to give consideration to certain matters arising from the Guidelines. In AAH15, as in SZUQZ, the Guidelines were referred to in an attachment to the decision of the Tribunal: AAH15 at [80] per Katzmann J. AAH15 being a decision of the Federal Court is to be preferred to SZUQZ: Suh v Minister for Immigration & Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ. Additionally, the observation in AAH15 is consistent with this Court’s views in SZTCU, SZTCV and ADO15.
In AJX15 v Minister for Immigration & Border Protection [2016] FCA 109 at [3], [9]-[11] and [16] per Rares J the Federal Court found that a similar proposed ground of appeal had “no real prospect of success”. That finding materially contributed to the Federal Court’s refusal to grant the applicant an extension of time in which to appeal.
Even if there was an error with respect to the Guidelines (which in the Court’s view there is not), the Tribunal’s finding: CB 349 at [141], that any hardship during that period of brief detention was not as a result of intent or discrimination is indicative of a lack of the requisite intention to inflict significant harm on the applicant. These findings are fatal to the proposed ground of judicial review as they render any error irrelevant: SZTAL v Minister for Immigration & Anor [2015] FCCA 64; SZTCY v Minister for Immigration & Anor [2015] FCCA 85; SZTGM v Minister for Immigration & Anor [2015] FCCA 87. There is therefore no serious issue to be tried in relation to the applicant’s sole ground in the Judicial Review Application.
The mere fact that the applicant has judicial review proceedings before this Court (or before any Australian court exercising federal jurisdiction) is an insufficient basis to, of itself, find that there is a serious issue to be tried if those proceedings are unmeritorious.
In relation to the Extension of Time Application s.477(2) of the Migration Act provides that the Court may order that the 35 day period be extended as the Court considers appropriate if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to do so.
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides that:
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
The evidence for the purposes of r.44.05(2)(c) of the FCC Rules is contained in the Applicant’s Affidavit.
Factors for consideration in extending time
Factors for consideration regarding the granting of an extension of time under s.477(2) of the Migration Act are well-established, but not exhaustive, in this Court, and are as follows:
a)the extent of the delay;
b)the reasons for the delay;
c)any prejudice to the respondent;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large;
f)any exercise of the Court’s discretion; and
g)the merits of the proposed judicial review application.
SZRUG v Minister for Immigration & Anor [2013] FCCA 142 at [8] per Judge Nicholls (and cases there cited); WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [7] per Judge Lucev; MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [6] per Judge Jones; SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 at [21] per Judge Lloyd-Jones; BZAER v Minister for Immigration & Anor [2014] FCCA 813 at [4] per Judge Jarrett; Chen v Minister for Immigration & Anor [2014] FCCA 271 at [9] per Judge Barnes.
Although the delay in this case is quite significant, the significance of the time delay is mitigated by the fact, which the Court accepts, that the applicant was not given a copy of the Tribunal Decision until three days before his Judicial Review Application was filed. Thus, once he received the Tribunal Decision, he acted promptly in filing the Judicial Review Application.
The reason for the delay was not the applicant’s fault. The applicant, on the evidence, was not made aware of the Tribunal Decision by the Minister, or the Minister’s servants or agents, within the limitation time period, and, indeed, not until a significant period thereafter.
Insofar as there is therefore a delay in making the Judicial Review Application that delay does not weigh against the grant of an extension of time in the interests of the administration of justice.
In terms of prejudice to the Minister there may be some prejudice in relation to the Minister’s expectation that the applicant would be deported having regard to the provisions of s.198 of the Migration Act. The degree of prejudice must, however, remain minimal in the context of proceedings where it is ultimately necessary to give consideration to the merit of the Judicial Review Application as one of the factors in determining whether to extend time. Further, the mere absence of prejudice is not enough to justify the grant of an extension of time: SZMNO v Minister for Immigration & Citizenship [2009] FCA 797 at [31] per Barker J; BZAFV v Minister for Immigration & Anor [2014] FCCA 2808 at [4]-[5] per Judge Jarrett. Overall, any prejudice to the Minister would not weigh against the grant of an extension of time.
As to the impact on the applicant it is tolerably clear that a refusal to extend time would have, absent the present interlocutory injunction application and the Notice of Intention to Remove, a negligible impact, given that the Judicial Review Application has no reasonable prospect of success because of the absence of error, as explained above.
As to the interests of the public at large, this matter is determinable on existing well understood and explained provisions in the Migration Act and under the Migration Regulations 1994 (Cth), and on established applicable legal principles, and is peculiar to its own facts. Nothing in the matter excites the interest of the public at large. For similar reasons, there is nothing otherwise in the circumstances of the matter which would warrant the exceptional exercise of the Court’s discretion to otherwise extend time for the making of the Judicial Review Application.
As to the merits of the Judicial Review Application, for reasons set out above, the sole ground of the Judicial Review Application has no merit, and therefore no reasonable prospect of success.
It is well established that a court should not exercise its discretion to extend time to appeal, even for a short period, if an appeal has no prospect of success: SZQGO v Minister for Immigration & Citizenship [2012] FCA 177; (2012) 125 ALD 449 at [29] per Murphy J, and the authorities there cited. This principle applies to the Extension of Time Application: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [39] per Foster J.
In the above circumstances, the Court having concluded that the sole ground of the Judicial Review Application has no reasonable prospect of success, the Court would not extend time for the filing of the Judicial Review Application, and there would therefore be no application in relation to which there is an issue to be tried at all.
In all of the above circumstances, the Court is of the view that there is no serious question to be tried in these proceedings, and in the absence of an order extending time, no question at all to be tried.
Balance of convenience
In public law cases the public interest is a factor in determining where the balance of convenience lies. In Castlemaine Tooheys Ltd & Ors v The State of South Australia (1986) 161 CLR 148; (1986) 60 ALJR 679; (1986) 67 ALR 553, in which the applicant sought declarations of invalidity of statutory provisions and an interlocutory injunction restraining the enforcement of those provisions, the High Court at CLR 154-155 per Mason ACJ said:
… the court has indicated its willingness to protect a plaintiff’s alleged constitutional right by restraining the enforcement of a statute where the plaintiff would suffer irreparable injury without any countervailing detriment to the public interest …
It is a different matter where it is suggested that the proposed restraint on enforcement of the statute would occasion a significant detriment to the public interest by preventing the defendant from enforcing a legislative scheme which is designed to protect the environment from pollution by litter.
and
In arriving at a balance of convenience the court will take into account the seriousness of the conduct enjoined by the statute and the damage to the public interest that may be caused by restraining its enforcement.
In Harbour Radio Pty Limited v Australian Communications and Media Authority [2012] FCA 439 (“Harbour Radio”) the Federal Court said at [15] per Griffiths J:
There is a line of legal authority to the effect that a court should be very wary about granting relief on an interlocutory basis which has the effect of preventing the operation of primary or delegated legislation.
The interlocutory order sought unsuccessfully by the applicant in Harbour Radio was for the purpose of deferring the commencement of a new broadcasting standard.
The assessment of the public interest in this case must have regard to the terms of the Migration Act itself. Section 198 of the Migration Act sets out the circumstances in which a person must be removed. Relevantly for present purposes, under s.198(6) of the Migration Act a person detained must be removed as soon as practicable once any applications for visas that can be granted while the person is within the migration zone have been finally determined in circumstances where the visa cannot be granted. No residual discretion resides in the Executive to decline to remove a person if the statutory circumstances exist.
The statutory scheme would be defeated or seriously undermined if the Court were to grant an injunction restraining the removal of the applicant pending the resolution of this proceeding. That is a factor in assessing the balance of convenience which tells against the grant of the injunction, especially where, as here, there is no serious question to be tried, and the application is out of time.
The existence of judicial review proceedings does not preclude the removal of the applicant in compliance with the statutory obligation under s.198 of the Migration Act. In SZSPI the Full Court of the Federal Court stated at [46] per Allsop CJ, Mansfield and Besanko JJ:
[W]here it has been demonstrably shown that a person has had a reasonable opportunity to obtain legal advice and injunctive relief if desired, the removal of an applicant from Australia with a subsisting and pending application, such as an application for an extension of time in which to file a notice of appeal, may not raise either questions of contempt, or Constitutional issues concerning the intersection of judicial and executive power to which we have made reference. Such a conclusion would be able to be reached by a Court if it were demonstrated that the person was aware of her or his ability to approach the Court to prevent deportation until disposition of any application and that the person had been given a reasonable opportunity and reasonable facilities to seek advice about and, if desired, make such an application.
Ms Thompson’s Affidavit evidences that since at least 18 February 2016 the applicant was aware that he was to be removed from Australia. The applicant has availed himself of the opportunity to seek interlocutory injunctive relief to prevent his removal, and has had some assistance in that regard from non-legal and legal sources (albeit that no lawyer is acting for him). The applicant has had the reasonable opportunity anticipated by the Full Court of the Federal Court in SZSPI.
The Court also observes that the balance of convenience does not favour the grant of the interlocutory injunction in circumstances where the Court would not extend time to file the Judicial Review Application in any event.
Conclusion
In all the circumstances, the Minister ought not to be prohibited from proceeding with the statutory obligation imposed by s.198 of the Migration Act. It follows that the applicant’s Application in a Case filed 26 February 2016 should be dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 23 March 2016
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