SZLLT v Minister for Immigration & Anor
[2007] FMCA 1754
•11 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLLT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1754 |
| MIGRATION – Visa – cancellation of visa – subclass 444 visa – applicant is a citizen of New Zealand claiming fear of persecution on return to New Zealand – applicant has dual citizenship of New Zealand and the Netherlands – claim of persecution by Black Power gang if returned to New Zealand. PRACTICE & PROCEDURE – Application for order restraining the Minister from removing the applicant from Australia – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91N, 91P, 102, 103, 198(9) |
| Applicant: | SZLLT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3149 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 October 2007 |
| Date of Last Submission: | 11 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Nil |
| Solicitor for the Respondents: | Ms Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $1,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3149 of 2007
| SZLLT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The applicant is a citizen of New Zealand who also holds an entitlement to citizenship of the Netherlands. He asks the Court for orders:
i)prohibiting his removal from Australia insofar as that would involve his being removed to New Zealand; and
ii)seeking that he be removed to The Netherlands instead of New Zealand.
iii)
I have indicated that the Court does not have the power to direct the Minister as to which country a person, who is being removed from Australia, should be removed to.
I have indicated to the applicant that the court does not have the power to direct the Minister as to which country a person being removed from Australia should be removed to.
The grounds of the application to restrain the Minister from removing the applicant from Australia are these that:
a)the applicant fears that he will be subject to harm upon his arrival in New Zealand at the hands of a violent gang which is prominent in New Zealand called Black Power;
b)the applicant wishes to commence proceedings in respect of the cancellation of an earlier sub-class 444 visa by the Minister on character grounds; and
c)the applicant wishes to commence proceedings against the Attorney-General of New South Wales in respect of certain criminal prosecutions against him.
The background to this matter is that the applicant last entered Australia on 16th November 2005. He had previously spent time in Australia under a sub-class 444 visa, but that visa was cancelled on character grounds in December 2002. The applicant was subsequently removed from Australia in 2003. He re-entered Australia on
16th November 2005, although he did so under the identity of another person and holding a New Zealand passport in that other name.
He used this false name on documentation, including a passenger card, when he arrived in Australia. There is no issue that the New Zealand passport in the other name was, in fact, a bogus document which appears to have been obtained by fraud.
When this state of affairs became known, the Minister took steps on 26th November 2006, to cancel the sub-class 444 visa which the applicant had been granted upon his arrival in Australia in November 2005. The applicant sought a review of that decision from the Migration Review Tribunal and a copy of that decision, signed
21st August 2007, has been tendered in evidence before me.
The Tribunal noted the cancellation of the applicant's previous sub‑class 444 visa in December 2002 on character grounds, and considered evidence regarding convictions that the applicant held in New South Wales, Victoria and New Zealand.
The Tribunal noted the applicant's evidence that he felt that his earlier removal from Australia in 2003 was unjust; he had lived in Australia for some 15 years; he felt Australian; had a strong desire to return to Australia, including a desire to pursue matters relating to his past convictions. The Tribunal accepted that the applicant had had a number of offences in New South Wales, either not proceeded with or quashed on appeal, but found that he still had a record of criminal convictions in Australia. The Tribunal found that the applicant had not complied with s.102 and 103 of the Migration Act and affirmed the decision to cancel his sub-class 444 special category visa.
Arrangements have now been made by the Minister to remove the applicant from Australia on a flight scheduled to leave Sydney tomorrow morning for Wellington New Zealand. The applicant wishes to challenge that.
After his application to the Migration Review Tribunal was refused, the applicant applied for a protection visa on 25th September 2007.
The Minister found that the application for a protection visa was invalid and could not be considered. This was as a result of the operation of s. 91P of the Migration Act by virtue of s.91N, which applied to persons who, at the time of visa application, who are nationals of more than one country. The Minister's delegate pointed out that s.91P(2) of the Migration Act prevents persons to whom this section applies from making a valid application for a protection visa while they remain in a migration zone.
The applicant commenced these proceedings by filing an application on 10th October 2007. He says in his application that he had sought protection visa from the country to which he was getting deported, namely New Zealand. By this, of course, he means that he has applied for a protection visa in Australia claiming a fear of persecution in New Zealand.
The applicant has tendered material relating to Black Power, a prominent gang in New Zealand, which was formed in the late 1960s and it is a gang that is described as having been involved in a number of crimes, such as drug dealing and violence. The applicant claimed to have been involved with that gang in 2002 and feared that upon his return to New Zealand, he would again fear for his personal safety.
It is relevant that it is likely that upon the applicant's arrival in New Zealand, he faces arrest and prosecution from the New Zealand authorities in respect of offences under the law of that country.
The applicant fears that if he is imprisoned in New Zealand that he will be at risk from the actions of members of Black Power gang within the prison situation and fears that the authorities will be unable to protect him.
The applicant has also referred to his grievance about the cancellation of his earlier sub-class 444 visa on character grounds in December 2002. He wishes to bring an application to challenge that and expressed a wish to file an application in the Federal Court to challenge that decision. I explained to the applicant that it was not appropriate to file an application in this Court, as this Court does not have the jurisdiction to deal with such a matter.
The fact remains that at this stage, the applicant has not commenced any proceedings in respect of that earlier visa cancellation. He has indicated that he has been hampered by a lack of knowledge of migration law and an inability to access appropriate legal advice.
The applicant has also indicated an intention to commence proceedings against the Attorney-General of New South Wales in respect of earlier prosecutions, and pointed out that as a result of matters that did not proceed, he was still deprived of his liberty for some eight months as there was a difficulty about not only criminal matters but his immigration status; he has been hampered in his ability to commence proceedings due to the fact that he has been in immigration detention, as he told the Court, for approximately a year.
For the Minister, Ms Rayment, has submitted that there is no serious question to be tried, which is a matter that must be at the forefront of the Court's consideration in deciding whether any injunctive order should be made restraining the applicant's removal from the country. She submitted that the applicant has made no valid application for a protection visa and, indeed, under s.91P has no entitlement to apply for a protection visa, certainly not whilst he is in the migration zone.
He has indicated an intention to commence proceedings challenging the earlier cancellation of the sub-class 444 visa and matters in respect of the Attorney-General of New South Wales, but there are no applications on foot in any Court.
It is significant that the applicant's grievance about the cancellation of his earlier visa was, in fact, a matter that was aired before the Migration Review Tribunal and the Tribunal considered that, nevertheless the Tribunal affirmed the decision to cancel the applicant's later sub-class 444 visa.
The applicant relies on humanitarian considerations and refers to his fears for his safety in New Zealand. He has told the Court that whilst he has citizenship of The Netherlands, financially he is not in a position to make his own arrangements to travel from either Australia or New Zealand to The Netherlands and so his chances of seeking protection from the Black Power gang in New Zealand by going to The Netherlands are curtailed entirely on a financial basis. I see no reason to doubt that. But that is not, to my mind, a reason to grant the application.
As I have indicated the Court does not have the power to direct that a person being removed from Australia under sub-s.198(9) of the Migration Act should be sent to a different country. As to whether an order should be made restraining the Minister from removing the applicant from this country, in my view, the application has not shown a serious question to be tried; he has no proceedings on foot in any Court under either Federal or State jurisdiction seeking relief from the Courts of either this State, of New South Wales, or of the Commonwealth. There is no order being sought in this application.
This is a matter for dismissal with costs. As I said, in my view, a costs order may be futile in view of the applicant's financially impecunious situation. He has been in immigration detention for approximately one year as he tells the Court, and the Minister, of course, is seeking to have him removed from Australia within a short period of time.
Nevertheless, an amount of costs has been assessed as $1,000.00 and the applicant has been wholly unsuccessful in his claim.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 16 October 2007
0
0
2