Cac19 v Minister for Home Affairs

[2019] FCCA 2570

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAC19 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2570

Catchwords:
MIGRATION – Application for judicial review of Administrative Appeals Tribunal – applicant scheduled for immediate removal from Australia – serious harm – meaning of serious harm under s. 36(2)(aa) Migration Act 1958 (Cth) – whether separation of family members can amount to serious harm – conflicting authorities – balance of convenience – injunctive order to restrain Minister from removing applicant from Australia until application is heard – matter listed for hearing with priority.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Cases cited:

AUB16 v Minister for Immigration& Anor [2017] FCCA 2634

COH17v Minister for Immigration & Anor [2018] FCCA 1656

GLD18 v Minister for Home Affairs & Anor [2019] FCCA 2201

Minister for Immigration & CitizenshipvSZQOT [2012] FCAFC 141

MZAEN v Minister for Immigration [2016] FCCA 620

SZRSN v Minister for Immigration and Citizenship [2013] FCA 751

Applicant: CAC19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1534 of 2019

Judgment of: Judge Riethmuller

Hearing date: 28 August 2019

Date of Last Submission: 28 August 2019

Delivered at: Melbourne

Delivered on: 28 August 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr Cunynghame

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The First Respondent be restrained from removing the Applicant from Australia until the application is heard and determined, and if an appeal is lodged, the determination of that appeal (unless otherwise ordered).

2. The matter be listed for hearing with priority.

3. The Applicant file and serve an Outline of Argument within 7 days.

4. The First Respondent file and serve an Outline of Argument within 14 days.

5. Costs be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1534 of 2019

CAC19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application to bring judicial review proceedings with respect to a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 15 February 2017. The applicant filed his application for judicial review of that decision around two years out of time. He submits that he has been in immigration detention for that period and was told that he was not able to bring these proceedings until some criminal law proceedings had been disposed of.

2. The applicant represents himself today, although has a pending application with Victoria Legal Aid (‘VLA’) for legal assistance. It seems that somebody from VLA gave him some assistance in providing a draft affidavit for today’s hearing, which he lodged without being formally sworn as he was not able to obtain somebody to swear the affidavit in front of, given the timeframes involved.

3. The matter is listed before me for an urgent hearing on short notice as the applicant is scheduled to be removed from Australia tomorrow. The applicant seeks orders to prevent his forced removal from Australia until such time as his application for judicial review is determined. 

Grounds

1. The applicant has a number of grounds for judicial review, the majority of which do not appear to me to be grounds that present arguable cases.  The Tribunal dealt with the bulk of the applicant’s claims in some detail, addressing them in their lengthy reasons.

‘Serious harm’

1. The issue of significance that appears on the material at this stage is whether or not the applicant’s removal from Australia, and, therefore, effective forced separation from his wife and children, could come within the meaning of ‘serious harm’ for the purpose of section 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’). The applicant’s wife is of Chinese origin. It is, it seems, accepted that she would not be able to go to Nigeria without facing the risk of harm due to racist attacks and that the children, being of Nigerian and Chinese racial origins, would also potentially suffer serious harm in Nigeria. As such protection visas have been granted to the children.

2. When considering the matter, the Tribunal identified that there was, in substance, a claim about family separation and the harm which that may cause to the applicant. The Tribunal was also aware of the decision of the Federal Court of Australia (the ‘Federal Court’) in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751. The Federal Court (constituted by a single judge sitting on an appeal) concluded that a case within the ambit of the complimentary protection obligations required that there be some actor involved in perpetrating the harm and that the mere act of removal from Australia on its own could not be sufficient to bring a case within the ambit of the provisions.

3. That reasoning has been doubted by Judge Riley in MZAEN v Minister for Immigration [2016] FCCA 620, a Federal Circuit Court of Australia decision which did not apply SZRSN and which was not appealed by the Minister. MZAEN was reasoned on the basis of a Full Court decision of the Federal Court in Minister for Immigration & Citizenship vSZQOT [2012] FCAFC 141.

4. On a previous occasion, a matter has come before me that was factually similar to the matter before Judge Riley and not as factually similar to the matter of SZRSN. In that matter, I followed Judge Riley’s decision: see AUB16 v Minister for Immigration& Anor [2017] FCCA 2634. I note, though, that Judge Smith of this court in Sydney was critical of Judge Riley’s reasoning in MZAEN. His Honour did not follow Judge Riley’s decision when his Honour decided the matter of COH17v Minister for Immigration & Anor [2018] FCCA 1656.

5. Another case with broadly similar issues came before me recently in GLD18 v Minister for Home Affairs & Anor [2019] FCCA 2201 where the facts seemed much closer to SZRSN. On that occasion I applied SZRSN and dismissed the application. Although, from the terms of argument before me, there seems little doubt that there will be an appeal in the matter of GLD18 to the Full Court.

6. I accept that, as a matter of strict legal principle, I am bound by the decision in SZRSN, it being a decision of the Federal Court on appeal.  Although it is said that it was an appeal decision heard by a single judge, rather than a bench of three, it does not seem to me that that changes the binding nature of it. I am also bound to consider decisions of other judges of this court as being strongly persuasive and generally I would not depart from those unless satisfied that they are clearly wrong.

7. The conclusion I reach is that there does seem to be a point of law involved in these cases which would benefit from a judgement from a Full Court of the Federal Court to clarify the law with respect to this aspect of the legislation.

8. In this case, the Tribunal approached the matter on the basis that separation of family members could not fall within the meaning of ‘serious harm’ for section 36(2)(aa) of the Act. If that is incorrect, they have not considered an integer of the applicant’s claim and the decision would have to be remitted to be determined again. If that is correct, it matters not what the details of this aspect of the claim are as it would be outside the ambit of section 36(2)(aa) of the Act.

9. As a result I am persuaded that, in this respect, the applicant has at least an arguable case. Even though at present there is a binding authority against his argument, that does not foreclose the question of whether or not there may, in fact, be an arguable case in the unusual circumstances of the way the law has developed in this narrow area.

Delay in proceedings

1. I must also take into account the delay. There has been a significant delay in the proceedings. An explanation has been given which is somewhat less than satisfying, although certainly possible on the facts of the case as put forward by the applicant. I also take into account that the applicant is representing himself and English is his second language.  I further take into account that he has had a long and complex migration history and considerable interactions with other aspects of the law, which may well have added to the confusion about the various appeal processes and court processes that should be engaged with. In short, whilst he does not have a very satisfying explanation for the delay, he does have some degree of explanation.

Balance of convenience

1. At this stage I must take into account the question of the balance of convenience. As this is a protection visa application there is potentially significant prejudice to the applicant in being removed from the country before his application is heard and determined. The prejudice to the Minister lies only in the potential additional period the applicant will be held in immigration detention, if he is without a bridging visa, until the case is heard and determined.  As he is in detention, the court will, as it always does, prioritise the hearing of his application so that it can be determined swiftly. Although, from the applicant’s position, detention is preferable to forced return; and he can always leave detention if he chooses to return to his home country.

Conclusion

1. It seems to me that, considering the matter as a whole, it is appropriate in this case, on balance, to make injunctive orders to restrain the Minister from removing the applicant from Australia until his application is heard and determined and the expiration of the appeal period or the determination of any appeal to the Federal Court lodged following the judgement in this case.

2. I will therefore make orders accordingly.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:

Date: 12 September 2019