MZZRW v Minister for Immigration - [2013] FCCA 1355

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZRW v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1355

Catchwords:
MIGRATION – Application for extension of time to review Refugee Review Tribunal decision – application for injunction to restrain deportation – application without merit.

Legislation:
Migration Act 1958, s.417

Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576
SZJYR v Minister for Immigration and Citizenship [2010] FCA 135
Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57

Applicant:

MZZRW

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1437 of 2013

Judgment of:

Judge Burchardt

Hearing date:

6 September 2013

Date of Last Submission:

6 September 2013

Delivered at:

Melbourne

Delivered on:

9 September 2013

REPRESENTATION

The Applicant:

In Person

Counsel for the First Respondent:

Mr Brown

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for an extension of time be refused.
The Applicant pay the First Respondent’s costs fixed in the sum of $2,500.

THE COURT DIRECTS THAT

The First Respondent not remove the Applicant from Australia before 4.00 pm on Wednesday 11 September 2013.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1437 of 2013

MZZRW

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The application before the Court was filed on 4 September 2013. In substance, it seeks first to extend the time for an application to review a decision of the Refugee Review Tribunal (“Tribunal”) given on 22 May 2013. The 35-day time limit expired approximately 10 weeks ago. The next thing the applicant seeks is to review the Tribunal’s decision if an extension of time is granted.
The applicant also seeks injunctions to restrain the Minister from deporting him on Monday and the applicant further seeks an adjournment of some six-to-eight weeks to obtain legal representation and further consider his position. That application for adjournment was made last Friday. I declined to adjourn and said I would give my reasons in my Judgment. I will do so in a minute.
The history of the matter has been put on affidavit by the first respondent. The following uncontroversial facts are taken from paragraphs 2 to 17 of the Minister’s Contentions of Fact and Law. The applicant entered Australia on 20 March 2012 as the holder of a Subclass 976 Electronic Travel Authority (Visitor) visa, using an altered Italian passport, which had been fraudulently obtained in the assumed name of Giuseppe Valenti.
Although the visitor visa was subject to a no-work condition, the applicant secured remunerative employment. After the visitor visa expired on 20 June 2012, the applicant remained in Australia unlawfully. The applicant was apprehended and taken into immigration detention on 19 November 2012. On 31 December 2012, the applicant lodged a Protection (Class XA) visa application. The delegate of the first respondent interviewed the applicant on 24 January 2013, who was assisted by his then migration agent. The migration agent arranged for the applicant to be interviewed by a psychiatrist, Mr Edwin Kleynhans.

RECORDED: NOT TRANSCRIBED

A psychiatric report dated 11 February 2013 was subsequently provided to the delegate, who was considering the visa application. The delegate made a decision on 8 March 2013 refusing the visa application on the basis that he was satisfied that the applicant had the right to both enter and reside in Italy, and that were he to return to live in Italy, he would not have a well-founded fear of persecution for a Convention reason and he would not be owed protection obligations by Australia under the complementary protection provisions of the Migration Act 1958 (“the Act”).
The applicant lodged an Application for Review with the Tribunal on 11 March 2013 and appeared at two hearings, on 5 April 2013 and 16 May 2013, on each occasion supported by his then migration agent, who was nominated to receive correspondence from the Tribunal on the applicant’s behalf in relation to the visa application. The Tribunal handed down its decision affirming the delegate’s decision on 22 May 2013 and a copy was sent by facsimile to the applicant’s migration agent on the same day.
On 24 June 2013, the applicant requested the first respondent to intervene under s.417 of the Act to substitute for the Tribunal’s decision a decision that was more favourable to the applicant. The request was presented to the first respondent on a schedule on 17 July 2013, but on 8 August 2013, he declined to consider the exercise of his discretionary power.
The applicant was advised on 26 August 2013 of the intention to remove him to Tirana, in Albania, on Monday, 9 September 2013 via Qatar and Athens. The applicant filed an Application for Judicial Review of the Tribunal decision on 4 September 2013, with one of the orders sought being injunctive relief restraining the first respondent from taking any action in reliance upon the Tribunal decision.
It is this Application for Judicial Review of the Tribunal decision that is the subject of the current proceeding, with arrangements already having been made to remove the applicant to Tirana, in Albania, on 9 September 2013, which were communicated to the applicant on 26 August 2013. The application was filed some 10 weeks out of time. The Tribunal considered the material provided by the applicant, including the Kleynhans psychiatric report, and two references from charitable support staff, who had interacted with the applicant at the detention centre.
The Tribunal accepted that the applicant had had a drug problem before he left Italy, which had contributed to his being imprisoned for over two years for what the delegate report described as an extortion offence in February 2009. After completing his sentence, the applicant moved to Luxembourg for eight-to-nine months, but then returned to Italy. He visited Albania on one occasion in 2011 and then again in early 2012 before he left Italy to travel to Australia.
The applicant possessed a valid Albanian passport, and a long-term Italian residency permit, but procured a false, forged Italian passport in order that he could obtain a Subclass 976 Electronic Travel Authority (Visitor) visa to enter Australia with minimum questions asked. On an Albanian passport, there was a significant likelihood that a visitor visa application would have been refused. The applicant has filed exhibit A1. This is a written request for an adjournment of the hearing. It asserts that the applicant was not served any documents by the first respondent, that he has great hardship to prepare his case because he lacks legal representation, that he does not read, write or speak English fluently to understand the Tribunal’s decision and that he has insufficient time to prepare for this hearing.
The document goes on to make the request for six-to-eight weeks’ adjournment and a lawyer appointed by the Court. Exhibit A2 purports to set out four criticisms of the Tribunal’s decision, and paragraph 4 says, and I quote:
“If I found 3 mistakes in RRT decision in very short time, I think I can find more mistakes if Your Honour will give me more time to properly prepare for my case. If I found 3 mistakes, I think Tribunal don’t have motivo to refuse me visa for protection.”
In his oral submissions, the applicant said that he had relied upon his migration agent. He said his agent had not properly assisted him.
The first respondent has filed material as exhibit R1. This material shows that the applicant’s aunt, and a number of other persons, wrote to the Minister on 9 August 2013 in a context where the applicant’s removal was clearly foreshadowed. A letter dated 26 August 2013 from the applicant, but unsigned, relevantly says:
“Today I received a letter stating that I have to return to Albania.”
Exhibit R1 also shows that on 24 June 2013 the applicant’s agent sought s.417 intervention. This was declined by letter attaching the Minister’s decision dated 14 August 2013. This letter was sent to the agent and also to the Maribyrnong Immigration Detention Centre. In a case called Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576, von Doussa J said that, paragraphs [9]-[10]:
“[9]. There was a significant delay for that period. I do not think the delay is satisfactorily explained by the fact that the applicant hoped during that time to get a favourable exercise of the Minister's power under s417. The application under s417 indicates an acceptance of the decision of the Tribunal, and a decision on the part of the applicant to take another course. Having taken that other course, in my opinion he must live with the consequence of the delay that occurred.
[10]. The delay therefore is not adequately explained. That, alone, in my view, would be sufficient to refuse the application for an extension of time. However it is appropriate to look also at the likely prospects of success of the application if time were extended.”
Remarks to the same effect were made by Besanko J in the case of SZJYR v Minister for Immigration and Citizenship [2010] FCA 135 at [12]. Here, of course, the applicant in effect seems to suggest that his agent either acted of his own motion, without instructions, or possibly made an error of judgment. The materials in exhibit R1 would strongly suggest that the applicant knew of the agent’s actions, as his family wrote to the Minister in substantially the same terms as the advisor’s s.417 application. It seems to me that the delay in making the application is, putting the matter at best for the applicant, scarcely adequately explained. I turn now to the merits of the application and the interrelated matter of injunctive relief.

RECORDED : NOT TRANSCRIBED

The applicant has claimed fear of persecution or harm related to fear of criminal elements and fear arising from his sexual orientation. He also relied upon the medical evidence in Mr Kleynhans psychiatric report. The test for injunction is set out in a case called Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57. The Court has to consider whether there is a prima facie case, as set out in O’Neill, and it also has to consider the balance of convenience.
It is clear that the balance of convenience wholly favours the applicant in one sense: it is clear he will lose all opportunity to consider his decision and obtain legal advice and/or representation if he is deported from Australia.
It is clear also that the applicant is significantly disadvantaged by his lack of English and legal understanding. There is no obvious prejudice to the Minister, save possible costs of airfares thrown away and, presumably, the cost of keeping the applicant in detention. But, I would note, it cannot be the law that every deportee is automatically entitled to an adjournment. There must be some element of what is called a prima facie case.
The applicant’s grounds assert a number of errors by the Tribunal. The first asserts a selective acceptance of evidence. I accept the first respondent’s submissions in this regard. The Tribunal is entitled to accept or reject evidence. That is what it did.
The second ground refers to irrelevant considerations and refers to paragraphs 44 and 45 of the decision. These related to matters concerning the applicant’s family.
In my view, the Tribunal’s findings at paragraph 79 were clearly open. The applicant was living with an aunt who was well familiar with refugee matters. It was not at all unreasonable for the Tribunal to regard this as relevant. The Tribunal’s conclusion that the applicant’s delay in applying for refugee status was also relevant was equally open too.
The third ground suggests the Tribunal ignored evidence from the quaestura in Italy. This is repeated as is ground 2 in exhibit A2. The Tribunal was well aware of advice from the quaestura, which, as I understand it, means police headquarters, and set out that advice at paragraph 48.
The applicant, nonetheless, himself confirmed to the Tribunal he would be able to re-enter and live in Italy as recorded in paragraph 76. The applicant now denies this in exhibit A2. Irrespective, nonetheless, the Minister is right to submit that the applicant can live in Albania. The Tribunal dealt with this matter at paragraphs 98 to 101. The Tribunal made findings which, in my opinion, were clearly open on the facts that the applicant would not face Convention harm in Albania. The same findings were made in respect of complementary protection.
The Tribunal further found the applicant could receive necessary medical treatment in Albania and did not face ill treatment because of his medical condition. This was set out at paragraphs 117 and 118. Having read the Tribunal’s decision carefully, I am of the clear view that the applicant does not have a prima facie case. His application is, as the Minister submits, without merit. Even if I made every assumption in the applicant’s favour about living in Italy, there is nothing that suggests the Tribunal’s decision about Albania could be effectively challenged.
I said I would explain why I did not adjourn on Friday. Although, self-evidently, I had formed no final view, when the matter commenced and the application for adjournment was made, I was of the view that the applicant’s prospects of success were not sufficiently good for an adjournment to be likely to be productive. That view has been ultimately confirmed by the submissions made. The Application for an Extension of Time is refused. The Minister has sought costs fixed at $2,500.

RECORDED : NOT TRANSCRIBED

There is one other aspect to the matter. This judgment should have been given on Friday. The applicant was not scheduled for deportation until today, some three days later, two of which, of course, were on the weekend. The failure to give judgment was not the fault of either the Minister but, more particularly, the applicant. I would require the applicant not to be deported before 4.00 pm on Wednesday, which would, effectively, replicate the position had judgment been given as was intended on Friday.

RECORDED : NOT TRANSCRIBED

I direct that the Minister not remove the applicant from Australia before 4.00 pm on 11 September 2013.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 16 September 2013