Daifulladi v Minister for Immigration
[2015] FCCA 812
•21 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAIFULLADI v MINISTER FOR IMMIGRATION | [2015] FCCA 812 |
| Catchwords: MIGRATION – Refugee Review Tribunal – whether the Tribunal erred in its consideration of whether or not it was reasonable for the Applicant to relocate in Afghanistan – urgent application for interlocutory relief – no matter of principle – application dismissed. |
| Legislation: Migration Act 1958, ss.46A(1), 48B, 195A, 198, 417 |
| MZYTA v Minister for Immigration and Citizenship [2011] FMCA 1023 WADX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 552 WAJZ, WAKA, WAGF, WAKB, WAKE and WADX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 1332 |
| Applicant: | BARAT DAIFULLADI |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | MLG 573 of 2015 |
| Judgment of: | Judge Riethmuller |
| Hearing dates: | 20 & 21 March 2015 |
| Date of Last Submission: | 21 March 2015 |
| Delivered at: | Melbourne (via telephone) |
| Delivered on: | 21 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Albert and Ms Keating |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the Respondent: | Mr Forsaith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application for interlocutory orders sought in the Application filed 20 March 2015 be dismissed.
The Applicant pay the Respondent’s costs, fixed in the sum of $3,416.
The matter be otherwise adjourned to a date to be fixed for final hearing.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 573 of 2015
| BARAT DAIFULLADI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
This is an urgent application for judicial review of a decision under s.198 of the Migration Act 1958 for the removal of the Applicant. The Applicant alleges that the decision to remove the Applicant from Australia pursuant to s.198(2) was contrary to law and seeks an order in the nature of certiorari setting aside the delegate’s decision.
Background
In this matter, the Applicant arrived in Australia as an illegal maritime arrival on 6 May 2012. On 12 June 2012 the Minister lifted the bar provided by s.46A(1) to allow the Applicant to be granted a bridging visa and to lodge an application for a protection visa. He lodged a protection visa application on 25 August 2012, and on 13 September 2012 was granted a further bridging visa when the Minister intervened under s.195A of the Act. On 26 November 2012, his application for a protection visa was refused by a delegate of the Minister. Two days later he applied to the Refugee Review Tribunal for review of the decision. The Tribunal affirmed the decision of the delegate to refuse to grant him a protection visa on 13 March 2013. On 17 April 2013 he applied to the Federal Circuit Court for judicial review of this decision, but discontinued his application on 10 October 2013.
On 8 November 2013, the Applicant sought ministerial intervention pursuant to s.417 of the Act and on 4 December the Department initiated a request under s.48B to further consider a protection visa. The subsequent application for a protection visa was not accepted and on 27 December 2013, the Applicant’s s.417 request was, therefore, finalised. On 28 August 2014, the Applicant’s bridging visa expired and he became an unlawful non-citizen and was subsequently detained under s.198 of the Act pending removal. The removal and availability assessment was not finalised until 19 March 2015. The Applicant did not bring proceedings until late Friday afternoon, despite having previously had proceedings pending between 17 April 2013 and 10 October 2013 in the Federal Circuit Court with respect to his Refugee Review Tribunal decision.
The urgent application was forwarded to a Registrar of the Court on Friday evening after Court hours seeking:
1. An urgent interim injunction restraining the respondent’s officers or agents from removing the applicant from Australia pursuant to the decision made under s.198(2) of the Migration Act, 1958 pending the determination of this application.
On Friday night, the Registrar made inquiries of the parties, who ascertained that the Applicant was not due for removal from Australia until Saturday evening. As a result, the matter was listed to proceed by way of telephone hearing at 11.30am on Saturday. Prior to the telephone hearing on Saturday morning, the Minister provided an affidavit which included the relevant sections of the Minister’s file concerning the involuntary removal of the Applicant, which consisted of 66 pages together with an extract from a Memorandum of Understanding between Australia and Afghanistan (a country of which the Applicant is a citizen).
Counsel for the Applicant sought an adjournment to enable a careful reading of the filed material, which was granted, the matter ultimately being heard by telephone at 2.30pm on Saturday.
At the end of the hearing, as time was of the essence if an appeal was to be pursued prior to the Applicant’s flight leaving Sydney, I advised the parties that it would take some time to put my notes in order in order to give reasons with the decision on Saturday, or alternatively I would give them the decision with reasons early the following week if they wished to receive the decision sooner, given there was a real prospect of an appeal. The Applicant chose the latter option, and I made orders dismissing the interlocutory application with costs. These are the reasons for judgment.
Three matters arose during the hearing of the matter that need to be recorded in the reasons for judgment. The first is that counsel for the Minister gave an undertaking that, should Afghanistan refuse to allow the Applicant entry when his flight arrives in Afghanistan, the Australian Government would return him to Australia.
Secondly, the Applicant sought to call a witness, Professor William Maley, to give evidence that Professor Maley had spoken to the Ambassador of Afghanistan who had advised that Afghanistan was not accepting returnees from Australia at this time. Due to the urgent nature of the hearing, I proceeded on the basis that an affidavit would be obtained from Professor Maley in due course to that effect and took into account the evidence of Professor Maley as if it had been on affidavit before me.
Thirdly, as a result of perusing the annexures to the affidavit on behalf of the Minister, the Applicant broadened the basis of the application to include additional arguments: (a) that the Applicant was denied procedural fairness in the making of the decision by the Minister to remove him from Australia; (b) that, on the weight of the evidence before the Minister, Afghanistan would not accept the Applicant; (c) the Minister did not directly contemplate harm to the Applicant upon his return to Afghanistan; and (d) that the Minister did not properly consider the Applicant’s mental health issues.
As this is an application for an interim injunction, it is necessary to consider the balance of convenience and whether or not there is a serious question to be tried. There is no question that these general principles with respect to interim injunctions apply to migration cases, as set out by French J in WADX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 552 at paras.9 and 10:
9. The question whether interlocutory relief should be granted depends upon consideration of two criteria, firstly whether there is a serious question to be tried and, secondly, where the balance of convenience lies. Those two questions are interdependent in the sense that the stronger the argument on the merits of the applicant's case the less the balance of convenience may need to swing in the applicant's favour. Where the balance of convenience is strongly in the applicant' s favour, then the extent to which a serious question to be tried has to be shown will be varied accordingly.
10. In the circumstances of this case I have no doubt, and it is not contested before me, that the balance of convenience favours the applicant, having regard to his contention that his life or freedom would be threatened if he were to be returned to Iran. On the other hand, apart from public policy considerations, which I do not discount, there is no specific prejudice to which the respondent Minister can point arising out of a short-term restraint.
In the Applicant’s outline of argument, it is said that removal of the Applicant from Australia on a Saturday evening would be significant in two ways: (a) that the Applicant’s removal from Australia ‘will permanently prevent his access to legal remedies and entitlements under Australian law’; and (b) that if the Applicant was not permitted to enter Afghanistan, he ‘may therefore be detained or otherwise barred from departing the airport for an indefinite period’.
Having regard to the undertaking given by the Minister (which I expect would represent no more than the ordinary policy position of the Australian Government, although I have no evidence to this effect), the second concern collapses to merely a concern that the Applicant may have to endure a commercial flight to and from Afghanistan.
Whilst the Applicant’s removal from Australia may make access to his lawyers more difficult, in the age of modern communications, the fact that a litigant is outside of Australia does not prevent their access to legal remedies and entitlements under Australian law, nor provide an impractical bar to the access to Australian lawyers. In the age of telephone, email and internet communications such as Skype, one can easily maintain instantaneous communication with representatives in Australia. The gravamen of this point is rather that once the Applicant has been removed from Australia, he would no longer be in a position to obtain orders to allow him to return to detention in Australia as an unauthorised arrival.
For the purposes of the application, I proceeded on the basis that the balance of convenience favoured the Applicant, in that it outweighed the potential inconvenience to the Minister of the costs of cancellation of the removal arrangements and flights that they involved by a considerable margin.
I turn then to consider the grounds of the application.
Ground 1
The first ground of the application is that the Applicant was denied procedural fairness. In this case, the Applicant was given notice of the Department’s intention to remove him from Australia and an opportunity to make submissions. He was informed 10 days prior to the removal date of the intention to remove him to Afghanistan and invited to raise with his case manager or removal officer “any matter relevant to the Department’s ability to remove you”. He did not raise any matters with the Department.
As identified by counsel for the respondent in MZYTA v Minister for Immigration and Citizenship [2011] FMCA 1023, Judge Burchardt rejected such a procedural fairness ground having regard to the imperative nature of the duty imposed by s.198. Whilst I have not formed a firm view as to whether there is any obligation to provide an opportunity to be heard in making a determination under s.198, I am satisfied that, to the extent to which procedural fairness must be granted, having regard to the imperative nature of the duty imposed by s.198, and the context in which it appears in the Act (following final determination of any review and appeal rights of visa applicants with respect to substantive issues), that any right to procedural fairness was no greater than advice of an intention to remove a reasonable time in advance to give the Applicant an opportunity to make submissions if he or she chose to do so. That does not, in my view, extend to require a formal hearing, nor to require the Minister to provide to the Applicant copies of all the material upon which the Minister ultimately relies. On this ground, I am not persuaded that the Applicant has an arguable case on the facts of this matter.
Ground 2
The second ground relates to whether or not the decision could be impugned as a result of allegations that Afghanistan will not accept the Applicant as a returnee. There is a Memorandum of Understanding between the governments of Australia and Afghanistan, the relevant pages of which (pp.174 to 179) were annexed to the affidavit of the Minister. The Minister in its affidavit has set out that a Departmental officer had advised that the Department had not received any notification from the Government of Afghanistan that they would accept or reject the Applicant as a returnee.
The Governmental officer also advised that there had been “high level discussion between the governments of Australia and Afghanistan in the last few days”, and that the Department was confident that the Government of Afghanistan would accept the return of the Applicant. The affidavit for the Minister also set out that contingency plans are in place if the Applicant were refused entry into Afghanistan and that if he were to be refused entry into Afghanistan, “he would be returned to Australia in the company of Departmental officers”. This is entirely consistent with the undertaking given by the Minister. Presumably on his return, the Applicant would remain in immigration detention pending a time when it was then reasonably practicable to return him to Afghanistan.
It is clear that in this case the Department has considered the question of whether or not the Applicant’s return would be accepted and has formed a view on the evidence available to it. Judicial review is not a process for reviewing the facts and circumstances on their merits. Whilst the Department and the Applicant may have a different view as to the position of Afghanistan, it was certainly open to the Department to form the view that it did. In any event, it seems to me that this question is largely academic as the Applicant would be returned to Australia with Departmental officers if he were not to be accepted into Afghanistan. In these circumstances, I see no merit in this argument in support of the application.
Ground 3
Upon perusing the material of the Minister, the Applicant raised an argument that the Minister had failed to properly consider his state of health. Counsel for the Applicant identified within the documents a note of a consultation with a general practitioner on 2 February 2015 with respect to the Applicant suffering from depression. The note set out that the Applicant was taking Pristig (an antidepressant) when he came back into detention and has been upbeat and positive whilst detained, leading to him requesting that he reduce his medication. The general practitioner note indicates that this particular medication is in tablet form that cannot be broken in half, and that the reduction would be the frequency of medication (first to every second night, then every third night “to wean himself off”).
A ‘Fitness to Travel’ assessment is set out at p.34 of the documents provided, which includes a question answered as follows:
Q3. Does this person have any Mental Health issue? No.
In the “sign off” section of the form, it sets out that the author, a registered nurse, had examined the person’s records and not personally examined the Applicant. However, it is clear that the last physical assessment by a general practitioner was on 2 March 2015, and the last assessment by a nurse on 5 March 2015, one month after the note that he was reducing his antidepressant medications. It is argued that this indicated that the fitness to travel assessment was made without regard to the notes from 2 February 2015. That does not appear to me to be the consequence of a fair reading of the documents.
Clearly, the Applicant’s depression was well in decline a month earlier. It is entirely possible that he was no longer suffering depression. The fact that the person completing the fitness to travel assessment had not examined him does not mean that they did not have regard to the results of the examinations by a general practitioner and a nurse in early March 2015, simply because there is not contained within the file produced at this stage notes of those assessments.
In any event, the extent to which it is suggested that the Applicant was suffering depression, as set out in the note of 2 February 2015, does not appear to be sufficient to even make it arguable that he had a mental health issue which would make him unfit to travel. If question 3 is read in this light, it is entirely open to the author of the document to have answered it in the way that she did, even though there had been a notice to depression on 2 February 2015. However, on the material, it does not appear that the note from February was the only material that the nurse had to consider when assessing the Applicant’s fitness for travel.
Further, in WAJZ, WAKA, WAGF, WAKB, WAKE and WADX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 1332, French J considered the nature of medical evidence upon the assessment of whether or not it was ‘reasonably practicable’ for a person to be removed from Australia, saying:
75. The Full Court in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; (2003) 199 ALR 290 at 307 [64], described the duty to remove as ‘not absolute, in the sense that it does not arise as soon as the conditions in paras (a)-(d) are satisfied, but as soon thereafter as is "reasonably practicable" for the officer to remove the non-citizen’. The Court discussed the content of the words ‘reasonably practicable’ by reference to dictionary definitions and authority – at 308 [65]. Their Honours made a number of propositions which, omitting references, were to the following effect:
1. Whether or not the removal of an unlawful non-citizen is practicable seems to be largely, if not entirely, concerned with whether the removal is possible from the officer’s viewpoint. The word ‘reasonably’ in the expression ‘reasonably practicable’ limits or qualifies what would otherwise be an almost absolute obligation. The removal of a non-citizen may be practicable in the sense that it is feasible, but not ‘reasonably practicable’ as required by s 198(6) of the Act – 308 [65].
2. In the context of s 198(6) of the Act, practicability and reasonableness may, on occasion, operate in opposing senses. Whether the removal of a non-citizen is ‘reasonably practicable’ as distinct from merely ‘practicable’ may direct attention to a range of considerations, including factors relating to the unlawful non-citizen facing removal and the interests of third parties who may be directly affected (such as for example, the interests of third party states) – 308 [66].
3. Whether the removal of an unlawful non-citizen will be ‘reasonably practicable’ in a particular case will depend upon all the circumstances considered by reference to the statutory duty in s 198(6) – 308 [67].
4. Section 198(6) of the Act leaves it to the officer on whom the duty to remove would otherwise fall to consider whether removal is reasonably practicable in the circumstances of the case. The officer has to weigh these circumstances in order to decide the issue for himself or herself – 308 [67].
5. The term ‘as soon as reasonably practicable’ is an evaluative term to be assessed by reference to all the circumstances of the case. What is reasonable is to be determined, inter alia, by reference to the practical difficulties that may lie in the way of making arrangements for removal which involve the cooperation of other countries whether in respect of the particular applicant or generally in relation to the class of applicants of which he is a part – 309 [68].
6. Other factors that may lead an officer to conclude that removal would not be reasonably practicable in the circumstances of the case may include severe natural disaster or a state of utter civil anarchy in the country of destination or the physical condition of a person facing removal – 309 [69].
76. The Full Court rejected a submission that s 198(6) would not authorise the removal of a refugee to a place where he faced a real risk of imprisonment or punishment for Convention reasons. The Court held that it was not open to an officer to consider whether an unlawful non-citizen was a refugee within the meaning of the Refugees Convention nor whether his or her removal and return to a particular country was conformable with the obligation against non-refoulment in Art 33(1) of the Refugees Convention. Those complex issues were not appropriate for resolution by an officer on whom the duty to remove fell under s 198(6). There was, in any event, a specialised administrative regime for the determination of claims for refugee status under the Act.
77. The decision in M38 left open the possibility that an officer, considering the removal of an unlawful non-citizen detainee from Australia, could have regard to the physical condition of the detainee in determining whether removal was reasonably practicable. The observation of the Court in that respect was not exhaustive of factors to which an officer could have regard. There is no reason in principle why the mental condition of a person might not lead to a similar conclusion. It could be the case that a person’s psychiatric disease or disorder might preclude travel for practical reasons. In the case of a person undergoing a temporary but acute phase of a mental disease or disorder it might be assessed that the security risk associated with his travel and the cost of providing a suitable escort at a particular time would render it not ‘reasonably practicable’ to remove him at that time. This would be an essentially evaluative decision on which different minds might come to different conclusions consistently with the requirements of the legislation.
His Honour also noted:
82. It follows that if an officer is not required to take into account, under the rubric of ‘reasonable practicability’, the likelihood of persecution or death in the country of destination it can hardly be contended that he or she must take into account the possibility that removal would lead to the deterioration of a person’s mental disease or disorder.
I also note that at p.42 of the documents, an Aviation Assessment was conducted on 26 February 2015 setting out that the Applicant did not at that time have a mental health issue. Given the nature of the questions on the previous page, this was clearly focusing upon the reasonable practicability of the Applicant travelling by airline to Afghanistan.
Ultimately, I am not persuaded that the Applicant can establish an arguable case with respect to this ground.
Ground 4
The final ground was a claim that the Minister had failed to consider the possibility of harm to the Applicant on his return to Afghanistan. As French J said in WAJZ, WAKA, WAGF, WAKB, WAKE and WADX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 1332:
79. In NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292, the Full Court heard four appeals together which raised the construction of the words ‘as soon as reasonably practicable’ in s 198(6). The issue in those appeals was whether death, torture, persecution or other mistreatment of an unlawful non-citizen which was likely or even almost certain to occur after that person’s removal from Australia to another country was to be taken into account for the purpose of determining whether it was ‘reasonably practicable’ to remove him or her from Australia. The Court decided that those matters were not to be taken into account for that purpose.
The likelihood of harm within Afghanistan is not a relevant question to the imperative duty under s.198 to remove the Applicant from Australia if reasonably practicable to do so. It seems to me that reasonable practicability must be assessed by reference to the practicability of actually returning the Applicant to Afghanistan, not the state of Afghanistan once he is there. To extend reasonable practicability to the question of what, if any, harm he may suffer in Afghanistan does not appear to me to fit within the statutory scheme.
The Applicant had open to him, and in fact exercised, the right to apply for a protection visa. His claims with respect to harm were considered by an officer of the Department, the Refugee Review Tribunal, were the subject of an application to the court which was discontinued by the Applicant and were the subject of further considerations by the Minister following the discontinuation of his application. All of these processes have not resulted in him obtaining a protection visa as he was not able to satisfy authorities that he met the statutory requirements set out in the Act and Regulations for the grant of a protection visa.
To read the reasonable practicability requirement in s.198 as requiring further consideration of potential harm to the Applicant would create a separate category of considerations, which, on the Applicant’s case, would be at a level that was easier to satisfy than the grant of a protection visa. I am not persuaded that it is arguable that that is the case given the nature of the statutory scheme.
In any event, some consideration was given to the security situation in Afghanistan, as is set out in the minute at pp.53 to 59 of the annexures to the affidavit filed on behalf of the Minister. That report notes that many Afghans who are failed asylum seekers and returned to Afghanistan return or relocate to Kabul due to their concerns about security or economic prospects in other parts of Afghanistan. Whilst there was considerable information with respect to the province in which the Applicant was born indicating much insurgent and criminal activity, there is nothing to indicate that he could not live in Kabul. As a result, I am not persuaded that the Applicant has established an arguable case with respect to the legal proposition that considerations of potential harm to him must be made on a removal determination, and that if such a requirement is contained within the provisions, that the Applicant has shown that the Department has failed to turn its mind to these matters, particularly in light of a failure by him to raise any of these issues when invited to do so.
As a result, I dismiss the Applicant’s interlocutory application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 13 April 2015
0