SZAOE v Minister for Immigration
[2004] FMCA 100
•26 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAOE v MINISTER FOR IMMIGRATION | [2004] FMCA 100 |
| MIGRATION – Review of the Refugee Review Tribunal decision – refusal of a protection visa – applicant leaving Australia before the hearing of the judicial review application – whether the application is moot – whether the provision of relief would be futile – application dismissed. |
Judiciary Act 1903(Cth), s.39B
Migration Regulations
Bolea v Minister for Immigration (2001) 113 FCR 387
NAEN v Minister for Immigration [2004] FCAFC 6
SBAN v Minister for Immigration [2002] FCAFC 431
Tchoylak v Minister for Immigration (2001) 111 FCR 302
| Applicant: | SZAOE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ784 of 2003 |
| Delivered on: | 26 February 2004 |
| Delivered at: | Sydney |
| Hearing date: | 26 February 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Dobbie Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ784 of 2003
| SZAOE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 29 May 2002 and handed down on 20 June 2002. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The application for review was made on 7 May 2003 at a time when the applicant was in Australia voluntarily. It was supported by an affidavit by David Lee Bitel, solicitor for the applicant, filed on the same day and read for the purposes of today's hearing.
Prior to the matter coming on for hearing today, and indeed some months ago, it appears that the applicant left Australia voluntarily. The affidavit of Dale Jennifer Watson filed on 25 February 2004 which was read in today's proceedings establishes conclusively that the applicant has left Australia. I also accept that evidence as establishing that at the present time the applicant does not hold a visa to re-enter Australia. Written submissions were filed as to whether in the circumstances the application should be dismissed with costs.
Mr Dobbie prepared written submissions filed on 23 November 2003. Those submissions were directly principally to clause 866.221 of the Migration Regulations (“the Migration Regulations”). Mr Dobbie submits that the granting of relief in favour of the applicant is not necessarily futile, although he concedes that the requirement in clause 866.411 of the Regulations that the applicant must be in Australia for the granting of a protection visa presents a difficulty to the applicant. Mr Dobbie told me today from the bar table that his last instructions were to pursue judicial review of the RRT decision, but he has not received any instructions since the applicant left Australia.
Mr Lloyd also prepared written submissions which were filed in court today. Those written submissions deal with the issue of mootness as well as with the issue of futility. I agree with and adopt those submissions, in particular paragraphs 1 through to 12 for the purposes of today's hearing:
The present proceedings were commenced by application under s.39B of the Judiciary Act 1903 (Cth) filed on 7 May 2003. The application seeks review of a decision of the RRT handed down on 20 June 2002, which affirmed a decision by a delegate of the Minister to refuse to grant the applicant a protection visa.
Since these proceedings were commenced, the applicant has departed Australia.
The applicant has no visa which would permit him to return to Australia.
Mootness
In circumstances where a person who is seeking judicial review of a decision to refuse the grant of a protection visa has left Australia (or been removed from Australia), the proceedings before the court become moot. The present Court is bound by the following authorities.
In Tchoylak v Minister for Immigration (2001) 111 FCR 302, the Full Court said at [44], in circumstances where the appellant had been removed by the Minister prior to the hearing:
We consider that the fact that the applicant is no longer in this country, and has no realistic prospect of being permitted to return in the future, renders his appeal moot.
The position was the same in Bolea v Minister for Immigration (2001) 113 FCR 387 where again the Minister had removed the applicant prior to the hearing. Justice Hill observed at [13]:
Now that Mr Bolea is out of the country the application is moot and should be dismissed.
In the present case, the applicant was not removed by the Minister. However, if anything, that makes his case weaker not stronger than those considered in Tchoylak and Bolea. It also justifies an award of costs in favour of the Minister (which was not made in these two cases because the Minister had removed the person concerned against their will).
Futility
In any event, the applicant seeks to have his merits review application reconsidered by the RRT. Even if the applicant were able to make out a jurisdictional error and have the matter remitted to the RRT, the RRT would be compelled to refuse the application for review because the applicant is no longer within Australia.
There are at least two reasons for this. First, Australia does not owe protection obligations under the Refugee Convention to persons who are not within Australia. A protection obligation is the obligation not to refoule under Article 33 and it is owed by Australia to a person only if Australian cannot return the person to a safe third country: NAEN v Minister for Immigration [2004] FCAFC 6 at [49]. It follows that Australia does not owe obligations under the Convention to persons who are not even within Australia. The fact that Australia may assist Nauru with its obligations (as noted by the applicant) is immaterial.
Secondly, item 866.4 of the Migration Regulations requires a protection visa applicant to be in Australia.
As the RRT would be compelled to make the same decision that is the subject of the present review, the relief sought by the applicant is futile. As a matter of discretion, this Court should refuse to grant relief in circumstances where to do so would be futile.
The applicant’s submissions flirt with speculation that the applicant may re-enter Australia (without lawful authority) and, if this happened, a remittal to the RRT would not be futile. However, there is no basis for inferring that there is anything but a fanciful prospect of this occurring. The RRT should address the question of futility on the basis of the position before the Court on the assumption that the RRT would act quickly to give effect to any orders of the Court. On this assumption, if the matter were remitted then, for either or both of the reasons above, the RRT would be obliged to affirm the decision of the delegate.
Mr Dobbie took me to the decision of the Full Federal Court in SBAN v Minister for Immigration [2002] FCAFC 431, in particular at paragraph 14. In that case the Full Court dealt with an appeal from a decision of a single judge notwithstanding that the migration applicant had left Australia between the time of the initial judicial review decision and the appeal. That was a case involving special circumstances in that the initial decision involved a finding of actual bias against the presiding member of the RRT and there was in the circumstances a real issue for the Full Court to deal with, noting the interest of the Minister in that case.
In this matter, it appears to me from the application and the book of relevant documents that the applicant had an arguable case to present to the Court. However, the Minister also clearly had an arguable response. There is no jurisdictional error apparent on the face of the record that is so obvious that the Court should deal with the application in order to provide normative guidance to the RRT.
Even if the case had presented a picture which compelled the Court to provide that normative guidance, the appropriate relief would probably be limited to a declaration. It would be inappropriate to require the RRT to re-hear a matter in circumstances where the applicant is not able to pursue his protection visa application and there is no evidence that the applicant is likely to be in a position to pursue his application in the foreseeable future. In this case, there is no evidence that the applicant has any intention or ability to re-enter Australia in the foreseeable future.
In those circumstances, I accept that the case is moot and that the provision of relief in the form of a constitutional writ would be futile.
I will therefore dismiss the application.
On the question of costs, I have heard that the Minister's costs and disbursements, including counsel's fees, are likely to exceed $4,000. On a party/party basis, I consider that a costs award fixed in the sum of $3,000 would be appropriate and I will so order.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 2 March 2004
6
3
0