SZOAK v Minister for IMMGRATION
[2011] FMCA 332
•26 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOAK v MINISTER FOR IMMGRATION & ANOR | [2011] FMCA 332 |
| MIGRATION – Interlocutory application seeking orders to restrain Minister from taking any steps to remove the applicant from the migration zone until disposal of proceedings – balance of convenience – Protection visa application previously dealt with by Refugee Review Tribunal, the Federal Magistrates Court and the Federal Court – interlocutory application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZOAK”. |
| Migration Act 1958 (Cth), ss.48B, 91X, 116(1), 189, 338(4)(B), 347, 417 Federal Magistrates Court Rules 2001 (Cth), Part 2, Sch. 1 |
| SZOAK v Minister for Immigration & Anor [2010] FMCA 104 SZOAK v Minister for Immigration & Citizenship [2010] FCA 489 |
| Applicant: | SZOAK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 891 of 2011 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 26 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Liu (solicitor) |
| Solicitors for the Applicant: | Legal & Company Solicitors |
| Counsel for the Respondent: | Mr Chami (solicitor) |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application, filed on 6 May 2011, is dismissed.
The applicant pay the first respondent’s costs, of and incidental to the application, fixed in the amount of $1,175, pursuant to Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 891 of 2011
| SZOAK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an urgent interlocutory application, filed on 6 May 2011, seeking:
1. An order that the Minister must not remove the applicant from Australia before the determination of this application for judicial review.
The applicant, SZOAK, while being detained in the Villawood Immigration Detention Centre, was served with two documents: a “Notice of Your Removal from Australia” and; a “Notice in Respect of Removal or Deportation Costs” on 4 May 2011 advising him that he was to depart Sydney en-route to Beijing on Monday 5 May 2011 on Air China flight CA0176 at 10.20 am.
The applicant applied for an order that the Minister for Immigration & Citizenship and the Migration Review Tribunal to show cause why a remedy should not be granted by the exercise of the Court’s jurisdiction pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”).
The application sought a review of the Migration Review Tribunal’s decision of 8 April 2011and sought the following orders:
An order that the decision of the Tribunal or Minister be quashed.
A writ of mandamus directed to the Tribunal or Minister, requiring them to determine the applicant’s application according to law.
Costs of the proceeding.
An order that the Minister must not remove the applicant from Australia before the determination of this application for judicial review.
The grounds of the application are as follows:
The Tribunal’s purported decision is vitiated by jurisdictional errors in that the Tribunal failed to exercise the discretion vested in the Tribunal.
Particulars
1. The Tribunal failed to properly consider that the applicant could not obtain a travel document from the Chinese Authority in Australia. The Tribunal failed to properly consider that part of this inability was the failure of the First Respondent to provide the Applicant with information or documentation the Applicant had requested.
2. The Tribunal failed to take into account a relevant consideration in that the Applicant was of the belief that the applicant had to have a valid travel document before the applicant could obtain a ticket to depart Australia.
3. The Tribunal failed to take into account the relevant consideration that the International Organisation for Migration had only offered the applicant legal assistance. The International Organisation for Migration had not offered the applicant assistance with the purchase of a ticket.
The delegate of the Minister cancelled the applicant’s sub-class 050 (Bridging (General)) visa under s.116(1) of the Act. The applicant was granted this visa (the 23rd of this particular type) on 18 March 2011.
A delegate of the Minister notified the applicant that the visa may be cancelled and this occurred on 13 April 2011. The applicant was notified of this decision on the same date together with his review rights. The delegate of the Minister cancelled the applicant’s sub-class 050 visa pursuant to s.116(1) of the Act on the basis that he failed to comply with the imposed visa condition 8501 (present valid passport) and 8511 (present valid ticket) which required him to present a valid passport and ticket to the Department by 12 April 2011. The applicant failed to do this resulting in the visa cancellation.
The applicant applied to the Migration Review Tribunal (“MRT”) on 14 April 2011 for a review of the visa cancellation. The Tribunal was satisfied that the delegate’s decision was a reviewable decision under s.338(4)(B) of the Act and that the applicant had made a valid application for review under s.347 of the Act. The Tribunal notes in its decision that the applicant first entered Australia on 13 March 2009 on a cargo vessel as a holder of a sub-class 988 (marine crew) visa which was valid until 30 April 2009 and was subject to the condition 8113 (work as sea crew only). On 25 March 2009, the applicant departed Australia and then re-entered on 21 April 2009. On 30 April 2009, the applicant’s sub-class 988 visa expired and he was detained under s.189 of the Act and was taken into immigration detention. On 22 May 2009, the applicant lodged an application for a Protection visa. On 23 June 2009, the applicant was granted a sub-class 050 Bridging E visa. That visa was valid until 13 November 2009 and was subject to the following conditions, 8101 (no work), 8401 (report as directed), 8505 (reside at specified address), 8506 (notified change of address) and 8507 (pay costs as directed).
On 23 July 2009, the application for a Protection visa was refused. On
5 August 2009, the applicant lodged an application with the Refugee Review Tribunal in relation to the decision to refuse him a Protection visa. This was affirmed on 16 October 2009 in a decision, reference number 0906224 of Tribunal member Ms Philippa MacIntosh dated
15 October 2009. On 11 October 2009, the applicant lodged an application for judicial review with the Federal Magistrates Court in relation to the decision to refuse him a Protection visa. On 11 November 2009, the applicant was granted a second sub-class 050 (Bridging E) visa which was valid until 25 November 2011 and was subject to the following conditions, 8101 (no work), 8401 (report as directed), 8506 (notified change of address), 8207 (no study) and 8507 (pay costs as directed). When the visa expired on 23 November 2009, the applicant was granted a third Bridging E visa until 23 March 2010 subject to the same provisions. On 23 March 2010, the application for judicial review before the Federal Magistrates Court was dismissed in a decision by Federal Magistrate Raphael (SZOAK v Minister for Immigration & Anor [2010] FMCA 104).On 6 April 2010, the applicant lodged an application for judicial review with the Full Federal Court in relation to the decision to refuse him a Protection visa. On 17 May 2010, Her Honour Katzmann J dismissed the appeal on the ground that the appeal was lodged out of time and no extension of time was granted (SZOAK v Minister for Immigration & Citizenship [2010] FCA 489).
The Migration Review Tribunal decision (number 1103516 of Tribunal member Amanda MacDonald, dated 28 April 2011) sets out in paras.11-58 inclusive a detailed chronology which lists 23 grants of Bridging E visas together with a number of s.48B requests and s.417 ministerial interventions which have all been rejected. The applicant’s 23rd Bridging visa was cancelled on 13 April 2011 and the applicant was taken into immigration detention as a result of that cancellation.
Applicant’s submissions
The applicant was represented by Leo Giampietro of Legal & Company Solicitors, who prepared and filed the application and was represented in this Court by Ms Liu who made detailed oral submissions in support of the application.
Ms Liu submitted that the Tribunal failed to exercise its discretion and therefore committed jurisdictional error. Specifically, the Tribunal failed to take into consideration that the applicant had difficulties in obtaining passports from the Chinese Embassy because he was a Falun Gong practitioner.
Ms Liu acknowledged that the applicant was in breach of visa condition 8511 because he did not hold a valid ticket. However,
Ms Liu advanced the argument that the Tribunal failed to take into consideration that without a valid travel document, it was difficult for her client to obtain a valid ticket to depart Australia. Ms Liu contends it was these circumstances that caused the applicant to fail to comply with the visa conditions as required by the Department of Immigration.
Reference was made to para.61 of the MRT decision which records that on 20 and 27 April 2011, the applicant submitted statutory declarations and statements from Falun Gong practitioners attesting to the applicant’s practice of Falun Gong, his attendance at protests outside the Chinese embassy, attendances at a Falun Gong study group, his involvement in handing out pamphlets and his good character.
Ms Liu submits that prior to deportation, Australia must consider its international human rights obligations. Ample evidence and witness statements were before the Tribunal to determine that the applicant is a genuine Falun Gong practitioner. Ms Liu submits that media publications indicate that Falun Gong practitioners will be persecuted in China and that if the applicant is returned to China, he will risk being tortured and sent to gaol.
Ms Liu contends that Australia breached its international human rights obligations by not considering the evidence that the applicant was a Falun Gong practitioner.
Respondent’s submissions
Mr Chami, for the respondent, correctly asserted that there must be a prima facie case on the balance of convenience. The MRT decision provides a history of the application at para.11 through to para.73.
Mr Chami asserts that Ms Liu has not criticised or objected to this material. This chronology shows that there have been 23 applications made for bridging visas, all of which have been granted. Many of them were premised on the basis of removal and the requirement to present valid documentation covering the applicant leaving the country. Also contained within this chronology is a list of the multiple and repeated applications under ss.48B and 417 of the Act.
Mr Chami notes the procedural history of this matter and raises the question about what end and for what purpose these proceedings are brought. These circumstances have a significant effect on the assessment of this review in terms of the balance of convenience. Further, this is not a Bridging E visa application made in connection with a substantive visa. The MRT decision indicates that the substantive visa has been refused and judicially reviewed.
In response to the human rights ground raised by the applicant,
Mr Chami submits that it has been determined that the applicant is not a refugee and therefore the factual matters which Ms Liu relied upon in terms of Falun Gong pracitioners being persecuted in China are not relevant to this decision.
Mr Chami submits that the Tribunal focused on one question at para.74 which addressed whether there was a ground for the cancellation of the decision with reference to the visa conditions that were applicable to the applicant, those being 8510 and 8511. At para.83 the Tribunal set out the factual circumstances of this particular applicant and accepted that he may have had difficulties obtaining the relevant documentation. It stated:
The Tribunal notes that the applicant did not accept the assistance offered by the International Organisation for Migration which may have assisted him in obtaining what was needed to get a passport or a travel document. The Tribunal is also concerned that he has stated that he has no intention of departing the country and is of the view that he may not have done all that he could to facilitate getting a valid passport or a travel document.
Paragraph 50:
The applicant was asked if he would depart if his Ministerial intervention request was unsuccessful and he replied no. He was informed the decision was still pending and that he was granted a 10 May visa.
The respondent makes two final submissions. There is nothing that gives rise to a prima facie error and on the balance of convenience and with regard to the procedural history of this particular applicant, the applicant should be deported. There is no evidence to suggest that even if he were to succeed, the applicant would still not be successful in obtaining a further visa.
Consideration
The question before me at this stage is whether there is a serious issue to be tried and, if so, whether the balance of convenience favours an injunction being granted to restrain the applicant’s removal. I turn to the question of whether there is a serious issue to be tried.
The evidence before me is contained in an affidavit of Leo Giampietro sworn 5 May 2011 which contains:
a)a copy of the statement of decision and reasons by the Migration Review Tribunal (member: Amanda MacDonald; MRT case number 1103516) made in Sydney on 28 April 2011;
b)a copy of “Notice of Your Removal from Australia” issued by the Department of Immigration on 4 May 2011; and
c)a copy of the Notice in Respect of Removal or Deportation, Costs issued by the Department of Immigration on 4 May 2011.
The Tribunal member clearly states the relevant law with a detailed summary of the claims and evidence available to the Tribunal. In the “Findings and Reasons” the Tribunal member determined whether the grounds for cancellation under s.116 identified by the delegate have been made out. If satisfied that such a ground exists, and it is not a circumstance prescribed in reg.2.43, the Tribunal must then decide whether to cancel the visa having regard to all the relevant circumstances. The Tribunal first addresses the non-compliance with conditions 8510 and 8511. At the hearing the applicant confirmed that he had not shown an officer a valid passport or valid ticket for departure within the time specified, being 12 April 2011.
Consequently, the Tribunal found that the applicant had not complied with either condition. The Tribunal was satisfied that the ground for cancellation in s.116(1)(b) existed. The Tribunal then proceeded to consider whether the power to cancel the visa should be exercised by using its discretion and having regard to the relevant circumstances including but not limited to matters identified in the Department’s policy guidelines. These are clearly articulated in the decision. The Tribunal considered the applicant’s claim contained in his Protection visa application, the fact that it had been refused by the Department and had been subsequently reviewed by the Refugee Review Tribunal and judicially reviewed by this Court and the Full Federal Court which resulted in a dismissal at all stages.
The applicant also made three unsuccessful requests for Ministerial intervention and permission to make a further application. These were also unsuccessful. Having completed this process and on the basis of the available material, the Tribunal was satisfied that Australia did not have any obligations under the relevant international agreements that would or may be breached as a result of the visa cancellation. At the conclusion of this review, the Tribunal was of the opinion that the visa should be cancelled.
In the present case, I am satisfied that the decision made was one that was plainly open to it on the information before the Tribunal. There is simply no basis for contending that there was an error of law in the Tribunal member’s approach, in the interpretation of the applicable law or any other reviewable error. Having regard to the statement made by the applicant to the Tribunal member, it is difficult to see what decision could have been arrived at other than the decision made namely that the applicant was not entitled to a further Bridging E visa as there was no outstanding application for any substantive visa and he had already been refused a Protection visa by the Refugee Review Tribunal which had been subjected to judicial review in both this Court and the Full Federal Court. In those circumstances, there is simply no basis for saying that there is a serious or arguable issue to be tried which would warrant the grant of an injunction.
However, if I was of the view that there was a serious or arguable issue, I would have been satisfied that the balance of convenience would require that the matter be heard and determined as a matter of some expedition as the relief he seeks is nugatory. Accordingly, I have approached the question of whether or not there is a serious issue to be tried with some caution. However, I am quite satisfied on the material on which I have been asked to act that there is no proper basis for concluding that there is a serious or arguable issue.
I am supported in this view by the oral submissions made by Ms Liu where she acknowledged that she had only received instructions a short time prior to this hearing and was not familiar with the detailed reasons that the applicant had failed in his Protection visa application.
I acknowledge Ms Liu’s concern and understand the difficulty she has in representing her client and that these are legitimate concerns which I commend her for raising before the Court. In response to these submissions, I have reviewed the Court Book prepared in proceedings SYG 2760 of 2009 in preparation for the proceedings in this Court in the hearing before His Honour Federal Magistrate Raphael at the hearing on 17 February 2010. The Court Book reveals that the original application filed by the applicant on 27 May 2009 indicates that document was prepared with the assistance of a registered migration agent. Further, at the hearing before His Honour on 17 February, the applicant was represented by Mr B. Zipser of Counsel, who is a very competent practitioner in the area of judicial review applications of decisions made by the Refugee Review Tribunal. Mr Zipser prepared detailed written submissions for that hearing. The contents of those submissions indicate that the applicant relied upon two witnesses to give evidence before the Tribunal.
In these circumstances, I am satisfied that considerable care and preparation took place in the preparation and representation of the applicant from the point of filing his Protection visa application and the subsequent steps in the available regime of review. However, there has been no attempt to initiate new proceedings raising issues that were overlooked or not apparent in the preparation of all the various steps up to the final review. The only avenue that has been pursued are requests for Ministerial intervention are applications under s.48B. If a significant claim supported by evidence became apparent during this process, the Minister would have permitted new proceedings to be initiated. Clearly this has not occurred. I believe that the information before the Court indicates that the applicant’s position in respect of a Protection visa has been fully and adequately explored and ventilated to no avail. Consequently, on the balance of convenience I am not satisfied that there is any proper basis for concluding that there is any serious or arguable issue that remains to be examined in respect to this matter. In those circumstances, it must follow that the application for an interlocutory injunction must fail.
Conclusion
The application, filed on 6 May 2011, is dismissed and the applicant is to pay the first respondent’s costs in accordance with Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 26 May 2011
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