SZSBT v Minister for Immigration
[2012] FMCA 990
•29 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZSBT v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 990 |
| MIGRATION – Applicant issued notice of intention to remove from Australia under s.198(6) of Migration Act 1958 (Cth) on 22 October 2012 – Application seeking extension of time to review decision of Refugee Review Tribunal made in August 2010 filed on 24 October 2012 – Application also seeking an injunction restraining the Applicant’s removal from Australia pursuant to s.198(6) of the Migration Act 1958 (Cth) filed on 26 October 2012 – Applicant submitted that he pursued Ministerial intervention as a means of relief and was unaware he could file an application seeking judicial review of the decision – Unsatisfactory explanation for delay in application to Federal Magistrates Court and no grounds raising jurisdictional error pleaded – Application dismissed. |
| Migration Act 1958 (Cth), ss.36(2)(a), 198(6) |
| Deng v Minister for Immigration and Citizenship [2010] FMCA 1023 |
| Applicant: | SZSBT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2433 of 2012 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 29 October 2012 |
| Date of Last Submission: | 29 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 29 October 2012 |
REPRESENTATION
The Applicant appeared in person with the assistance of an interpreter in the Fijian language.
| Solicitors for the Respondents: | Mr R Baird of Clayton Utz |
ORDERS
The Application filed seeking review of the Refugee Review Tribunal decision dated 23 August 2010 in respect of the applicant’s application for a protection visa on 24 October 2012 be dismissed as a result of the Application being filed out of time.
The Applicant pay the First Respondent’s costs, fixed in the sum of $1,296.00.
The Application in a Case filed on 26 October 2012 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2433 of 2012
| SZSBT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 24 October 2012 the applicant filed an application seeking review of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 23 August 2010 affirming a decision of a delegate of the Minister for Immigration & Citizenship (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa. The applicant is a citizen of Fiji and arrived in Australia on 2 December 2009. The delegate refused to grant the visa on 29 April 2010 on the basis that the applicant is not a person to whom Australia has protection obligations. The orders sought by the applicant in his substantive application in this Court are:
1. The decision of the Refugee Review Tribunal be Quashed
2. The Refugee Review Tribunal be ordered to redetermine (sic) my application for Refugees status according to Law
3. The requirement to comply with the time limits to be dispensed with and time enlarged.
4. The Court appoint a lawyer to help prosecute my case before the Court.
5. Leave to file any amended application together with particular and supplementary affidavits together with any documents.
6. An injunction restraining the Minister, by himself, his department, officers, delegates or agents from removing me from Australia before the finalisation of the Federal Court of Australia and the finalisation of any relief granted by the Court.
The applicant is currently in detention in Villawood Immigration Detention Centre. On 22 October 2012 the applicant was served with two documents; being a “Notice of Intention to Remove from Australia” and a “Notice in Respect of Removal or Deportation Costs” from an officer of the Minister advising him that pursuant to s.198(6) of the Migration Act 1958 (Cth) (the “Migration Act”) he was to due to be removed from Australia on 30 October 2012.
On 26 October 2012 the applicant filed an application in a case, supported by an affidavit sworn by the applicant on the same day, seeking the following order:
An injunction to be directed to the Minister of Immigration and Citizenship himself, the officers, agents from removing me from Australia before finalisation of the Federal Court of Australia and the finalisation of any relief granted by Court.
The proceedings were listed before this Court on an urgent basis for the hearing of the applicant’s Application in a Case on 29 October 2012. On that day, after hearing submissions from the applicant and the lawyer acting for the Minister, I made the following orders:
1. The Application filed seeking review of the Refugee Review Tribunal decision dated 23 August 2010 in respect of the applicant’s application for a protection visa on 24 October 2012 be dismissed as a result of the Application being filed out of time.
2. The applicant pay the first respondent’s costs, fixed in the sum of $1,296.00.
3. The Application in a Case filed on 26 October 2012 be dismissed.
These reasons give effect to those orders
Hearing 26 October 2012
The proceedings were listed for hearing at 2.15pm on 29 October 2012, after being adjourned from the morning. The applicant appeared in person with an interpreter in the Fijian language assisting. Mr R. Baird of Clayton Utz appeared on behalf of the Minister.
Applicant’s Submissions
The applicant indicated that after the Tribunal made its decision on 23 August 2010 he was sought intervention directly from the Minister, rather than make an application to the Federal Magistrates Court or the High Court. He was unaware that he could file an application in either court. His application to the Minister was subsequently refused in January 2011. The applicant then indicated he was taken into detention at Villawood Immigration Detention Centre on 28 January 2012, where he again wrote to the Minister seeking intervention which was refused. The second application to the Minister was undertaken after receiving advice and assistance to do so. This application was also refused by the Minister during May 2012.
The applicant submitted that he then sought, with the assistance of Parish Patience Immigration Lawyers, relief in the High Court of Australia (Proceedings S120/2012). This application was then discontinued on 17 October 2012. The applicant, of his own volition, also filed two applications in the MRT which have both since been dismissed.
In respect of the applicant’s Application in a Case, the applicant asked the Court to prevent his removal from Australia, because he is terrified of going back to Fiji, which is the reason why he applied for a Protection visa in the first place.
Respondent’s Submissions
Mr Baird initially informed the Court that pursuant to s.198(6) of the Migration Act an officer of the Department of Immigration and Citizenship is obliged to remove an unlawful non-citizen from Australia as soon as reasonably practical. The issue of what is reasonably practical is an issue to be assessed by the officer and ongoing judicial review proceedings, possibilities for contempt and other factors may bear upon that decision. There is no rule of law that precludes a removal just because there are proceedings on foot. Mr Baird contended that if the applicant had sought review of the removal that would be quite a separate issue.
Mr Baird submitted that the Minister opposed the applicant’s Application in a Case and absent an order from the Court, the Minister would seek to remove the applicant from Australia, when he was due to be removed on a number of bases, but would not need to come to these if the Court was satisfied that there was no basis upon which to grant an extension of time in which the substantive proceedings could be brought.
The extension of time needed is more than two years. Mr Baird accepted that the applicant had spent much of that time pursing the path of Ministerial intervention rather than judicial review, but that was not a sufficient explanation for the delay. Even if the Court was satisfied that was a sufficient explanation, there was the unexplained period between January 2011, after the refusal of the first intervention request, and February 2012, when the second intervention request was made. Mr Baird referred the Court to the decision in Deng v Minister for Immigration and Citizenship [2010] FMCA 1023 per Riley FM where her Honour found that seeking Ministerial intervention was just one matter that goes into the balance. Mr Baird contended that this, however, generally did not weight heavily in an applicant’s favour.
It was accepted that Grounds 1 and 5 of the application weren’t actually grounds in the application, and only grounds 2, 3 and 4 raised any potential jurisdictional error. Mr Baird submitted that the three grounds all proceeded from the same basis of Australia’s obligations under the International Covenant of Civil and Political Rights (“ICCPR”) and the Covenant Against Torture (“CAT”). Mr Baird submits that at the time of the Tribunal’s decision, the relevant provision within the Migration Act as it was at that time was s.36(2)(a), so the criteria for a protection visa was a person to whom Australia owed protection obligation under the Convention as amended by the Protocol. There was no mention of the ICCPR or the CAT, which were only introduced effective 24 March 2012 with the Migration Amendment (Complementary Protection) Act 2011(Cth). Accordingly, there could be no error of law made in the Tribunal assessing their claims against the Convention in 2010. The relevant law is set out at [6] – [18] of the Tribunal member’s decision. Accordingly, Mr Baird submitted that the application should be dismissed.
Consideration
I am not satisfied that there is a satisfactory explanation forthcoming from the applicant as to the delay in lodging his application commencing these proceedings to warrant the granting an extension of time. I note that the applicant made attempts to seek Ministerial Intervention as well as commencing proceedings in the High Court, however, there were two periods noted at [11] above that remain unexplained.
The applicant has put forward five grounds of review in their application. Grounds 1 and 5 do not go to any errors in the Tribunal’s decision. Grounds 2, 3 and 4 raise an issue of law which was not in existence at the time of the decision in the RRT, namely August 2010. I have also had the benefit of reading that decision, and on a fair reading of it it is not apparent that it contains any jurisdictional error in respect to the law that was operative in August 2010.
Consequently, with these factors together, there is no justification for the granting of an extension of time in which to hear an application to review the decision of the Tribunal when it is extremely unlikely an error can be found. Similarly, there are no grounds successfully argued that justify the granting of an injunction restraining the Minister from removing the applicant from Australia. Accordingly, the interim application filed on 26 October 2012 should be dismissed, the application filed on 24 October 2012 should be dismissed and the Minister should be awarded his costs.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 17 December 2012
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