MZZCX v Minister for Immigration - [2012] FMCA 1201

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZZCX v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1201

MIGRATION – Extempore ruling.

Migration Act 1958 (Cth), ss.46A, 195A, 474(7), 476

SZQRB v Minister for Immigration & Citizenship [2012] FMCA 892
Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57
WADX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 522

Applicant:

MZZCX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

TARA CAVANAGH DIRECTOR, PROTECTION OBLIGATIONS

File Number:

MLG 1500 of 2012

Judgment of:

Burchardt FM

Hearing date:

30 November 2012

Date of Last Submission:

30 November 2012

Delivered at:

Melbourne

Delivered on:

30 November 2012

REPRESENTATION

Counsel for the Applicant:

Mr Albert with Ms Szydzik

Solicitors for the Applicant:

Ms Psihogios-Billington

Counsel for the first Respondent:

Mr Wood

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The proceedings be adjourned to directions on 1 February 2013 at 9.30 am.
The parties have liberty to apply.
Costs be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1500 of 2012

MZZCX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

TARA CAVANAGH DIRECTOR, PROTECTION OBLIGATIONS

Second Respondent

REASONS FOR JUDGMENT

Last Saturday I made orders which have been continued to today. Those orders were made ex parte because it proved impracticable to have a representative of the respondent attend or make submissions. The reason I did so was that I was persuaded on a wholly interim basis that this case was sufficiently similar to another case, called SZQRB, for it to be appropriate to make the orders. The proposition that this case is sufficiently similar to SZQRB to justify waiting for the Full Federal Court’s decision in that case is still at the heart of the applicant’s position.
The applicant’s amended application asserts two grounds. The first is that “the Minister erred by making his Decision on the basis of the Assessment because in making the Assessment the Director, Protection Obligations failed to observe the common law rules of procedural fairness” and various particulars are appended. The second ground is that “the Director, Protection Obligations failed to provide the applicant the opportunity to be heard on the issues arising in relation to the Assessment, in circumstances where:
i)the Director, Protection Obligations did not notify the applicant that the Assessment may be made on the basis that the Applicant could relocate to Kabul; and
ii)the IMR did not address the issue of relocation to Kabul”.
As I have indicated, the applicant says that this case is, to all effects and purposes, the same as SZQRB.
The issue, of course, is whether there is a prima facie case, in the sense explained by the High Court in Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57, where the balance of convenience lies. In SZQRB, a decision of Riley FM given on 22 September 2012, at [18] her Honour quoted a judgment of French J, as his Honour then was, in WADX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 522 at [9] where his Honour said:
“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.”
I should say, with the greatest of respect, that those observations of his Honour reflect numerous other judicial dicta to the same effect. The arguments in this case are complex and it should be noted that the issue is not whether either party is correct, but whether the applicant’s case is sufficiently arguable to ground a prima facie case in the ABC v O’Neill sense. In the ultimate, the applicant’s argument is fairly short. It is submitted that this Court should await the Full Court hearing in the matter of SZQRB on appeal on 7 December 2012. As I understand it, it is common cause that a Full Court of three heard one day’s worth of argument and the matter has been listed for further hearing before a reconstituted Court of five on 7 December 2012. One would infer without too much difficulty that the matters arising from the appeal in SZQRB must be thought to be complex by the Federal Court. As I have already indicated, the applicant says this case is indistinguishable from SZQRB.
The first respondent disagrees and advances a number of arguments, some of which, to an extent, overlap. First, it is said that there is a critical factual difference between this case and SZQRB. Exhibit EJN-7 to the affidavit of Emily Jane Nance sworn on 27 November 2012 shows a minute of the Minister’s decision in SZQRB not to exercise or further consider exercising various non-compellable personal powers. Here, there is no such decision as is plain from Ms Nance’s affidavit at paragraph 16. I point out that this being an interlocutory application, the hearsay assertion there made is plainly admissible. That is the state of the evidence.
Accordingly, it is submitted there being no decision, in respect of a non-compellable personal power anyway, that there is simply no work for the Court to do. However, exhibit EJN-9 shows there has been a decision based on the ITOA – the International Treaty Obligation Assessment. Whether that is sufficient to ground jurisdiction in this Court is not clear. It is certainly not a matter articulated in terms in the application. As has been the case in SZQRB, I strongly suspect the grounds of application will be added to and/or refined as more time may become available.
The next matter raised is that it is submitted there is no jurisdiction in this Court. It is clear that the cumulative effect of section 476 and section 474(7) of the Migration Act 1958 (Cth) (“the Act”) is that this Court has no jurisdiction to entertain matters arising out of the Minister’s powers in relation to section 195A, and so much, I think, is common cause. The first respondent submits that exhibit EJN-6 shows that the ITOA is only concerned with section 195A, and if I may say so, I accept that, prima facie, this appears to be correct.
This leads to the consideration of section 46A of the Act. The first respondent says that that simply does not arise because there is not and never has been any visa. The Minister also says that the powers that the Minister has under section 46A are untrammelled. The Minister further says that there is no power to grant interlocutory injunctions as sought here where, first, the duty to remove the applicant is established and unchallenged and secondly, no final relief is sought. The applicant says in this regard that all that is sought is to preserve the applicant’s capacity to have his circumstances determined according to law.
That brings us to Riley FM’s decision in SZQRB. At [8] her Honour said as follows:
“It was common ground before this court that the court has no jurisdiction to review the Minister’s decision under s 91L or s 195A of the Act. That was made clear by s 476(2)(d) and
s 474(7) of the Act. However, this court, it seems, is not deprived of jurisdiction in relation to decisions made under s 46A of the Act.”
At [11] her Honour continued:
“Nevertheless, the Minister says that the provisions of s 46A of the Act are such that the Minister can decide not to consider the exercise of the power under s 46A for any reason, including completely improper reasons. It is submitted by the Minister that he can make any legal or factual error in exercising his power under s 46A, and that is not in any way reviewable by the court.”
At [16], her Honour continued:
“The Minister’s basic argument is that the powers under s 46A are completely unfettered. They can be exercised without any regard to any principles of law. They can be based on legal or factual errors in the independent merits reviewer’s assessment, in the International Treaties Obligation Assessment, in the complementary protection assessment, if there is one, and in any other circumstance. However it does not seem to me that the case is as clear as the Minister suggested, particularly in view of [59] of Plaintiff S 10.”
At [20], her Honour continued:
“In all circumstances of this case, I consider that the injunction ought to be granted. It seems to me that there are strong reasons indicating that the balance of convenience favours the applicant. It seems to me that there is a real issue about whether the power of the Minister under s 46A is completely unfettered, as the Minister argues, or whether the apparent rider contained in Plaintiff S 10 at [59] applies as broadly as the applicant in this case contends. It seems to me that these are questions that need to be considered fully. If the applicant were deported now, it would prevent those questions being fully considered in this case.”
It is instructive to look at the written submissions put to the Full Court in the appeal in SZQRB. I refer here to the Minister’s appeal against Riley FM’s decision to grant the injunction. In the Minister’s submissions, at paragraphs 27 to 35, it is asserted strongly that there is no power in this Court to grant the injunction and paragraphs 34 and 35 deal with the absence of final relief sought and the restraint of the duty to remove the applicant. These are all matters referred to here.
At paragraphs 36 and 38, it is submitted that her Honour was wrong about her reservations in relation to section 46A. At paragraphs 39 and 40, it is submitted that the application is of no utility because power under section 46A is non-compellable in any event. The applicant’s responsive submissions assert at paragraph 3 that there was power available to make the injunction, paragraphs 5 to 8 assert that the absence of final relief is irrelevant and at paragraph 20 it is asserted that there was, in fact, no duty to remove the applicant.
At paragraphs 25 to 30, it is submitted that the court did have jurisdiction to entertain the matter, inter alia, because section 46A does not fall within the ambit of section 476 of the Act. These submissions and those in the application made by SZQRB that is also before the Federal Court are clearly not being dismissed out of hand.
The following conclusions are made. First, Riley FM clearly thought she had jurisdiction and said so at paragraph [20] of the decision in SZQRB. I note her Honour made that observation notwithstanding that she had been referred to the decision in SZQDZ relied upon by the Minister both in that case and in this one. For my part, I am not so sure that her Honour’s conclusion is correct but I cannot say that Riley FM was clearly wrong. Second, the issues in this case are, to an extent, different to those in SZQRB. First, as the Minister submits, there has been no such ministerial decision as there was in that case and secondly, the grounds are different. There it was essentially concerned with the ITOA applying the wrong standard of proof; here it is a natural justice point. But if one takes a step back and looks at the matter, perhaps, more fairly and more generally, the issue in both cases is at least arguably the same and that is whether deficiencies in the ITOA process can ground justiciable controversy in this Court. Once again, I am not certain that that is so but the applicant’s case is not, in my view, unarguable.
The next point to be made is that most of these issues are clearly in issue in the SZQRB appeal. As best I can say at this stage, the Full Court’s decision will be in large part dispositive of the matters in issue here. A number of the matters raised, such as the power of the Court to enjoin against the duty to remove, are identical. As in SZQRB, the balance of convenience overwhelmingly is in favour of the applicant. If deported, he loses his case effectively entirely and that, of course, will flow if the interlocutory injunction is not continued. There is no prejudice discernible to the Minister except those matters identified by French J in WADX as general public policy considerations.
In my view, the applicant’s case is a prima facie case in the sense explained in ABC v O’Neill. If one goes to paragraph [65] of the judgment – which is part of the judgment of Gummow and Hayne JJ, their Honours said:
“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 at trial the plaintiff will 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 a statement of central importance for 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 have already referred to the remarks of French J in WADX. In the light of the matters I have detailed, the applicant as I say has made out the prima facie case in the sense explained and I propose to continue the injunction already made. Indeed, the order, I think, is until further order in any event. I propose to relist this matter on 1 February 2012 at 9.30 am. That is not because it makes any assumptions as to the disposition of the Full Court in SZQRB but simply because our computer system cannot cope without a return date.
I am going to grant liberty to apply so that if the matter in SZQRB moves along faster than that and either party wishes to bring this matter back for further hearing, they can do so on short notice. I would obviously reserve costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:

Date: 12 December 2012