MZYTA v Minister for Immigration - [2011] FMCA 1023

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYTA v MINISTER FOR IMMIGRATION

[2011] FMCA 1023

MIGRATION – Urgent application for injunctive relief to prevent applicant’s deportation from Australia – consideration of whether applicant has prima facie case – no such case established – application dismissed.

Migration Act 1958 (Cth), ss.46A, 188(2)(a), 193(1)(b), 195A

Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57
M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146
NATB v Minister for Immigration and Multicultural Affairs (2003) 133 FCR 506
SZHUJ v Minister for Immigration and Citizenship [2010] FMCA 860
Kumar v Minister for Immigration and Citizenship [2009] 176 FCR 401

Applicant:

MZYTA

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

MLG 1727 of 2011

Judgment of:

Burchardt FM

Hearing date:

9 December 2011

Date of Last Submission:

9 December 2011

Delivered at:

Melbourne

Delivered on:

9 December 2011

REPRESENTATION

Counsel for the Applicant:

Ms Pagett (by telephone-link)

Solicitors for the Applicant:

Legal Minds

Counsel for the Respondent:

Dr S. Donaghue, SC

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Applicant be identified by a pseudonym.
The application be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $3,123.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1727 of 2011

MZYTA

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

I commence by pointing out that this Judgment is being given under considerable pressure of time, and that I would have preferred longer to organise my thoughts in some better way. Although plainly I could have adjourned the matter and restrained the Minister from acting in the meantime, I have not done so for two reasons. First, the state of my list is such that any delay from today is likely, indeed certain, to be well into January in any event, and secondly, however unclear my reasons may be given the time constraints, I have come to a clear view about the outcome.
It is appropriate to commence the Judgment by referring to the applicable principles applying to interlocutory applications as set out in Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57 at [65] in the joint judgment of Gummow and Hayne JJ, with which the Chief Justice and Crennan J expressly agreed. Gummow and Hayne JJ reviewed the law in this authoritative way:
“The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the Court addresses itself to two main inquiries and continued:
“The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief. … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”
By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that the trial plaintiff would succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the court was referring to the notion of a “prima facie case” is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in the statement of central importance to this appeal,
“How strong the probability needs to be depends, no doubt, upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the order he seeks.”
I next turn to describe the circumstances of this proceeding generally. Obviously, the matter has come on very quickly. On 8 December 2011, the applicant’s application was filed. In it, the applicant sought an injunction restraining the Minister from removing him from Australia. The ground for that application was that he had been denied procedural fairness and was expressed as follows:
“Procedural fairness required that the applicant be given an opportunity to comment on the adverse information relied upon in the assessment of whether removal was authorised by s.198(2) of the Migration Act 1958, including whether removal was reasonably practicable.… In breach of the said requirements of procedural fairness, the Applicant was not given an opportunity to comment on either adverse information or critical issues which arose for consideration by the deciding official at the Department of Immigration and Citizenship.”
It should be noted that the decision was notified to the applicant on 5 December 2011. The application was supported by an affidavit of the applicant’s solicitor, Mr Serow, and at paragraph 4 Mr Serow deposed:
“I am informed and verily believe that the Applicant was not accorded procedural fairness in that he was not provided with particulars of any pre‑removal assessment.”
The affidavit annexed, amongst other things, the notice of intention to remove from Australia and country information as to Sri Lanka.
On 9 December 2011, Mr Serow filed another affidavit in which, relevantly, he deposed that the applicant did not receive a removals availability assessment and that the applicant had no opportunity to respond to it. On the same date another witness, who given the anonymisation of these proceedings, it may be preferable not to refer to by name, swore an affidavit. That affidavit was to the effect that he had a conversation with the applicant’s wife, who was said to be in Sri Lanka.
That assertion is slightly problematic given that recent documents produced by the government, which are consistent with the applicant’s case generally, would suggest that she remains in India. Nonetheless, it is fair to say that the materials deposed to by that witness would strongly suggest, were they held to be true, that the applicant might face some considerable difficulties if he returned to Sri Lanka.
Also filed on 9 December was an affidavit of Maria Ngo, the solicitor for the respondent. That affidavit annexes a number of documents. The first is a decision of the Independent Merits Review (“IMR”) to which the applicant has been a party. It is worth spending a moment to look at some of the things that were asserted before the Reviewer, in the context of this case.
When he first arrived, the applicant claimed, initially, at his entry interview on 27 March 2010 that he had lived from birth until February 2010 in Sri Lanka. He expressed vivid concerns of his treatment, including round‑ups which he had been involved in, and a number of other serious forms of harassment and harm. Those assertions were repeated in the statutory declaration dated 1 May 2010, and also at a Refugee Status Assessment (“RSA”) interview on 3 May 2010.
Nonetheless, by the time the matter arrived with the Reviewer, the applicant had, in fact, revealed that he had lived in India for the past 20 years, from 1986 to 2006. The Reviewer, against the context of those kinds of competing assertions, made a conclusion at page 16 of the reasons as follows:
“The claimant is relatively well educated and has clearly been deceptive in his history of claims. Most of what he has said is not true on his own account. The credibility issues are not minor and go to the core of his history of claims. I have carefully considered the matter and while I accept some aspects of his history as being true I do not accept that his family has ever had any association with or involvement with the LTTE. I accept only that the family left Sri Lanka in 1986 due to a general fear of harm at the time. I accept that they have lived in India as documented refugees since that time. I find that the claimant is not a credible witness.”
Exhibit MN2 to Ms Ngo’s affidavit is a decision of Smith FM upon an application for judicial review of the IMR decision. His Honour rejected the application, but exhibit MN4 is an International Treaties Obligations Assessment (“ITOA”) in respect of the applicant. That assessment, which was dated 11 November 2011, notes that the applicant’s wife was in India and that the applicant lived in India until February 2010, when he departed illegally. Exhibit MN6 is a document that describes a health discharge assessment for a person in immigration detention. It is dated 5 December 2011, and a registered nurse assesses the applicant as fit to travel. Exhibit MN7 is the notice to remove already annexed to Mr Serow’s affidavit, and exhibit MN8 is the removal availability assessment.
I should pause and insert something that I did not insert earlier. On page 4 of the removal assessment it is asserted, contrary to the applicant’s hearsay assertion through Mr Serow, that he was in fact handed a copy of the ITO assessment.
If one looks at the removal availability assessment, the sorts of matters it deals with are very much a matter of administrative ticking of boxes:
“Has the client’s identity, including known aliases, been recorded? Is the client an unlawful non-citizen on the day of removal? Does the client have a valid travel document? Does the client have any visa applications which have not been finally determined? Has the eligibility period expired for a client for merits or judicial review following a substantive visa refusal or cancellation? Is there any record that any CJSC or CJV is in force, and/or has the AFP indicated any intention to prosecute the client? Does the client have any outstanding litigation, court orders, or other legal matters relating to the Department? Does the client have any outstanding ministerial intervention requests? Has the Assistant Secretary, Onshore Protection or the Assistant Secretary, Compliance & Resolution cleared removal action? Has any pre-removal clearances/voluntary return assessment been obtained?”
I note that there is a reference under that heading to the ITO assessment to which I have referred:
“Has the client or any other party made any substantial claims against removal?”
I will not go on through the rest of the document. I trust the flavour is clear. So that, in a sense, is the status of the proceeding, and that in a sense is the evidence, save that in oral submissions, counsel for the applicant indicated that, were time to be given, further evidence would be sought to be put on, going to contradict a number of the factual assertions made in the ITO assessment, and also as to the applicant’s health.
Counsel for the applicant commenced her submissions by pointing to the issue of the balance of convenience, and I fully accept that the balance of convenience, if engaged, would very strongly favour the applicant. The outcome for him is wholly negatively determined in the event that he does not obtain relief. So much is clear. However, counsel then went on to deal with the new information contained in the affidavit by the gentleman who spoke to the applicant’s wife in Sri Lanka, and to the matters I have just indicated were outlined in oral submissions. She submitted that it was not practicable to remove the applicant from Australia to a place of danger. She submitted that the failure to consider the applicant’s material led to jurisdictional error. While counsel readily and properly conceded that that material had not been before the decision maker, nonetheless she did submit that the respondent, so to speak, had constructive knowledge of it, which I took to be a reference to the country information and the sort of understanding the Minister either has or would reasonably be held to have as to circumstances in Sri Lanka.
She submitted that the applicant had not been served with the removal assessment decision, and did not get the ITO assessment, and was thus deprived of the opportunity to dispute facts contained in it, and as I said, deprived of an opportunity to put on material as to his health. She submitted that administrative decisions must have taken place to trigger the notice of removal, and the failure of the respondent to provide the applicant with proper notice and an opportunity to respond to such constituted jurisdictional error.
If I can commence with one aspect of the new information at this stage. Obviously, it is hearsay, and there is this niggling difficulty that it is asserted that a conversation took place with a woman in Sri Lanka when otherwise very recent material seemed to suggest she is still in India. Plainly counsel for the Minister is correct to submit that given that this was not brought forward until an affidavit was sworn yesterday, there can be no error on the part of any departmental official in not considering it. But in any event and in my view, the submission misconceives the notion of the legislation. Section 188(2)(a) of the Migration Act 1958 (“the Act”), which it is agreed is the relevant section for these purposes, casts an imperative obligation upon officers of the department to remove unlawful non-citizens as soon as reasonably practicable if they are covered, as is agreed to be the case here, by s.193(1)(b), who has not been subsequently immigration cleared and who has not made a valid application for a substantive visa. Counsel for the Minister correctly points out that this applicant could never have made a valid application for a visa because of the terms of s.46A of the Act.
The only rider, so to speak, upon the imperative obligation is that it must be reasonably practicable. This brings us to the decision of the Full Court of the Federal Court in the matter of M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146. I read out paragraphs [55]-[56] of that judgment, or parts of it. This is under a heading on the previous page – page 162 – The Imperative Duty in s.198(6):
“The conclusion that s.198(6) imposes a duty to act flows from the imperative language of the provision and a consideration of the Act as a whole. This conclusion is, moreover, supported by other decisions of this court.”
And the Court cited substantial amounts of authority, and went on in paragraph 56:
“The legislative history of s.198(6) of the Act explains and confirms the imperative nature of the duty imposed by the provision.”
So, were there any doubt, those extracts would plainly remove it.
As to the question of “reasonably practicable,” in the same decision at paragraph 70 under the heading “Refugee status, the obligation against non-refoulement and s.198(6)”, the Court continued:
“The appellant’s contentions on this appeal did not rely upon any conception of reasonable practicability. Rather, the appellant’s argument was that, in providing for a detainee’s removal from Australia, s.198(6) was ambiguous. This was because s.198(6) required a detainee to be taken out of Australia, but said nothing about his or her destination. Because of this ambiguity, s.198(6) was, so the appellant said, susceptible of a construction which was consistent with the obligation against non-refoulement. The appellant submitted that s.198(6) was to be construed as not authorising the removal of a refugee to a place where he faced a real risk of imprisonment or punishment for Convention reasons. For the reasons about to be stated, s.198(6) is not susceptible to this construction. The appellant’s submission is misconceived, for by the time an officer is called upon to discharge the duty imposed by s.198(6) of the Act, any claim by a detainee for refugee status has been refused, or is taken to have been refused, in accordance with the processes established under the Act. In considering what the law may require of an officer on whom the duty to remove under s.198(6) may fall, it is necessary to have regard to the practical context in which the officer must discharge his or her duty. This factor, taken within the scheme of the Act, makes it clear that it is not open to an officer to consider whether an unlawful non-citizen is a “refugee” within the meaning of Art 1A(2) of the Refugees Convention. Nor is it open to an officer to consider whether his or her removal and return to a particular country is conformable with the obligation against non-reformment in Art 33.1 of the Refugees Convention.”
In another decision of the Full Court of the Federal Court, NATB v Minister for Immigration and Multicultural Affairs (2003) 133 FCR 506, the Full Court of the Federal Court set out a definition of the word “practicable” at paragraph [47].
The Court referred to the definition of practicable as:
“capable of being put into practice, carried out in action, effected, accomplished or done, feasible.”
That was from the Oxford Dictionary online, and:
“capable of being put into practice, done, or effected, especially with the available means or with reasonable prudence, feasible.”
from the Macquarie Dictionary
At paragraph 51 the Court continued:
“We think it is undesirable to attempt a definition of the expression “reasonably practicable” in the present context. It is impossible to foresee all circumstances which may arise. The expression requires a process of evaluation of the facts in each case.
However, some observations may be made. First, it is possible to say that determination about reasonable practicability is not necessarily limited to physical considerations, such as the health of the person to be removed, or the availability of an operating airport in the country of destination. The willingness of another country to allow the person to enter its territorial boundaries is at least one non-physical factor relevant to reasonable practicability. Second, without attempting an exhaustive statement, it is possible to identify some limitations on the matters relevant to determination of reasonable practicability. They arise out of the words themselves. The relevant considerations are practical considerations, as is indicated by the dictionary definitions of “practicable” set out at [47]. Moreover, the context for determining reasonable practicability is the proposed physical removal of the person from Australia.
This second limitation is of critical importance to the resolution of the appellant’s principal argument. In our opinion, the reference to reasonable practicability in the subsection does not require an officer to take into account what is likely, or even virtually certain, to befall the unlawful non-citizen after removal is complete; and removal is complete, at the latest, once the person has been admitted by, and into, the receiving country. Even if it is virtually certain that he or she will be killed, tortured or persecuted in that country, whether on a Refugees Convention ground or not, that is not a practical consideration going to the ability to remove from Australia. Rather, it is a consideration about a likely course of events following removal from Australia.”
When one takes those remarks into consideration, it is apparent that the new material identified in the affidavit filed by the gentleman who had the conversation with the lady in Sri Lanka, and the foreshadowed information which might be sought to be put on, is, as counsel for the Minister submits, not capable of acting upon the matter. It is irrelevant in that sense. Thus, in one sense, while I have allowed it to be read and have paid attention to it in a sort of rather circular way, I rule against it, so to speak, on all fronts.
I note that the ITO assessment about which complaint was made as to its terms is of course not part of the reasonably practicable consideration. It is performed, as counsel for the Minister informed me without challenge, as part of a process involving such matters as s.195A, and the discretion open to the Minister under that section is non-compellable in any event. So far as the issue of the applicant’s health is concerned, the form to which I have referred, MN6 dated

5 December 2011, was clear and there is nothing to suggest that it is erroneous. There is no evidence before me to that effect, although the possibility of such evidence has been foreshadowed.

I note that in SZHUJ v Minister for Immigration and Citizenship [2010] FMCA 860, Federal Magistrate Smith had this to say at paragraph [8]:
“Argument today with counsel has thrown up an interesting and important legal issue, as to whether an officer who has formed an opinion at one point of time that a future removal would be “reasonably practicable” is under any legal obligation to reconsider that opinion prior to effecting a removal, upon being presented with more up-to-date and relevant information concerning the current practicability of removal.”
At paragraph [10], his Honour continued:
“These authorities locate a duty on an officer with the power of removal under s 198(6) to consider available evidence bearing on reasonable practicability in terms of the likely mental health of a person at the future proposed date of removal. They may not have settled whether, once an opinion of reasonable practicability has been formed, there is a compellable continuing obligation to reconsider that opinion so as to take into account the recent evidence before actually exercising the power of removal.”
It is readily apparent that those observations were scarcely conclusionary in their nature. It is equally apparent that they do not operate on the same sorts of facts as this case is concerned with. Here, there is a recent expression of view by an apparently competently qualified person, and there is no evidence to the contrary, and certainly no such evidence presented to those who made the decision to remove.
That brings us, I think, next to the argument as to procedural fairness, which counsel for the applicant, in my view correctly, submitted was at the heart of the matter. The respondent’s submission is that obligation to provide procedural fairness does not apply. That is because s.198 is in imperative terms, qualified only by the relatively restricted proposition that it be reasonably practicable. In broad terms, I would say that I accept that submission.
The applicant says that the obligation of procedural fairness arises out of common law, but procedural fairness may be either displaced or modified by any given statute. If procedural fairness has work to do in the context of the sort of decision making we are talking about in this instance, it will be likely in my view to be limited in scope. It is not possible, as the Full Court pointed out, to foresee every set of eventualities, and no absolute observations can probably be made, but I do note the following observations in the case of Kumar v Minister for Immigration and Citizenship [2009] 176 FCR 401.
At paragraph [69] the Full Court set out the particular visa with which that case was concerned, and I should interpolate and say that although some of the cases I have referred to refer to s.198(6) rather than s.198(2) with which we are presently concerned, there is no material difference in those sub-sections for present purposes. But to return to Kumar at paragraph [69], the Court sets out a bridging visa which would, and I quote:
“ceasing at the time when the Minister gives a notice in writing to the holder by one of the methods specified in section 494B of the Act stating that:
(i) the Minister is satisfied that the holder’s removal from Australia is reasonably practicable; or
(ii) the holder has breached a condition to which the visa is subject.”
At paragraph [84], the Full Court, under the heading “Procedural Fairness” said as follows:
“The appellant contended that the respondent should have given in notice that she proposed to make a decision under cl.0.70. 511(c)(i), and an opportunity to comment on the circumstances in which the Indian consul had issued the travel documents and the effectiveness of that document. The appellant referred to the decision of the High Court in Kioa and submitted that the respondent was, in the circumstances of this case, bound to accord him procedural fairness. As I understood the appellant’s submission, he accepted, in my view correctly, that in certain circumstances the respondent may not be required to give a visa holder notice of a proposed decision, under cl.0.70 511(c), for example, where the only issue for the Minister is a matter not personal to the visa holder, or was a matter about which the visa holder could not be expected to say anything.”
At paragraph [90], Besanko J, who gave in effect the judgment of the Full Court said:
“In my opinion, the respondent was not obliged to give the appellant notice of the proposed decision and an opportunity to comment. The appellant applied for and was granted, a visa which expired or came to an end if and when the respondent was satisfied that the appellant’s removal from Australia was reasonably practicable.”
That was the conclusion that the Court came to in the context of a part of the regulations which is, in my view, indistinguishable from the legislation with which we are concerned here. I have already referred to, and repeat again, the document that gave rise to the assessment was very much in strict bureaucratic terms. I am aware that my fellow Federal Magistrate Barnes, in Sydney, has in a case called SZTZT apparently taken what may be a different view. I have spoken with her Honour, who has informed me that the decision is not yet reduced to writing, or if it is, is not yet edited and certainly not available.
We had some discussion as to what her Honour had done in that case. All I can say is that I am not aware of what authorities were quoted to her Honour, and I mean no disrespect to her when I say that I did not fully understand, obviously, the nature of her judgment, and I have a strong suspicion it may turn to a considerable extent on its own facts. If, however, her Honour were to say that the circumstances of this kind of deportation order give rise in a general and unrestrained way to an obligation to accord procedural fairness to those affected by it, I would, with the greatest respect, be required to find that that was clearly wrong. The authority of Kumar seems to me to be directly to the opposite effect.
Finally, I should say this general comment. The scheme under which all these matters take place is quite a complex one. It has involved significant amounts of legislation and also has been significantly influenced by decisions of the Courts, most particularly the High Court. There is a scheme whereby, pursuant to s.46A, applicants such as the one here cannot make valid applications. They can submit themselves to the RSA process, then to the IMR, and by way of judicial review.
To my way of thinking, this certainly is not a reasoned conclusion, more of an intuitive response, but it seems counter-intuitive to me to impose a further process of judicial review when everything has been completed. I refer to, again, the passage where the Court pointed out that the stage we are at is when everything has already been done, all that is happening is that the logical conclusion to those events is being effected.
In the circumstances, and for the reasons I have given, in my view there is no prima facie case in the sense indicated by the High Court in O’Neill. The balance of convenience, while plainly enormously strong in the applicant’s favour, has to operate on something – there has to be something to preserve, for the balance of convenience to have any meaning. In this particular case, in my view, it does not.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 9 December 2011