MZZFW v Minister for Immigration
[2015] FCCA 1902
•11 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZFW v MINISTER FOR IMMIGRATION | [2015] FCCA 1902 |
| Catchwords: MIGRATION – Injunction sought to prevent removal from Australia – whether Court has jurisdiction – whether migration decision – whether prohibition on issuance of injunction – usual principles for issuing injunctions. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.15 Migration Act 1958 (Cth), ss.5, 5E, 36(2), 46A(2), 91R, 189(1) and (3), 197C, 198, 417, 474, 476 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), Schedule 5, Part 1, Item 2 |
| Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 AHY15 v Minister for Immigration & Anor [2015] FCCA 1324 AKR15 v Minister for Immigration & Border Protection [2015] FCCA 1734 Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; (1982) 46 ALR 398 Griffıth University v Tang[2005] HCA 7; (2005) 221 CLR 99; (2005) 213 ALR 724; (2005) 82 ALD 289; (2005) 79 ALJR 627 Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244 Plaintiff M70/2011 v Minister for Immigration & Citizenship [2011] HCA 32; (2011) 244 CLR 144; (2011) 280 ALR 18; (2011) 85 ALJR 891; (2011) 122 ALD 237 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26; (2012) 200 FCR 207; (2012) 286 ALR 331; (2012) 126 ALD 63 SZSSJ v Minister for Immigration & Border Protection [2014] FCAFC 143 SZSSJ v Minister for Immigration & Ors (No.2) [2015] FCCA 1148 SZTZI v Secretary of the Department of Immigration & Anor [2015] FCCA 1271 |
| Applicant: | MZZFW |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 314 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 13 July 2015 |
| Date of Last Submission: | 13 July 2015 |
| Delivered at: | Perth |
| Delivered on: | 11 August 2015 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr PR Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs. |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS (made on 14 July 2015 and amended on 11 August 2015)
Written reasons for judgment are to be published from Chambers at a later date.
The application by the applicant for an injunction preventing the removal of the applicant from Australia by the first respondent be dismissed.
The named second respondent be removed as a respondent to the proceedings.
Pursuant to Sch.1 Part 3 Div.1 Item 2(b) of the Federal Circuit Court Rules 2001 (Cth) the applicant pay the first respondent’s costs in the sum of $3416 by 14 August 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 314 of 2015
| MZZFW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for various relief, but most significantly an injunction to prevent his removal from Australia. The injunction application is the matter the subject of these Reasons for Judgment.
The application was made on Friday, 10 July 2015, heard the following Monday, 13 July 2015 and on Tuesday, 14 July 2015 the Court made the following orders:
1. Written reasons for judgment are to be published from Chambers at a later date.
2. The application be dismissed.
3. The named second respondent be removed as a respondent to the proceedings.
4. Pursuant to Sch.1 Part 3 Div.1 Item 2(b) of the Federal Circuit Court Rules 2001 (Cth) the applicant pay the first respondent’s costs in the sum of $3416 by 14 August 2015.
These are the Reasons for Judgment referred to in order 1 above.
The application, the grounds and the relief sought
The application is convoluted and confusing. The migration decision details in relation to which judicial review is sought are said to be:
a)a Pre Removal Clearance (“PRC”) decision made by the Minister or another person under the Migration Act, being the decision of a Case Officer on 27 November 2014; and
b)an Independent Protection Assessment (“IPA”) Reviewer recommendation by an Independent Protection Assessor (“IP Assessor”) dated 9 November 2012.
The application then seeks other interlocutory, interim or procedural orders as follows:
1.Interlocutory injunction preventing removal from Australia July 15 2015.
2.Voiding of the pre-removal clearance as country information has changed dramatically and is no longer valid.
As to the final orders sought they are as follows:
a)“An order that the decision of the tribunal, Immigration Assessment Authority or Minister be quashed”;
b)“A writ of mandamus directed to the tribunal, Immigration Assessment Authority or Minister, requiring them to determine the applicant’s application according to law”;
c)“A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application”; and
d)“An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Protection Assessment Reviewer”,
each of the above being the standard form final orders on the standard form Application - Migration Act 1958 for this Court, each of which has been selected by the applicant.
The applicant also purports to seek as final orders the following further orders by way of final relief:
1.interlocutory injunction against removal from Australia on July 15 2015
2.review of IPA decision
3.assessment of refugee claim for … [the applicant] as per International Treaty Obligations Assessment which he should be entitled to and has not actually had.
The grounds of the application are then set out as follows:
1. Pre Removal Clearance decision maker failed to intellectually engage with the task at hand
2. Decision maker for PRC failed to assess whether any non-refoulement obligations were owed to … [the applicant] and the PRC does not fit the ITOA test owed to … [the applicant] in light of the decision found in SZQRB
3. The decision maker relies exclusively on prior findings of other decision makers (being the IMR & MIU). Thus they have in reality outsourced their own decision making and failed to undertake any separate assessment of the country situation in Afghanistan at the time of the PRC in November 2014. Further, given the resurgence of the Taliban and the dramatic degeneration of the security situation with the July 21 2015 attack on Parliament buildings in Kabul,, the suicide bombing of a NATO convoy and the gun battles currently taking place in the capital a review of the removal decision would appear to be required.
It is further the case that the MIU has applied an incorrect and outdated risk threshold in assessing the chance of significant harm in the form of death, torture, and/or cruel inhumane and degrading treatment or punishment.
The PRC decision maker has then in tum repeated this error in her assessment.
4. See attachments for further arguments.
The Court observes that there are no attachments per se as foreshadowed in the fourth ground of application set out above, but there are attached further procedural orders and grounds of application set out as follows:
PROCEDURAL ORDERS
1. An Order preventing the removal of the Applicant until this Application has been finally determined.
GROUNDS OF APPLICATION
1. The PRC decision of 27 November 2014 is contrary to law
1.1 The Applicant was denied procedural fairness in not being given the opportunity to respond to the PRC decision before it was made.
1.2 The PRC decision failed to intellectually engage with the task it was required to perform. It failed to make an independent assessment of the country information in regards to the Applicant’s personal circumstances.
2. The IPA decision of 9 November 2012 is contrary to law
2.1 The Applicant was denied procedural fairness in not being given the opportunity to respond to adverse country information relied on by the Assessor.
2.2 The Assessor took into account irrelevant considerations and failed to consider properly relevant considerations regarding factual matters pertinent to the Applicant’s personal history, in particular his schooling at ATVI and the ‘night letter’.
Evidence and background facts
Evidence
The evidence comprised:
a)two affidavits by Ms Victoria Martin-Iverson, a volunteer refugee and asylum seeker advocate, affirmed:
i)9 July 2015 (“First Martin-Iverson Affidavit”); and
ii)13 July 2015 (“Second Martin-Iverson Affidavit”); and
b)the affidavit of Mr Peter John Corbould (“Corbould Affidavit”), a lawyer employed in the Perth office of the Australian Government Solicitor, the Minister’s solicitors in this matter.
Because it appeared that the applicant was wholly unaware of the First and Second Martin-Iverson Affidavits the Court had Ms Martin-Iverson read both the First and Second Martin-Iverson Affidavits out aloud in open Court, and they were interpreted for the applicant by a Farsi interpreter. The thrust of the Corbould Affidavit was conveyed to the applicant, with the assistance of the Farsi interpreter, during a break in the proceedings: Transcript, page 5.
Objections to the First and Second Martin-Iverson Affidavits
The First Martin-Iverson Affidavit was the subject of an objection with respect to paragraph 13, that paragraph indicating that Ms Martin-Iverson was “aware of recent research conducted by others that indicates that some of the credibility findings against the applicant at the IPA are in fact incorrect or at least there is valid arguments against them should he [the applicant] be successful in appealing this case and being given the opportunity to re-argue his claim”. The Minister objected on the basis that paragraph 13 of the First Martin-Iverson Affidavit was hearsay and dealt with the merits of the IPA.
The Court upholds the objection insofar as it relates to the paragraph dealing with the merits of the IPA. As is often observed credibility findings are a matter par excellence for the administrative decision-maker: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J (“Durairajasingham”), and an administrative decision-maker is not required to accept uncritically any or all claims made by an applicant: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J. The alleged research was also not before the administrative decision-maker, and having regard for that fact, together with the nature of credibility findings in administrative decision-making in migration maters, evidence of more recent research ought not be admitted to attack an administrative decision-maker’s credibility findings, particularly where, as here, the nature and content of that research is not explained. Additionally, the paragraph is vague and of no substance given that:
a)it does not indicate what research has been conducted;
b)by whom it has been conducted; and
c)which credibility findings:
i)are incorrect; or
ii)against which there are valid arguments if there were to be a successful “appeal” in this case.
It follows that paragraph 13 of the First Martin-Iverson Affidavit will be struck out.
The Second Martin-Iverson Affidavit was the subject of an objection with respect to paragraphs 2-6. Paragraphs 2-6 deal with the discussions that the applicant has had with Ms Martin-Iverson about additional information that the applicant’s family has provided to the applicant since the IPA including the following:
a)a bomb blast in Kabul in 2013 in which the applicant’s two younger brothers were killed and his mother sustained an injury;
b)a link to a web page which allegedly corroborates the applicant’s claim about a course that he was undertaking being compressed into two years, and which in Ms Martin-Iverson’s view explains what was considered in the IPA to be a significant inconsistency in the applicant’s account;
c)information from the Canadian Department of Immigration about Taliban night letters;
d)an assertion concerning the lack of qualification of the IP Assessor with respect to forged documents, and a comment upon the substantive basis upon which the IP Assessor allegedly determined that a document was forged; and
e)an assertion that the above matters are relevant to the applicant’s chance of success should he be given the opportunity to have his case re-determined.
The Minister objected on the basis that paragraphs 2-6 of the Second Martin-Iverson Affidavit deal with the merits of the IPA, and are also matters of opinion and submission. In the Court’s view the objections are to be upheld. The paragraphs are irrelevant to any issue that the Court has to determine in this matter, as they are:
a)not relevant to the question of whether there was a jurisdictional error by the officer making the PRC;
b)not relevant to the IPA as the circumstances post-date the IPA, or were not material which was put before the IPA; and
c)issues specifically considered by the IPA, namely the Taliban night letters and their authenticity, which was a matter of fact in relation to which the findings made by the IP Assessor were open on the available evidence.
It follows that paragraphs 2-6 of the Second Martin-Iverson Affidavit should be struck out.
Background facts
The background facts are as follows:
a)the applicant is a citizen of Afghanistan who arrived in Australia as an illegal maritime arrival at Christmas Island on board a boat codenamed “Fawkner” on 12 December 2011. Upon arrival at Christmas Island the applicant was detained as an unlawful non-citizen under s.189(3) of the Migration Act 1958 (“Migration Act”);
b)on 16 December 2011 the applicant was screened into the then Department of Immigration and Citizenship’s (“Department”, now the Department of Immigration and Border Protection) Protection Obligations Determination (“POD”) process.
c)on 10 January 2012 the applicant was transferred from Christmas Island to an Immigration Detention Centre (“IDC”) at Wickham Point;
d)on 17 March 2012 the applicant made a request for a Protection Obligations Evaluation (“POE”);
e)on 5 June 2012 the applicant was granted a Humanitarian Stay visa valid until 12 June 2012. The applicant was also granted the first of four Bridging E visas on 5 June 2012 and released from immigration detention;
f)on 30 May 2012 a POE officer of the Department found that the applicant was not a person to whom Australia has protection obligations and the applicant’s case was automatically referred for an IPA. A copy of the POE referral is annexed to the First Martin-Iverson Affidavit and marked “VMl2”;
g)on 9 November 2012 the IP Assessor found that the applicant did not meet the criteria for a Protection (Class XA) visa (“Protection Visa”) set out in s.36(2) of the Migration Act and recommended (“IP Assessor’s Recommendation”) that the applicant not be recognised as a person to whom Australia has protection obligations. A copy of the IPA is annexed to the First Martin-Iverson Affidavit and marked “VMl3”;
h)on 7 February 2013 the applicant filed an application (No. MLG143/2013) in the Melbourne Registry of the Federal Circuit Court of Australia for review of the IP Assessor’s Recommendation (“2013 Judicial Review Application”);
i)on or about 21 August 2013 the applicant filed a notice of discontinuance of the 2013 Judicial Review Application and orders were made by the Court on 26 August and 12 September 2013 dismissing the 2013 Judicial Review Application with costs;
j)on 1 October 2013 the Asylum Seeker Resource Centre on behalf of the applicant requested that the Minister exercise his power under s.46A(2) of the Migration Act to allow the applicant to lodge an application for a Protection Visa;
k)on 21 May 2014 the Department’s Ministerial Intervention Unit (“MIU”) determined that the applicant’s case did not meet the “Minister’s Guidelines for the Consideration of Post Review Protection Claims” (“Minister’s Post Review Guidelines”) and did not refer the applicant’s case to the Minister to consider exercising his power under s.46A(2) of the Migration Act (“MIU Assessment”). A copy of the MIU Assessment is annexed and marked “PJC1” to the Corbould Affidavit;
l)the applicant was advised of the outcome of his request for Ministerial intervention by letter from the Department dated 27 May 2014, a copy of which is annexed to the First Martin-Iverson Affidavit and marked “VMl5”;
m)on 19 November 2014 the applicant was detained under s.189(1) of the Migration Act and transferred to Maribyrnong IDC;
n)on 27 November 2014 officers of the Department carried out a pre-removal clearance (“PRC”) in relation to the applicant’s case. A copy of the PRC is annexed to the First Martin-Iverson Affidavit and marked “VMl7”;
o)on 16 December 2014 the applicant was transferred to Yongah Hill IDC (“Yongah Hill”);
p)on 2 July 2015 the applicant was issued with a “notice of intention to remove from Australia” (“Removal Notice”). The Removal Notice is annexed and marked “PJC2” to the Corbould Affidavit;
q)on 7 July 2015 officers of the Department reviewed the PRC dated 27 November 2014 and determined that it remained valid (“PRC Review”). The correspondence comprising the PRC Review is annexed and marked “PJC3” to the Corbould Affidavit;
r)the applicant was due to be removed from Australia on a flight departing from Perth at 1.25am (WST) on Wednesday 15 July 2015; and
s)Mr Corbould has been instructed that considerable time, effort and cost have been expended by officers of the Department to arrange for the applicant’s removal, and annexed and marked “PJC5” to the Corbould Affidavit, is a copy of an email from an officer of the Department dated 13 July 2015 in relation to prejudice to the Department if the applicant’s removal were not to proceed.
Particular factual matters
IPA
In relation to the applicant’s claims the IP Assessor observed that:
a)the applicant claimed to have:
i)been born in the Khoshi district of Logar province in Afghanistan, and to have lived there until he was 13 years old, when he left his village to study in Kabul: IPA at [114]; and
ii)completed years 11 and 12 at a high school in Kabul and to have completed a post-secondary course in Business Management at the Afghanistan Technical Vocational Institute (ATVI): IPA at [112];
b)the applicant further claimed that:
i)because he was studying at an American funded institution, the Taliban sent three threatening letters to his family, and that the Taliban thought he was a spy and told him to leave ATVI and join them: IPA at [25]; and
ii)his parents did not take the first two letters seriously and threw them away, but that after the third letter his father went missing and his mother sent him a copy of the letter and told him about the previous two warnings. He then decided to leave Afghanistan: IPA at [23]; and
c)the applicant’s migration agent:
i)summarised the applicant’s claims for protection as being based on his fear of persecution by reason of his religion, imputed political opinion, and membership of particular social groups comprising failed asylum seekers return from a Western country and former students of the ATVI: IPA at [31]; and
ii)submitted that the applicant’s fear of persecution gave rise to a serious risk of significant harm for the purposes of the complementary protection provisions of the Migration Act: IPA at [31].
In summary, in the IPA the IP Assessor:
a)accepted that the applicant:
i)was a citizen of Afghanistan and a Tajik Shia born in Khoshi district of Logar province: IPA at [111]; and
ii)attended the ATVI, as claimed: IPA at [126];
b)did not accept that the applicant:
i)had provided a truthful account of why he left Afghanistan;
ii)had received threatening letters because he was studying at ATVI; and
iii)the Taliban considered the applicant to be a spy or a supporter of the West because he was studying at ATVI,
and therefore did not accept that the applicant would suffer any future harm from the Taliban because he is a former student of ATVI: IPA at [126];
c)rejected the applicant’s account of his reasons for leaving Afghanistan on the basis that:
i)the applicant’s account of his age when he left his village to study in Kabul was implausible: IPA at [114];
ii)there were inconsistencies in the applicant’s account of when and for how long he had attended ATVI, and his evidence about his attendance at ATVI was vague and evasive: IPA at [115]-[119];
iii)there were a number of significant problems with the letter from the Taliban the applicant claimed to have received, including the fact that it bore the crest of the Afghan government and that it was dated after the applicant claimed to have received the letter, which led the IP Assessor to conclude that the letter was not genuine: IPA at [121]-[122];
iv)there were inconsistencies in the applicant’s account of when he received the threatening letter: IPA at [124], and
v)the applicant’s evidence about when his parents received the letters and when he was sent the letter was also vague and evasive: IPA at [123]-[125];
d)as:
i)the IP Assessor had rejected the applicant’s claim that the Taliban knew he was a student at ATVI; and
ii)there was no evidence to suggest that the Taliban targeted students or former students of ATVI other than the applicant’s assertion,
the IP Assessor concluded that the applicant would not be targeted by the Taliban because he had been an ATVI student if he returned to Afghanistan: IPA at [143];
e)in relation to the applicant’s claim to fear persecution as a failed asylum seeker returning from a Western country, found that no credible evidence had been submitted that persons returning from Australia as failed asylum seekers were for that reason targeted and persecuted by the Taliban, and therefore did not accept that the applicant faced a real chance of serious harm from the Taliban by reason of his imputed political opinion or membership of a particular social group: IPA at [144];
f)accepted that the Taliban were active in Logar province, but found that the primary targets of the Taliban were government institutions and Afghan and international troops, and therefore concluded that the applicant did not face a real chance of serious harm because he is a Tajik Shia from Khoshi district in Logar province: IPA 236 at [135];
g)stated that no reports could be found of any attacks on Tajik Shias in Khoshi district by the Taliban or any other Sunni insurgent group: IPA at [137], but accepted that on occasions Shia Tajiks living in Khoshi may experience verbal abuse from other Sunnis in their village, but did not accept that such abuse amounted to “serious harm” within the meaning of s.91R of the Migration Act: IPA at [136], and therefore was not satisfied the applicant faced a real chance of persecution by reason of his religion if he returned to live in Khoshi district: IPA at [137];
h)considered the applicant’s ability to return to live in Kabul, due to the better employment and educational opportunities there, and rejected the applicant’s claim that there was ethnic and religious fighting in Kabul as not consistent with the country information, concluding that there was no credible evidence to suggest that the Taliban or Pashtuns were targeting Tajiks or Shias in Kabul, and was therefore not satisfied the applicant faced a real chance of persecution by reason of his ethnicity or his religion if he returned to live in Kabul: IPA at [140];
i)considered the applicant’s claim that travel between Kabul and Khoshi was known for Taliban killing, and concluded that because the applicant would not be perceived to be associated with the Afghan government or the international community, the applicant did not face a real chance of serious harm for any Convention reason in travelling between Kabul and Khoshi: IPA at [138];
j)concluded that because the IP Assessor did not accept that the Taliban knew the applicant attended ATVI, sent the applicant’s family three threatening letters, or would identify or perceive the applicant as being affiliated with “the West”, there was not a real risk the applicant would suffer significant harm from the Taliban for the purposes of the complementary protection regime: IPA at [149];
k)did not accept that the applicant faced a real risk of significant harm as a Tajik Shia, concluding that while there are tensions between Sunni and Shia Muslims in Afghanistan violence is rare, finding that:
i)while the applicant may experience verbal taunts from Tajik Sunnis in Khoshi, she was not satisfied there was a real risk he would suffer significant harm for that reason: IPA at [150]; and
ii)there was not a real risk of such harm because of the generalised violence in Afghanistan: IPA at [151]; and
l)concluded that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention or the complementary protection provisions of the Migration Act, and did not satisfy the criteria for a protection visa in s.36(2) of the Migration Act: IPA at [153]-[155].
MIU Assessment
The MIU Assessment carried out on 21 May 2014 set out the background, including the applicant’s personal details and visa application history, which included the assessment of his claims under the POE and by the IP Assessor.
The MIU Assessment summarised the applicant’s request for further consideration and supporting documents as follows:
Summary of request for further consideration/New information of 1 October 2013
[The applicant] … was initially represented by Asylum Seeker Resources Centre (ASRC). He then authorised Warna Legal as his representative. On 21 March 2014 he re-appointed ASRC as his representative and instructed department to end appointment of Warna Legal.
In summary, … [the applicant] reiterated his previous claims and stated that:
· There is new country information that when the international forces withdraw the Taliban and insurgent groups will attain strength and will target ethnic and religious minorities. This will lead to a dire security situation exacerbated by the current presidential elections. He quoted several available country information reports supporting this argument, including the DFAT Report of 31 July 2013, Human Rights Watch Report of 1 February 2013 and several Reuter’s news titles.
· He withdrew his judicial review application not because his claims were weak or unimportant but because he is unable to proceed due to financial hardships.
Supporting documents
[The applicant] … provided the following:
· A support letter from Kawthar-Lugar Association of Victoria dated 16 September 2013 stating that … [the applicant] is a man of integrity, extremely dedicated to his family and work and a member of the association.
· An employment certificate from Zouki Dandenong and copy of … [the applicant’s] undated tax return estimate.
No SZQRB error found
· [The applicant] … is not affected by the Full Federal Court judgment in SZQRB due to there being no evidence that the IPAO (i) applied the incorrect threshold test or (ii) did not afford procedural fairness in this instance.
The MIU Assessment then assessed the applicant’s request against the Minister’s Review Guidelines as follows:
ASSESSMENT OF THE REQUEST AGAINST THE MINISTER’S GUIDELINES
Protection claims
· While comprehensively assessing his refugee claims the IPA found that … [the applicant] has not provided a truthful account of his age and simply fabricated his evidence rather than providing a truthful account of the length of time he attended the vocational institute. The IPA found it implausible that the Taliban would send a threatening letter to his family with the government logo on it and his deliberately vague and evasive evidence as to when he was sent the threatening letter indicated that he was not a truthful witness.
· The IPA accepted that the Taliban is active in Logar Province and targets government institutions and Afghan and international forces but did not accept that … [the applicant] faced serious harm from the Taliban because he is Tajik Shia from Logar Province or that the verbal abuse he experienced from Sunni Tajiks in Logar amounted to serious harm. The IPA did not accept that he would face serious harm from the Taliban for reasons of his imputed political opinion or for being a failed asylum seeker/returnee from the west.
· The IPA found that as he had no difficulty in obtaining accommodation and employment in Kabul for four years without family support he may decide to remain living in Kabul on return rather than return to Logar Province because of better employment and educational opportunities in Kabul. The IPA was not satisfied that the effects of general insecurity and insurgency in Afghanistan amounted to a well-founded fear of persecution. The assessor was not satisfied that there is a real risk that he will be arbitrarily deprived of his life, subjected to torture or cruel, inhuman treatment or punishment or degrading treatment or punishment or that the death penalty will be carried out because of the generalised violence.
· The department accepts that there has been a decline in the security situation in Afghanistan, however, notes that claims such as the withdrawal of security forces or upcoming elections pose a further threat to minority groups like Hazaras, the Taliban may increase the frequency and scale of targeted attacks and … [the applicant] may be at risk of physical injury, torture or death by the Taliban, are all purely speculative. There is no evidence to corroborate these assertions.
· In any case, the country information provided by … [the applicant] does not contradict the IPA’s findings about his lack of credibility that was evident in his core claims.
Overall Assessment
· [The applicant] … has no enhanced chance of making a successful Protection visa application in light of Australia’s protection obligations in the Refugees Convention or in the complementary protection provisions.
ASSESSMENT FINDINGS
· For the reasons above, I am not satisfied that the request meets the Minister’s guidelines. The request should therefore not be referred to the Minister for consideration.
PRC
The PRC is in the form of a Departmental Minute addressed to the Director, Onshore Protection, Victoria (“Director, Onshore Protection, Victoria”) from the Case Officer, and is dated 27 November 2014. The PRC sets out the applicant’s migration history and his previous protection assessments. The previous protection assessments are summarised, and observations, including the following are then made:
In assessing … [the applicant] Section 45A(2) Ministerial intervention request in May 2014, the Department’s Ministerial Intervention Unit (MIU) acknowledged that there has been a decline in the security situation in Afghanistan since the IPA made its decision in November 2012. However, the MIU notes that claims such as the withdrawal of security forces or upcoming elections posing a further threat to minority groups like Hazaras; that the Taliban may increase the frequency and scale of targeted attacks; and … [the applicant] may be at risk of physical injury, torture or death by the Taliban, were purely speculative. The MIU noted that there was no evidence to corroborate these assertions. The MIU also noted that the country information provided by … [the applicant] does not contradict the IPA’s findings about his lack of credibility that was evident in his core claims. The MIU concluded that … [the applicant] had no enhanced chances of making a successful Protection visa application.
As stated above, the IPA found that … [the applicant’s] protection claims were not credible. He has not since raised any new claims, nor is there any objective information available to indicate that he would suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, were he to be removed to Afghanistan. Consequently I am satisfied there are no substantial grounds for believing that there is a real chance that he will suffer such harm as a necessary and foreseeable consequence of being removed to Afghanistan. Australia’s non-refoulement obligations are not engaged in his case.
The Case Officer then dealt with removal considerations and observed as follows:
There is no indication that departmental actions in planning … [the applicant’s] removal from Australia to Afghanistan have attracted or will attract the adverse attention of the Afghani Government. There is no indication that … [the applicant] will attract adverse attention during entry procedures in Afghanistan.
I am satisfied that … [the applicant’s] removal to Afghanistan does not raise concerns relating to Australia’s non-refoulement obligations. … [the applicant’s] case does not warrant referral for any further departmental protection assessment.
The Case Officer’s assessment was agreed with by the Manager, Onshore Protection Victoria and the Director, Onshore Protection Victoria, both on 27 November 2014.
In addition to the IPA and the MIU Assessment, the documents which were before the Case Officer were as follows:
·CIS2F827D91263: ‘DFAT Country Report Afghanistan’, Department of Foreign Affairs and Trade (DFAT), 26 March 2014.
·UN11BDCBF3: ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’, UN High Commissioner for Refugees (UNHCR), 6 August 2013.
·CIS2F827D91503: ‘US Department of Defense Report on the Progress Toward Security and Stability in Afghanistan’, US Department of Defense, 31 October 2014.
·CX1B9ECAB6523: ‘Afghanistan Going off the Rails as U.S. Withdrawal Speeds Up’, Foreign Policy, 30 October 2014.
·CIS2F827D91425: Kenneth Katzman, “Afghanistan: Post-Taliban Governance, Security, and U.S. Policy’, Congressional Research Service, 9 October 2014.
PRC Review
On 2 July 2015 the Inspector Removal Operations WA (“Inspector”) for the Australian Border Force wrote to the Assistant Director, Temporary Protection Visa Assessments, WA, SA and NT (“Assistant Director, TPVA”) advising that the applicant was due for involuntary removal on 15 July 2015 and that “he has had a previous PRC completed within 12 months, however National Office have requested that we run him past you again just in case in country conditions have changed sufficiently to make the previous PRC invalid”.
Informally, it appears that there were no concerns expressed with progressing the applicant’s involuntary removal under the current circumstances or because of any change in Afghanistan, but an official outcome of that assessment was requested by an officer from WA Compliance Removals in the Department on 3 July 2015. Later on 3 July 2015 a Removals Officer with Removal Operations WA in the Australian Border Force, confirmed that she had not received or been made aware of any new interviews or any new claims since the previous assessment was undertaken for the applicant. The Assistant Director, TPVA was then advised on 7 July 2015 of this, and further advised by a Case Officer, Temporary Protection Visa Assessments (“TPVA Case Officer”) with the Department that:
The PRC dated 20/11/2014 is still current in terms of country information. There have been no dramatic changes in country information in the last 7 months and I note that the 2014 DFAT country report referred to in the PRC is still the most recent report from DFAT.
The Assistant Director, TPVA then advised the Inspector on 7 July 2015 that the country information pertaining to the PRC for the applicant remained current.
Prejudice
The evidence relied on in relation to the prejudice that the Minister would suffer if an injunction issued to prevent the applicant’s removal from Australia was contained in an email from the Removals Officer on 10 July 2015 which is in in the following terms:
Our team has been working on … [the applicant’s] case since 15/01/2015 conducting IDCU checks to verify his identity so that we can facilitate Certificate of Identity, this involves collating and engaging with overseas post, this would involve at least 1 week of administrative hours combined.
We started actively progressing with his involuntary removal from 08/06/2015 to now, total number of emails generated so far 298 emails.
Health and Risk assessment checks – at least 2 days of administrative hours (IHMS and SERCO time)
Travel booking coordination, flight path and coordination with Canberra/Legal/Overseas Post – at least 2 days of administrative hours
Pre-removal clearance approval – at least 2 days of administrative hours for coordinating with OnPro team
Applying for visa for Afghan and India – at least 1 week of administrative hours
Risk Assessment checks – at least 2 days administrative hours
International travel minute approval – at least 1 day administrative hours
Kabul post engagement with IOM - administrative hours
Kabul post engagement with Ministry of Foreign Affairs - administrative hours
Removals Helpdesk Canberra engagement with Afghan Embassy - administrative hours for coordinating visa and COI
Request for RLO – RLOs team administrative hours coordinating suitable candidates for the removal
Request for SERCO – SERCO team administrative hours coordinating suitable candidates for the removal
Case law assessment – 2 administrative hours
Airline uplift coordination – 2 administrative hours
Reasonable suspicion assessment – 2 administrative hours
Aviation Assessment – 2 administrative hours
Preparing operation departure plan – 2 administrative hours
Case Management coordination with notices – 3 administrative hoursCosts involved;
- cancellation fee of flights booked for 2 x RLO, 3 x SERCO, 1 x Detainee
- non-refundable tickets for flights in Kabul (1 x RLO, 2 x SERCO)
- TPN costs for Afghan visa
- Cancellation fee of hotels booked for 2 x RLO, 3 x SERCO.
Consideration
Submissions
The applicant, who appeared unrepresented, did not file any written submissions in support of his application and was unable at the hearing to explain the basis upon which the application for an injunction to prevent his removal was brought, save to say that, in effect, it was not safe for him to return to live in Afghanistan, and that he feared being killed if he was returned to Afghanistan: Transcript, pages 2 and 18.
The Minister submitted that:
a)the PRC was not a “migration decision” within the meaning of the Migration Act 1958 and so this Court did not have jurisdiction in respect of it; and
b)that injunctive and declaratory relief related to s.198 of the Migration Act 1958 were not available remedies, particularly when regard is had to s.197C of the Migration Act 1958.
Jurisdiction – whether pre-removal clearance is a “migration decision”
Legislation
The jurisdiction of the Court in respect of matters related to the Migration Act 1958 is provided for in s.476 of the Migration Act 1958. That section relevantly provides:
(1)Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. …
By reason of s.476(1) of the Migration Act 1958 if there is no relevant migration decision the Court has no jurisdiction.
The term “migration decision” is defined in s.5 of the Migration Act 1958 as follows:
migration decision means:
(a)a privative clause decision; or
(b)a purported privative clause decision; or
(c)a non‑privative clause decision.
…
non‑privative clause decision has the meaning given by subsection 474(6).
…
privative clause decision has the meaning given by subsection 474(2).
…
purported privative clause decision has the meaning given by section 5E.
Section 474 of the Migration Act 1958 relevantly provides:
(1) A privative clause decision:
(a)is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
“privative clause decision” means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3)A reference in this section to a decision includes a reference to the following:
(a)granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d)imposing, or refusing to remove, a condition or restriction;
(e)making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h)conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i)a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
(4)For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:
Decisions that are not privative clause decisions Item Provision Subject matter of provision 1 section 213 Liability for the costs of removal or deportation 2 section 217 Conveyance of removees 3 section 218 Conveyance of deportees etc. 4 section 222 Orders restraining non‑citizens from disposing of property 5 section 223 Valuables of detained non‑citizens 6 section 224 Dealing with seized valuables 7 section 252 Searches of persons 8 section 259 Detention of vessels for search 9 section 260 Detention of vessels/dealing with detained vessels 10 section 261 Disposal of certain vessels 11 Division 14 of Part 2 Recovery of costs 12 section 269 Taking of securities 13 section 272 Migrant centres 14 section 273 Detention centres 15 Part 3 Migration agents registration scheme 16 Part 4 Court orders about reparation 17 section 353A Directions by Principal Member 18 section 354 Constitution of Migration Review Tribunal 19 section 355 Reconstitution of Migration Review Tribunal 20 section 355A Reconstitution of Migration Review Tribunal for efficient conduct of review 21 section 356 Exercise of powers of Migration Review Tribunal 22 section 357 Presiding member 23 Division 7 of Part 5 Offences 24 Part 6 Establishment and membership of Migration Review Tribunal 25 section 421 Constitution of Refugee Review Tribunal 26 section 422 Reconstitution of Refugee Review Tribunal 27 section 422A Reconstitution of Refugee Review Tribunal for efficient conduct of review 28 Division 6 of Part 7 Offences 29 Division 9 of Part 7 Establishment and membership of Refugee Review Tribunal 30 Division 10 of Part 7 Registry and officers 31 regulation 5.35 Medical treatment of persons in detention (5)The regulations may specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision.
(6)A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non‑privative clause decision.
…
(Emphasis added)
Regulation 5.35AA of the Migration Regulations 1994 (Cth) provides:
For subsection 474(5) of the Act, a decision, or a decision included in a class of decisions, made under a provision of the Act set out in the following table is not a privative clause decision.
Item Provision Subject matter of provision 1 section 252AA Power to conduct a screening procedure 2 section 252A Power to conduct a strip search 3 section 252B Rules for conducting a strip search 4 section 252C Possession and retention of certain things obtained during a screening procedure or strip search 5 section 252D Authorised officer may apply for a thing to be retained for a further period 6 section 252E Magistrate may order that thing be retained 7 section 252G Powers concerning entry to a detention centre 8 Division 13A of Part 2 Automatic forfeiture of things used in certain offences
Section 5E of the Migration Act 1958 provides:
5E Meaning of purported privative clause decision
(1)In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.
(2)In this section, decision includes anything listed in subsection 474(3).
Section 197C of the Migration Act 1958 provides as follows:
(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
Section 197C of the Migration Act was inserted into the Migration Act 1958 by item 2 of pt.1 of sch.5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (“Asylum Legacy Caseload Act”). The section applies in relation to the removal of an unlawful non-citizen on or after 16 December 2014.
Parts of the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) (“Explanatory Memorandum”), that became the Asylum Legacy Caseload Act expanded on this in some detail: see [1128]–[1146]. Particularly noteworthy are the following paragraphs:
1133.In recent years judicial review of protection visa refusal decisions has led to a number of broad and unintended interpretations of Australia’s protection obligations under the Refugees Convention and other international treaties. There has been a trend of jurisprudence favouring an approach whereby the provisions of the Migration Act are construed in light of a presumed legislative intention for the Migration Act as a whole to facilitate Australia’s compliance with its obligations under the Refugees Convention.
1135.In Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32, the majority of the High Court further found that the removal power under section 198 of the Migration Act was to be read in light of, and subject to, the obligations in the Refugees Convention. In the recent decision of Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 the Full Court of the Federal Court found this principle was extended to the non-refoulement obligations under the Covenant and the Convention Against Torture. These decisions have had a significant impact on the Government’s ability to remove unlawful non-citizens from Australia under section 198 of the Migration Act.
1136.Prior to this recent jurisprudence, section 198 of the Migration Act created an obligation to remove unlawful non-citizens in the circumstances prescribed in section 198 and this duty was not constrained by reference to Australia’s international obligations (for example, the Full Court of the Federal Court decision in M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 131). This was because it was understood that Australia’s international obligations had already been considered during separate processes prior to removal, for example when considering the persons application for a protection visa or when the Minister was considering the use of his or her personal powers.
1137.In general terms, the amendments in this item are intended to restore the situation to that arising prior to the jurisprudence noted above by making it clear that the removal powers are separate from, unrelated and completely independent of, any provisions in the Migration Act which might be interpreted as implementing Australia’s non-refoulement obligations.
1139.The amendments in this item are therefore intended to provide that decisions such as Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 are no longer ‘good law’ for the purposes of removal from Australia of unlawful non-citizens under section 198 of the Migration Act.
1140.The amendments are intended to put it beyond doubt that the purpose of section 198 is not to respond to international protection obligations, but to provide officers with the duty to remove unlawful non-citizens from Australia in the circumstances as set out in section 198 of the Migration Act.
1141.This means that the duty to remove in section 198 of the Migration Act arises irrespective of whether or not there has been an assessment, according to law or procedural fairness, of Australia’s non-refoulement obligations in respect of the non-citizen.
The use of the Ministers personal powers is highlighted at [1142]-[1146] which say as follows:
1142.Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.
1143.The Minister’s personal power under subsection 46A(2) provides that the Minister may determine that an unauthorised maritime arrival may make a valid visa application if the Minister thinks that it is in the public interest to do so. The Minister’s lifting of the visa application bar may enable non-refoulement obligations to be considered in an appropriate visa application process.
1144.The Minister’s personal power under section 195A provides that the Minister has a non-compellable power to grant a visa to a person who is in immigration detention where the Minister thinks that it is in the public interest to do so. In the exercise of this power the Minister is not bound by the provisions of the Migration Act or Migration Regulations governing application and grant requirements. The Minister has the flexibility to grant any visa that is appropriate to that individual’s circumstances. In these circumstances, if the Minister thinks that it is in the public interest to do so, the Minister may grant a visa to a person to ensure that the person is not removed in breach of Australia’s non-refoulement obligations.
1145.The Minister’s personal power under section 417 provides that the Minister has power to substitute a decision more favourable to the applicant than the decision of the Refugee Review Tribunal in relation to a reviewable decision. In these circumstances, the Minister may, if the Minister thinks that it is in the public interest to do so, grant a visa to a person who has had a visa decision affirmed by the Tribunal to ensure the person is not removed in breach of Australia’s non-refoulement obligations.
1146The above mechanisms enable non-refoulement obligations to be addressed before a person becomes ready for removal. At the removal stage, an officer will not be bound to check whether or not the Minister has considered exercising his or her personal powers when assessing if a person is subject to removal under section 198 of the Migration Act. If an unlawful non-citizen satisfies one of the conditions specified in section 198, the officer must remove the unlawful non-citizen as soon as reasonably practicable and it is not open to the non-citizen to challenge their removal on the basis that there has been no assessment of protection obligations according to law or procedural fairness.
Section 198(6) of the Migration Act 1958 provides that:
(6)An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a)the non-citizen is a detainee; and
(b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c)one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined;
(iii) the visa cannot be granted; and
(d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
Jurisdiction
The first question in the application for an injunction is whether the Court has jurisdiction to determine the matter. The issues which arise are whether the PRC was:
a)conduct preparatory to the making of a decision under the Migration Act 1958; or
b)a decision made under the Migration Act 1958.
That decision need not already have been made and can be conduct preparatory to a decision: Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244; SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26; (2012) 200 FCR 207; (2012) 286 ALR 331; (2012) 126 ALD 63 (“SZQDZ”). In short, a migration decision is, for present purposes a decision, including conduct preparatory to the making of a decision, that is, or purports to be made under the Migration Act 1958. Whether there is a decision under the Migration Act 1958 requires consideration of any decision, or possible future decision, and the connection, if any, between it and the PRC. That question requires a consideration of the provisions which might provide the necessary connection between the PRC and the Migration Act 1958.
Under s.476(1) of the Migration Act 1958, this Court has jurisdiction in relation to “migration decisions”, a term defined in s.5 of the Migration Act 1958 as meaning a “privative clause decision”, a “purported privative clause decision” or a “non-privative clause decision”. Those terms are respectively defined in ss.474(2), 5E and 474(6) respectively of the Migration Act 1958.
Section 474(2) of the Migration Act 1958 defines privative clause decision as “a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under the Migration Act 1958 or under a regulation or other instrument made under the Migration Act 1958 (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)”. Section 474(3) of the Migration Act 1958 then specifies that the reference in this section to a decision includes a reference to the various matters set out at s.474(3)(a) to (g) of the Migration Act 1958.
A purported privative clause decision is defined in s.5E of the Migration Act 1958 as a decision that would be a privative clause decision if there were not a failure to exercise jurisdiction or an excess of jurisdiction in the making of the decision. A non-privative clause decision is defined in s.474(6) of the Migration Act 1958 in terms that are not presently relevant.
In Griffıth University v Tang[2005] HCA 7; (2005) 221 CLR 99; (2005) 79 ALJR 627; (2005) 213 ALR 724; (2005) 82 ALD 289 at [89] per Gummow, Callinan and Heydon JJ (“Tang”) the High Court explained that:
The determination of whether a decision is “made … under an enactment” involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be “made … under an enactment” if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require that the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.
The two Tang criteria to be satisfied are not satisfied by the PRC because:
a)the Migration Act 1958 does not expressly or impliedly require a PRC to be undertaken; and
b)the PRC is without relevant legal effect, for reasons explained further below.
In SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26; (2012) 200 FCR 207; (2012) 286 ALR 331; (2012) 126 ALD 63 (“SZQDZ”) the Full Court of the Federal Court held that recommendations by an independent merits reviewer were not “migration decisions”: SZQDZ at [31] per Keane CJ, Rares and Perram JJ. The Full Court of the Federal Court observed as follows:
40. … Ordinarily, merely procedural steps in the course of arriving at a substantive determination lack the quality of a decision. As Mason CJ said in his celebrated judgment in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 342:
[T]here is a clear distinction between a “decision” and “conduct” engaged in for the purpose of making a decision. A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision.
41. And in Tang at [79]-[80], Gummow, Callinan and Heydon JJ said:
79. The decision so required or authorised must be “of an administrative character”. This element of the definition casts some light on the force to be given by the phrase “under an enactment”. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?
80. The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement …?
SZQDZ at [40]-[41] per Keane CJ, Rares and Perram JJ.
In SZQDZ the Full Court of the Federal Court concluded that assessments by an independent merits reviewer did not have an effect of the kind required to meet the above criteria. So too with the PRC. There is nothing in the Migration Act 1958 that attaches any legal consequence to the PRC.
In SZSSJ v Minister for Immigration & Border Protection [2014] FCAFC 143 (“SZSSJ”) the Full Court of the Federal Court allowed an appeal from a decision of this Court dismissing an application for want of jurisdiction. The critical passage in SZSSJ is:
[40]In our view, the Department has, since at least 12 March 2014, been engaged in conduct that is preparatory to a decision which is required to be made under the Act, namely whether or not the applicant is to be removed from Australia under s 198(6) of the Act. Having regard to the extended definition of “decision” in s 474(3)(h) (which defines a decision as including a reference to “conduct preparatory to the making of a decision”), and the definition in s 474(2) of a “privative clause decision”, the FCCA had jurisdiction in respect of the applicant’s proceedings. The Department’s current conduct in respect of the ITOA process and its earlier conduct since at least 12 March 2014 (if not earlier from the time the applicant was taken into detention) are properly to be viewed as conduct which is preparatory to the making of the decision which is required under s 198(6). That is evident from the Department’s correspondence with the applicant and from the applicant’s evidence of what he was told by his new Case Manager in late September 2014. Even though the Minister’s statutory powers of intervention are not expressed in a way which requires him to make a decision under those provisions, any decision which is made under those provisions must necessarily be relevant to the decision which ultimately has to be made under s 198(6).
In SZSSJ at [38] per Perram, Jagot and Griffiths JJ the Full Court of the Federal Court:
a)found that the primary judge erred in finding that he did not have jurisdiction; and
b)concluded that having regard to the extended definition of “decision” in s.474(3)(h) of the Migration Act 1958 and the definition of a “privative clause decision” in s.474(2) of the Migration Act 1958, this Court had jurisdiction in respect of the proceedings, because the Department’s conduct in respect of the International Treaties Obligations Assessment (“ITOA”) process, and its earlier conduct from at least 12 March 2014, were properly to be viewed as conduct preparatory to the making of the decision which was required under s.198(6) of the Migration Act 1958.
The Court notes that in SZSSJ:
a)the Full Court of the Federal Court made no reference to SZQDZ; and
b)as s.197C of the Migration Act 1958 only came into operation on 16 December 2014, it was not considered by the Full Court of the Federal Court in SZSSJ, and consequently SZSSJ is now distinguishable in the circumstances of this case.
The PRC is not like the ITOA process under consideration in SZSSJ. The ITOA process was to determine if a person was owed protection obligations, and if so the case would be referred to the Minister for consideration under the Minister’s intervention powers under the Migration Act 1958, but if found not to be such a person, subject to any other proceeding challenging that assessment or any other impediment to his removal, planning would commence in relation to the applicant: SZSSJ at [35] per Perram, Jagot and Griffiths JJ. The PRC is nothing more than an administrative arrangement pursuant to which officers of the Department consider whether there is anything that they think should be drawn to the Minister’s attention that the Minister might then choose to take into account in the exercise of personal non-compellable powers that the Minister could exercise to grant a visa (and thus prevent removal) if the Minister thinks that appropriate. The PRC was not a decision made, or proposed to be made, or required to be made, under the Migration Act 1958 or any regulation or other instrument made under the Migration Act 1958.
In the Court’s view the challenge to the PRC is incompetent, because the PRC is not a “migration decision” within the meaning of s.476(1) of the Migration Act 1958 for the reasons set out above. The Court is therefore without jurisdiction to grant the injunction the applicant seeks.
Interlocutory injunction to prevent applicant’s removal is precluded by s.197C of the Migration Act
Section 197C of the Migration Act1958 was enacted for the express purpose of reversing the implied limitation on s.198 of the Migration Act 1958 that had been identified in Plaintiff M70/2011 v Minister for Immigration & Citizenship [2011] HCA 32; (2011) 244 CLR 144; (2011) 280 ALR 18; (2011) 85 ALJR 891; (2011) 122 ALD 237 at [54] and [94]-[98] per French CJ, and [239] per Kiefel J and in Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269 at [229]-[231] per Lander and Gordon JJ and [313] per Besanko and Jagot JJ: Explanatory Memorandum at [1135], [1139].
Section 197C(2) of the Migration Act 1958 makes it clear that even if the applicant could demonstrate that the PRC was not undertaken according to law, that would have no effect on the duty to remove the applicant from Australia under s.198 of the Migration Act 1958.
This Court has held that the effect of s.197C of the Migration Act 1958 is to preclude the Court from issuing an injunction to restrain an applicant’s removal from Australia under s.198 of the Migration Act 1958: SZSSJ v Minister for Immigration & Ors (No.2) [2015] FCCA 1148 at [24] per Judge Cameron (“SZSSJ (No.2)”); SZTZI v Secretary of the Department of Immigration & Anor [2015] FCCA 1271 (“SZTZI”); AHY15 v Minister for Immigration & Anor [2015] FCCA 1324 at [2] per Judge Street (“AHY15”). In SZSSJ (No.2) at [24] per Judge Cameron this Court found that an injunction in terms similar to that sought in these proceedings was not available in light of s.197C of the Migration Act 1958. In SZTZI the Court found that:
a)Parliament’s intention in enacting s.197C of the Migration Act 1958 was to make clear that it is not the law that a person cannot be removed from Australia under s.198 of the Migration Act 1958 until claims for protection under Australia’s international law obligations have been assessed according to law: at [8] per Judge Street;
b)in light of s.197C of the Migration Act 1958 an attempt to obtain injunctive relief against removal is not a bona fide invocation of this Court’s jurisdiction, as the application is hopeless: at [11] per Judge Street; and
c)although this Court has power to grant an injunction to prevent removal, it ought not do so in a case where the relief sought in the originating application has been abandoned, and where what is sought is a declaration in respect to a process that is precluded under s.197C of the Migration Act 1958 from impeding an officer’s duty to remove, as soon as reasonably practicable, an unlawful citizen under s.198 of the Migration Act 1958: at [10] per Judge Street.
SZTZI was followed in AHY15.
In the Court’s view, s.197C of the Migration Act 1958 plainly prohibits the Court from granting any form of relief which would have the effect of preventing the applicant’s removal from Australia. Further, there is nothing in the judgments in SZSSJ (No.2), SZTZI or AHY15, which indicates that they are plainly wrong, and those judgments should therefore be followed by this Court. In any event, the Court takes the view that those judgments were correctly decided.
In all of the above circumstances, the issuance of an injunction to prevent the applicant’s removal from Australia is legislatively prohibited by s.197C of the Migration Act 1958, and this Court cannot issue the injunction sought by the applicant to prevent his removal from Australia.
An injunction on the usual grounds
In AKR15 v Minister for Immigration & Border Protection [2015] FCCA 1734 (“AKR15”) this Court noted the argument that the effect of s.197C of the Migration Act was to prohibit the Court from issuing an injunction, but considered that for the purposes of determining whether the Court had jurisdiction it was not necessary to decide whether s.197C of the Migration Act 1958 had that effect: AKR15 at [52]-[54] per Judge Smith. The Court reviewed the grounds of application and concluded that as no jurisdictional error was apparent, there was no basis for granting either an injunction or any declaratory relief: AKR15 at [78] per Judge Smith.
Under s.15 of the Federal Circuit Court of Australia Act 1999 (Cth) the test to be applied with respect to an interlocutory injunction is that outlined by the High Court in Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; (1982) 46 ALR 398, namely that there be a serious question to be tried and that the balance of convenience favour the issue of the injunction.
For reasons set out above, there is no serious question to be tried with respect to the PRC. With respect to the IPA in order for there to be a serious question to be tried it would be necessary to establish that there was a reasonable prospect of success in obtaining prerogative relief on the basis of jurisdictional error in the IPA. In the Court’s view, there is no such prospect. The IPA was the subject of the 2013 Judicial Review Application which was dismissed by this Court. Although not dismissed following a full hearing of the issues it was dismissed by consent. It would be necessary for the applicant to make application under r.16.05 of the Federal Circuit Court Rules 2001 (Cth) to set aside those orders before there was any prospect of a successful judicial review. In order to have the dismissal order set aside the applicant would need to be able to persuade the Court that there was some prospect of success in relation to the 2013 Judicial Review Application. In order for there to be a reasonable prospect of success in relation to the 2013 Judicial Review Application the applicant would need to establish that there was a reasonable prospect of establishing jurisdictional error in the IPA.
The IPA is only reviewable by this Court if it is affected by jurisdictional error: Migration Act 1958, ss.474 and 476; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the IP Assessor will only constitute jurisdictional error if the IPA:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the IP Assessor’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act 1958: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
It appears that the 2013 Judicial Review Application was based on two grounds, namely that the IPA:
a)was affected by an error of law; and
b)took into account irrelevant considerations.
In the Court’s view these grounds have no reasonable prospect of success because:
a)no error of law is identified by the applicant;
b)no irrelevant consideration taken into account is identified by the applicant;
c)no relevant consideration not taken into account is identified by the applicant;
d)no error of law, or irrelevant consideration taken into account, or relevant consideration not taken into account, is apparent on the face of the IPA;
e)the IPA considers each of the applicant’s claims in detail and provides comprehensive reasons for rejecting each of the applicant’s claims, with those reasons being open to be found on the material before the IP Assessor, and involving the IP Assessor carrying out the fact-finding function of an administrative decision-maker: Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1, and it is not apparent that there has been any error at all in the carrying out of the fact-finding task by the IP Assessor;
f)the IP Assessor rejected the applicant’s account of the reasons that he left Afghanistan, basing that assessment on findings as to the applicant’s credibility and the authenticity of documents provided in support of the applicant’s claims. The findings as to credibility are a function of the assessor par excellence: Durairajasingham at [67] per McHugh J, while the findings as to the authenticity of the documents were open on the factual material set out by the IP Assessor, particularly in relation to the alleged Taliban night letters which, incongruously, contained the crest of the Afghan Government, and were otherwise of doubtful provenance for the reasons given by the IP Assessor; and
g)the IP Assessor put to the applicant the IP Assessor’s concerns with respect to:
i)his evidence; and
ii)the country information (contrary to the assertions made now on behalf of the applicant),
see IPA at [64]-[84].
As set out above, the IP Assessor has considered the issues and identified the appropriate questions to be resolved, considered the evidence, made findings on the evidence, and in so doing taken into account relevant material, and not taken into account irrelevant material. In the above circumstances the Court is of the view that there is no prospect of the applicant establishing jurisdictional error in the IPA.
For the purposes of judicial review current conditions in Afghanistan, or conditions as they have changed since the PRC was conducted, or since the IPA was conducted, are irrelevant: judicial review is conducted on the basis of the factual material before an administrative decision-maker at the time the administrative decision-maker makes their decision on the facts. It is not for this Court to reassess the factual material and make its own factual findings, either on the facts as they were before the administrative decision-maker, or on any new facts. To do so is to undertake impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
On the above bases the Court is satisfied that there is not a serious question to be tried in these proceedings. In any event, the balance of convenience does not favour an injunction. No purpose would be served by the issuance of an injunction in circumstances where all of the legal processes likely to give rise to relief have been exhausted, save for what is said below with respect to the ITOA, but which of itself does not alter the balance of convenience. The balance of convenience is further tipped against the applicant because of the delay in seeking judicial review, or further judicial review, of the IPA following the dismissal of the 2013 Judicial Review Application. Delay is a factor in determining whether prerogative relief is granted, and no good reason has been established for the delay in this case. It is not for this Court to assess the position in Afghanistan as it currently stands: that was a function for the IPA, and to the relevant extent, the PRC and PRC Review, and the assessment of country information, and what might or might not happen to the applicant if returned to Afghanistan, is a matter for the administrative decision-maker, not this Court. In the above circumstances, the balance of convenience does not favour the issuance of an injunction on the usual principles.
Taken together, both the lack of a serious question to be tried and the balance of convenience do not favour the issuance of an injunction on the usual principles.
It is unnecessary to make any findings with respect to ITOA obligations between the Minister and the applicant as no evidence was led by any party as to whether or not the applicant has had an ITOA, or whether or not he is entitled to an ITOA. The only reference to an ITOA is that in the application which is not evidence, but an assertion framed as a plea for a final order. On the state of the evidence it would not be possible to make any findings concerning any ITOA obligations, in any event.
Conclusions and orders
The Court has concluded that:
a)the PRC is not a migration decision under the Migration Act 1958 and the Court therefore has no jurisdiction to issue an injunction to prevent the applicant’s removal from Australia on the basis of the PRC;
b)section 197C of the Migration Act 1958 prohibits the Court from issuing an injunction to prevent the applicant’s removal from Australia;
c)based on the usual principles with respect to injunctions there is neither a serious question to be tried in relation to the primary relief sought by the applicant, nor does the balance of convenience favour such relief; and
d)there is no jurisdictional error or other error apparent in the possible exercise of the powers and duties under the Migration Act 1958, or otherwise, in relation to the applicant,
and for the above reasons, there is no basis for granting an injunction to prevent the applicant’s removal from Australia.
The Court notes that when orders were made on 14 July 2015 order (2) was that the application be dismissed. Properly, that order should have provided that the application by the applicant for an injunction preventing the removal of the applicant from Australia by the first respondent be dismissed. An amending order will issue accordingly.
It was for the above reasons that the Court made the orders that it did on 14 July 2015.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 11 August 2015
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