SZQRB v Minister for Immigration

[2012] FMCA 892

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQRB v MINISTER FOR IMMIGRATION [2012] FMCA 892

MIGRATION – Decision made by Minister personally under s.46A – whether unfettered – application for injunction – whether serious question to be tried – balance of convenience.

Migration Act 1958 ss.36(2)(aa), 46A(1), 46A(2), 91L, 195A, 474(7), 476(2)(d)

Australian Broadcasting Corporation v O’Neill [2006] 227 CLR 57; 229 ALR 457; [2006] HCA 46
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319; (2010) 123 ALD 244; (2010) 272 ALR 14; (2010) 85 ALJR 133; [2010] HCA 41

Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31

Santhirarajah v Attorney-General(Cth) (2012) FCA 940
SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207
WADX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 552

Applicant: SZQRB

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: MLG 1187 of 2012

Judgment of: Riley FM

Hearing date: 22 September 2012

Date of Last Submission: 22 September 2012

Delivered at: Melbourne

Delivered on: 22 September 2012

REPRESENTATION

Counsel for the Applicant: Matthew Albert

Solicitors for the Applicant: Russell Kennedy

Counsel for the Respondent: Stephen P. Donaghue S.C.

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Minister be restrained, by himself or his Department, officers, delegates or agents from removing the applicant from Australia before the hearing and determination of these proceedings.

2. The matter be adjourned to 26 October 2012 at 10am for final hearing

3. The applicant have leave to file an amended application on or before

   
   

   1 October 2012.

4. The applicant file and serve written submissions on or before 12 October 2012.

5. The respondent file and serve written submissions on or before 19 October 2012.

6. The applicant file and serve any written submissions in reply on or before 23 October 2012.

7. The costs of today be costs in the cause.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1187 of 2012

SZQRB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. There is an application before the court seeking an interlocutory injunction restraining the Minister from removing the applicant from Australia before the hearing in determination of these proceedings and the expiration of any period in which an appeal can be lodged.

2. On a final basis, the applicant is seeking a declaration that the Minister’s decision dated 21 September 2012 was not made in accordance with law and an injunction restraining the Minister from relying on the International Treaties Obligations Assessment that was made in respect of the applicant.

3. The grounds of the application are that:

   a)the Minister erred by making his decision on the basis of an International Treaties Obligations Assessment, because the assessment applied the wrong standard of proof when assessing whether the Minister could have substantial grounds for believing that the applicant would be arbitrarily deprived of his life; and

   b)the Minister’s decision was in error, because it is not and never can be in the public interest, nor can it be thought to be in the public interest, to send a person to a place where there are substantial grounds for believing that they will be subject to arbitrary deprivation of life,  torture,  cruel, inhuman or degrading treatment.

4. The applicant in this case arrived in Australia as an irregular maritime arrival.  He applied for assessment by a refugee assessment assessor.  The applicant was assessed as not being a person to whom Australia owes protection obligations.  The applicant then sought review by an independent merit’s reviewer.  The reviewer also found that the applicant is not a person to whom Australia owes protection obligations.  The matter was then reviewed by Federal Magistrate Cameron FM in this court.  In February 2012, his Honour dismissed the application.

5. Nothing further was done by the applicant until two days ago, when the applicant filed in the Federal Court an application for an extension of time in which to appeal against the decision of Cameron FM.   Yesterday, I am told, the applicant also sought an injunction restraining the Minister from removing him from Australia.  I am told that Buchanan J heard those applications yesterday, between about 4 pm and 8 pm.  His Honour ultimately refused the extension of time application and the injunction.

6. Also yesterday, the Minister signed a decision to not further consider his powers under s.91L, s.195A or any other non-compellable power that the Minister has under the Migration Act 1958.  The Minister concluded:

   On the basis of:

   1.the recommendation by the Independent Merits Reviewer dated 15 August 2011 that [the applicant]  not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees;

   2.the International Treaties Obligation Assessment dated 22 March 2012 with respect to [the applicant]; and

   3.the Pre-removal clearance dated 23 August 2012 with respect to [the applicant];

   I think that the return of [the applicant] to Afghanistan is consistent with Australia’s international obligations (including, but not limited to, Australia’s obligations under the Refugees Convention, the International Covenant on Civil and Political Rights, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).

   However, whether or not that view is correct, the irrespective of:

   1.whether or not any legal or factual error was made by the Independent Merits Reviewer;

   2.whether or not any legal or factual error was made by the officers who undertook the International Treaties Obligation Assessment or the Pre-removal clearance; or

   3.any other circumstances;

   I have decided not to consider, or not to further consider, the exercise of any of my personal non-compellable public interest powers under the Act with respect to [the applicant] (including, without limitation, my powers under ss 91L and 195A of the Act).

7. It can be seen from that decision that the Minister said that whether or not there was any error made by the independent merits reviewer and whether there was an error made by the International Treaties Obligation Assessment process or any other circumstance, the Minister had decided not to consider or further consider the exercise of any of his personal non-compellable public interest powers under the Act.

8. It was common ground before this court that the court has no jurisdiction to review the Minister’s decision under section 91L or section 195A of the Act. That was made clear by s.476(2)(d) and s.474(7) of the Act. However, this court, it seems, is not deprived of jurisdiction in relation to decisions made under s.46A of the Act.

9. The applicant submitted that there was as error of a very significant nature in the International Treaties Obligation Assessment, which consisted of the assessor, in accordance with departmental policy, considering the question of the application of various international treaties on the balance of probabilities rather than on the basis of whether there was a real risk to the applicant.

10. The applicant relied on a decision North J in Santhirarajah v Attorney-General(Cth) (2012) FCA 940, where it was indicated, at [271] and following that there had been an error in that case in the assessor applying the United States understanding of the relevant matters, namely, the balance of probabilities test rather than the real risk test. The material before the court shows that the assessor in this case did indeed apply the balance of probabilities test. It is certainly arguable that such a test is wrong.

11. Nevertheless, the Minister says that the provisions of s.46A of the Act are such that the Minister can decide not to consider the exercise of the power under s.46A for any reason, including completely improper reasons.  It is submitted by the Minister that he can make any legal or factual error in exercising his power under s.46A, and that is not in any way reviewable by the court. 

12. The Minister relied, particularly, on the decision of the Full Federal Court in SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 where the court, consisting of Keane CJ and Rares and Perram JJ said unanimously at 34, 39 and 44, the following:

    34.The Minister, as the only person with power to make a decision under ss 46A and 195A, is not bound by anything in the reviewer’s assessment or recommendation. The Minister has no obligation to exercise the powers under s 46A or s 195A. Nor does he have any obligation to take the reviewer’s assessment or recommendation into account in deciding whether, and if so how, to exercise those powers. In other words, the Minister is entitled to make, or not make, a decision regardless of the reviewer’s assessment or recommendation.

    …

    39.What Knox CJ said is apposite in respect of a reviewer’s assessments and recommendations. A reviewer’s assessment and recommendation have no statutory or other legal force. They came into existence because the Minister sought that information to inform his consideration of the exercise of his powers. The Minister was not bound to act on the assessment or recommendation; he did not even have to take them into account at any stage of his consideration, and he did not have to make a decision even if the recommendations had been favourable to the applicants. A reviewer’s assessment and recommendation cannot be characterised as “a decision of an administrative character made or proposed to be made … under [the] Act” within the meaning of s474(2) of the Act.

    …

    44.The Minister can ignore entirely a reviewer’s assessment and recommendation. However, as in Plaintiff M61 at [99]–[104], declaratory relief and, perhaps, an injunction would be an appropriate remedy to ensure that the Minister understands that a[n] assessment or recommendation is affected by demonstrable error if he or she were otherwise minded to act upon them. In this regard, to say that the assessment and recommendation of the review was not an administrative decision is not to say that the review process was not required to be fairly and lawfully conducted. As the High Court explained in Plaintiff M61 at [76]–[78]:

    [76] Contrary to the submissions of the Commonwealth and the Minister, the Minister’s decision to consider whether power should be exercised under either s46A or s195A directly affected the rights and interests of those who were the subject of assessment or review. It affected their rights and interests directly because the decision to consider the exercise of those powers, with the consequential need to make inquiries, prolonged their detention for so long as the assessment and any necessary review took to complete. That price of prolongation of detention is a price which some claimants may have paid without protest. After all, they sought entry to Australia and this was the only way of achieving that end. And they claimed that return to their country of nationality entailed a real risk of persecution. But even if it were the fact that individuals were content to have detention prolonged, that must not obscure that what was being done, for the purposes of considering the exercise of a statutory power, had the consequence of depriving them of their liberty for longer than would otherwise have been the case.

    [77] Because the Minister was not bound to exercise power under either s46A or s195A, no matter what conclusion was reached in the assessment or review, it cannot be said that a decision to consider exercising the power affected some right of the offshore entry person to a particular outcome. The offshore entry person had no right to have the Minister decide to exercise the power or, if the assessment or review were favourable, to have the Minister exercise one of the relevant powers in his or her favour. Nonetheless, once it is decided that the assessment and review processes were undertaken for the purpose of the Minister considering whether to exercise power under either s46A or s195A, it follows from the consequence upon the claimant’s liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions. The right of a claimant to liberty from restraint at the behest of the Australian Executive is directly affected. The claimant is detained for the purposes of permitting the Minister to be informed of matters that the Minister has required to be examined as bearing upon whether the power will be exercised.

    [78] The Minister having decided to consider the exercise of power under either or both of ss46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant’s liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss46A and 195A, including the power to decide to consider the exercise of power, is to be understood as “conditioned on the observance of the principles of natural justice”. Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied. [Footnotes omitted, bold emphasis added by Full Federal Court.]

13. The applicant said in reply that in Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31, Gummow, Hayne, Crennan and Bell JJ said at [59] that the High Court held in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319; (2010) 123 ALD 244 that procedural fairness must attend the consideration by the Minister of whether to exercise his power under s.46A(2) of the Act to determine that s.46A(1) of the Act did not apply. Of course, in M61, the High Court also held at [78] that the consideration under s.46A had to “proceed by reference to correct legal principles correctly applied.”

14. There was some discussion today about the effect of M61.  The Minister argued that the relevant passages in that case made it clear that the power of the Minister was unfettered and that the limits on the process identified by the High Court in M61 related only to decisions of the independent merits reviewer and did not constrain the Minister himself.  That seems to be at odds with the passage referred to above from [59] of Plaintiff S10. 

15. The other major issue raised by the applicant is that there was no regard by the Minister to complementary protection.  The Minister referred in his decision to an International Treaties Obligations Assessment which was made on 22 March this year. 

    
    

    On 24 March this year, Australia adopted a complementary protection regime. The relevant protections are in s.36(2)(aa) of the Act. The complementary protection provisions, where they apply, require the consideration of matters other than race, religion, political opinion, membership of a particular social group and so on.

16. The Minister’s basic argument is that the powers under s.46A are completely unfettered. They can be exercised without any regard to any principles of law.  They can be based on legal or factual errors in the independent merits reviewer’s assessment, in the International Treaties Obligation Assessment, in the complementary protection assessment, if there is one, and in any other circumstance.  However it does not seem to me that the case is as clear as the Minister suggested, particularly in view of [59] of Plaintiff S10.

17. The Minister also said that, for the court to grant an injunction, the applicant needs to show he has a prima facie case.  The Minister relied particularly on the High Court’s decision in Australian Broadcasting Corporation v O’Neill [2006] 227 CLR 57; 229 ALR 457; [2006] HCA 46 at [65] where the court said:

    The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd - #. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:

    "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 second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted."

    By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

    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 he seeks.

    [citations omitted]

18. The applicant relied on the decision of French J, as his Honour then was, in WADX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 552 at [9] where his Honour talked about the balance between the prima facie case and the balance of convenience. His Honour said:

    The question whether interlocutory relief should be granted depends upon consideration of two criteria,  firstly, whether there is a serious question to be tried and, secondly, where the balance of convenience lies.  Those two questions are interdependent in the sense that the stronger the argument on the merit of the applicant’s case the less the balance of convenience may need to swing in the applicant’s favour.  Where the balance of convenience is strongly in an applicant’s favour, then the extent to which a serious question to be tried has to be shown will be varied accordingly.

19. His Honour went on to note that, in that case, the balance of convenience strongly favoured the applicant on the basis that, on his argument, his life was at risk if he were to return to Iran.  On the other hand, his Honour considered that there was no specific prejudice to the Minister other than unspecified public policy considerations. 

20. In all circumstances of this case, I consider that the injunction ought to be granted.  It seems to me that there are strong reasons indicating that the balance of convenience favours the applicant.  It seems to me that there is a real issue about whether the power of the Minister under s.46A is completely unfettered, as the Minister argues, or whether the apparent rider contained in Plaintiff S10 at [59] applies as broadly as the applicant in this case contends.  It seems to me that these are questions that need to be considered fully. If the applicant were deported now, it would prevent those questions being fully considered in this case.

1. I note that the Minister’s decision that he would not further consider anything in relation to this matter was made yesterday, and the intention is that the applicant be deported tomorrow.  It has not been explained to me why there is any particular urgency in the applicant being returned to Afghanistan.

1. I accept that, until only a few days ago, the applicant did nothing after Cameron FM handed down his decision in February this year.  However, in all the circumstances of this case, it seems to me the proper course is to issue the injunction and allow this matter to be dealt with more carefully and fully than can be done at the moment.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Riley FM

Date:  25 September 2012