SZROZ v Minister for Immigration and Anor (No.2)

[2018] FCCA 1053

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZROZ v MINISTER FOR IMMIGRATION & ANOR (No.2) [2018] FCCA 1053

Catchwords:
MIGRATION – Substantive application seeking review of the decision of the Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Application in a Case seeking declarations that s.189(1) and s.196(1) and (3) of the Act are invalid – relief also sought in the nature of writs of mandamus and habeas corpus – applicant in immigration detention – Application in a Case dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.42

Migration Act 1958 (Cth), ss.189, 196

Federal Circuit Court Rules 2001 (Cth), rr.1.05, 4.05, 4.08

Applicant: SZROZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 750 of 2016

Judgment of: Judge Nicholls

Hearing date: 1 March 2018

Date of Last Submission: 1 March 2018

Delivered at: Sydney

Delivered on: 4 May 2018

REPRESENTATION

Counsel for the Applicant: Mr V Kline by Direct Access

Counsel for the Respondents: Mr T Liu

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application in a Case made on 20 February 2018 is dismissed.

2. The applicant pay the first respondent’s costs in relation to the Application in a Case made on 20 February 2018 as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 750 of 2016

SZROZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The immediate issue for the Court now is whether a declaration and orders sought by the applicant as set out in an Application in a Case (“AIC”) filed on 20 February 2018, should be made.

2. This is the second interlocutory judgment necessary in this matter. In SZROZ v Minister for Immigration & Anor [2018] FCCA 433 (“SZROZ”), the Court addressed the issue of the admissibility of certain evidence. The background set out in that judgment is also relevant to understanding the context in which the current issue has emerged. The relevant background is as follows (SZROZ at [5] – [10]):

   “[5] On 31 March 2016, the applicant made an application to this Court seeking review of the decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 25 February 2016, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant. The applicant was not legally represented at that time.

   [6] The applicant first appeared before a Registrar of the Court on 19 May 2016, and various orders were made by consent, including that the applicant be given the opportunity to file any amended application and further evidence by way of affidavit by 30 June 2016. The applicant filed no documents in this regard.

   [7] The applicant again appeared before a Registrar of the Court on 6 October 2016, and orders were made for the progress of the matter, including for the filing of written submissions by the parties, and that the matter be set down for final hearing on 26 March 2018. Subsequently, the Court was informed by the Minister’s solicitor that the applicant had been taken to immigration detention. For this reason, the final hearing of the matter was moved forward to 13 October 2017.

   [8] On 6 October 2017, the parties sought an adjournment of the final hearing by consent. The applicant had obtained the representation of counsel (acting on a direct access and pro bono basis). Leave was also granted for the filing of an amended application. This was done on 18 October 2017. That amended application is in the following terms:

   ‘1. The Second Respondent failed to disclose to the Applicant the existence of a certificate issued to it under s 438(1)(a) (the Certificate) of the Migration Act 1958 (Cth) (the Act), and so denied the Applicant procedural fairness, and thus fell into jurisdictional error.

   2. The Second Respondent proceeded to act on the Certificate, which was invalid, and thus fell into jurisdictional error.

   Particulars

   The Certificate was invalid because it was issued on the basis that the documents referred to in it ‘contain information relating to an internal working document and business affairs’. Such is not a necessary or sufficient basis for establishing a claim by the Crown in right of the Commonwealth in judicial proceedings that the matters contained in the documents should not be disclosed, within the meaning of s 438(1)(a) of the Act.

   3. The Second Respondent’s decision to deny an adjournment of the sort requested by the Applicant, lacked an evident and intelligible justification, and was a decision disproportionate to that which was required by the Act. The Second Respondent thus behaved in a manner that was legally unreasonable and so fell into jurisdictional error.

   Particulars

   The original Tribunal hearing date of 2 November 2015, had to be adjourned due to illness of the Applicant, as supported by a doctor’s certificate stating that on that day the Applicant was unfit for normal duties as suffering from vertigo. The Applicant sought a new hearing date after his next doctor’s appointment on 9 November 2015. However, the Second Respondent rescheduled the hearing for 6 November 2015, that is four days later and before the Applicant’s next doctor’s appointment, on the basis that the doctor’s certificate was issued only for the day of the original hearing.’

   [9] On 31 October 2017 orders were made, by consent, giving the parties the opportunity to file written submissions and listing the matter for final hearing on 7 December 2017. The applicant filed written submissions on 23 November 2017 (‘the applicant’s first written submissions’). The Minister filed written submissions on 30 November 2017 (‘the Minister’s first written submissions).

   [10] Further written submissions were also filed by both parties after the hearing. The applicant filed written submissions on 14 December 2017 (‘the applicant’s further written submissions’). The Minister filed written submissions on 21 December 2017 (‘the Minister’s further written submissions’). The parties’ further written submissions concerned an issue raised at the hearing by the applicant (see [40] below). The final hearing was adjourned on 7 December 2017 to allow consideration of this issue.”

3. As set out above, I relevantly note that the applicant has been in immigration detention since around November 2016.

4. The parties had been given notice that the judgment in SZROZ would be handed down on 1 March 2018. The final hearing of the substantive application was also scheduled for completion on that date. The grounds of that application (as amended) are as follows:

   “1. The Second Respondent failed to disclose to the Applicant the existence of a certificate issued to it under s 438(1)(a) (the Certificate) of the Migration Act 1958 (Cth) (the Act), and so denied the Applicant procedural fairness, and thus fell into jurisdictional error.

   2. The Second Respondent proceeded to act on the Certificate, which was invalid, and thus fell into jurisdictional error.

   Particulars

   The Certificate was invalid because it was issued on the basis that the documents referred to in it ‘contain information relating to an internal working document and business affairs.’ Such is not a necessary or sufficient basis for establishing a claim by the Crown in right of the Commonwealth in judicial proceedings that the matters contained in the documents should not be disclosed, within the meaning of s 438(1)(a) of the Act.

   3. The Second Respondent’s decision to deny an adjournment of the sort requested by the Applicant, lacked an evident and intelligible justification, and was a decision disproportionate to that which was required by the Act. The Second Respondent thus behaved in a manner that was legally unreasonable and so fell into jurisdictional error.

   Particulars

   The original Tribunal hearing date of 2 November 2015, had to be adjourned due to the illness of the Applicant, as supported by a doctor’s certificate stating that on that day the Applicant was unfit for normal duties as suffering from vertigo. The Applicant sought a new hearing date after his next doctor’s appointment on 9 November 2015. However, the Second Respondent rescheduled the hearing for 6 November 2015, that is four days later and before the Applicant’s next doctor’s appointment, on the basis that the doctor’s certificate was issued only for the day of the original hearing.”

5. In the meantime, and as also set out above, the applicant filed the AIC the subject of the current judgment on 20 February 2018, which sought the following orders:

   “1. A declaration that, because ss 189(1) and 196(1) & (3) of the Migration Act 1958 (Cth) are Constitutionally invalid, the Applicant’s purported immigration detention under those sections is illegal.

   2. An order that a writ of mandamus issue to the First Respondent, requiring him to proceed according to law, by releasing the Applicant forthwith from immigration detention.

   In the alternative, an order that a writ in the nature of habeas corpus issue, directed to the First Respondent requiring him to release or procure the release of the Applicant from immigration detention.

   3. An order that the First Respondent pay the Applicant’s costs herein.”

6. The AIC was also set down for hearing on 1 March 2018. The applicant filed written submissions on 20 February 2018 (the applicant’s first written submissions”) and 1 March 2018 (“the applicant’s second written submissions”). The Minister filed written submissions on 27 February 2018.

7. In essence, the applicant’s position is that s.189(1) and s.196(1) and (3) of the Act are Constitutionally invalid. He seeks a declaration to that effect, and orders from this Court which would, in effect, release the applicant from immigration detention.

8. The Minister submits that the AIC should be dismissed. Before considering the AIC, it is of assistance to note the Minister’s submission as to the relevant progress of this case before the Court. I did not understand the applicant to dispute this. The relevant background is as follows ([1] – [5] of the Minister’s written submissions):

   “[1] This matter first came before the Court on 7 December 2017 for hearing on the amended application for judicial review. On that occasion, the applicant’s counsel made oral submissions on the two grounds of review in the amended application. Ground 1 of the amended application contended that the second respondent’s (Tribunal) decision was affected by jurisdictional error because it had before it a non-disclosure certificate under s 438 of the Migration Act 1958 (Cth) (Act) which covered certain documents on the applicant’s departmental file. Ground 2 of the amended application argued that the Tribunal’s decision was unreasonable in the legal sense.

   [2] On 29 November 2017, the Full Court of the Federal Court delivered judgment in the related cases of Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197; and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198. Those cases set out the approach for courts undertaking judicial review of Tribunal decisions where there is a non-disclosure certificate on an applicant’s departmental file. In summary, the Full Court held in those cases that a reviewing court could admit into evidence and view the non-disclosure certificate and the underlying documents to determine whether they gave rise to a denial of procedural fairness. This holding, in the first respondent’s submission, defeated the applicant’s central contention on Ground 1.

   [3] At the hearing on 7 December 2017, the applicant supplemented his written submissions by asserting that, notwithstanding the recent Full Court decisions, this Court should not admit the non-disclosure certificate and underlying documents into evidence because there had been ‘premature disclosure’ of those documents and therefore an ‘impropriety’ within the meaning of s 138 of the Evidence Act 1995 (Cth) (Evidence Act). This impropriety, according to the applicant, came about because the nature of the documents covered by the non-disclosure certificate were described in the Minister’s written submissions at a high level in breach of the Full Court’s guidance outlined in Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183. Therefore, the applicant contended that the Court should exclude the evidence of the non-disclosure certificate and the underlying documents in the exercise of its discretion under s 138 of the Evidence Act.

   [4] Following this submission in support of Ground 1 at the 7 December 2017 hearing, the Court heard argument on Ground 2 of the amended application to finality and ordered the parties to provide further written submissions and attend for further hearing on Ground 1. In compliance with those orders, the parties filed and served further written submissions and the matter was adjourned part-heard and listed for further hearing on 1 March 2018.

   [5] By an application in a case filed on 20 February 2018, the applicant now purports to seek interlocutory orders that would invalidate provisions of the Act, have the applicant’s detention declared unlawful and order the applicant’s release from immigration detention.”

9. The immediate dispute between the parties was whether the AIC was an appropriate vehicle for this Court to consider the question of the Constitutional invalidity of the sections of the Act referred to in the AIC (and see [5] above).

10. For the reasons that follow, I agree with the Minister that in all the circumstances presented, the AIC is not the appropriate vehicle for the Court to consider the Constitutional validity of the relevant sections of the Act.

11. There is no dispute that the applicant can make such an AIC under the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) (r.4.08 of the FCC Rules). It is also the case that the practice and procedure of this Court is to be governed “principally” by the FCC Rules (r.1.05(1) of the FCC Rules).

12. The term “application in a case” is defined in the FCC Rules as follows:

    “Rule 1.04

    Dictionary

    The dictionary defines the terms used in these Rules.”

13. The “dictionary” is located in schedule 3 to the FCC Rules. The dictionary defines “application in a case” as follows:

    “‘application in a case’  means an application that is made in a proceeding which has already been started under these Rules and that is an application for:

    (a) an interim order; or

    (b) a procedural order; or

    (c) an ancillary order; or

    (d) an interlocutory order’ or

    (e) any other incidental order relating to an application or order.”

14. The applicant argues that the AIC seeks ancillary or incidental relief to what is sought in the applicant’s amended substantive application ([3] of the applicant’s second written submissions).

15. This is said to be because both the amended substantive application and the AIC relate to the same applicant, and matters of liberty will always be ancillary to, or incidental to, the “principal proceedings”, where that liberty is in question ([4] of the applicant’s second written submissions).

16. The first proposition is plainly factually correct. But in my view, it overlooks the entire relevant circumstances before the Court.

17. As to the second proposition, the applicant’s example proffered in explanation, was to liken the current situation to a bail application, which was said to be “ancillary or incidental to the principal criminal prosecution”.

18. I do not agree that this is an appropriate analogy, or explanation, in the current circumstances. It is to be remembered that the amended application before the Court is squarely concerned with the question as to whether the relevant Tribunal decision is affected, or vitiated, by jurisdictional error.

19. The AIC is not concerned with the relevant Tribunal, or the legality of the relevant Tribunal decision. The AIC is directed to the conduct of the Minister, and the Minister’s capacity under the Act to detain the applicant in immigration detention.

20. The applicant focused, correctly, on the definition of “application in a case” as set out in the FCC Rules. However, he has, in my view, overlooked the obvious and ordinary meaning of the words “application in a case”. These words, as they appear at the beginning of the relevant definition, inform the context for what is then set out in the definition at (a) to (e) (see [13] above).

21. As is made clear in the definition, “application in a case” means an application “in a proceeding that has already been started”. What follows in the definition at (a) to (e), are the orders available by way of an AIC in that proceeding.

22. In short, the orders sought in the AIC must relate to that existing proceeding. Such a relationship is not indicated, let alone established, simply because the applicant before the Court is an applicant in both the AIC, and the substantive proceedings that have “already been started”.

23. The applicant’s analogy with bail in a criminal proceeding, provides support for the Minister’s position. The bail application by a person charged with a criminal offence, and kept in remand in relation to the disposition of any such charges, is seeking to be released from detention for the period pending the finalisation of the criminal charges against him or her.

24. That is not analogous with the current situation. The applicant is in immigration detention because the Minister or his delegate, has decided to place him in immigration detention. That was not a decision made by the Tribunal. Irrespective of the Tribunal decision, the Minister could equally have chosen to release the applicant into the community by way of a bridging visa. In essence, the applicant is in immigration detention, and must be taken to be in immigration detention (putting to one side the Constitutional validity argument), for the purpose of making him available for removal from Australia in circumstances where the applicant has no authority to remain.

25. Even if the applicant were successful in his AIC and obtained the orders sought, this would say nothing about the legality of the Tribunal decision or whether he should be granted a protection visa.

26. In that sense alone, the matter of the applicant’s detention is not interlocutory, procedural, or ancillary or even incidental to the substantive proceedings. It is an entirely separate matter to the legality of the Tribunal decision.

27. However, the FCC Rules are not the only context within which the AIC is to be considered. Section 42 of the Federal Circuit Court of Australia  Act 1999 (Cth) (“the FCCA Act”) is as follows:

    “Section 42

    Federal Circuit Court of Australia to operate informally

    In proceedings before it, the Federal Circuit Court of Australia must    proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.”

28. It is of note that there are two mandatory requirements of this Court in s.42 of the FCCA Act. Both requirements are linked by the conjunction “and”, in that section of the Act.

29. For current purposes, the second requirement is of relevance. The Court is compelled to “endeavour to ensure that the proceedings [before it] are not protracted” (s.42 of the FCCA Act).

30. The applicant’s substantive application was made to the Court on 31 March 2016. For some of the time following the filing of his substantive application, the applicant was not legally represented. However, there was no dispute between the parties that the applicant had legal representation since around October 2017. While the applicant has provided an affidavit with the AIC (as required by r.4.05 of the FCC Rules), there is nothing in that affidavit to explain the failure to bring forward at an earlier time, the argument and the orders sought by the applicant by way of his AIC, now.

31. Rule 4.05(1) of the FCC Rules are as follows:

    “Rule 4.05

    Affidavit to be filed with application or response

    (1)  A person filing an application or response, whether seeking final, interim or procedural orders, must also file an affidavit stating the facts relied on.

1. In short, the applicant’s affidavit makes no reference whatsoever to the delay in raising the issue now the subject of the AIC, let alone attempting to provide some satisfactory explanation for it in terms of the facts to be relied upon.

2. Further, the lack of reference to the delay in the affidavit also stands in support of the Minister’s contention that the matter of the applicant’s detention is a “new”, and separate matter, to the issue raised in the substantive application (that is, jurisdictional error in the Tribunal decision).

3. This is also highlighted when regard is had to the wording of r.4.05(2)(a) of the FCC Rules. That is, no affidavit is required if the subject matter of the AIC is an application for “interim or procedural orders”. The fact that the applicant, with legal counsel, filed such an affidavit indicates that the orders sought, in his view, were not “interim or procedural” in nature.

4. As set out above, the substantive application to the Court was made on 31 March 2016. I accept that the applicant has only had legal representation since around October 2017. Nevertheless, there is no satisfactory explanation before the Court as to why the issue sought to be raised now by the AIC was not raised earlier in these proceedings. That is, from the time the applicant was legally represented.

5. In the absence of any explanation, what remains is that the timing of the filing of the AIC now, instead of some months earlier, is, of itself, a “protraction” of the proceedings. Section 42 of the FCCA Act compels this Court to endeavour to respond accordingly.

6. Ultimately, the relief sought by the AIC is, in essence, “final relief”. The applicant seeks declarations and relief in the nature of mandamus and habeas corpus. The declarations sought are directed to the Constitutional validity of certain sections of the Act (see [5] above). The consequent release of the applicant from immigration detention which he also seeks is, of itself, “final relief”.

7. Before the Court, the applicant made clear that he was not seeking to amend the grounds of his substantive application. Given the focus of the grounds of the substantive application on the relevant Tribunal decision, this appears appropriate.

8. But it also serves to underscore the separate and distinct nature of the relief and the subject matter, from which the AIC arises.

9. The applicant’s counsel made clear that if the Court were to dismiss the AIC on the basis argued by the Minister, then the applicant’s instructions were that he would file a “new” substantive application seeking the same relief sought in the AIC.

10. I understood the applicant’s submission to be that even if the AIC were to be dismissed, the applicant’s “case” on the matter of Constitutional invalidity would not “go away”.

11. That may well be the case. But I do not see this as an argument to allow the AIC in the circumstances set out above. The mere fact of such a submission from the applicant reinforces the view that the relief sought in the AIC is more appropriate to a substantive application. It is of a character that is not ancillary or incidental, but in fact final.

Conclusion

1. The AIC should be dismissed. I will make the appropriate order.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  4 May 2018