SZSDN v Minister for Immigration & Citizenship
[2012] FMCA 1095
•22 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZSDN v MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR | [2012] FMCA 1095 |
| MIGRATION – Removal from Australia pursuant to s.198(6) of the Migration Act 1958 (Cth) – no application for interim injunction – in the substantive application for judicial review of the Refugee Review Tribunal’s decision a final order was sought “that no action is taken to remove the applicant from Australia while the decision is pending” – proceeding on basis that interim injunction sought – no orders made. |
| Migration Act 1958 (Cth), ss.48B, 198(6), 417, 424A, 424AA |
| American Cyanamid Co v Ethicon Ltd [1976] AC 396 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Plaintiff M168/2010 v Commonwealth of Australia & Anor (2011) 279 ALR 1 Plaintiff S10/2011 v Minister for Immigration & Citizenship (2012) 290 ALR 616 |
| Applicant: | SZSDN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2573 of 2012 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 9 November 2012 |
| Date of Last Submission: | 9 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 22 November 2012 |
REPRESENTATION
| The Applicant: | The Applicant did not appear at the hearing |
| Solicitors for the Respondents: | Mr A. Markus of Australian Government Solicitor |
ORDERS
There were no orders made.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2573 of 2012
| SZSDN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application came before me as duty Federal Magistrate on the afternoon of 9 November 2012. It was brought to my associate’s attention by the First Respondent, the Minister for Immigration & Citizenship (the “Minister”) that the Minister had served the Applicant with a Notice of Intention to Remove from Australia (the “Removal Notice”), which was due to occur on Monday 12 November 2012. The Minister also informed my associate that, although the applicant had not sought any interlocutory orders in his Application to the Court, one of the final orders sought by the applicant was:
4. An order that no action is taken to remove the applicant from Australia while the decision is pending.
Accordingly, I saw it fit to give the applicant an opportunity to put forward his case, at least in respect of his proposed removal from Australia, and listed the matter for directions at 7.00pm that evening, Friday 9 November 2012. The Minister went about making arrangements to bring the applicant to the Court where an interpreter in the Urdu language would be present to perform any translation necessary.
Hearing 9 November 2012
Mr Markus, appearing for the Minister, initially informed the Court that the applicant had refused to leave Villawood Detention Centre where he was being detained and come to Court for the directions hearing. Staff of Serco Group, the managers of the Villawood Detention Centre, then attempted to bring the applicant to a room equipped with a landline telephone so the applicant could appear by telephone, but the applicant also refused this option. Mr Markus indicated that the Minister had also been trying to reach him on his mobile telephone, but there had been no answer.
Mr Markus handed up a copy of the Removal Notice that had been served on the Applicant and drew the Court’s attention to the third paragraph, where it states:
Arrangements are being made for your removal. It is anticipated that you will be removed from Australia on Monday, 12th November 2012 onboard flight TG-476 departing Sydney at 10:00am …
Mr Markus informed the Court that the Minister had sought to inform the Court of the circumstances surrounding the intended removal of the Applicant from Australia, especially as the Applicant did not have any legal representation. Although there were no interlocutory orders sought in the Application, the Minister noted order four of the final orders sought by the applicant (noted at [1] above) and, accordingly, informed the Court.
Mr Markus submitted that on one view, the Applicant was refusing to attend or participate in the hearing and, accordingly, the Court should make no orders as there was no interlocutory application being made by the applicant. However, Mr Markus indicated that he would make brief submissions to assist the Court.
Respondent’s Submissions
Mr Markus handed up a chronology of events in relation to the Applicant’s history and indicated that the Applicant had applied for a Sponsored Family Visit (subclass 679) visa offshore on 30 June 2009 which was refused on 19 January 2010. An application to the Migration Review Tribunal (“MRT”) seeking review of the Minister’s decision was made by the Applicant’s brother, on his behalf, which was dismissed on 13 May 2010.
Mr Markus indicated that the Applicant arrived in Australia, disembarking at Brisbane Airport on 14 June 2010 without any documentation. The Applicant was subsequently detained and on 27 June 2011 applied for a Protection visa. This application was refused by a delegate of the Minister on 23 August 2011. The Applicant then sought review of the delegate’s decision in the Refugee Review Tribunal (“RRT”) which was dismissed on 8 March 2012. The Applicant then sought Ministerial intervention pursuant to ss.417 and 48B of the Migration Act 1958 (Cth) (the “Migration Act”) in April 2012. The Minister finalised the Applicant’s requests as not considered and not being met.
Mr Markus then informed the Court that the Applicant then made, through lawyers then acting for him, an application in the High Court of Australia on 9 August 2012 challenging Ministerial intervention outcomes, which was then discontinued on 3 October 2011. Mr Markus contends that after the High Court’s decision in Plaintiff S10/2011 v Minister for Immigration & Citizenship (2012) 290 ALR 616 there was no possibility that the application could succeed, regardless. The Applicant also made a further two requests for Ministerial intervention on 21 September 2012 and 24 October 2012, both of which were finalised.
On 5 November 2012 the Applicant was notified of his removal arrangements by the Minister. Three days later, on 8 November 2012, the Application in this Court was filed. Mr Markus argued that the Applicant, having been in detention for some time and having had sufficient advice to lodge requests with the Minister and commence proceedings in the High Court, has made choices about the course of action he embarked upon. There was no attempt to challenge the RRT’s decision and, only after receiving the Removal Notice, did the Applicant seek to invoke this Court’s jurisdiction.
Mr Markus submitted that the Applicant’s application in this Court sought to take issue with findings made in the RRT about the Applicant’s credibility. In particular, the Applicant took issue with certain procedural matters that the Applicant claims were not followed when they should have been. Mr Markus contends that the Tribunal Member relied heavily on the fact that the Applicant had given inconsistent statements to departmental officers, particularly in relation to an interview conducted with the Applicant shortly after his arrival in Australia on 15 June 2011 and a number of statements made subsequently.
Mr Markus contended that ss.424A and 424AA of the Migration Act operated so that s.424A requires the RRT to give to an applicant particulars of information that it considers would be the reason, or part of the reason, for affirming the decision that is under review in writing, unless pursuant to s.424AA these particulars are given orally at the hearing.
Mr Markus took the Court to [59] of the Decision Record where there are a large number of matters that were put to the Applicant pursuant to s.424AA. At the end of the paragraph it is noted that the applicant, having been offered the opportunity to respond at a later stage to the matters put to him, declined the offer and proceeded to respond on the day. Mr Markus then referred the Court to [66] of the Decision Record where it states:
66. The Tribunal took the applicant through the transcript of the interview as set out above. It then referred the applicant to the written statement with the protection visa application in which he gave more details and different information about why he left Pakistan.
Mr Markus indicated that at [85] of the Decision Record, the Tribunal notes that it had obtained and listened to the interviews of the Applicant conducted by an officer of the Department of Immigration & Citizenship conducted on 14 and 15 June 2011. The content of the two interviews is then noted at [86] and [87] and, importantly, at [87] the Tribunal notes that the record on the file is almost verbatim the answers the Applicant gave at the interview. Nonetheless, the Tribunal decided to hold a further hearing on 9 December 2011. At that hearing, further matters were put to the Applicant pursuant to s.424AA of the Migration Act (recorded at [90]). The Applicant was given an opportunity to respond to this orally during that hearing at a later time and there was a subsequent hearing on 27 February 2012 (commencing at [103]). Mr Markus contends that the Tribunal clearly complied with its obligations under ss.424A and 424AA of the Migration Act.
Mr Markus contends that Ground One of the Applicant’s claim is that the Tribunal didn’t consider that the Applicant was misled at Brisbane Airport while he was in the custody of departmental officers. Mr Markus submits that that the Tribunal clearly considered the Applicant’s claim, to the effect that the Applicant was told not to give any details. The Tribunal ultimately concluded that the Applicant was referring to the first interview on 14 June 2011 when he said he did not want to partake in the interview because of severe tiredness and not the second on 15 June 2011, which is the substantive record of what he said.
In respect of Ground Two, Mr Markus submits that this ground asserts that the Tribunal made a procedural mistake in rejecting his claims without giving him an opportunity to address the inconsistencies between the applicant’s interview, later claims on his statutory declaration and oral evidence at the Tribunal. Mr Markus argues that it is clear the Applicant was given an opportunity as there were three separate hearings held. At the first hearing, certain matters were put to the Applicant or he was informed of certain information, he was informed why that information was significant, he was given an opportunity to respond later and he decided to respond on the day. Then, further matters were put to him, after the Tribunal had listened to the tape recordings of the two interviews, at a further hearing and the Applicant was given the opportunity to respond to these at the third hearing where the Applicant’s responses were provided. Mr Markus argues that Ground Two is completely without merit.
Ground Three alleges that the Tribunal made a procedural mistake and did not give the Applicant the opportunity to listen to the whole recording at Brisbane Airport. Mr Markus submits that this is not what is required by the sections and there is no jurisdictional error in failing to give the whole of the tape to the applicant as opposed to taking him through the transcript of what was said. Mr Markus submits this ground is also without merit.
Ground Four asserts that the Tribunal erred in relying on the information, being the tapes of the interviews, of which the Applicant did not have full knowledge of and were not handed to the Applicant. Similarly to Ground Three, Mr Markus contends that this is not what is required and the Ground is without merit.
Mr Markus then turned to the making of an interlocutory order restraining the Minister from removing the Applicant from Australia pending the decision in these proceedings. He submitted that if the Court considered there was such an interlocutory application on foot, the Court would need to consider whether or not it should be granted according to a two stage test and referred the Court to the decision of Crennan J in Plaintiff M168/2010 v Commonwealth of Australia & Anor (2011) 279 ALR 1 at [15] where her Honour states:
In Australian Broadcasting Corporation v, in a joint judgment, Gummow and Hayne JJ (with whom Gleeson CJ and Crennan J agreed on the point) restated that the applicable principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. There, this court (Kitto, Taylor, Menzies and Owen JJ) said that there are two main inquiries to be undertaken. The first inquiry, which is particularly relevant to these cases, is described thus:
The first is 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 that at the trial of the action the plaintiff will be held entitled to relief.
The court continued:
How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order [the plaintiff] seeks.
(footnotes omitted)
Mr Markus submits that first, the Court needs to be satisfied that there is a “serious question” to be tried. At [16] in Plaintiff M168 (supra) her Honour continues:
In O’Neill, Gummow and Hayne JJ spoke of the relationship between Beecham and the subsequent decision American Cyanamid Co v Ethicon Ltd, which is the source of the phrase “a serious question to be tried”. Their Honours said:
[70] … There is then no objection to the use of the phrase “serious question” if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham, depends on the considerations emphasised in Beecham.
Mr Markus submits that only if the Court is satisfied there is a “serious question to be tried” should it move on to the next question being the balance of convenience, which Mr Markus accepts would favour the Applicant’s claim. However, Mr Markus argues that the Court should not be satisfied that there is a “serious question to be tried”. Additionally, the application has been filed out of time, so if the matter is to proceed in any direction, orders extending time in which to file the application must be made first. Mr Markus also argues that in light of the grounds, the Court should not do so and that no orders should be made at all.
Consideration
I am assisted by the submissions of Mr Markus appearing for the Minister and agree that on the material before the Court I could not be satisfied that there is a serious question to be tried. Consequently, there is no need to proceed to the second limb of that test. As a result, no orders should be made on this date in respect of these proceedings.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 22 November 2012
0