SZRZS v Minister for Immigration

[2012] FMCA 962

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRZS v MINISTER FOR IMMIGRATION [2012] FMCA 962

MIGRATION – Removal from Australia – application for interim injunction – where applicant has initiated proceedings in High Court – where applicant Nigerian national claiming possible application of Nigeria’s Decree 33 – whether serious question to be tried – whether on balance of convenience injunction should be granted.

Migration Act 1958 (Cth) ss. 36, 198(1), 417

NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528
NAYU vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300
Plaintiff M168/10 v The Commonwealth (2011) 85 ALJR 790
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618
SZPZJ v Minister for Immigration and Citizenship [2011] FMCA 980
SZQLT v Minister for Immigration and Citizenship [2012] FMCA 554
Ezeadigo Chinedu Oduche‑Nwakaihe v Attorney‑General of the United States 176 L.Ed.2d 1255 (3^rd Cir, 2010)
Re Anochie v Ministerfor Immigration and Citizenship 126 ALD 611
NATB & Others v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292
M38/2002v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146
NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 761
SZAQJ v Minister  for Immigration and Citizenship (No.2) [2010] FMCA 913

Applicant: SZRZS

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: SYG 2283 of 2012

Judgment of: Raphael FM

Hearing date: 15 October 2012

Date of Last Submission: 15 October 2012

Delivered at: Sydney

Delivered on: 15 October 2012

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $1,296.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2283 of 2012

SZRZS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

1. There comes before me this afternoon as an urgent application, a request from the applicant for the court to grant him an injunction to restrain his removal from Australia on 17 October 2012 returning him to Nigeria, his country of origin. The applicant received a Notice of Intention to Remove from Australia, pursuant to s.198(1) of the Migration Act 1958 (Cth),[1] on 12 October 2012.  He brought this application on 15 October 2012 in the following form:

   “Final orders sought by the applicant

   An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from removing me from Australia on 17 October 2012.

   1. An Injunction restraining the Minister, by himself or by his Department, officers,  delegates or agents, from removing me from Australia on 17 October 2012  until the finalisation of the proceeding No. S262 of 2012 in the High Court of Australia, regardingt (sic) the decision of the Refugee Review Tribunal affirming the minister’s delegate (sic) decision and the finalisation of any relief granted by the High Court of Australia.”

   [1] The “Act”.

Grounds of application

1. The applicant said that it was a denial of natural justice and procedural fairness to remove him from Australia whilst he still had proceedings pending in the High Court. And he also made reference to s 36 of the Act and Australia’s international obligation under the Refugees Convention, the International Covenant on Civil and Political Rights and its second optional protocol, aiming at the abolition of the death penalty and the Covenant against Torture.  He stated that Australia’s non-refoulement obligations were engaged and it would be a denial of procedural fairness to remove him from Australia to Nigeria, and put his life in danger, in breach of Australia’s international obligations, before the conclusion of the proceedings in the High Court.

2. The history of the applicant’s sojourn in Australia is that he arrived on 18 September 2000.  On 30 October 2000 he lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Multicultural Affairs.  On 20 November 2000 a delegate of the Minister refused to grant him a protection visa.  And on 18 December 2000 he applied for a review of that decision from the Refugee Review Tribunal.  On 31 January 2002 the Refugee Review Tribunal handed down its decision affirming the decision of the delegate. 

3. Approximately two years later, on 2 January 2004, the applicant applied to the Federal Court of Australia for a review of the Tribunal’s decision.  On 4 May 2004 Jacobson J. dismissed the Federal Court Application and ordered that the plaintiff pay the first defendant’s costs of the proceedings; NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528. The applicant appealed the decision of Jacobson J. to a Full Bench of the Federal Court, Branson, RD Nicholson and North JJ who, on 16 November 2004, dismissed the appeal; NAYU vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 300. The applicant filed an Application for Special Leave to Appeal to the High Court on 13 December 2004 but failed to comply with the relevant provisions of Rule 41 of the High Court Rules.  His application was deemed to have been abandoned on 14 June 2005 in accordance with Rule 41.10.4 of the High Court Rules.

4. The applicant then made an application to the Minister under s.417 of the Act.  That application was unsuccessful.

5. The applicant had still not been removed from Australia, notwithstanding the finalisation of all his proceedings, when he was convicted in the District Court of New South Wales of a serious offence on 16 October 2009.  Upon his release from prison, he was taken into immigration detention, and the process of deporting him from this country commenced.

6. In proceedings of this type, before this court, the judicial officer has a number of factors to take into consideration.  The applicable principles in considering the grant of an injunction were considered by Crennan J in Plaintiff M168/10 v The Commonwealth (2011) 85 ALJR 790 at [15-19]. Her Honour acknowledged that there was a power in the Court to make an interlocutory order affecting the release of a person such as the applicant, where there was a serious question to be tried about whether his detention is lawful, but noted, citing Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, restating the principles explained in Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618, that the court should inquire 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 at the trial of the action the plaintiff will be held entitled to relief.

7. Her Honour’s decision was considered by Barnes FM in SZPZJ v Minister for Immigration and Citizenship [2011] FMCA 980 and by Smith FM in SZQLT v Minister for Immigration and Citizenship [2012] FMCA 554. His Honour said at [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.”

8. Although it is generally considered that the Minister is not seriously inconvenienced by these applications or by the grant of an injunction where they are successful, in my view, perhaps not enough consideration has been given to this factor.  However, for the reasons which follow, my views are not in any way influenced by that fact. 

9. The applicant, when he appeared before me today, told that there were essentially two bases for his seeking a further review of his protection visa application from the High Court.  These were, principally, the wish to provide the High Court with further evidence of the possibility or, indeed, as he says, the probability that upon his return to Nigeria he will be rearrested and imprisoned pursuant to what is known as Decree 33, a Decree of the Nigerian Government that enables the executive of that country to imprison persons who have been convicted of serious offences whilst abroad.  The formal wording of the decree is set out, helpfully, in a country advice supplied to the Refugee Review Tribunal by the Australian Government.  It states:

   “s 12(2)

   ‘Any Nigerian citizen found guilty in any foreign country of an offence involving narcotic drugs and psychotropic substances and who thereby bring the name of Nigeria into disrepute shall be guilty of an offence under this subsection.’

   s 12(3)

   ‘Any person convicted of an offence under subsection […] (2) of this section shall be liable to imprisonment for a term of five years without an option of [a] fine and his assets and properties shall be liable forfeiture as provided in this Decree.’”

   The advisory goes on to note that 451 Nigerians had been prosecuted and convicted under the provisions of Decree 33 in the period 1996 to 2000.

10. The other ground put forward by the applicant is that he wishes to provide evidence to the High Court of his close association with this country in which he has lived for 12 years, and in which he says he has established a relationship of family and friends.  In regard to this latter argument, I cannot see that it can in any way constitute a ground for reopening a 10-year-old decision of the Refugee Review Tribunal. 

11. In regard to the first ground, one naturally has some concern that a person who has paid the penalty for an offence in this country is liable to be reimprisoned upon his return home.  I note with interest that this was a matter that was considered by the United States Court of Appeals for the Third Circuit in an opinion filed on 4 February 2010 entitled Ezeadigo Chinedu Oduche‑Nwakaihe v Attorney‑General of the United States 176 L.Ed.2d 1255 (3^rd Cir, 2010).  In that case, Chief Judge Scirica and Circuit Judge Smith concurred with the opinion of Circuit Judge Barry who found:

    “The IJ [Immigration Judge] conceded that this was a close case, finding, on the one hand, that “we have no evidence of how respondent would be treated ... once he is detained,” but ruling, on the other hand, that Oduche met his burden because of the “high incidence rate of impunity” of officials towards those in custody. (CAR [Certified Administrative Record] at 149, 151-53.)  However, a petitioner must show that the prospective torturer “will have the purpose of inflicting severe pain or suffering by placing him in detention upon his removal from the United States.”  Pierre, 528 F.3d at 190. In light of the lack of evidence in this record addressing whether it is more likely than not that Oduche would fall victim to intentionally inflicted torture whilst incarcerated in a Nigerian prison, we cannot say that we are compelled to reach a conclusion contrary to that reached by the BIA [Board of Immigration Appeals].”

12. The possibility of re‑incarceration also exercised the mind of J F Toohey SM in the Administrative Appeals Tribunal in Re Anochie v Ministerfor Immigration and Citizenship 126 ALD 611 who, according to the head note, held:

    “The fact that there is a real chance that the applicant will be detained should he be deported to Nigeria, and as a result would face a real chance of suffering torture, or cruel inhuman or degrading punishment, means that deportation would be contrary to Australia’s international non‑refoulement obligations under the ICCPR and CAT.”

13. Toohey SM stated in his conclusions:

    “104 The question I have ultimately to determine is whether Mr Anochie's continued stay in Australia presents an unacceptable risk of harm to the Australian community. His crime was unquestionably very serious and he has almost certainly understated his involvement in it. However, I accept that his remorse is genuine and that he is motivated not to offend again. His exemplary prison record, the confidence in him that his approval for work release demonstrates, and the confidence shown in him by Mr Carr in particular, weigh in his favour.

    105 It also weighs in Mr Anochie's favour that there is real chance that he would be detained on return to Nigeria and that he would be prosecuted under Decree 33. If either was to occur, he faces a real chance of suffering torture, or cruel inhuman or degrading punishment, meaning his removal would put Australia in breach of its obligations under the ICCPR and the CAT. That is not the end of the mater, because it is only one of the factors to be considered, but it is a primary consideration.

    106 Of the remaining considerations, none weighs positively against exercising the discretion in Mr Anochie's favour, and one - being his capacity to contribute positively to the Australian community through employment - weighs marginally in his favour.

    107 Taking into account all of the evidence, I am satisfied, on the balance of probabilities, that Mr Anochie does not present an unacceptable risk of harm to the Australia community if he is allowed to remain in Australia and that the discretion not to cancel his visa should be exercised in his favour.”

14. The two decisions cited above do not, of course, bind this court, however sympathetic it may be.  This Court is required to act in accordance with the current law, which seems to have been expressed with some authority by a Full Bench of the Federal Court, Wilcox, Lindgren and Bennett JJ in NATB & Others v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292; 133 FCR 506.[2]  Their Honours considered this matter in the context of Australia’s non-refoulement obligations, particularly those relating to the torture convention.  At [13] they noted:

    “The appeals concern the proper construction of the verb "remove", and, perhaps more importantly, its qualifier "as soon as reasonably practicable". The appeals raise the issue whether death, torture, persecution or other mistreatment of an unlawful citizen which is likely, or even almost certain, to occur after he or she is removed from Australia to another country, is to be taken into account for the purpose of determining whether it is "reasonably practicable" to "remove" him or her from Australia. For the reasons given below, in our opinion, those matters are not to be taken into account for that purpose.”

    [2] “NATB”.

15. In their decision, the Full Bench considered the Full Court’s decision in M38/2002v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 and distinguished it from NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 761. The Full Bench dealt with the non-refoulement obligations between [68] and [71], opining at [71]:

    “The appellants submitted that these passages apply to Australia's obligations under the non-refoulement provisions of the Refugees Convention and the Torture Convention. However, in our opinion, the proper construction of s 198(6) is clear. There is no ambiguity to be resolved by reference to the first principle enunciated by Gleeson CJ. In relation to the second principle to which the Chief Justice referred, we do not think s 198(6) itself can be said to "abrogate or curtail fundamental rights or freedoms": unlawful non-citizens of the very special and limited class described in that subsection(detainees who made a valid application for a substantive visa and to whom the other conditions referred to in the subsection apply — see [5]) have no fundamental right or freedom to absolute protection in Australia from death, torture or persecution in the country to which they are to be removed.”

    NATB was considered and applied by Smith FM in SZAQJ v Minister  for Immigration and Citizenship (No.2) [2010] FMCA 913 at [20].

16. Given these authorities, which bind me, it is not open for me to say that the application which the applicant is in the process of making to the High Court has any real prospects of success, and I could not say that there was some jurisdictional error in the manner in which the notice of intention to remove from Australia was made.  That is the real issue in this case.  No evidence has been put to me that would assist me in coming to any contrary conclusion, nor has any legal basis been set out by the applicant.  The mere existence of proceedings in a court does not make the removal of a non-citizen illegal, it is just a matter that should be taken into account when deciding on that removal.  It is clear that the delegate was aware of the existence of the High Court proceedings, which were commenced on 19 September 2012.  A decision to proceed nonetheless was one for her and not one with which this court can interfere.  In those circumstances, the application must be dismissed and the applicant be ordered to pay the respondent’s costs in the sum of $1,296.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  22 October 2012