SZMVH v Minister for Immigration
[2008] FMCA 1451
•9 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMVH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1451 |
| MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – interlocutory application – application for stay – prohibition – where applicants seek a stay of removal from Australia – no serious question to be tried. |
| Migration Act 1958 (Cth), ss.36(2), 48(b), 198, 417, 426A, 474(2), 474(7), 476(2)(d) |
| SZFDZ v Minister for Immigration [2006] FMCA 717 SZFDZ v Minister for Immigration and Multicultural Affairs [2006] FCA 974 Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 Australian Broadcasting Corporation v O’Neil (2006) 227 CLR 57 SZLLH v Minister for Immigration [2008] FMCA 322 NAOB of 2002 v Minister for Immigration & Anor [2007] FMCA 1874 SZLJM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1455 S1083 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1455 Raikua & Anorv Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2007] FCA 30 Ozmanian v Minister for Immigration Local Government & Ethnic Affairs 137 ALR 103 |
| First Applicant: | SZMVH |
| Second Applicant: | SZMVI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2602 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 October 2008 |
| Date of Last Submission: | 9 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 9 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Appeared via telephone |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondents: | Ms Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The first and second applicants are to pay the first respondent’s costs fixed in the sum of $1,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2602 of 2008
| SZMVH |
First Applicant
| SZMVI |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
The application before the Court today is essentially an interlocutory application for an order prohibiting the Minister for Immigration & Citizenship from taking steps to remove the two applicants from Australia whilst this matter is before the Court. It appears that the urgency arises from the fact that the Minister proposes to remove the applicants from Australia tomorrow morning under s.198 of the Migration Act.
The applicants wish, in their substantive application, to challenge a decision by the Minister, or as they submit, a delegate of the Minister, not to consider the exercise of the Minister's power under s.417 of the Migration Act. The applicants claim that the Minister did not in fact make the decision but a departmental officer did and the submission would therefore be that the decision is not a decision that cannot be reviewed as a privative clause decision.
Ms Johnson, who appears for the Minister, opposes the application on the basis that there is no question to be tried. Her submission is that the Court has no jurisdiction to hear the substantive application and that the balance of convenience would not therefore favour the granting of the application to restrain the removal of the applicants from Australia.
The background to this matter is that the applicants are citizens of Indonesia. They arrived in Australia on 8th January 2007 and applied for a protection (Class XA) Visa on 2nd February 2007. A delegate of the Minister refused their application for visas on 26th February.
On 15th March 2007 the delegates applied to the Refugee Review Tribunal for review of the delegate's decision. The applicants are husband and wife. The husband is the primary applicant and the wife is a Part D applicant. She is applying as a member of the first applicant's family unit.
This information is taken from the decision of the Refugee Review Tribunal that was signed on 30th April 2007 annexed to the affidavit of the applicants sworn or affirmed on 9th October 2008 and filed at the Court today.
The Tribunal noted that it wrote to the applicants on 26th March 2007 inviting them to attend a hearing of the Tribunal on 23rd April 2007 at which they could give oral evidence and present arguments in support of their claim. The Tribunal noted that the applicants did not appear on the day and time of the hearing and accordingly the Tribunal proceeded to make its decision on the review under the provisions of s.426A of the Migration Act without taking any further action to enable the applicants to appear before the Tribunal.
The Tribunal noted that the applicants had not submitted any new material to the Tribunal when they lodged their application for a review. The Tribunal, in its findings and reasons, considered the applicants' claims and accepted that they were citizens of Indonesia and accepted that they were spouses. The Tribunal noted the claim of the first applicant to have been harassed by members of a radical Muslim group because he was a Christian but noted that the Tribunal would have wished to explore the details of the their claims with the applicants and test their veracity but neither applicant appeared before the Tribunal.
The Tribunal went on to find that given the lack of detail in the applicants' claims in relation to crucial issues and the fact that the Tribunal had been unable to explore further and test the veracity of the claims, the Tribunal was not satisfied that the applicants were or are practising Christians or had suffered serious harm amounting to persecution on account of their religion or for any other Convention reason and was not satisfied that there was a real chance on the evidence before the Tribunal that the first applicant would be persecuted for a Convention reason in Indonesia in the reasonably foreseeable future.
The Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention or that the second applicant had a well-founded fear of persecution and was not satisfied that the second applicant was a member of the family unit of a person who had a well-founded fear of persecution within the meaning of the Refugees Convention.
The Tribunal found that the applicants did not satisfy the criterion set out in subsection 36(2) for a protection visa and affirmed the decisions of the delegate not to grant Protection (Class XA) visas to the applicants.
The applicants did not and have not brought any proceedings in this Court seeking judicial review of the Refugee Review Tribunal's decision. The first applicant told the Court, with the assistance an interpreter in the Indonesian language, that he and his wife had been taken into detention on 24th July and he said that he had written the letter to the Minister for Immigration & Citizenship on 19th September 2008. In that letter he sought that the Minister should exercise the Minister's discretion under s.417 of the Migration Act to substitute a decision of the Refugee Review Tribunal with a decision which was more favourable to the applicants if the Minister thought that to be in the public interest.
The first applicant who told the Court that he was addressing the Court on behalf of himself and his wife, who was also present, told the Court that when he applied to the Refugee Review Tribunal he was assisted by a friend. He said that the friend had told them that it did not matter if they attended the Tribunal or not because the Tribunal would make a decision in any event. The first applicant said that he regretted not attending the Tribunal hearing to give oral evidence.
The applicant told the Court that the friend was not a migration agent nor was the friend a lawyer but expressed the opinion at first that the friend knew the law. The applicant later withdrew from that position and believed that it may well be that the friend did not know the law.
The step that the applicant did take was to apply to the Minister for the exercise of the Minister's discretion. On 7th October 2008 a decision was made not to refer the matter to the Minister.
The applicants sent further information to the Minister on 8th October 2008. A letter was forwarded to the applicants dated today, 9th October, declining to change the decision. The Minister's letter, dated
7th October 2008, has been admitted into evidence and marked as exhibit one and the Minister's letter of 9th October has been admitted into evidence and marked as exhibit two.
The Court put to the applicant that there were difficulties with the substantive application as the Court did not have jurisdiction to deal with, by way of judicial review, decisions under s.417 of the Migration Act. It is the applicants' case, as I said, that this is not a decision of the Minister but of a departmental officer.
The first applicant indicated that a friend, who is another detainee, would like to address the Court on his behalf. Inquiries were made of that gentleman and he indicated that he was not an applicant for a Refugee visa and had been detained in Villawood as a result of a cancellation of another visa. The friend identified himself as
Mr Taina Matete and conceded that he was a citizen of New Zealand. He indicated that he had been assisting the applicant, whose first language is not English, in dealing with the Ministerial correspondence.
For the Minister, Ms Johnson has put that the Court has no jurisdiction to deal with the substantive application, even allowing for the point about the authorship of the letters of 7th and 9th October and referred the Court to the decision of Driver FM in SZFDZ v Minister for Immigration[1] and to the decision of Moore J in SZFDZ v Minister for Immigration & Multicultural Affairs,[2] refusing an application for leave to appeal against the decision of Driver FM.
[1] [2006] FMCA 717.
[2] [2006] FCA 974.
In reply, the first applicant told the Court that he was given the Minister's later letter only half an hour before the case commenced.
He had sent further information to the Minister on 8th October and has more information to hand to the Minister. Because of the very limited time he has been unable to do that. He reiterated his claim that it was not the Minister who had made the decision and expressed the view that he wished to appeal against that decision. He told the Court that he came within the guidelines for the exercise of the Minister's discretion under s.417 of the Migration Act.
In considering whether to grant the interlocutory relief that the applicant seeks, that the Minister be restrained from removing the two applicants from Australia pending determination of their application for judicial review of the Tribunal decision it is necessary for the Court to have regard to the well known principles and consider whether there is a serious question to be tried and if so to address the balance of convenience (see Beecham Group Limited v Bristol Laboratories Pty Limited[3] and Australian Broadcasting Corporation v O'Neil).[4]
[3] (1968) 118 CLR 618 at [622].
[4] (2006) 227 CLR 57 at [65]-[72].
The matter that must be dealt with in dealing with the question of whether the applicants have reasonable prospects of success in relation to the substantive application for review must deal with submission that the Court would lack jurisdiction to hear that application.
Subsection 476(2)(d) relevantly provides that the Federal Magistrates Court has no jurisdiction in relation to a privative clause decision or purported privative clause decision mentioned in subsection 474(7) of the Migration Act. Subsection 474(7) sets out what decisions are privative clause decisions within the meaning of subsection 474(2).
In subsection 474(2)(a) it is said that a decision of the Minister not to exercise or not to consider the exercise of the Minister's power under
s.48B or s 417 or of a number of other sections are defined as privative clause decisions.
In SZFDZ v Minister for Immigration (supra), Driver FM considered the issue of whether the correspondence from the Minister disclosed that in fact no consideration had been given to the issue by the Minister. I turn to the two letters. In the first letter dated 7th October 2008 the letter said:
Your case has previously been brought to the attention of the former Minister. On 20 September 2007 the former Minister declined to consider the exercise of the power under s.417 in his case. The Minister has directed that if a case has previously been considered because of a request to exercise the public interest powers, the case should not be brought to the Minister's attention unless additional information is provided that in combination with information known previously, brings the case within the guidelines for consideration.
The applicants say that their case comes within the guidelines of consideration because they did provide further information on
8th October 2008. The Minister's second letter, dated 9th October 2008, says relevantly:
I refer to a letter of 8 October 2008 from you and your spouse[5] providing additional information in support of your case. Under s.417 of the Migration Act 1958, (“the Act”) the Minister for Immigration & Citizenship, Senator Chris Evans, may substitute a decision of the Refugee Review Tribunal with a decision which is more favourable to you if he thinks it to be in the public interest. Your case has previously been brought to the attention of the former Minister. The Minister has directed that if a case has previously been considered because of a request to exercise the public interest powers, the case should not be brought to his attention unless additional information is provided that in combination with information known previously, brings the case within the guidelines for consideration. Your case has been reassessed by the department in the light of your latest letter. The additional information provided, in combination with the information known previously, does not bring the case within the ambit of the guidelines and accordingly has not been referred to the Minister for consideration under s.417.
[5] The name is deleted to comply with the provisions of s 91X of the Migration Act
The decision of Driver FM in SZFDZ v Minister for Immigration at [4], considered a similar submission and said:
But it appears that the decision by the Minister's department is based on long-standing instructions by the Minister as to how requests of this nature are to be handled. In addition, as is pointed out by Ms Dejean for the Minister, subsection 474(3)(j) covers a failure to make a decision. There is, in my view, no doubt that the Court lacks jurisdiction under the Migration Act to entertain this application.
His Honour then went on to dismiss the application as incompetent.
In SZFDZ v Minister for Immigration & Multicultural Affairs,[6] Moore J considered an application for leave to appeal from the decision of Driver FM and, on reviewing his Honour's decision, said at [8]:
It is not apparent to me that there was any error in the Federal Magistrate's decision. For the reasons advanced by the Minister the applicant would have no prospects of success in any appeal. Leave to appeal is refused with costs.
[6] [2006] FCA 974.
I have had occasion to deal with a somewhat similar application relating not to s.417 of the Migration Act but s.48B in SZLLH v Minister for Immigration.[7] In that case I considered the authorities including SZFDZ v Minister for Immigration noting that all of the authorities dealt with a refusal to entertain a request to the Minister for the exercise of the Minister's powers under s.417.
[7] [2008] FMCA 322.
I considered SZFDZ v Minister for Immigration; the decision of Driver FM and the application for leave to appeal which was refused by Moore J in SZFDZ v Minister for Immigration & Multicultural Affairs. I went on to say at [11]-[13]:
It was also submitted on behalf of the Minister that Raphael FM accepted that this Court did not have jurisdiction in NAOB of 2002 v Minister for Immigration & Anor [2007] FMCA 1874.
It was submitted that the circumstances of that case were relevantly identical to the case before me although the applicant in NAOB of 2002 made a request for consideration under s.417 of the Migration Act. It has also been brought to my attention that Smith FM has also recently held that this Court does not have jurisdiction in relation to a decision of an officer not to refer a request under s.417 to the Minister due to the operation of sub-s.476(2)(d). In SZLJM v Minister for Immigration [2007] FMCA 1945, it was submitted that both Smith FM and Raphael FM relied on the reasoning in S1083 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1455 and Raikua & Anor v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2007] FCA 30; (2007) 158 FCR 510. Both the Court in S1083 of 2003 and Raikua considered earlier but similar provisions to the current sub-s.476(2)(d) and in each case it was held that the Court did not have jurisdiction to hear the application. Whilst the Minister notes that the applicant placed importance on the fact that the Minister did not personally consider the exercise of the power which takes the action outside of the exclusion from jurisdiction set out in sub-s.4747(a) but all of the cases above were cases where there was a refusal by a departmental officer to refer a request to the Minister. A similar argument was expressly rejected in Ozmanian v Minister for Immigration Local Government & Ethnic Affairs 137 ALR 103. The effect of that decision in relation to this issue is relied upon by Moore J in S1083 of 2003 as well as Lindgren J who summarised the principles in Raikua at [42].
The matter before me today appears to be essentially similar to the situation that confronted Driver FM in SZFDZ v Minister for Immigration and confronted Raphael FM in NAOB of 2002[8] and Smith FM in SZLJM v Minister for Immigration.[9] Driver FM took the view that there was no doubt that the Federal Magistrates Court lacked jurisdiction under the Migration Act to entertain the application, which decision was followed by Raphael FM in NAOB of 2002 (supra) and Smith in SZLJM (supra). In NAOB of 2002 the Federal Magistrate referred, at [4] and [5], to the decision of Driver FM in SZFDZ and noted that on an application for leave to appeal Moore J had held that it was not apparent there was any error in the Federal Magistrate's decision and the applicant would have no prospects of success in any appeal. In SZLJM at [23], Smith FM followed the decision in SZFDZ.
[8] [2007] FMCA 1874.
[9] [2004] FCA 1455.
I am satisfied that on hearing a substantive application of the type proposed by the applicants that this Court would follow the decisions in SZFDZ, NAOB of 2002 and SZLJM. It is clear that the applicants have no reasonable prospects of success in relation to their application for review of the Minister's decision. The oral submissions that have been raised today do not establish a serious question to be tried nor do they satisfy the requirements for any interim injunction.
In that the applicants have not established that there is a serious question to be tried and that in my view the substantive application is an application in which the Federal Magistrates Court would have no jurisdiction, it follows that the grounds for an interim injunction have not been made out and I refuse the application for interlocutory relief. The application will be dismissed.
The applicants have been unsuccessful in the application for interlocutory relief. In my view it is appropriate that an order for costs should be made in favour of the first respondent. The amount sought is $1,000.00 which, in my view, is an appropriate figure and within the scale of costs provided by the Federal Magistrates Court Rules 2001.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 15 October 2008
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