SZSAV v Minister for Immigration and Citizenship
[2012] FCA 1223
•25 October 2012
FEDERAL COURT OF AUSTRALIA
SZSAV v Minister for Immigration and Citizenship [2012] FCA 1223
Citation: SZSAV v Minister for Immigration and Citizenship [2012] FCA 1223 Appeal from: SZSAV v Minister for Immigration and Citizenship [2012] FMCA 961 Parties: SZSAV v MINISTER FOR IMMIGRATION AND CITIZENSHIP File number: NSD 1609 of 2012 Judge: NICHOLAS J Date of judgment: 25 October 2012 Legislation: Migration Act 1958 (Cth) ss 5(1), 48A(1), 195, 198(6), 474(2), 476(1) Cases cited: NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 Date of hearing: 25 October 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 19 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1609 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZSAV
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
25 OCTOBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the respondent’s costs.
3.The injunction granted by Yates J on 19 October 2012, as extended by Nicholas J until 5.00 pm on 25 October 2012, is discharged.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1609 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZSAV
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
NICHOLAS J
DATE:
25 OCTOBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Revised from transcript
This is an appeal from a decision of a Federal Magistrate (Raphael FM) delivered on 18 October 2012 dismissing an application for review of a decision made by an officer of the Department of Immigration and Citizenship on 15 October 2012.
The relevant decision is evidenced by a Notice of Intention to Remove from Australia. The Notice states that the appellant is liable for removal from Australia under s 198(6) of the Migration Act 1958 (Cth) (the Act), and advises the appellant of arrangements made for his return to Fiji.
Section 198(6) of the Act imposes an obligation, in certain circumstances, on an officer of the Department of Immigration and Citizenship to remove an unlawful non-citizen from Australia as soon as reasonably practicable. It provides:
(6)An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a)the non-citizen is a detainee; and
(b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c)one of the following applies:
(i)the grant of the visa has been refused and the application has been finally determined;
(iii)the visa cannot be granted; and
(d)the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
The appellant is an unlawful non-citizen as he does not currently hold a visa. The appellant previously made an application for a protection visa, but this was refused by a delegate of the respondent (Minister) and that decision was affirmed by the Refugee Review Tribunal (Tribunal) on 26 November 2009. The appellant is also a detainee who is presently being held in Villawood Immigration Detention Centre. While it is apparent that the appellant does not have a visa at this time, he informed me that he proposes to apply for a visa in the near future. It appears however that any such application would not be successful by reason of s 195 and s 48A(1) of the Act.
The appellant applied for judicial review of the officer’s decision in the Federal Magistrates Court under its original jurisdiction pursuant to s 476(1) of the Act. The officer’s decision is a “privative clause decision” within the meaning of s 474(2) which is in turn a “migration decision” under s 5(1) of the Act and therefore a reviewable decision.
The application filed on 18 October 2012 in the Federal Magistrates Court sought both interlocutory and final orders restraining the Minister from removing the appellant from Australia. One of the more specific orders sought by the appellant was an order restraining the Minister from removing the appellant from Australia until the finalisation of the High Court proceeding S267/2012.
The appellant was not represented at the hearing of the appeal or at the hearing before the Federal Magistrate. It appears that before the Federal Magistrate, the appellant relied upon 2 grounds of review. The first was that the appellant is the plaintiff in the High Court proceeding and that it would be a denial of natural justice to remove the appellant while that proceeding remains on foot. It appears that the appellant has applied to the High Court for an extension of time to seek judicial review of the Tribunal’s decision of 26 November 2009. That application (which has not yet been determined) appears to have been filed almost three years after the appellant’s application to the Tribunal was rejected.
The evidence before the Federal Magistrate included a document dated 18 August 2012 entitled “Removal Availability Assessment Compliance” relating to the officer’s decision. Relevantly, the officer notes on page 2 of the document that “neither matter S231/2012 or s267/2012 are impediments to removal”. It is therefore apparent that the officer was aware of the High Court proceedings in which the appellant is involved but considered that their mere existence did not have the consequence that removal was not “reasonably practicable” within the meaning of s 198(6) of the Act.
The Federal Magistrate found that it was not open to find that the High Court proceeding had any real prospect of success, nor was his Honour able to say that there was any jurisdictional error in the manner in which the officer came to his decision. In the absence of any evidence to show that the High Court proceeding had any prospect of success, or any legal support for the proposition that the mere existence of legal proceedings rendered the removal of a non-citizen unlawful, his Honour was not satisfied that the decision disclosed reviewable error (at paras [7]-[8]).
The second ground relied upon by the appellant was that, because he claims to fear persecution in Fiji, and that his life would be put in danger if he was removed from Australia to Fiji, then Australia’s non-refoulement obligations are thereby engaged and the officer’s decision to remove him was therefore made in error.
The Federal Magistrate held (at paras [5]-[6]) that claims of that nature are not matters to be taken into account in assessing whether removal is “reasonably practicable” for the purposes of s 198(6): see NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506. His Honour also noted that even if it was relevant to determining whether removal is “reasonably practicable”, the appellant’s claims of persecution were rejected by the Refugee Review Tribunal in 2009 on the basis that there was no real prospect of harm to the appellant if he returned to Fiji.
The Federal Magistrate dismissed the whole application with costs. I say “whole” because it is clear that the Federal Magistrate determined the application on a final basis, denying both interlocutory and final relief.
The appellant filed a notice of appeal in this Court on 18 October 2012, seeking that the Federal Magistrate’s judgment and orders be set aside and that injunctions be granted restraining the Minister from removing the appellant from Australia. On 19 October 2012, Yates J granted the appellant an interlocutory injunction which restrained the Minister from removing the appellant from Australia until 5.00 pm on 23 October 2012. Earlier this week I extended that injunction up to and including today. In the meantime, the appeal was stood over for hearing today.
The appellant relies on the following three grounds of appeal:
1.The Learned Federal Magistrate Court erred in law for not granting the injunction
2.Given the nature of the matter it is a denial of procedural fairness to remove an applicant when they have proceedings in the High Court of Australia No.267/2012.
3. It is unconstitutional to remove a person and an applicant with the proceedings in the High Court of Australia.
(errors in original)
The issue in the appeal is whether the officer’s decision to remove the appellant on the basis that it was reasonably practicable to do so was affected by legal error of the kind postulated in grounds 2 or 3.
I agree with the Federal Magistrate that the mere existence of judicial review proceedings such as the proceeding commenced by the appellant in the High Court does not mean that it is not reasonably practicable or unlawful to remove such a person pursuant to s 198(6) of the Act.
I am not persuaded that the Federal Magistrate fell into error or that there is any proper basis upon which to allow the appellant’s appeal.
In the result, the appeal will be dismissed with costs. It is also appropriate to order that the injunction granted by Yates J on 19 October 2012 as extended by me up to and including today be discharged.
Orders accordingly.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 8 November 2012
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