BSH15 v Minister for Immigration & Anor

[2015] FCCA 2647

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSH15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2647

Catchwords:
MIGRATION – Application for Protection (class XA) visa – application for injunction to prevent removal from Australia – no serious question to be tried – application refused.

Legislation:  

Migration Act1958, ss.36(2)(a), 36(2)(aa), 477(1), 499(2A)

Applicant: BSH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 47 of 2015

Judgment of: Judge Jarrett

Hearing date: 27 August 2015

Date of Last Submission: 27 August 2015

Delivered at: Darwin

Delivered on: 27 August 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent: Ms Buchanan

Solicitors for the First Respondent: Australian Government Solicitor

The Second Respondent entered a submitting appearance

ORDERS

1. The applicant have leave to file the affidavit sworn 27 August 2015.

2. The application filed on 24 August 2015 is refused.

3. The applicant pay the respondent’s costs assessed in accordance with Schedule 1 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DARWIN

DNG 47 of 2015

BSH15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

ex tempore

1. This is an application for two orders.  The first is an extension of time within which to bring an application for judicial review to this Court to have a decision of a Refugee Review Tribunal reviewed.  The second is, as part of that application, an application for an interlocutory injunction to prevent the first respondent from acting upon a notified intention to remove the applicant from Australia. 

2. The application was filed, I think, on 24 August this year, and it is intended by the first respondent that the applicant will be removed from Australia tomorrow. 

3. This hearing concerns the application for the interlocutory injunction, but it necessarily also requires consideration of the principal application. 

RECORDED  :  NOT TRANSCRIBED

1. The law is clear that, in respect of an application for an interlocutory injunction, the applicant must establish that there is a prima facie case or, put another way, a serious question to be tried and that the balance of convenience favours the grant of the injunction. 

2. As to whether there is a prima facie case, the Court needs to be satisfied that there is a serious question to be tried with respect to the applicant’s application for an extension of time. The application for the extension of time is necessary, because an application for judicial review of a decision of the Tribunal must be made within 35 days of the relevant decision being made. Here the decision was made on 19 November, 2014. The time limited by s.477(1), for the bringing of an application to review that decision expired on 24 December, 2014.

3. The applicant’s own material demonstrates that he was notified of the decision within that time, because it was sent to his authorised representative.  He exhibits to one of the affidavits that he filed on 24 August, the larger affidavit, a copy of the letter from the Tribunal to his authorised agent enclosing a copy of the decision.  Be that as it may, the applicant demonstrates by his affidavit evidence that a copy of the decision was only received at the detention centre in which he was then held, on 31 January, 2015.  He argues that is the first time that it was brought to his attention. 

4. Whether or not that was the first time it was in fact brought to his attention is neither here nor there, given the way in which the notification provisions operate under the Migration Act. But for the purposes of this application, I will assume that the relevant date for the purposes of considering his application for an extension of time is 31 January, 2015. A considerable period has passed between that date and the date upon which his application to this Court was made. There is a very clear inference that can be drawn that the issue that galvanised the applicant into action was the notice that he received of the Minister’s intent to remove him from Australia.

5. There is no sworn evidence before me that explains the delay in the applicant’s application to this Court.  He says that between January of this year and now he was moved from one detention centre to another in Darwin and in some way that has had an impact on his ability to bring an application in a timely way and secondly he has not been able to access lawyers.  As to the first matter, he informed me that he was moved to Darwin in about April of this year. 

6. As to the second, a number of observations might be made.  The first is that he was able to file this application by himself, and that tends to suggest that he could have filed it earlier than he did.  Second, at the hearing today he seeks now to amend his grounds of review or proposed grounds of review, because he has been able to speak to a lawyer, who has prepared the amended grounds for him.  That demonstrates that he has had access to a lawyer, but there is really no explanation as to why that access was not available before he was notified of his removal. 

7. In my view, he does not provide a satisfactory explanation or indeed any explanation at all for the delay in commencing proceedings. 

8. But the length of the delay and the reasons for it are only two of the factors that are usually considered relevant to the exercise of the Court’s discretion to extend the time within which to bring an application for judicial review.  Two other factors are ordinarily considered relevant as well.  The third is whether there is likely to be any prejudice to the respondent.  Here no prejudice was suggested, and it is difficult to imagine, given the nature of the case, how there could be any prejudice. 

9. The fourth matter – and it is usually the matter which attracts the most attention – is the substance of the case which is sought to be agitated for judicial review.  In that respect, the grounds of the application are important.  Initially in the application that was filed on 24 August, the applicant set out eight grounds.  At least one of them is not a ground at all.  Paragraph 4 is more a statement of fact or contention than anything else.  The others, grounds 1, 2, 3, 5, 6, 7 and 8, all have the appearance of pro-forma grounds. 

10. The first, that the Tribunal was in error because it had made the decision “in denial of procedural fairness and denial of natural justice”, contains no particulars and is devoid of any content.  So too, ground 2 and ground 3.  Ground 6 falls in that category, as does ground 7 and ground 8. 

11. Ground 5 says this:

    I have expressed my fear that my name, date of birth and other details could be obtained by criminals and they could use it for criminal activities, because of the data breach.  The Tribunal has failed to take this serious matter into consideration.

12. As to that matter, whilst it does not meet the description of the other grounds to which I have just referred, it does not, in my view, identify a proper ground of review, because even if what is alleged in that paragraph is true, that is, that the applicant’s details could be obtained by criminals, it has nothing to do with where he lives.  If he remained in Australia as a refugee, the so-called criminals would still have access to his details and would still be able to use them for criminal activities.  The “data breach” has no connection with his claim to be a refugee. 

13. In any event, those grounds of the application, it seems, are abandoned and fresh grounds are sought to be relied upon.  In the annexure to the applicant’s affidavit that I received today are specified his now proposed grounds of review.  He now wishes to assert three grounds.  The first is that the Tribunal asked itself the wrong question.  There are some particulars given.  He says that:

    a)the Tribunal asked itself whether the applicant would be targeted or harmed in India because he had spent time in detention in Australia; and

    b)the question was whether the applicant is a refugee sur place because the Australian government put his name and personal details on the internet. 

14. The second of the proposed new grounds is that the Tribunal denied the applicant procedural fairness in not disclosing information on the “data breach” and upon which it based its adverse findings. Third, the applicant seeks to suggest that the Tribunal failed to comply with ministerial direction number 56 in contravention of s.499(2A) of the Act.

15. As to the first ground of the proposed application, it is true that the Tribunal asked itself whether the applicant would be targeted or harmed in India because he had spent time in detention in Australia.  So much appears from the Tribunal’s reasons for decision under the heading “Data Breach” and within paragraphs 31 to 34 of its reasons for decision. 

16. But the applicant suggests that the question was whether the applicant is a refugee sur place.  That expression, as explained by the UNHCR International Thesaurus of Refugee Terminology, suggests that a person is a refugee sur place where they were not a refugee when they left their country of origin but have become a refugee or acquired the status as refugee by reason of events that have happened since their departure.  Here, presumably, the applicant argues that, because information personal to him was released on the internet for a period of time in early 2014, he can not be returned to his country of origin because he will be at risk of harm there by reason of that information being made available.  However, that is exactly what the tribunal considered in paragraphs 31 to 34 of its reasons.  The tribunal considered the concerns that the applicant expressed to it about the release of his personal information on the internet. 

17. In that respect, he made a number of claims.  He claimed that the Indian authorities might view him as a common criminal because he had been detained.  They might physically harm him and mentally torture him.  He claimed that there was no way of knowing from whom he could face a real risk of harm and that foreign security and intelligence agencies, terrorist organisations and criminal syndicates might target him.  He claimed that the Indian authorities would cease his passport and that he would not be able to travel on his passport and foreign governments might use the information as reason not to grant him any visas.  He also claimed that human resource sections of companies and public service departments would also have access to the information and thus undermine his ability to find employment. 

18. The tribunal determined that the applicant’s concerns about those matters were entirely speculative and baseless.  The tribunal recorded that no reason was provided by the applicant as to why he would be targeted by any of those actors, even if they were aware of the data or that he had been in an Australian detention centre.  There was nothing that the tribunal had been able to identify that suggested that any returnees to India were targeted or harmed because they had spent time in detention in Australia and the tribunal noted that it had examined a wide variety of sources.  The sources were set out in its reasons. 

19. Whilst it is true to say that there is no onus on a person who is applying for a protection visa, it is, of course, as well for them to provide something to the decision-maker, be it the delegate or the tribunal that would assist the decision-maker to make a decision in their favour, that is to say, to reach the requisite standard of satisfaction.  Here, the applicant did nothing of that other than to simply assert certain matters to be the case. 

20. The tribunal considered the implications of the data breach for the applicant and concluded as a matter of fact that it would not undermine his ability to find work in India at the public service or company level, that he would not be targeted or harmed by reason of the disclosure of his information and that he would not be harmed if he returned to India.  In my view, the first new proposed ground of review has no prospect of success. 

21. The second proposed ground of review, “that the tribunal denied the applicant procedural fairness in not disclosing the information on data breach that it based its adverse finding upon” just cannot be made out on the evidence.  That is so because the tribunal did disclose the information.  Moreover, to the extent that the information that was relied upon by the tribunal was not disclosed before the tribunal made its decision, it was not the type of information that attracted any positive obligation on the part of the tribunal to disclose it to the applicant.  Put much more plainly, the information relied upon by the tribunal seems to be the information that appears at footnote number 2 on page 7 of the tribunal’s decision, that is what is euphemistically referred to as country information, and country information is not, generally speaking, the subject of mandatory disclosure requirements by the tribunal.  I am satisfied that the second proposed ground of review has no prospect of success.

22. Finally, it is said that the tribunal failed to comply with Ministerial Direction No.56 in contravention of s.499(2A) of the Act. For the reasons expressed by the Minister’s representative at this hearing, there is no suggestion, in my view, that the tribunal has failed to comply with those directions. There is nothing in the tribunal’s reasons for decision to suggest that the relevant direction has not been complied with and there is nothing from the applicant to suggest any particular way in which the tribunal has not complied. In those circumstances, there is no prospect of success in respect of ground number 3.

23. Having concluded, then, that none of the proposed grounds of review the applicant now wishes to pursue have any prospects of success, it is necessary for me to consider the tribunal’s decision for myself and come to a conclusion about whether it is affected by jurisdictional error.

24. In my view, it is not. There is nothing in the reasons for decision delivered by the tribunal that suggests that the tribunal has adopted a practice or procedure which has been unfair to the applicant. There is nothing to suggest that the tribunal has not met the procedural fairness requirements imposed upon it by the Migration Act. There is, in my view, nothing to suggest that the tribunal has applied any wrong test when it considered the applicant’s claims either under ss.36(2)(a) or 36(2)(aa) of the Migration Act. In short, in my view, the applicant has no prospects of successfully seeking judicial review of the tribunal’s decision.

25. In those circumstances, there would be no point in granting an extension of time within which to commence proceedings to challenge the tribunal’s decision.  That, when coupled with the failure to explain the delay, between, at best for the applicant January 2015 and now, demands that his application for an extension of time be refused. 

26. In those circumstances, one cannot say that there is a prima facie case or a serious issue to be tried in this application sufficient to support the making of an interlocutory injunction, as the applicant seeks. 

27. The application for the injunction is refused.

RECORDED  :  NOT TRANSCRIBED

1. In these applications, costs ordinarily follow the event, unless there are special circumstances that demonstrate that that rule should not be applied.  There are no special circumstances here.  Costs should follow the event.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 27 August, 2015.

Associate: 

Date:  30 September 2015