SZSAV v Minister for Immigration
[2012] FMCA 961
•18 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZSAV v MINISTER FOR IMMIGRATION | [2012] FMCA 961 |
| MIGRATION – Removal from Australia – application for interim injunction – where applicant has initiated proceedings in High Court – whether real prospect of harm coming to applicant is to be considered – whether Tribunal fell into jurisdictional error. |
| Migration Act 1958 (Cth), ss.198, 474 |
| S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 SZKUO v Minister for Immigration and Citizenship (2009) 262 ALR 632 SZRZS v Minister for Immigration & Citizenship [2012] FMCA 962 NATB & Others v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 |
| Applicant: | SZSAV |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2339 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 18 October 2012 |
| Date of Last Submission: | 18 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 18 October 2012 |
REPRESENTATION
| For the Applicant: | In Person |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the Respondent’s costs assessed in the sum of $1,296.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2339 of 2012
| SZSAV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
There comes before this afternoon an urgent application for an interim injunction to restrain the respondent from deporting the applicant to Fiji from where he came into Australia on 8 March 2009. The court has copies of some documents which are an Application to Show Cause in the High Court and an Affidavit in support. In fact it would appear from the Removal Availability Assessment that the document which the court has is only one of two applications involving the applicant. He appears in addition to have joined a class action in the High Court. The proceeding S267/2012 is seeking an extension of time for judicial review of a decision of the Refugee Review Tribunal made on 26 November 2009. It would appear that the applicant was invited to a hearing before the Tribunal but shortly before the hearing he asked for an adjournment. That was granted but he did not attend on the hearing date. He asked for a further adjournment and in response the Tribunal requested some information from him which he did not provide. The Tribunal therefore went on to decide the case as it could do lawfully but in his absence.
The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations arose out of some conduct he alleges took place in Fiji in 2008. The Tribunal, with some reluctance, accepted the applicant’s history but said at [35]:
“[35]Despite these features of the Applicant’s account I am prepared to give him the benefit of the doubt by accepting his claim that he did suffer harm from the military in two incidents at some point following the December 2006 coup. Having done so, however, I am not satisfied that the information before the Tribunal is sufficient to indicate that the two incidents would place him at any particular risk of further harm if he were to return to Fiji. There is no information to suggest that the case of mistaken identity would make the military recorded his name and address when and other students were taken to the army barracks, or that they would have an adverse interest in him subsequently. There is nothing in the information to suggest that he has ever held a prominent position in Fiji or that he would be likely to draw attention to himself by expressing views in public against the military regime.”
It is notoriously difficult for an applicant to persuade any of the courts dealing with judicial review of the decisions of the Refugee Review Tribunal that the Tribunal fell into jurisdictional error in the manner in which it reached its decision when the applicant did not attend the hearing: S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283, NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811, at [16] - [18], SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16]. Such cases where jurisdictional error has been found include, where there has been a fraud upon the Tribunal by a third party, SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; where the applicant has not appeared before the Tribunal member through error of the Tribunal, Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; SZKUO v Minister for Immigration and Citizenship (2009) 262 ALR 632. There is nothing I can see in the Tribunal’s decision record that indicates any such jurisdictional error and the applicant has not pointed out any to me. What he really wants to do is to have the opportunity to produce more evidence and possibly to appear before a Tribunal.
Although I have gone into some considerable detail about this initial application and its consequences it should be noted that the decision which I am to make today does not really concern those matters. What I am obliged to decide today is whether or not the decision made under s.198 of the Migration Act 1958[1] was made in error of law and not just in error of law but in error of law that falls outside the provisions of s.474 of the Act. Thus the question of the potential success of his proceedings in the High Court are really peripheral.
[1] “Act”
This is the second application of this type which has come before me this week. In the first SZRZS v Minister for Immigration & Citizenship [2012] FMCA 962[2] I noted the decision of the 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 at [13] where their Honours opined:
“[13]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] “SZRZS”
That statement appears to represent the current law on the topic and whatever views one may have consequent upon Australia committing itself to what is described as “complementary protection” it is the law that I have to follow. But in any event this is not a case such as SZRZS where there was a real prospect of harm coming to the applicant. This applicant has provided no such information and what information he did supply was not sufficient to satisfy the Tribunal member.
I concluded my decision in SZRZS with these words:
“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.” [emphasis added]
Those words apply equally to this applicant whose application I must therefore dismiss and whom I will order pay the Respondent’s which I assess in the sum of $1,296.00.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 22 October 2012
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