SZQGC v Minister for Immigration
[2012] FMCA 1004
•30 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQGC v MINISTER FOR IMMIGRATION | [2012] FMCA 1004 |
| MIGRATION – Offshore entry person arrived in 2010 – requests for permission to make onshore protection visa application – RSA, IMR and other treaties assessments completed before commencement of complementary protection amendments to s.36 – new request for s.46A consideration – urgent application to restrain removal – no serious question to be tried – interim injunction refused. |
| Migration Act 1958 (Cth), ss.36, 36(2), 36(2)(aa), 46A, 46A(2), 474(7), 476(2)(d) Migration Amendment (Complementary Protection) Act 2011 (Cth) |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319, [2010] HCA 41 Plaintiffs M168/10, M170/10, M172/10 and M174/10 v Commonwealth (2011) 85 ALJR 790, [2011] HCA 25 SZQGC v Minister for Immigration & Citizenship (2012) 128 ALD 338, [2012] FCA 598 SZQGC v Minister for Immigration & Anor [2011] FMCA 703 SZQLT v Minister for Immigration & Anor [2012] FMCA 554 SZQRB v Minister for Immigration & Citizenship [2012] FCA 1053 SZRFJ v Minister for Immigration & Anor [2012] FMCA 932 |
| Applicant: | SZQGC |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2477 of 2012 |
| Judgment of: | Smith FM |
| Hearing date: | 30 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Taylor (Counsel by audiolink) and Mr G Newhouse (Solicitor) |
| Solicitors for the Applicant: | Shine Lawyers |
| Counsel for the Respondent: | Mr A Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application for interim relief made in the application filed today is refused.
The principal application is adjourned for further directions before Smith FM on 20 November 2012 at 9.30 am.
Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2477 of 2012
| SZQGC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This judgment explains why I have not been persuaded to make an interlocutory injunction in this matter.
The applicant entered Australia in February 2010 with the status of an offshore entry person. Under procedures which the Minister had adopted at that time for the purposes of exercising his powers under s.46A of the Migration Act 1958 (Cth) to allow an onshore protection visa application, the applicant requested an assessment of his refugee status. This was undertaken, and a negative assessment was made in April 2010. Under the same procedures, the applicant requested independent merits review. This was undertaken, and an adverse report was made by an IMR reviewer on 11 April 2011.
In his report, the IMR reviewer assessed the applicant’s fears of suffering harm in Sri Lanka of any sort, including that covered by the Refugees Convention. The reviewer addressed the definition of “refugee” as it was adopted from the Refugees Convention for the purposes of s.36(2) of the Migration Act, and formed an opinion that the applicant was of no adverse interest to anyone in his home area, and that his fear of harm was not well‑founded “in that there is a remote chance of his being harmed in Sri Lanka in the reasonably foreseeable future”.
The applicant sought judicial review of the IMR report, on grounds which have been recognised by the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319, [2010] HCA 41. He was represented by counsel instructed by a solicitor before Cameron FM, who published a judgment dismissing the application on 12 September 2011 (see SZQGC v Minister for Immigration & Anor [2011] FMCA 703).
The applicant appealed from his Honour’s judgment, and the appeal was conducted by counsel instructed by a solicitor, Mr Ravi James, before Griffiths J on 7 June 2012. His Honour gave an ex tempore judgment dismissing the appeal (see SZQGC v Minister for Immigration & Citizenship (2012) 128 ALD 338, [2012] FCA 598). It is significant that no argument was made before his Honour on 7 June 2012 concerning the implications of the commencement on 24 March 2012, that is, after the IMR report and the judgment at first instance in this Court, and before the hearing of the appeal, of the amendments to s.36 made by the Migration Amendment (Complementary Protection) Act 2011 (Cth).
The evidence now before me suggests that Mr James continued to represent the applicant in further dealings with the Department concerning his client. The evidence about this is only fragmentary today, and consists of the tender of a letter from an officer of the Department of Immigration dated 16 October 2012. It responds to correspondence from Mr James to the Minister dated 10 October 2012, which is not in evidence, but apparently requested that the Minister further exercise his public interest powers under s.46A(2) of the Migration Act. Mr James appears to have invoked new guidelines apparently issued by the Minister during this year, which were said to allow further consideration to be given of additional protection–related claims raised by offshore entry persons.
The content of the suggested new guidelines is not in evidence before me today. There may be evidence of their existence in an email from the solicitor who today represents the Minister, in which he said:
The Minister agreed that, due to the changes to the criteria for the grant of a Protection visa that came into effect on 24 March 2012, all persons who have been through the Protection Obligations Determination (POD) process (POD process is also taken to include the process which existed prior to March 2011, consisting of a Refugee Status Assessment (RSA) and an Independent Merits Review (IMR) and who did not have an International Treaties Obligation Assessment, prior to the commencement of Complementary Protection on 24 March 2012), would be assessed against the complementary protection criteria through the Guidelines for the consideration of Post Review Protection Claims (PRPC Guidelines).
Persons assessed to meet the PRPC Guidelines are referred to the Minister for his consideration of whether to lift the section 46A(1) bar, to allow the person to lodge a valid Protection visa application.
A copy of the PRPC Guidelines has been provided to you previously.
A significant point which was today made by the Minister’s solicitor is that his email noted that the new guidelines promised a further assessment, only in relation to people who had emerged from the previous RSA and IMR process for whom there had “not” been an “international treaties obligation assessment at the date of commencement of the amendments”.
In the present case, there is evidence that, in fact, such an assessment had been made by an officer of the Department in relation to the present applicant on 20 January 2012, that is, before the commencement of the amendments. A copy of the assessment is in evidence.
The evidence now before me on the tender of the applicant, therefore, suggests that the new PRPC Guidelines recently invoked by Mr James in relation to the present applicant are likely not to have applied to his client, rather than have applied to his client. Furthermore, on the state of the evidence before me at present, it appears to me that the whole administrative process which the High Court characterised in Plaintiff M61 as following upon and serving the purposes of a first stage decision by the Minister to consider exercising his non‑compellable power under s.46A had expired in relation to the present applicant earlier this year, and before the recent correspondence. It also appears to me that it is likely that the applicant’s solicitor, if not the applicant himself, has been on notice that the s.46A process described in Plaintiff M61, which included an RSA assessment, an IMR report, and a Departmental international treaty obligation assessment, and which carried a commitment by the Minister to consider his s.46A power if a favourable assessment was made at any one of these three stages, had been exhausted before the commencement of the new amendments to the Migration Act and the Minister’s new PRPC Guidelines.
On the evidence before me today as to the currently relevant administrative processes applicable to the applicant, the recent correspondence evidences no more than there has recently been made a fresh application to the Minister to exercise his non‑compellable discretions, in relation to which the Minister is unfettered by any first stage decisions such as were found in Plaintiff M61, or procedural guidelines which are enforceable in any respect by way of judicial review in this Court’s jurisdiction. It is to be noted that, unlike the High Court in Plaintiff M61, this Court’s jurisdiction to review administrative action in relation to non‑compellable discretions is confined to those which might be exercised under s.46A, and does not relate to most other non‑compellable discretions available to the Minister under the Migration Act which are excluded under s.476(2)(d) by reference to s.474(7).
Returning to the chronology of the recent correspondence, as I have noted the Department’s letter of 16 October 2012 states that it is in response to a letter from Mr James dated 10 October 2012 “requesting that the Minister exercise his public interest power under subsection 46A(2)” in relation to the applicant. Mr James’ letter has not been tendered by the applicant today. The Department’s letter said:
Since 24 March 2012, the Minister’s Guidelines for the consideration of post review protection claims (the Guidelines) provide for the consideration of additional protection‑related claims raised by clients who have been assessed through the Protection Obligations Determination (POD) process and have been found not to be in need of Australia’s protection obligations.
Under subsection 46A(2) of the Act, the Minister may allow certain persons to make a valid application for a visa if he considers it is in the public interest to do so. Your client should also be aware that the Minister is under no obligation to intervene in his case. This means that your client should not discontinue any application for judicial review based on the expectation that the Minister will intervene in his case.
It is very important that your client provides the department with all information about his case. The Minister generally does not wish to consider further requests, and will only do so if there has been a subsequent change in your client’s circumstances raising new protection issues which have not previously been considered and which bring his case within the Guidelines.
Please provide any further information to the Department within 7 days of the date of this letter. If we do not hear from you within that time, the Department will assess your client’s case against the Minister’s guidelines on information already held.
If you have any questions or will have difficulty in providing information within 7 days please contact NSW Ministerial Intervention on (02) 8666 5077.
After the expiry of that seven day period, Mr James sent an email on 26 October 2012 to the Department requesting more time, suggesting that he wished to obtain access to the Department’s file under Freedom of Information. In response, an email sent on the same day, which was last Friday, by an officer of the Department said:
Dear Mr James,
I was out of office and could not respond to your email earlier. Further to our discussion earlier, I can not give you extension of time to provide further information.
[The applicant’s] claims have been thoroughly tested during the RSA process including IMR. He sought judicial review.
International Treaties Obligations Assessment has considered his claims under ICCPR and CAT. Further CP assessment is undertaken as part of your current request.
The Department has considered your client’s claims under all relevant conventions, his circumstances and available country information.
Meanwhile, the applicant had been given notice of an intention to remove him tomorrow, 31 October 2012. The removal notice has not been tendered by the applicant, but the Court is informed that it was given by way of a letter dated 23 October 2012, being exactly one week ago. The contents of that letter are not in evidence, nor how it was received by the applicant, nor when it came to the notice of the lawyers assisting the applicant.
No application was made to any Court seeking judicial review to restrain the applicant’s removal from Australia, until today. The present application was filed by a facsimile sent to the Registry after the closure of the Registry last night. The Registry has discerned that it sought urgent relief, due to the existence of an imminent removal tomorrow. The matter was, therefore, listed before me today at 3 pm, after it was drawn to my attention as duty federal magistrate at lunch time.
The applicant has been represented at today’s hearing by a solicitor and counsel, and the Minister has been represented by his solicitor, Mr Markus. I have above noted the effect of the evidence which has been tendered.
The application is framed as seeking review of a future decision by the Minister, following the making of the recommendation by the IMR reviewer in April 2011.
Ground 1 of the application contends:
1.The Respondent cannot lawfully act on the recommendation of Christopher Keher the Independent Merits Review Reviewer because that recommendation failed to take into account a relevant consideration for the Respondent, namely the Applicant’s claims to complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”). The Respondent is obliged to take s 36(2)(aa) of the Act and the Applicant’s claims thereunder into account from 24 March 2012 notwithstanding that Christopher Keher the Independent Merits Review Reviewer had not been obliged to take into account s 36(2)(aa) of the Act and the Applicant’s said claims at the time Christopher Keher the Independent Merits Review Reviewer made his recommendation.
This ground appears to argue that there is some error of law that has occurred or is threatened to occur by reason of the IMR reviewer’s failure to address the amendments to s.36 of the Migration Act. However, obviously these amendments were not part of the provisions of the Act which were in force at the time that he made his report, and which he was required to address in accordance with Plaintiff M61. It appears to me that there is little prospect of success in such a ground, and indeed it was not presented to me today as sufficient to support the making of an interim injunction.
I need, therefore, only to refer to my own decision where I have recently addressed a similar argument in SZRFJ v Minister for Immigration & Anor [2012] FMCA 932 at [23]‑[33]. I also note that a similar contention was suggested to Buchanan J in support of an interim injunction in a proposed appeal from a judgment of this Court concerning an IMR report, and his Honour thought that the point could not succeed (see SZQRB v Minister for Immigration & Citizenship [2012] FCA 1053 at [9]).
The second ground of review upon which final relief is sought in the application filed today is framed as follows:
2.The Respondent cannot lawfully act on the basis of the ‘International Treaties Obligations Assessment’ because:
a.that Assessment applied the wrong standard of proof when assessing whether the Respondent could have ‘substantial grounds for believing’ that the Applicant would be arbitrarily deprived of his life; and / or
b.it was made by a process that denied the Applicant procedural fairness in that he was not given any opportunity to:
i. be heard in person on the questions relevant to the Assessment; and / or
ii. respond to the substance and source of information that the Assessor relied upon as being credible, relevant and significant in making that Assessment.
Today’s hearing is not the occasion where the existence of that ground can be addressed on a final basis, and I accept that I should consider its substance, making every allowance for the urgency in which the application has been brought and needs to be addressed today, that is, an application for an interim injunction to restrain removal from Australia.
The principles in relation to which the merits of proposed final relief should be assessed to consider whether there are grounds for ordering such interim relief were summarised by Crennan J in Plaintiffs M168/10, M170/10, M172/10 and M174/10 v Commonwealth (2011) 85 ALJR 790, [2011] HCA 25, in a passage which I extracted and applied in SZQLT v Minister for Immigration & Anor [2012] FMCA 554 at [3]and [4]:
3.The tests for the grant of an interlocutory injunction were recently summarised by Crennan J in Plaintiffs M168/10, M170/10, M172/10 & M174/10 v Commonwealth [2011] HCA 25, 85 ALJR 790:
Applicable principles
15In Australian Broadcasting Corporation v O’Neill, in a joint judgment, Gummow and Hayne JJ (with whom Gleeson CJ and Crennan J agreed on the point) restated that the applicable principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. There, this Court (Kitto, Taylor, Menzies and Owen JJ) said that there are two main inquiries to be undertaken. The first inquiry, which is particularly relevant to these cases, is described thus:
“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.”
The Court continued:
“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.”
16In 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.”
17Their 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.
18For the purposes of these applications for interlocutory injunctions today I have applied the doctrine established in Beecham, explicated in Australian Broadcasting Corporation v O’Neill.
19It may be as well to mention that the second inquiry to be made in respect of an application for an interlocutory injunction is an inquiry into what is commonly encompassed by the expression “the balance of convenience”, about which the parties in these cases are not in dispute. The plaintiffs made reference to Bullock v Federated Furnishing Trades Society of Australasia (No 1), where a Full Court of the Federal Court noted that the two inquiries in Beecham need not be considered in isolation from each other and a marked balance of convenience may be an important consideration.
(citations omitted)
4.As is suggested in the passages quoted by her Honour, some flexibility in determining the probability of success at trial is allowed by consideration of the nature of matter and the circumstances in which the application for an interim injunction comes before the Court. In a sense, the Court is engaging in an exercise of prediction on a preliminary assessment of the evidence now before it. To the extent that ‘balance of convenience’ considerations may be taken into account in the ‘first inquiry’, I consider it is appropriate to accept that these weigh heavily in favour of the present applicant in his present circumstances, notwithstanding the expense and disruption to the Minister’s plans which would result from the grant of an injunction.
I propose to apply these principles in the similar circumstances attending the present case. I do so on an assumption that there will be a substantial hardship if the applicant is removed from the country tomorrow, and that indeed he may not be able to proceed with his application for final relief if interim relief is not granted today.
The difficulty I have is finding a sufficient basis in the evidence before me, even applying a predictive assessment of it, and assuming that more detailed evidence might be available at a final hearing as to the procedures being followed by the Department in recent months in relation to assessment of the applicant. I shall assume that evidence might show that there was a possibility that the Minister might be persuaded to consider exercising his non‑compellable power under s.46A, even after the exhaustion of his previous RSA and IMR procedures. In this respect, I note that the Minister’s solicitor accepted that the Minister’s discretions remain constantly available for so long as the applicant remains in Australia.
I also propose to make assumptions that the Minister might possibly be under some obligations, if only by reason of his published administrative arrangements, to address the applicant’s current situation by considering how the applicant might stand under the complementary protection amendments to s.36, if the applicant were permitted to lodge a protection visa application onshore now or in the future. I do note, however, that the Minister submitted that he would not be under any such obligation, and that there is no evidence now before me that any current guidelines applying to this applicant could give rise to judicially enforceable rights in that respect.
The difficulty facing the applicant today is that there is just no evidence before me that errors of law might have affected an assessment occurring at any time prior to today of the applicant’s potential position under the complementary protection legislation or Australia’s international obligations.
There is no evidence that I can find, or that I was taken to by the applicant’s counsel, in the international treaties obligations assessment which was made in January 2012, pursuant to the Minister’s previous RSA and IMR procedures to which I referred in SZRFJ, and which were referred to by the High Court in Plaintiff M61 at [44]. In particular, it exhibits none of the errors, even on an arguable basis, which appear to be about to be litigated in another matter which is pending in the Full Court in MZYPO v Minister for Immigration (P)VID352/2012. The January 2012 other treaties assessment in the present case suggests to me that the applicant has been given the benefit of a less than probable standard of proof in relation to the future risks that he might face which might be covered by Australia’s international obligations, other than those under the Refugees Convention. The assessment in this respect concluded:
7. International obligations assessment
…
In the absence of any evidence to suggest that [the applicant] fits any of the returnee profiles identified as being of interest to the Sri Lankan authorities, I have no reason to believe that [the applicant] would be detained at length or arrested by the authorities upon his return. I am therefore satisfied that there is not a real risk that he will be subjected to serious harm on entry to the country.
…
On the basis of information relating to [the applicant’s] case and country information before me, I do not consider that there are substantial grounds for believing that there is a real risk he would face arbitrary deprivation of life or be subjected to torture or other cruel, inhuman or degrading treatment or punishment in breach of Australia’s obligations under Article 3 of the CAT or Articles 6 or 7 of the ICCPR as a necessary and foreseeable consequence of his return to Sri Lanka.
In relation to Article 6 of the ICCPR and the Second Optional Protocol to the ICCPR, Australia also has an obligation not to return a person where there are substantial grounds for believing there is a real risk that the death penalty will be carried out on him or her. As there is no suggestion or evidence that [the applicant] has been accused of a crime in Sri Lanka, or that he is of adverse interest to any group or the Sri Lankan authorities, I am satisfied that there are not substantial grounds for believing that there is a real risk that he would be subject to the death penalty if he were to be returned to Sri Lanka.
8. International obligations finding
I am satisfied that there is no new information before me that would change [the applicant’s] previous assessment of his refugee status.
I have reviewed [the applicant’s] claims and relevant information put forward, as well as key country information and find that there are no substantial grounds for believing that [the applicant] will be arbitrarily deprived of his life, have the death penalty carried out on him, be tortured or subject to cruel, inhuman or degrading treatment or punishment as a necessary and foreseeable consequence of return to Sri Lanka.
Accordingly, [the applicant’s] removal to Sri Lanka will not breach Australia’s non‑refoulement obligations under the CAT or the ICCPR.
Counsel for the present applicant did not seek today to identify in that passage any evidence of error of law which might have affected the current decision‑making in relation to the proposed removal of the applicant. She did point to the fact, however, that the assessment in its terms was expressed to “remain valid for a period of six months from the date of the assessment unless there is a change in [the applicant’s] circumstances or a change in country information”.
So much can be accepted, and it can also be accepted that the applicant’s solicitor, Mr James, for that reason sought to reopen further consideration of the applicant’s situation under all of Australia’s international obligations, as grounds for the Minister to decide to intervene afresh under s.46A and his other non‑compellable powers.
The difficulty discerning that a recent review of the applicant’s situation might be affected by error of law, is that there is just no evidence pointing to this as a possibility. In particular, the recent correspondence between Mr James and the Department provides no evidence suggesting that there might be evidence of error of law found in any recent assessments, which may or may not have been considered by the Minister, or may or may not have been required to be shown to the Minister under current guidelines.
At best, the applicant wishes to delay his removal so that he can go further fishing under freedom of information to discover error in recent procedures, in a situation where he has no basis for perceiving any such fish in his file. I can understand why those advising him might wish to do this, but I am unable to identify in the evidence that their fishing is likely to find fish, by way of errors of law.
Nor, addressing Ground 2 particular (b), can I find in the recent correspondence, or in any of the other evidence of the procedures which have been followed in relation to this applicant’s presence in Australia and his efforts to obtain permission to lodge an onshore protection visa application, an arguable denial of procedural fairness under common law principles with any prospects of success.
In this respect, I am not persuaded that the timescales suggested by the Minister’s Department in the recent correspondence were unreasonable, or set unreasonable deadlines, nor that it was in any sense procedurally unfair for the Minister to decline to depart from those deadlines, as requested by the applicant’s solicitor.
Applying the above principles identified by Crennan J, I am unable to identify a serious question to be tried, shown in the evidence submitted in support of the interim application today, which would justify this Court exercising its powers to restrain the removal of the applicant tomorrow, even on only an interim basis pending a final hearing in the matter.
I therefore refuse the application for an interim injunction. I will make an order to that effect, and I will stand the substantive application over to a directions hearing in the future.
I certify that the preceding thirty‑six (36) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 1 November 2012
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