SZPZJ v Minister for Immigration
[2011] FMCA 980
•18 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZPZJ v MINISTER FOR IMMIGRATION | [2011] FMCA 980 |
| MIGRATION – Removal from Australia – application for interim injunction. |
| Migration Act 1958 (Cth), ss.5, 198 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; [2004] FCAFC 256 NATB and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; [2003] FCAFC 292 Plaintiff M168/10 and Others v Commonwealth and Another (2011) 279 ALR 1; [2011] HCA 25 SZHUJ v Minister for Immigration (No.2) [2010] FMCA 913 SZHUJ v Minister for Immigration [2010] FMCA 860 |
| Applicant: | SZPZJ |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2623 of 2011 |
| Judgment of: | Barnes FM |
| Hearing dates: | 16, 17 and 18 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 18 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J F Gormly |
| Solicitors for the Applicant: | Shine Lawyers |
| Counsel for the Respondent: | Mr N Williams SC and Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
An interim injunction issue restraining the respondent’s officers or agents from removing the applicant from Australia pursuant to the decision made under s.198(2) of the Migration Act 1958 (Cth) pending the determination of this application or until earlier further order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2623 of 2011
| SZPZJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This matter came before me as the duty Federal Magistrate by application filed on 16 November 2011. The applicant, a citizen of Afghanistan, sought an interim injunction restraining the respondent’s officers or agents from removing him from Australia pursuant to a decision made under s.198(2) of the Migration Act 1958 (Cth) pending determination of his application for final orders. The final orders he sought included an injunction restraining his removal from Australia, a declaration that the decision made by the respondent pursuant to s.198(2) of the Migration Act was contrary to law, an order in the nature of certiorari and costs. The application was said to be urgent because a notice of intended removal received by the applicant on 10 November 2011 provided for his removal from Australia on 19 November 2011.
The application contained one ground which asserted a failure to have regard to relevant considerations. After the hearing on 16 November 2011 commenced it became apparent that the applicant wished to elaborate on this ground and also to allege a failure to accord procedural fairness. An amended application was filed with leave of the court and the hearing adjourned, part heard.
The applicant’s uncontested evidence is that he arrived in Australia by air on 16 February 2010. He presented himself as undocumented and was refused immigration clearance. He subsequently applied for a protection visa. It was refused. He unsuccessfully sought review by the Refugee Review Tribunal. He sought judicial review of the Tribunal’s decision by this court. On 19 April 2011 Nicholls FM dismissed that application (SZPZJ v Minister for Immigration & Anor [2011] FMCA 338).
For the sake of completeness, I note that I was told from the bar table that the applicant intended to file an application for an extension of time to appeal to the Federal Court in relation to the decision of Nicholls FM. No reliance was placed on such intended proceedings for the purpose of the application for an interlocutory injunction.
The applicant’s evidence is that he received a “Notice of your removal from Australia” on or about 10 November 2011. He did not receive a copy of a Removals Availability Assessment and did not sign any other document consenting to his removal. Nor did he consent to his removal in any way.
The amended application contains the following grounds:
1. That the removal decision made pursuant to s 198(2) of the Migration Act 1958 and notified to the applicant on 10 November 2011 was affected by jurisdictional error in that the decision maker failed to take into account relevant considerations.
Particulars
a. The respondent failed to take into account relevant considerations, namely that subsequent to the signing of a Memorandum of Understanding (MOU) between Australia and Afghanistan in January 2011 a signatory of the MOU being the Minister for Refugees of the Government of the Islamic Republic of Afghanistan said that the MOU did not provide for the forced or involuntary return of Afghan asylum seekers from Australia.
b. The respondent failed to take into account the unwillingness of the Government of the Islamic Republic of Afghanistan to admit the applicant into Afghanistan upon his involuntary removal from Australia to Afghanistan.
c. The above considerations were relevant because they bore upon whether the proposed removal of the applicant from Australia was reasonably practicable.
2. That the removal decision made pursuant to s 198(2) of the Migration Act 1958 and notified to the applicant on 10 November 2011 was affected by jurisdictional error in that the decision maker failed to accord the accord the applicant procedural fairness.
Particulars
a. The exercise of the power conferred on an officer of the Department of Immigration under s 198(2) Migration Act to remove the applicant from Australia as soon as reasonably practicable operated to defeat the applicant’s interest not to be unwillingly and forcibly taken and removed from Australia and transported under escort to Afghanistan.
b. The exercise of the said power of removal rendered the applicant liable to pay the costs of his removal pursuant to s 210 of the Migration Act, including the costs of his escort.
c. As a result of the matters in a. and b. the principles of natural justice operated to regulate the exercise of the power of removal.
d. Procedural fairness required that the applicant be given an opportunity to comment on the substance of adverse information relied on in the assessment of whether the removal was authorised by s 198(2) of the Migration Act, including whether the removal was reasonably practicable.
e. Procedural fairness required that the applicant be given an opportunity to comment on any critical issue not apparent from the nature of the decision, including the willingness of the Government of the Islamic Republic of Afghanistan to admit the applicant upon his forcible removal.
f. In breach of the said requirements of procedural fairness the applicant was not given an opportunity to comment on either adverse information relied on or critical issues which arose for consideration by the deciding official of the Department of Immigration.
The notice of removal from Australia was addressed to the applicant by name and advised him:
As you have been assessed as being available for removal as soon as reasonably practicable, you are to be removed from Australia under the following provision of the Migration Act 1958
Reference was made to s.198(2) of the Act and its operation. The notice included details of flights and the applicant’s expected arrival time in Kabul, Afghanistan. The itinerary involved four flights including one flight from Dubai to Kabul. The notice also advised the applicant of his liability as a removed person for the costs of removal. Tendered in evidence was a summary of those costs which was provided to the applicant in a document headed “Notice in Respect of Removal or Deportation Costs” and which indicated that he would be liable for costs of $32,782.21 including a cost of over $30,000 for the provision of escorts. There is no evidence that any other documentation about the intended removal (such as a removal availability assessment) was provided to the applicant.
Initially it was generally contended for the applicant that it was relevant to have regard to whether there was a serious question to be tried and to the balance of convenience. When the hearing resumed, counsel for the applicant referred to Castlemaine Tooheys Limited and Others v The State of South Australia (1986) 161 CLR 148; [1986] HCA 58 at [12] per Mason ACJ, suggesting that “at least in the majority of cases” this was the correct test to be applied.
More pertinently, as counsel for the respondent pointed out, in the recent decision of Plaintiff M168/10 and Others v Commonwealth and Another (2011) 279 ALR 1; [2011] HCA 25 at [15] – [19] Crennan J discussed the applicable principles in respect of an application for an interlocutory injunction as explained by the High Court in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 and Beecham Group Limited v Bristol Laboratories Pty. Limited (1968) 118 CLR 618; [1968] HCA 1. As Crennan J stated in Plaintiff M168/10 at [15] there are “two main inquiries to be undertaken” as follows:
The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief. (Beecham at 622).
The second is:
How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order [the plaintiff] seeks. (Beecham at 622).
Crennan J continued in Plaintiff M168/10 at [16] – [17]:
In Australian Broadcasting Corporation v O'Neill, Gummow and Hayne JJ spoke of the relationship between Beecham and the subsequent decision American Cyanamid Co v Ethicon Ltd, which is the source of the phrase "a serious question to be tried". Their Honours said:
"There is then no objection to the use of the phrase 'serious question' if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham, depends on the considerations emphasised in Beecham."
Their Honours then explained that Lord Diplock's observation in American Cyanamid that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, then there will be a serious question to be tried does not accord with the Beecham doctrine and should not be followed.
Importantly, and relevant to the circumstances of this case, her Honour also pointed out at [19] that the second inquiry was in relation to what is usually referred to as “the balance of convenience”, that the two inquiries “need not be considered in isolation from each other” and that “a marked balance of convenience” may be an important consideration (see Bullock and Others v The Federated Furnishing Trades Society of Australasia and Others (No 1) (1985) 5 FCR 464; [1985] FCA 19 at 472).
Indeed it has been said (see for example WADX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 552 at [9] per French J as he then was) that these “two questions are interdependent in the sense that the stronger the argument on the merits, of the applicant’s case the less the balance of convenience may need to swing in the applicant’s favour”. Conversely, and importantly in this case:
Where the balance of convenience is strongly in the applicant’s favour, then the extent to which a serious question to be tried has to be shown will be varied accordingly. (Ibid)
Thus, the starting point is whether in this case there is a serious question to be tried on either of the bases contended for in the amended application in the sense considered in Plaintiff M168/10.
It is not disputed for present purposes that what is in issue is a decision by an officer under s.198(2) of the Migration Act which is as follows:
An officer must remove as soon as reasonably practicable an unlawful non-citizen:
(a) who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and
(b) who has not subsequently been immigration cleared; and
(c) who either:
(i) has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or
(ii) has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.
There was no suggestion that such a decision was not a “migration decision” within the Migration Act reviewable by this court (s.5 of the Migration Act).
The only evidence before the court of such decision is, as indicated, the document given to the applicant on or about 10 November 2011, entitled “Notice of your removal from Australia”. There is no evidence of any reasons for decision. Counsel for the respondent pointed out that there was no statutory obligation on the Departmental officer to give reasons for such a decision.
The first ground in the amended application is that the removal decision was affected by jurisdictional error in that the decision-maker failed to take into account relevant considerations. Originally it had been contended only that the respondent failed to take into account that subsequent to the signing of a Memorandum of Understanding (an MOU) between Australia and Afghanistan in January 2011, a signatory of the MOU, being the Minister for Refugees of the Government of the Islamic Republic of Afghanistan, said that the MOU did not provide for the forced or involuntary return of Afghan asylum seekers from Australia. In addition it is now contended in the alternative that the respondent failed to take into account the unwillingness of the Government of Afghanistan to admit the applicant into Afghanistan upon his involuntary removal from Australia to Afghanistan. These considerations were said to be relevant because they bore upon whether the proposed removal of the applicant from Australia was reasonably practicable.
The evidence relied on in relation to this contention consisted of documents annexed to the affidavit of Renee Chan affirmed on 15 November 2011, which include press releases or reports of what are said to be interviews with Afghani officials, including the Minister for Refugees, a copy of the MOU, and press reports about remarks of the Australian Attorney-General and others in relation to the effect of the MOU from February 2011 to very recently.
It was contended that on the basis of such evidence the court could draw an inference that the decision-maker had not had regard to the willingness of Afghanistan to admit the applicant into Afghanistan because if it had done so it could not have reached the conclusion that the government was willing to do so, having regard to the existence of such information.
In addition, a copy of an affidavit was filed in court yesterday (with the original to follow) from a Mr Hussain Razaiat, Manager at Settlement Services of Middle Eastern Communities Council of South Australia, attesting to a telephone conversation he had with an official (the first Assistant Secretary) from the Embassy of Afghanistan in Canberra.
It is relevant to note that this conversation was not with the Ambassador or “Counsellor” referred to below. Mr Razaiat’s evidence is that he was told that no passport had been issued for the applicant (who, it is not disputed, was a person who arrived in Australia undocumented), that the official was not sure if he had travel documents or a visa (sic) but also that someone from the Department of Immigration had met with the Ambassador and explained why they wanted to remove him from Australia.
Mr Gormly submitted for the applicant that this material demonstrated, in effect, that the removal of the applicant from Australia (in the sense of removal to a country that was willing to take him) was not reasonably practicable. In support of this proposition he suggested that the MOU did not relate to forced removals and that the press reports about the views of the Minister for Refugees suggested that the Government of Afghanistan would not accept forcible returns.
It was acknowledged that the question of reasonable practicability is not a jurisdictional fact and is not for this court to determine (see M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; [2003] FCAFC 131 and Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre and Another (2006) 155 FCR 465; [2006] FCA 1368 at [41] – [47] per Besanko J), but submitted that the proposed removal could be challenged on the grounds in the amended application as involving jurisdictional error. It was contended that the court could infer that there was a serious question to be tried that the decision-maker had failed to have regard to relevant considerations, whether consisting of the factual material in evidence or the unwillingness of the Afghani Government to admit the applicant.
Reliance was placed on the general principle that a relevant consideration is a consideration which the decision-maker is “bound to take into account” determined by the construction of the statute conferring the discretion and, if not stated, determined by implication from the subject matter, scope and purpose of the Migration Act (see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24; [1986] HCA 40 at [15] per Mason J and Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; [2004] FCAFC 256 at [71]). There is no dispute between the parties in relation to the relevant principles for determining what are relevant considerations in a broad sense. Rather, the issue is the precise operation of those principles and whether there is a serious question to be tried in this respect.
The applicant relied on remarks of the Full Court of the Federal Court in NATB and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; [2003] FCAFC 292 at [51] – [52] in relation to the meaning of “reasonably practicable” in s.198 of the Migration Act. Their Honours stated:
We think it undesirable to attempt a definition of the expression `reasonably practicable' in the present context. It is impossible to foresee all circumstances which may arise. The expression requires a process of evaluation of the facts in each case.
However, some observations may be made. First, it is possible to say that determination about reasonable practicability is not necessarily limited to physical considerations, such as the health of the person to be removed, or the availability of an operating airport in the country of destination. The willingness of another country to allow the person to enter its territorial boundaries is at least one non-physical factor relevant to reasonable practicability. Second, without attempting an exhaustive statement, it is possible to identify some limitations on the matters relevant to determination of reasonable practicability. They arise out of the words themselves. The relevant considerations are practical considerations, as is indicated by the dictionary definitions of `practicable' set out at [47] above, Moreover, the context for determining reasonable practicability is the proposed physical removal of the person from Australia.
In essence, what was an issue in NATB was whether mistreatment of an unlawful citizen which was said to be likely or even almost certain to occur after he or she was removed from Australia to another country (in other words after arrival in the other country) was a matter to be taken into account for the purposes of determining whether it was reasonably practicable to remove that person from Australia.
In deciding that those matters were not to be taken into account for that purpose, the Full Court considered the proper construction of s.198(6) of the Act, which like s.198(2) imposes a duty to remove as soon as reasonably practicable. Each subsection is expressed in terms that an officer must remove an unlawful non-citizen as soon as reasonably practicable if certain prerequisites are satisfied.
What is in issue in this case is not whether those prerequisites in s.198(2) are satisfied, but whether there is a serious question to be tried that the decision-maker failed to have regard to relevant considerations in making the determination about such reasonable practicability.
In that sense the approach taken in NATB (and in cases such as M38/2002 and Beyazkilinic) is relevant for present purposes.
Importantly however in NATB, after discussing M38, the Full Court of the Federal Court went on to state at [53]:
This second limitation is of critical importance to the resolution of the appellants' principal argument. In our opinion, the reference to reasonable practicability in the subsection does not require an officer to take into account what is likely, or even virtually certain, to befall the unlawful non-citizen after removal is complete; and removal is complete, at the latest, once the person has been admitted by, and into, the receiving country. Even if it is virtually certain that he or she will be killed, tortured or persecuted in that country, whether on a Refugees Convention ground or not, that is not a practical consideration going to the ability to remove from Australia. Rather, it is a consideration about a likely course of events following removal from Australia.
This is an important distinction. Insofar as the first ground in the amended application is based on an allegation that the decision-maker failed to take into account what could or would befall the applicant in Afghanistan, the applicant has not made out a prima facie case in the sense considered in Plaintiff M168/10 or that there is a serious question to be tried that there was a failure to have regard to a relevant consideration.
I note for the sake of completeness that in NATB their Honours went on to point out that this was not to say that Parliament meant not to guard against such a situation, but rather that it did so by virtue of other provisions in the Act (whatever one might think of their effectiveness) rather than through s.198 of the Act.
The applicant also relied on the fact that the willingness of another country to allow the person to enter its territorial boundaries was a non-physical factor relevant to reasonable practicability (consistent with NATB at [52]). It was said that there was some evidence (in particular the press reports) in relation to the willingness of Afghanistan (such as a report that the Minister for Refugees had changed his mind on asylum seeker deportation and/or was of the view that involuntary return of asylum seekers was not part of the MOU) and that it could be inferred that there was a serious question that the decision-maker had failed to take this evidence or issue into account.
Mr Gormly acknowledged that the applicant could not say precisely what the basis of the officer’s assessment was in the absence of any reasons for assessment or other documentation, but submitted that it was apparent that the officer had not taken into account what the individual Afghani officials were reported as having said in relation to the MOU and whether it provided for forced or involuntary return of failed Afghani asylum seekers or only for voluntary return of Afghani citizens. It was said from the bar table, and not disputed, that this is the first occasion on which the Government has sought to return a failed Afghani asylum seeker on an involuntary basis pursuant to the MOU.
In addition, it was submitted by counsel for the applicant that in assessing the evidence of what was said thereafter it was relevant that, apart from one reference, there was nothing in the MOU to indicate that it was intended to provide for forcible return of failed asylum seekers, notwithstanding that the Australia Government (and the United Nations High Commissioner for Refugees) was of the view that the MOU provided for forced returns.
The MOU is in evidence before the court. It includes a number of statements which suggest that the interpretation that it applies to forced returns may be open. It cannot be said that the language of the MOU provides such support for the contention that the decision-maker failed to take the issue of unwillingness of the Afghani Government into account. For example, paragraph 1(c) refers to areas of co-operation, including “monitoring of the return (preferably voluntary), arrival and reception of Afghans judged not to be in need of international protection”. Paragraph 9 provides that the Government of Afghanistan notes that “voluntary return is always preferable”, but that it will “readmit its nationals who are in Australia”, and immediate family members, who “a) elect, on the basis of their freely expressed wish, to return to Afghanistan; or b) are found not to be in need of international protection and not entitled to remain in Australia”.
Relevantly for present purposes, the MOU also provides that “Afghans departing Australia under the terms of this MoU may do so on a travel document issued by either the Government of Australia or the Government of the Islamic Republic of Afghanistan” and that the “Government of the Islamic Republic of Afghanistan will, when requested by the Government of Australia, assist with the verification of Afghan nationality and the issuance of travel documentation to facilitate” their return “within the shortest possible time” (paragraph 10). The MOU also makes provision for matters such as the role of the UNHCR and what the Government of Australia undertakes to do in relation to Afghani citizens who make asylum claims, including in relation to those found not to be in need of international protection and assessments that would be carried out in that context.
Insofar as reliance was placed on the MOU in support of the proposition that the court could draw an inference that the decision-maker failed to take into account the unwillingness of the Government of Afghanistan to admit an applicant on involuntary removal from Australia (or, in the present context, that there is a serious question to that effect to be tried) the MOU is not as clear as the applicant submits. On the contrary, it is open to an interpretation that it is on its face intended to apply to involuntary removal as well as to voluntary removal.
In any event, in determining whether the applicant has established that there is a serious question to be tried in relation to ground one I have borne in mind that the applicant must show that there is a serious question that the matter he or she identifies was a consideration the decision-maker was bound to take into account. There is, however, a distinction between a relevant consideration and a fact or assertion of fact or evidence or a body of evidence put forward in support of an assertion of fact (see Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30).
It is well-established that the second category of matters, that is facts or assertions of fact or evidence, are not relevant considerations.
As McHugh, Gummow and Hayne JJ stated in Yusuf at [74]:
What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.
Insofar as the applicant relies on the evidence of press reports of statements, whether by persons from Afghanistan or otherwise, the applicant has not raised even an arguable case that this evidence constitutes a relevant consideration and has not established that if the evidence remains as it is there is a probability he will be entitled to relief. No serious question to be tried in relation to such a contention has been established.
Moreover, as Besanko J stated in Kumar v Minister for Immigration and Citizenship (2009) 176 FCR 401; [2009] FCAFC 55 at [101] where (as here) an applicant “identifies as a relevant consideration a matter which is said to be a matter of fact…his or her case must fail at the outset if the fact cannot be established or is disproved”. Insofar as the applicant relies on a serious question of a failure to take into account the unwillingness of Afghanistan to admit the applicant into Afghanistan the difficulty is that evidence was put before the court from the respondent yesterday in the form of an affidavit of Simon Andrew Schiwy, an Assistant Secretary in the International Cooperation Branch of the Department of Immigration and Citizenship which is responsible for the agreement between the governments of Afghanistan and Australia governing the return arrangements of Afghan nationals found not to be owed international protection obligations.
Mr Schiwy described communications between the Department and the Embassy of Afghanistan in Canberra and between the Australian Embassy in Kabul and representatives of the Government of Afghanistan regarding the proposed involuntary removal of the applicant. This evidence is that the applicant has been issued with a travel document by the Afghani embassy in Australia which was informed that his proposed removal was involuntary.
Relevantly, annexed to Mr Schiwy’s affidavit is a copy of a letter of 25 October 2011 from the Department to the Counsellor, Embassy of Afghanistan in Canberra headed “Upcoming involuntary return to Afghanistan of [the applicant identified by name and date of birth]”. The letter stated that the applicant was detained, that he had no applications before the Department, no lawful right to remain in Australia and must be therefore removed. In other words it is clear that the letter informed the Embassy that the intended removal was involuntary. The letter requested the Embassy’s assistance in issuing a travel document in accordance with the MOU and indicated that it would ensure that the applicant would have access to a Post Arrival Assistance package in Afghanistan (as provided for in the MOU).
Also annexed is a copy of a laissez-passer or travel document in the name of the applicant on letterhead of the Embassy of the Islamic Republic of Afghanistan, Canberra, Australia. It bears the seal of the Ministry of Foreign Affairs, Islamic Republic of Afghanistan and is under the name of the Counsellor dated 28 October 2011. This document states that the applicant:
…is permitted to travel to Afghanistan without an Afghan passport. This travel document is valid until 27/01/2012.
Further documentation, consisting of a note dated 10 November 2011 from the Australian Embassy to the Afghani Ministry of Foreign Affairs referring to the MOU and the planned removal of the applicant travelling on the laissez-passer, is also before the court.
It is apparent from this chain of documentation that it cannot arguably be inferred on the evidence before the court that the decision-maker failed to take into account the willingness or unwillingness of the Government of Afghanistan to admit the applicant. Indeed, the overwhelming inference on the evidence before the court is that the issue of travel documentation, insofar as that appears from the applicant’s submissions to be part of the basis for this ground, was addressed government to government.
Mr Razaiat’s evidence relied on by the applicant is not to the contrary. It acknowledged that there had been some contact between the Department of Immigration and the Ambassador for Afghanistan. The evidence that as far as the First Secretary was aware a passport had not been issued to the applicant is not determinative. There was no suggestion that a passport, as distinct from some other travel document such as a laissez-passer, was necessary for removal under s.198(2).
In response to a request referring to the applicant’s involuntary removal from Australia pursuant to the MOU the Embassy of Afghanistan has issued a document to enable the applicant to travel to and be admitted into Afghanistan upon his removal from Australia. The letter of request specifically stated that the applicant’s removal would be an involuntary removal pursuant to the MOU.
In the face of such evidence, having regard to the considerations in Beecham as explained in Australian Broadcasting Corporation v O’Neill, I am not satisfied that there is a serious question to be tried that the decision-maker failed to have regard to a relevant consideration in the sense of the “unwillingness” of the Afghani government to admit the applicant into Afghanistan upon his involuntary removal (see Beecham at 622 and Plaintiff M168/10 at [15]). The applicant has not made out a prima facie case in the sense that if the evidence remains as it is “there is a probability” that at trial he will be entitled to relief in relation to ground one of the amended application, notwithstanding that the balance of convenience is, as discussed below, strongly in the applicant’s favour (see Beecham at 622).
Ground two in the amended application is that the removal decision made pursuant to s.198(2) and notified to the applicant on 10 November 2011 was affected by jurisdictional error in that the decision-maker failed to accord the applicant procedural fairness. There are a number of particulars to this ground. First it is said that the officer’s exercise of that power “operated to defeat the applicant’s interest not to be unwillingly and forcibly taken and removed from Australia and transported under escort to Afghanistan” and rendered him liable to pay the costs of his removal, including costs of his escort and that as a result “the principles of natural justice operated to regulate the exercise of the power of removal”.
Procedural fairness is said to require “that the applicant be given an opportunity to comment on the substance of adverse information relied on in the assessment of whether the removal was authorised by s 198(2) of the Migration Act, including whether the removal was reasonably practicable”. Procedural fairness was also said to require “that the applicant be given an opportunity to comment on any critical issue not apparent from the nature of the decision, including the willingness of the Government of the Islamic Republic of Afghanistan to admit the applicant upon his forcible removal”. It was contended that in breach of the requirements of procedural fairness “the applicant was not given an opportunity to comment on either adverse information relied on or critical issues which arose for consideration by the deciding official of the Department of Immigration”.
I have had regard to the authorities referred to in Plaintiff M168/10 in relation to a serious question to be tried. In this case such inquiry should not be considered in isolation from the balance of convenience factor (Plaintiff M168/10 at [19]). A “marked balance of convenience” may be an important consideration as French J observed in Bullock.
I have also had regard to the nature of the rights the applicant seeks to assert and the practical consequences likely to flow from the order that the applicant seeks as relevant to the strength of the probability of entitlement to relief as considered in Beecham at 622.
The applicant submitted that in accordance with the principles considered by Mason J in Kioa and Others v West and Another (1985) 159 CLR 550; [1985] HCA 81 there was a common law duty to accord procedural fairness in making such an administrative decision in the absence of a clear statutory manifestation to the contrary as in this case (also see Annetts and Another v McCann and Others (1990) 170 CLR 596 at 598; [1990] HCA 57 per Mason CJ, Deane and McHugh JJ and Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074 at 590 – 591 and Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 85 ALJR 133; [2010] HCA 41 at [74]). As Mason J stated in Kioa v West at 582; [28]:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it (footnotes omitted).
It is not necessary for present purposes to delve into the issue of whether such a duty arises by virtue of common law or otherwise, or to consider the ways in which that obligation was expressed in Kioa v West (and see Plaintiff M61/2010 at [74]). For the purposes of the interlocutory application there was no suggestion that principles of natural justice or procedural fairness were inapplicable to the exercise of the power of removal, or more pertinently, to the decision under s.198(2) in relation to reasonable practicability. As Mason J stated in Kioa v West at 585; [34]:
The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?
Insofar as the applicant also sought to rely on what was said by the Full Court of the Federal Court in Alphaone, counsel for the respondent referred to the qualifications that the High Court expressed in relation to at least one formulation of that test in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152 at 161 – 162; [2006] HCA 63 in relation to the procedural fairness obligations of the Refugee Review Tribunal. However it is not necessary or appropriate to determine the precise nature or extent of the procedural fairness obligation in interlocutory proceedings, although I note that in Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1 at [9] French CJ and Kiefel J referred to the requirements of procedural fairness in the terms used in ground two (and see Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [19]).
It was not contended by the respondent that an obligation of procedural fairness would not arise in the circumstances of the present case, albeit there appears to be some difference of opinion about precisely what the principles of natural justice would require in all the circumstances of this case. I am satisfied that there is at least a serious question to be tried in relation to paragraphs (a), (b) and (c) of the particulars to ground two.
The applicant contended that procedural fairness required that he be given an opportunity to comment on the substance of adverse information relied on in the assessment of whether the removal was authorised under s.198(2) as well as an opportunity to comment on any critical issue not apparent from the nature of the decision, including, but not limited to, the willingness of the Government of Afghanistan to admit the applicant upon his forcible removal.
There is no suggestion that the applicant was given notice of the critical issue on which the decision under s.198(2) was likely to turn or any indication of any adverse information prior to the notice of removal. It is at least arguable that the information in relation to the issue of travel document that is now before the court could be regarded as “credible, relevant and significant” information (see Brennan J in Kioa at 629).
More generally, an issue was raised by the applicant in relation to the opportunity to comment on information about the willingness of the Government of Afghanistan to admit the applicant, on the basis that this was a critical issue not apparent from the nature of the decision.
It is a peculiarity of cases of this nature that the applicant is not in receipt of reasons. Indeed there was no statutory obligation to provide reasons. The applicant could not in these circumstances have been aware of all the information the respondent may or may not have had regard to, or procedures that it may or may not have followed, or the reasons that it may or may not have had for the decision.
The applicant was not given a removal availability assessment by the respondent. I am told from the bar table that there was no removal availability assessment. There is no evidence as to whether there was, in fact, any procedure that had to be followed by the Department as a matter of policy in relation to a s.198 decision. In any event, as the applicant suggested, there could be a variety of matters going to reasonable practicability, consistent with the approach taken in the authorities to which I referred to earlier, including, but not limited to, the availability of flights, the cost of escorts, the fitness of an applicant to travel (albeit there has been no factual matter raised in that respect in this case) as well as the willingness of the Afghanistan government to admit the applicant on forcible removal.
The Full Court of the Federal Court in NATB (at [51] – [53]) did not define the expression “reasonable practicability”, but rather stated that it required “a process of evaluation of the facts in each case”, albeit some limits were identified. M38 and Beyazkilinc also leave open the possibility that there are a number of other matters that an officer may take into account in the process of evaluation of the facts of each case. It cannot be said on these authorities that the concept of reasonable practicability is so limited that in the absence of a factual concern about the health of an applicant one could be satisfied or could assume that no adverse information or matters personal to the applicant were relied on by the decision-maker.
I note that in some other cases of this nature there has been before the court evidence from the Department explaining the decision-maker’s opinion, or in relation to the assessment or procedures that were followed by the Department in relation to a decision under s.198 of the Migration Act (see for example SZHUJ v Minister for Immigration [2010] FMCA 860 at [7] and SZHUJ v Minister for Immigration (No.2) [2010] FMCA 913 at [4]). In SZHUJ while, as here, little evidence was available at the time that an interlocutory injunction was sought, by the time of the final hearing there was evidence from the officers responsible for making decisions under s.198(6) explaining their opinion that it was reasonably practicable to remove the applicant, as well as policy documents referring to a removal advisory assessment. In that context Smith FM indicated at [8] that the court could review the legality of opinions formed on the questions of “reasonable practicability” by officers when exercising the power to remove. Similarly in WAJZ v Minister for Immigration and Multicultural and Indigenous affairs (No 2) (2004) 84 ALD 655; [2004] FCA 1332 there was evidence before the court of Departmental procedures in relation to removal and also from the decision-maker, while in Lee & the Minister [2007] FMCA 2162 a checklist completed by the officer determining the reasonable practicability of removing the applicant and a “Removals Availability Assessment” were made available to the court after an interlocutory injunction was granted. I bear in mind however that the amended application which raised the procedural fairness issue was only filed yesterday.
The respondent relied on the decision of the Full Court of the Federal Court in Kumar in support of the proposition that the respondent was not required to give the applicant notice of the proposed decision or of the specific issues referred to in the particulars to ground two of the amended application, so that there was no breach of the rules of procedural fairness. It was submitted that hence there was no serious question to be tried in the sense considered in Plaintiff M168/10.
In Kumar what was in issue was a decision that removal was reasonably practicable under a provision of the Migration Regulations 1994 (Cth) that related to cessation of a bridging visa granted pending removal. The decision-maker had made a decision that removal was reasonably practicable (cl 070.511 of Schedule 2 to the Migration Regulations). The applicant sought orders preventing his removal from Australia.
In Kumar an interlocutory injunction had been granted by this court and the application for review of the Minister’s decision subsequently dismissed (see Kumar v Minister for Immigration [2008] FMCA 1099). On appeal, the Full Court of the Federal Court held that in the particular circumstances of that case the Minister was not obliged to give the appellant notice of the proposed decision and the opportunity to comment and also that the Minister had not failed to take into account any relevant considerations.
The applicant had claimed that there was a denial of procedural fairness in the sense considered in Kioa v West on the basis that the officer of the respondent should have given him notice that she proposed to make a decision under the relevant clause of the Migration Regulations that it was reasonably practicable to remove him and an opportunity to comment on the circumstances in which the Indian Consul in Sydney had issued a travel document and the effectiveness of that document.
Besanko J, with whom the other judges agreed, noted at [84] that the appellant appeared to accept, “correctly”, that “in certain circumstances the respondent may not be required to give a visa holder notice of a proposed decision” under the clause in question. His Honour gave as an example a situation “where the only issue for the Minister was a matter not personal to the visa holder, or was a matter about which the visa holder could not be expected to say anything”.
It was urged upon the court for the respondent that this was such a case. However the decision in Kumar that the respondent was not obliged to give the appellant notice of the proposed decision and an opportunity to comment had regard to the particular circumstances of that case, including the fact that the appellant had applied for a travel document and had initially indicated he was willing to leave the country. In Kumar there was also a considerable amount of evidence before the court, in relation not only to the background circumstances of the appellant, but also to conversations between the Department and the appellant, correspondence between the Department and the Indian Consulate and, indeed, a minute from an official in the Detention Alternatives Section of the Department dealing with a possible cessation of the applicant’s visa on the basis that removal was reasonably practicable and setting out a number of matters as well as a copy of a written decision of the respondent referring to matters such as the decision-maker’s satisfaction that the visa holder’s removal was reasonably practicable. It was in those circumstances that the court in Kumar was satisfied that the respondent was not required to give the appellant notice of the proposed decision or an opportunity in advance to comment.
The evidence before the court in Kumar is significantly different from the evidence presently before the court in this case. Contrary to the submissions for the respondent I am not satisfied on the evidence before the court that it can be inferred that the only issue for the decision-maker in this case was a matter not personal to the visa holder or was a matter about which the visa holder could not be expected to say anything.
Kumar does not establish a general principle that notice need never be given of a decision about the reasonable practicability of removal. Rather it illustrates that the context of natural justice is flexible and responds to the particular circumstances of a case so that there can be circumstances in which it is not necessary to give such notice.
Moreover, as Besanko J observed in Kumar at [92], he did not decide the issue of whether the effectiveness of a travel document was entirely a matter for the Indian authorities. That is of relevance in this case having regard to the applicant’s contention that there was a failure to give him an opportunity to comment on the substance of adverse information or any critical issue not apparent from the nature of the decision, including such a matter.
There is no evidence in this case that the applicant was made aware of the impending decision before it was made. There is no evidence that there was any opportunity for the applicant to make submissions or comment on the decision or adverse information or critical issues.
It was suggested by counsel for the respondent that if the applicant wished to comment, he now had the opportunity to do so, on the basis that he now had solicitors and presumably was aware at least of the significance of the willingness of Afghanistan to admit him upon his forcible removal. However, as pointed out by counsel for the applicant, what is in issue is whether there was a failure to accord procedural fairness. As stated by the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 225 CLR 88; [2005] HCA 72 the relevant inquiry is what procedure should have been followed. Whether a post-decision opportunity to comment would suffice is a matter for a final hearing.
There are issues as to whether and the extent to which and when the applicant was entitled to be given notice of the removal decision and whether such a decision is a decision that is made and completed at a particular time or whether it is an ongoing decision so that subsequent submissions would be taken into account (see SZHUJ). These are not matters for determination at this stage.
It is also relevant to bear in mind that the applicant seeks not only an injunction restraining his removal from Australia but also a declaration that the decision made by the respondent pursuant to s.198(2) of the Migration Act was contrary to law.
I have had regard to the evidence that is before the court, the law in relation to procedural fairness, the width of the concept of “reasonably practicability” and the fact that in contrast to the position in Kumar, the evidence is not such that the court can draw the inference that the decision-maker was not required to give the applicant notice of the proposed decision. I was, in effect, invited to infer on the evidence before the court that the decision did not relate to any factors personal to the applicant or that the only issue for the decision-maker was a matter on which the applicant could not be expected to say anything.
I am not satisfied that I can draw such an inference.
There has been no suggestion of the formal provision of information or an opportunity to comment on the decision, beyond the reference to the fact that the applicant is now represented and hence may, practically speaking be able to make submissions about the decision that has been made notwithstanding the absence of a formal process in that respect. The information that has come to light in the course of these proceedings was not made available to him beforehand. It is the case that only limited factual matters have been raised by the applicant at this stage. However they extend, inferentially at least, to a number of issues that are not necessarily of the nature considered in Kumar at [84].
In considering whether there is a serious question to be tried I have had regard to the balance of convenience and to what has been said in that regard. It was submitted for the respondent that the convenience factors were not all one way, although it was acknowledged that there were significant convenience factors that favour the applicant in relation to his impending forcible removal from Australia to Afghanistan and the incurring of significant removal costs in the absence of an interlocutory injunction.
Counsel for the Minister submitted that there would be some inconvenience to the Minister such as the cancellation of airline bookings and arrangements that have been made for escorts. I regard those considerations as weighing very lightly compared to the consequences for the applicant facing the prospect of forcible removal to Afghanistan and the imposition of significant removal costs.
I bear in mind that it may well be that at a final hearing the arguments that the respondent puts may, on all the evidence before the court, succeed. However what I have to determine at present is whether there is a serious question to be tried.
Having regard to the nature and extent of procedural fairness obligations (albeit there is a difference of opinion in some respects) and the interrelationship between the issue of whether there is a serious question to be tried and the balance of convenience, I am satisfied that there is a serious question to be tried that there are procedural fairness obligations on officials making determinations under s.198(2) of the Act that have not been met.
In particular, I am satisfied that there is a serious question to be tried that procedural fairness requires that the applicant be given the opportunity to comment on the substance of adverse information and any critical issues not apparent from the nature of the decision. In this case there is at least some evidence of what may be found to be adverse information, consisting of the information in relation to the travel documentation, apart from the information in relation to the MOU in relation to whether the removal was reasonably practicable.
I have considered the respondent’s suggestion that there would be no utility in granting relief in this case because the applicant is now aware of the evidence about travel documentation and there is nothing he could say in response. However the question of whether there is a serious question to be tried or a prima facie case (depending on the formulation adopted in accordance with the views expressed by Crennan J in Plaintiff M168/10) does not require a determination of the merits of the applicant’s claims. This is not a situation in which the discretion to refuse relief on the basis of an absence of utility notwithstanding a finding of jurisdictional error arises. In any event, even if there may be circumstances in which an absence of utility is a ground for not granting an interlocutory injunction, I am not satisfied that it is appropriate to proceed on that basis in the particular circumstances of this case. An issue is raised of wider significance in relation to the procedural fairness requirements in a situation in which no opportunity to comment was given to the applicant in either of the senses contended for in the amended application or more generally. The balance of convenience strongly favours the applicant. Moreover, I am not satisfied on the evidence presently before the court that the only matter in issue was something on which the applicant could not be expected to say anything. Indeed the evidence that has been put before the court on his behalf suggests that that would not be the case.
In all of the circumstances I am satisfied that an interlocutory injunction should issue restraining the Minister and his officers or agents from removing the applicant from Australia pending determination of this application. I will hear from the parties in relation to the form of the order and the steps that ought to be taken to ensure that this matter is dealt with expeditiously.
I certify that the preceding eight-three (83) paragraphs are a true copy of the reasons for judgment of Barnes FM.
Date: 9 December 2011
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