SZHUJ v Minister for Immigration

[2010] FMCA 860

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHUJ v MINISTER FOR IMMIGRATION [2010] FMCA 860

MIGRATION – Removal of unlawful non‑citizen from Australia – duty on officer to remove as soon as reasonably practicable – mental health considerations – whether obligation to consider new medical evidence after decision to remove and before removal – application for urgent interim injunction – undertaking given by Minister – matter adjourned for expedited final hearing.

Migration Act 1958 (Cth), s.198(6)

Asaad v Minister for Immigration & Citizenship [2008] FCA 1039
Berenguel v Minister for Immigration & Citizenship [2010] HCA 8
Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre & Anor (2006) 155 FCR 465
Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602
Kumar v Minister for Immigration & Citizenship (2009) 176 FCR 401
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
NATB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 506
WAJZ v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 84 ALD 655, [2004] FCA 1332

Applicant: SZHUJ

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: SYG 2362 of 2010

Judgment of: Smith FM

Hearing date: 2 November 2010

Delivered at: Sydney

Delivered on: 2 November 2010

REPRESENTATION

Counsel for the Applicant: Mr T Ower

Counsel for the Respondent: Mr J Kay Hoyle

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The applicant must file and serve an amended application including any additional grounds of review with complete particulars of each ground, and any additional affidavits relied upon, on or before 5 November 2010. 

2. The respondent must file and serve a response under Rule 44.06 and any affidavits relied upon on or before 9 November 2010. 

3. The applicant must file and serve any affidavits in reply on or before 12 November 2009. 

4. All subpoenas to produce documents to the Court prior to the hearing shall adopt the second option in the approved form of subpoena, striking out the words “give evidence and” in that option and inserting the words “You do not need to attend, if you deliver or send this subpoena or a copy of it and the documents or things specified in the Schedule to the Registry 2 clear days prior to that date” in Part B.  All such subpoenas are to be made returnable before a Registrar at a time and place inserted by the Registry in Part B. 

5. The parties may file and serve on another party a notice to produce documents at a listing before a Registrar on a date appointed by the Registry.  

6. A show‑cause hearing under Rule 44.12 is dispensed with. 

7. The application is listed for final hearing on 19 November 2010 at 10.15 a.m. at Court 6D, Level 6, John Maddison Tower, 88 Goulburn Street, Sydney. 

8. Any party may request that the proceeding be listed for further directions or for the hearing of an application in a case on a date allowing 5 clear days’ notice to the other parties.  The appointment shall be obtained from the Associate on xxxx xxxx. 

9. The applicant must file and serve in the Registry a short written outline of submissions and list of authorities on or before 4pm on 16 November 2010. 

10. The respondent must file and serve a short written outline of submissions and list of authorities on or before 4pm on 18 November 2010. 

11. Note that the respondent, by his counsel, undertakes to the Court by himself, his delegates, officers and agents, not to remove or allow the removal of the applicant from Australia before 20 November 2010. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2362 of 2010

SZHUJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is a matter which is before me today as duty judge in this Court.  The proceedings were commenced in the Federal Court last Friday, 29 October 2010, with an urgent oral application to Flick J for a restraining order in relation to the removal of the applicant from Australia. 

2. At the time of her application, the applicant’s husband and son had been, or were about to be, deported to China.  Their removal was effected on that day.  The relevant officers appear to have decided that they could not effect the removal of the applicant at the same time, because she was, or had been, receiving medical treatment as a result of self harm occurring on the morning of 29 October 2010. 

3. There was therefore time for her to apply urgently to the Federal Court in relation to any further proposal to remove her.  Flick J noted an agreement by the Minister: “to defer the deportation of the Applicant until after the matter is returnable before this Court on Tuesday, 2 November 2010”.  He ordered that the applicant file and serve all her evidence in support before 3pm on Monday 1 November 2010, and adjourned the application to today, Tuesday 2 November 2010, before the duty judge for this week. 

4. The matter was listed this morning before Foster J.  It appears that argument in relation to the making of a further interim order came to an end, when his Honour’s attention was drawn to the judgment of Tamberlin J in Asaad v Minister for Immigration & Citizenship [2008] FCA 1039 which discusses the jurisdiction of the Federal Court and this Court in relation to administrative actions taken under s.198(6) of the Migration Act 1958 (Cth). His Honour then ordered the transfer of the matter to this Court, and it came before me at 2.15pm.

5. Section 198(6) provides:

   (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. 

6. It is common ground that any future removal of the applicant would occur under that subsection.  It appears to be common ground that the pre‑conditions to the exercise of the power to remove are in existence, and that, subject to court orders, removal is at risk of occurring, as a result of a relevant officer recently forming an opinion that removal would be “reasonably practicable”. 

7. The most recent consideration of this appears to have occurred yesterday, and is recorded in a “Removals Availability Assessment As at 01/11/2010” generated at 6.08pm.  There is no evidence as to a specific proposal to remove the applicant by way of bookings on a flight to China, and the situation appears to be fluid in relation to when this might currently be proposed. 

8. Argument today with counsel has thrown up an interesting and important legal issue, as to whether an officer who has formed an opinion at one point of time that a future removal would be “reasonably practicable” is under any legal obligation to reconsider that opinion prior to effecting a removal, upon being presented with more up‑to‑date and relevant information concerning the current practicability of removal. 

9. There appears to be authority binding on this Court that the consideration of reasonable practicability “is not necessarily limited to physical considerations such as the health of the person removed” (see NATB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 506 at [52], cited by Besanko J in Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre & Anor (2006) 155 FCR 465, and more recently in Kumar v Minister for Immigration & Citizenship (2009) 176 FCR 401 at [81]). In the last of these cases, Besanko J in the Full Court at [82] cited French J’s observation in WAJZ v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 84 ALD 655, [2004] FCA 1332 at [77]:

   There is no reason in principle why the mental condition of a person might not lead to a similar conclusion.  It could be the case that a person’s psychiatric disease or disorder might preclude travel for practical reasons. 

10. These authorities locate a duty on an officer with the power of removal under s.198(6) to consider available evidence bearing on reasonable practicability in terms of the likely mental health of a person at the future proposed date of removal. They may not have settled whether, once an opinion of reasonable practicability has been formed, there is a compellable continuing obligation to reconsider that opinion so as to take into account more recent evidence before actually exercising the power of removal. Such an obligation is, in my opinion, reasonably arguable (cf. Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 45, Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 at 624, and Berenguel v Minister for Immigration & Citizenship [2010] HCA 8 at [26]).

11. In the present case, there is evidence recently become available to the applicant in relation to her state of mental health which is, on one view, open to being considered as bearing on that issue.  This is a report of a psychiatrist, Dr Cohen, in a report dated 1 November 2010.  This report only reached the hands of the Minister via his solicitor in the present proceedings early this morning.  

12. Whether there is a prospect that this or later similar psychiatric evidence would be ignored before the applicant is removed under s.198(6) is uncertain on the evidence currently before me, in particular, due to current absence of any indication of the evidence which might be led by the Minister by way of a witness from the Minister’s Department as to its relevant policies and procedures.

13. The only relevant documents from the Department in evidence today, are the original notice of removal which lists the applicant with her husband and son in relation to their proposed removal last Friday.  Clearly, removal of the applicant in accordance with that notice was not effected. 

14. The “Removals Availability Assessment As at 01/11/2010” tendered today suggests that some further consideration of reasonable practicability of removing the applicant might have occurred.  However, in relation to medical issues, the assessment might arguably suggest that the relevant officers would be content to accept a “Health Discharge Assessment” concerning the applicant prepared by the agency providing detention services to the Department.  This purports to give a prospective opinion concerning her health until 22 November 2010, which plainly has not taken into account Dr Cohen’s report.  This may not be unreasonable, since that report may not have been available to the persons performing yesterday’s assessment.  However, without more evidence from the Department, the assessment does not completely answer the applicant’s concern that additional evidence of her psychiatric condition might be ignored. 

15. The state of the evidence before me does not allow me to form any clear opinion as to the likelihood that up‑to‑date medical evidence bearing on the applicant’s mental health, in so far as it affects the practicability of her removal, would be overlooked or ignored at the time of any future proposed removal. However, in my opinion, the current evidence, and the submissions of counsel for the Minister in relation to s.198(6) which at times contended that there might be no legal obligation to give such evidence any consideration, give rise to sufficient uncertainty to point to a serious question to be tried in relation to that matter.

16. The balance of hardships points clearly in favour of preserving the applicant’s presence in Australia until this issue is decided on a final basis. 

17. I am therefore persuaded that the matter is at a stage where a sufficient case has been pointed to by the applicant to support the making of an interim injunction, if a relevant undertaking is not offered by the Minister. 

18. I note at this point in the delivery of my judgment that the Minister has now offered an undertaking.  It will therefore be only necessary for me to record that undertaking, and to give appropriate directions for an expedited final hearing of the matter.  

19. POSTSCRIPT.  I note that the application also raised other legal and factual issues.  These were canvassed with the applicant’s counsel in the course of the interim hearing.  They appear to suffer from some substantial difficulties, but it was unnecessary for me to address them in this judgment.  I do, however, recommend that the applicant’s legal advisors should give further thought to the relief and grounds which are arguably available from this Court. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  5 November 2010