SZQLT v Minister for Immigration

[2012] FMCA 554

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQLT v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 554

MIGRATION – Practice and Procedure – application for interlocutory injunction to restrain removal from Australia – judicial review application previously discontinued – power of Court to reinstate – merits of grounds of review of RRT decision – serious question to be tried not shown on evidence and submissions – injunction refused.

Federal Magistrates Court Rules 2001 (Cth), r.13.01
Migration Act 1958 (Cth), ss.417, 418(3), 424AA, 429, 476(2)(d), 474(7)(a)

Applicant P 40/2003 v Refugee Review Tribunal [2004] FCA 936
Christodoulou v Disney Enterprises Inc (2006) 156 FCR 369
Maddison v Qualtime Association Inc [2010] FMCA 25
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553
Muin v Refugee Review Tribunal [2002] HCA 30
Plaintiffs M168/10, M170/10, M172/10 & M174/10 v Commonwealth [2011] HCA 25, 85 ALJR 790
SZAYW v Minister for Immigration & Multicultural Affairs (2006) 230 CLR 486
SZFOZ v Minister for Immigration & Citizenship [2007] FCA 1137
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
SZGIY v Minister for Immigration and Citizenship [2007] FCA 1543
SZGIY v Minister for Immigration [2007] FMCA 113
SZLJM v Minister for Immigration & Citizenship [2008] FCA 300
SZLJM v Minister for Immigration [2007] FMCA 1945
SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123, [2011] FCAFC 38
SZNVW v Minister for Immigration & Citizenship & Anor [2011] HCASL 26
WAGP v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 151 FCR 413

Applicant: SZQLT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1568 of 2011

Judgment of: Smith FM

Hearing date: 27 June 2012

Delivered at: Sydney

Delivered on: 27 June 2012

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Ms R Graycar

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application in a case filed on 25 June 2012 seeking to restrain the removal of the applicant from Australia is refused.

2. The applicant must pay the costs of the first respondent in relation to that application in the amount of $2000.

3. The application in a case for reinstatement of the application for judicial review of the decision of the second respondent made on 29 June 2011 is adjourned for further directions on 24 July 2012 at 9.30am.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1568 of 2011

SZQLT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This application filed on 25 June 2012 was listed today for hearing on very short notice.  The applicant seeks to restrain the Minister and his officers from proceeding with plans to remove him from Australia pursuant to powers under the Migration Act 1958 (Cth) applying to unlawful non-citizens whose applications for visas have been finalised. The application is supported by a notice dated 21 June 2012 of arrangements for the applicant, three escorts and two removal liaison officers to depart on a flight tomorrow morning. I am informed from the bar table that this may now have been deferred until the day after tomorrow.

2. Due to the urgency of the matter, I listed the interim application for 9 o’clock this morning, and I have limited time since I am about to start the hearing of a contested creditor’s petition.  In the circumstances, I therefore propose to give only limited reasons for not being persuaded that the tests for the grant of an interim injunction are satisfied on the evidence before me.  In particular, I shall not attempt to summarise the background of the applicant’s refugee claims and how they were addressed by the Tribunal.  These matters can be found in the Tribunal’s “Statement of Decisions and Reasons”.

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

   15 In 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."

   16 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."

   17 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.

   18 For 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.

   19 It 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.

5. The interim application to restrain removal was filed in a proceeding which had been previously commenced in this Court by the applicant on 25 July 2011.  In that proceeding, the applicant sought judicial review of a decision of the Refugee Review Tribunal made on 29 June 2011.  The Tribunal affirmed the decision of a delegate of the Minister made on 30 March 2011, in which a delegate refused an application by the applicant made on 17 February 2011 for a protection visa. 

6. All of that decision making, and also the management of the proceeding in this Court, occurred in a context where the applicant was held in Villawood Detention Centre, and therefore received expedited procedures.  The applicant was unrepresented before me at the first court date, when I fixed the matter for hearing on 17 November 2011.  He was referred for free advice, and received it in writing and orally from an experienced migration practitioner. 

7. On 17 November 2011, the applicant attended the hearing with counsel and solicitor who had been very recently engaged by him.  The applicant’s counsel presented a written submission, which had not been served on the Minister nor given to the Court until the morning of the hearing, or perhaps, late in the previous day.  The written submission endeavoured to isolate the applicant’s relevant contentions from bulky documents which the applicant himself had filed in the Court, and much of which was repetitive, obscure or clearly irrelevant to issues of jurisdictional error.  In particular, the applicant’s then-counsel attempted to focus the contentions made in an affidavit filed by the applicant on 30 September 2011, in which the applicant had endeavoured to explain the grounds which he had included in his original application.  I think that the applicant’s former counsel did a good job in her effort to focus and identify his arguments, and I have not been able myself to identify any arguable additional argument that might otherwise have assisted his case for judicial review of the Tribunal’s decision.  However, as will appear, counsel’s written submission still contained several obscure or unsupported contentions, and they all have doubtful merits.

8. After some discussion at the hearing on 17 November 2011, it appeared necessary to adjourn the matter to allow the applicant’s counsel to better formulate an amended application, and to consider and research the applicant’s points which she had identified.  The matter was therefore adjourned for hearing on 17 February 2012, and a timetable was directed for an amended application and further evidence to be filed.  In particular, it was apparent that the applicant would need to consider presenting additional evidence by way of a transcript of the Tribunal hearing and perhaps other evidence concerning events relating to the hearing.  My timetable, as later varied by consent of the Minister’s solicitors, allowed the applicant to present his evidence and amended grounds by 6 January 2012.  I consider that this allowed the applicant a more than sufficient time to fully present his case for final relief to the Court.

9. However, nothing further was filed by the applicant or on his behalf. Rather, a notice of discontinuance was signed by the applicant’s solicitor, and was sought to be filed on 14 February 2012. Pursuant to r.13.01(2)(b) of the Federal Magistrates Court Rules 2001 (Cth), the notice of discontinuance could only be accepted if leave was given, due to the imminence of the final hearing. I granted that leave on 15 February 2012. There was at that time, no evidence suggesting that the applicant’s solicitor lacked appropriate instructions from the applicant to discontinue his judicial review proceeding. Nor does the applicant now contend otherwise.

10. The first hurdle faced by the applicant in his present application to restrain his removal from Australia is, therefore, a need to show a prospect of overcoming the effect of his discontinuance of the proceedings upon which his interlocutory injunction depends.  To do this, he has also filed an application in a case seeing orders to “re-open my judicial review application filed on July 2011” and “notice of discontinuance be dismissed”.

11. The effect of the filing of the notice of discontinuance with leave was to finally determine the pending judicial review proceedings in this Court.  There has been debate in judgments whether this Court has power to set aside a notice of discontinuance or otherwise reinstate an application for judicial review which has been concluded in such circumstances.  I referred to this uncertainty in SZGIY v Minister for Immigration [2007] FMCA 113 at [17]-[20], suggesting that the Court might have power to set aside its grant of leave under r.13.01(2)(b) (this point was not addressed on appeal: see SZGIY v Minister for Immigration and Citizenship [2007] FCA 1543 and SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68). In Christodoulou v Disney Enterprises Inc (2006) 156 FCR 369 at [27]-[28], the Full Court accepted a power to reinstate a discontinued proceeding on grounds of abuse of process, fraud or the like. Their Honours also accepted that there was authority to set aside a notice of discontinuance “whenever the interests of justice dictate that that is the appropriate course”.  These and other judgments were helpfully reviewed by Wilson FM in Maddison v Qualtime Association Inc [2010] FMCA 25, who concluded that a general discretion was available in some circumstances. I accept his reasoning, and would not determine the present application on the basis that the Court has no power to set aside the applicant’s notice of discontinuance and reinstate his judicial review application.

12. I note, however, that the Minister submitted that such was the situation, based on the judgment of Ryan J in SZFOZ v Minister for Immigration & Citizenship [2007] FCA 1137. However, I do not consider that his judgment supports an absolute proposition. I do accept that the judgment points to a need to find something exceptional in an application to set aside, going beyond merely a change of opinion by an applicant, or the acceptance of different advice, or current regrets at a decision which was made in the past to discontinue.

13. On the present affidavit evidence in support of the application to reinstate the matter, the applicant appears not to raise a case which would show more than this.  Without, at this time, being able to determine the application to reinstate on a final basis, my present assessment is that it does not hold prospects of success based on the present evidence.  There is a possibility however, that other evidence might be presented in the future, in particular, concerning the applicant’s medical state, which might lend more substance to the application. 

14. Due to that uncertainty, I therefore propose to address the present application for an interim injunction upon a basis that the applicant might have a prospect of reinstatement.  I consider that the applicant has raised a serious question to be tried as to the existence of a discretion to reinstate the application, and sufficient discretionary considerations in favour of doing so, subject to there appearing to be sufficient merit in the principal application to warrant the exercise of that discretion.

15. It is at this point that a consideration of whether the applicant can now point to arguable grounds of jurisdictional error affecting the Tribunal’s decision, sufficient to warrant reinstating the matter, meets the ‘first inquiry’ identified by Crennan J in Plaintifs M168/10 (supra).  Moreover that inquiry poses a test of merit which appears possibly more demanding that a merely ‘arguable grounds’ test.  I therefore consider that the outcome of the present application for an interim injunction should be addressed under the first “inquiry” identified by Crennan J, by considering whether the applicant has raised a prima facie case of jurisdictional error affecting the Tribunal’s decision. 

16. Only if such a case were found, could there appear to be a prima facie case for the applicant obtaining an injunction to restrain his removal on a ‘final’ basis, upon the basis that this would be an available head of relief if the Tribunal were found not to have validly exercised its jurisdiction to review the Minister’s decision on the applicant’s protection visa application. 

17. Although the applicant’s submissions invited me to consider events after the Tribunal’s decision, in particular the circumstances of a more recent unsuccessful attempt to obtain the Minister’s intervention under s.417 of the Migration Act, I do not consider that the applicant’s principal application can be extended to allow judicial review of these events. In particular, because the Court’s jurisdiction to do so is excluded by the effect of ss.476(2)(d) and 474(7)(a) of the Migration Act (see SZLJM v Minister for Immigration [2007] FMCA 1945, upheld in SZLJM v Minister for Immigration & Citizenship [2008] FCA 300).

18. The applicant was unrepresented before me today.  When invited to address me on possible jurisdictional errors affecting the Tribunal’s decision, he relied upon the contentions which were summarised by his counsel in her written submissions filed in Court on 17 November 2011, and I did not understand him to raise any other relevant points.  Her submission was:

    1.The Applicant argues a jurisdictional error under s 36(5)(a) and (b) Migration Act, 1958 that the Second Respondent should have found that Australia owes him a protection obligation whether he is a US citizen or not, as he has a well-founded fear of being extradited to Egypt as a third country if he is sent to the United States.

    [particulars (a), (b) and (c) omitted]

    2.The Applicant further argues under s 418 of the Act that the First Respondent did not inform the Second Defendant of its documented views and documents concerning his application to renounce US citizenship [details omitted] - see Annexure B to the Applicant’s Affidavit and [66] of the Applicant’s reasons.

    3.The learned Tribunal member committed a jurisdictional error in allowing an uninvited and unidentified person to sit behind the Applicant in a closed court environment without the Applicant’s consent. This error had the effect of intimidating the Applicant, exacerbating his formally diagnosed mental condition, causing fear, anxiety and substantially contributing to the inconsistency in evidence given before the Tribunal as an unrepresented litigant. See Report of Psychologist Tim Watson-Munro dated 14 November 2011. See Minister for Immigration & Multicultural Affairs v SCAR [2003] FCAFC 126

    4.The Learned Tribunal Member erred in his jurisdiction not to consider whether the proceedings on 1 and 9 June 2011 should have been “in camera” considering the possible national security implications of the evidence and the Applicant’s past torture and his mental state under section 38A6 of the National Security (Criminal and Civil Proceedings) Act 2004 (Cth). This is a mandatory provision and must be entertained and considered before the commencement of proceedings. [67]-[69] Applicant’s affidavit. See also ALRC Report 98 Keeping Secrets: The Protection of Classified and Security Sensitive Information Closing Courts and Tribunals. See also Exhibit Q of the Applicant’s Affidavit a letter to Principal Member of the Tribunal.

    5.The Learned Tribunal Member erred in his decision not to disqualify himself and in forcing the Applicant to give evidence at pp. 267 and 273 of the Court Book.

    6.The Learned Tribunal Member erred in his decision not to give reasons in accordance with ss 424 and 424A of the Act

    7.The learned Tribunal Member erred in not providing adequate time to respond to the questions posed during the proceedings especially in light of the Applicant’s prior mental health issues. See [81]-[82] of the grounds attached to the Applicant’s Affidavit

    8.The learned Tribunal Member erred in not further investigating the mental state of the Applicant during the hearing as a significant contributing factor going to his credit or truthfulness as a witness. Especially in light of his prior mental health issues being of such severity he was hospitalised and put under the care of mental health professionals as stated in the reports of Dr Roberts and Dr McKenzie available to the Tribunal.

    9.The learned Tribunal Member erred in taking to account [evidence suggesting that the applicant might face a criminal charge in the USA] and whether he would be at risk of harm seriously if he were sent to the USA, especially in light of the evidence coming from hearsay, and disputed by the Applicant in the hearing.

    10.The learned Tribunal Member erred in relying upon documents containing viewpoints from people who were not present when incidents occurred and were not explained as to their basis as they were not invited to give viva voce evidence and subject to cross-examination or questioning by the Tribunal. This evidence wa at best unreliable and unsafe in forming the basis for the decision to reject the Applicant’s case.

    11. And 12.

    The failure to take account of the real risk of the Applicant being rendered to Egypt by US authorities as stated in 1. Above. In accordance with the ICCPR and in particular the right to life, right not to be subject to torture, the freedom of religion, right to keep the family unit together.

    See ICCPR – Article 6

    (omitted)

    ICCPR – Article 7

    (omitted)

    ICCPR – Article 18

    (omitted)

    ICCPR – Article 24

    (omitted)

    The learned Tribunal member erred in not taking into consideration the obligation to consider the Convention of the Rights of the Child and the fact that the Applicant’s child, a child of Aboriginal descent is now subject to an order in Queensland and if separated from his father.

    The Applicant poses little if any risk to the Australian community due to his treatment when in the community from mental health experts.

1. The merits of these contentions were explored with the applicant and counsel for the Minister in the course of today’s hearing.  In the course of this, difficulties facing all of the contentions were identified.  I propose only to summarise my reasons for concluding that none of them, when considered with the evidence now before the Court, raise an arguable ground of jurisdictional error with a prospect of success which would satisfy the above tests of a ‘prima facie case’. 

2. In short, in relation to paragraph 1(a), in my opinion, the Tribunal’s reasons in [111] to [113] for finding that the applicant “is a national of the USA and no other country” was clearly open to it on the evidence, and the applicant has no prospects on the current evidence of showing otherwise. 

3. The evidence to which the applicant points in paragraphs 1(b) and (c), and which he complains was not taken into account by the Tribunal, self-evidently came into existence after the Tribunal’s decisions, and cannot therefore give rise to jurisdictional error vitiating the Tribunal’s conclusion on the evidence which was in fact before it.

4. In relation to paragraph 2, the evidence before me does not identify documents of significance which were not forwarded by the Secretary and made available to the Tribunal pursuant to s.418(3) of the Migration Act. In any event, on current authorities, any such failure would not give rise to jurisdictional error vitiating the Tribunal’s decision (see Muin v Refugee Review Tribunal [2002] HCA 30 at [21], [42-48], [56], [179-80], [250-1], [318] and [326]; Applicant P 40/2003 v Refugee Review Tribunal [2004] FCA 936 at [35-6]; WAGP v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 151 FCR 413 at [63], and SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123, [2011] FCAFC 38 at [66], [73] and [71]).

5. In relation to paragraph 3, there is no evidence concerning the presence of a person as suggested by this ground. However, from the bar table today, I was informed by counsel for the Minister, and the applicant appeared to agree, that there was present at one of the hearings a person who was identified as a trainee Tribunal Member. Even if I were to assume that there would be evidence of this at trial, this would not raise sufficient prospects that the circumstances would be found not to come within the implicit allowance under s.429 of a person ‘reasonably required’, which was recognised in SZAYW v Minister for Immigration & Multicultural Affairs (2006) 230 CLR 486 at [25].

6. In relation to the reference in paragraph 3 to a psychologist’s report evidencing the applicant’s mental condition, I note that the suggested report is dated after the Tribunal’s decision and its contents is not shown in any evidence before me.  Nor, it seems, has the Minister ever seen it.  The Tribunal did refer to other evidence in relation to his mental condition at earlier times, in particular, in the course of proceedings in courts and tribunals some years earlier, and it said:

   115.In assessing the applicant’s evidence below, the Tribunal has been cognisant of the applicant’s history of mental illness and his claim that he was receiving treatment at the time of lodging his protection visa application. While the applicant was represented, neither he nor his representative submitted any evidence to suggest that the applicant continues to suffer from mental illness to an extent that he could not participate in the hearing and present oral arguments in support of his case. Having carefully observed the applicant in the course of two hearings, the Tribunal did not form the impression that the applicant’s state of mind was affected to such a degree that impaired his ability to present his case, give evidence, and respond in a meaningful way to matters that adversely impacted his case.

7. On the evidence before me, I am not satisfied that this conclusion was not open to the Tribunal, nor that it did not reflect an appropriate assessment of the medical evidence which was before the Tribunal and now is before me.  On the evidence before me, I see insufficient prospect of the applicant being able to bring his situation with hindsight within the discussion of the Full Court in Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 (special leave refused: SZNVW v Minister for Immigration & Citizenship & Anor [2011] HCASL 26), which considered the implications of Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 in relation to mental impairments affecting an applicant at a hearing of the Tribunal.

8. In relation to paragraph 4, I accept the Minister’s submission that the enactment referred to has no bearing on proceedings of the Refugee Review Tribunal. 

9. In relation to paragraph 5, the evidence before me does not point to any prospect of success for a submission based on apprehended bias.  On the evidence before me, being the Tribunal’s description of its hearing, the applicant gave evidence at both hearings in circumstances which provide no evidence of any compulsion.

10. Paragraph 6 is obscure, and I am unable to comprehend what is the argument intended to be raised by it. On the Tribunal’s description of its hearing, it followed procedures under s.424AA at the second hearing, in the course of which it received responses from the applicant. According to the Tribunal at paragraph 108, the Tribunal offered him an opportunity to seek additional time to provide further information. In fact, it did not make a decision for a further three weeks. The applicant appears to have been assisted by a solicitor at this stage, and I am not persuaded that he has raised sufficient prospects of success for an argument of failure to follow procedures under s.424AA.

11. That conclusion also addresses paragraph 7 of the applicant’s counsel’s written submission.

12. In relation to paragraph 8, I accept the Minister’s submissions that, on the evidence before the Tribunal as to the applicant’s mental state, the Tribunal was clearly not obliged to do more than to consider that issue.  It did so, in paragraph 115 of its decision, extracted above.  There is no evidence that the Tribunal was invited to make further inquiries or to receive additional evidence. 

13. The argument in paragraph 9 appears to take issue with the Tribunal’s discussion in paragraphs 142 through to 145, where the Tribunal discussed the possibility of the applicant facing a criminal charge in USA.  In my opinion, it is not reasonably arguable that this discussion was not relevant to the Tribunal’s jurisdiction to review the applicant’s refugee status.  I am unable to identify an arguable jurisdictional error affecting its discussion in relation to that matter, certainly not one that raises a serious question to be tried. 

14. The argument in paragraph 10 is not able to be understood without further submissions and particulars, which I have been unable to detect in reading all of the applicant’s submissions to the Court and listening to him today.

15. Paragraphs 11 and 12 seek to argue that the Tribunal was obliged to consider Australia’s obligations under the ICCPR and international conventions other than the Refugees Convention.  However, the Tribunal’s jurisdiction did not encompass a consideration of Australia’s obligations in respect of the applicant under other conventions.  These arguments therefore hold no prospects of success of establishing jurisdictional error.

16. Taking into account all the arguments which have been presented by the applicant over the course of the judicial review proceedings and in his submissions to me today, in my opinion, the applicant has been unable to identify prospects of success in his judicial review proceedings if it were reinstated, showing that there is a prima facie case that he would be found entitled to a permanent injunction to restrain the Minister from removing him from Australia pending a further hearing by the Tribunal. 

17. I therefore refuse the interim application.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Smith FM.

Associate: 

Date:  28 June 2012