SZSFD v Minister for Immigration

[2012] FMCA 1176

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZSFD & ANOR v MINISTER FOR IMMIGRATION [2012] FMCA 1176

MIGRATION – Application for injunction to restrain removal from Australia until substantive judicial review application determined – where such an injunction has been granted by another Federal Magistrate in similar circumstances where identical ground of judicial review.

Migration Act 1958 (Cth), ss.36, 48A, 48B

Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801
Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757
Plaintiff M47/2012 v Director General of Security [2012] HCA 46
Plaintiff M61/2010E v The Commonwealth of Australia and Others; Plaintiff M69/2010 v The Commonwealthof Australia and Others (2010) 85 ALJR 133; [2010] HCA 41
Plaintiffs M168/10, M170/10, M172/10 and M174/10 v Commonwealth; Plaintiffs M169/10, M171/10, M173/10 and M175/10 v Minister for Immigration and Citizenship (2011) 85 ALJR 790; [2011] HCA 25
SZGIZ v Minister for Immigration [2012] FMCA 969
SZQCH v Minister for Immigration [2011] FMCA 641
WADX v Ministerfor Immigration & Multicultural & Indigenous Affairs [2003] FCA 552

First Applicant: SZSFD

Second Applicant: SZSFJ

First Respondent: MINISTER FOR IMMIGRATION AND CITIZENSHIP

File Number: SYG 2661 of 2012

Judgment of: Barnes FM

Hearing date: 17 November 2012

Delivered at: Sydney

Delivered on: 17 November 2012

REPRESENTATION

Solicitors for the Applicants: Parish Patience

Counsel for the Respondent: Mr Knowles

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Refugee Review Tribunal be removed as a party to the application in a case filed on 16 November 2012.

2. The respondent, officers of his Department and their agents not remove the applicants from Australia pending further order of the Court.

3. Liberty is granted to the parties to bring the matter before the court for directions on three days notice.  

4. Costs of today are costs in the cause.

NOTES

1. The substantive application is listed before a federal magistrate for directions on 31 January 2013.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2661 of 2012

SZSFD

First Applicant

SZSFJ

Second Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter came before me as duty federal magistrate late yesterday afternoon.  It is an application in a case filed on 16 November 2012.  The applicants also filed an application on 16 November 2012 seeking orders in relation to a decision of a delegate of the respondent that their protection visa application was invalid.  That application is in the docket of another federal magistrate.  

2. The two applicants seek interim orders on an urgent basis that the Minister for Immigration, officers of his Department and their agents not remove the applicants from Australia pending further order of the Court.  The application in a case is supported by an affidavit of a solicitor, Mahalingam Sutharshan, recounting conversations with an officer of the Immigration Department and the Australian Government Solicitor in relation to an intention to remove the first applicant from Australia tomorrow and to remove the second applicant on Monday or soon thereafter. 

3. The applicants seek an injunction on the basis that their removal from Australia would defeat the purpose of the visa application which is the subject of the substantive application before the Court.  The timing of the application and their planned removal necessitated a hearing today, Saturday 17 November 2012.

4. The application for judicial review filed in this court on 16 November 2012 seeks a declaration that the applicants’ visa application was validly made.  The ground of the application is a ground that I am told from the bar table has now been raised in some 85 matters before this Court.  The ground is as follows:

   The application for a Protection Visa was not invalid because the applicant was not prevented by s 48A of the Migration Act 1958 from lodging a Protection Visa application.

   Particulars

   The application was expressly made in reliance only on the grounds in s 36(2)(aa) of the Act (the “complementary protection grounds”).  No previous application relying on these grounds has been made by the applicant.  An “application for a protection visa” is defined in  subsection 48A(2) as an application for a visa a criterion for which is mentioned in  paragraph 36(2)(a), (aa), (b) or (c).  The applicant has never before applied for a Protection Visa in reliance on the complementary protection grounds.  The correct interpretation of s 48A(2) is that it does not prevent an application being made now in reliance on the complementary protection grounds if a prior application was made and finalised before those grounds were available for consideration. 

5. In support of that application an affidavit from Asha De Silva, an employee of Parish Patience Solicitors, is relied upon, attaching a copy of the first page of an application by both applicants for what is described as a "Complimentary Protection Visa". It appears that this is intended to refer to a complementary protection visa under s.36(2)(aa) of the Migration Act 1958 (Cth). The letter of application is date stamped received by the Department on 15 November 2012.

6. Also attached to that affidavit is a letter dated 16 November 2012 from a delegate of the respondent to the applicants' solicitor and the applicants in detention advising that the application was not a valid application on the basis that:

   On 1 June 2010 you were refused a Protection (class XA) visa.  Under section 48A of the Act a person who has not left Australia since they were refused a protection visa is prevented from making a subsequent protection visa application.

7. The letter states that the visa application would be regarded as a “request” to the Minister to exercise his public interest power under s.48B of the Migration Act.

8. In these circumstances, the applicants ask the Court for an interlocutory injunction to, in effect, restrain their removal from Australia pending determination of the substantive application.  The principles in relation to an interlocutory injunction in circumstances such as the present are well known.  It suffices to refer to the discussion by Crennan J in Plaintiffs M168/10, M170/10, M172/10 and M174/10 v The Commonwealth; Plaintiffs M169/10, M171/10, M173/10 and M175/10 v Minister for Immigration and Citizenship (2011) 85 ALJR 790; (2011) 279 ALR 1; [2011] HCA 25 (at [15]-[17]) in relation to the requirements that the applicant has made out a prime facie case and the balance of convenience. I note that, as Crennan J pointed out (at [17]), it is not simply a matter of being satisfied that a claim is not frivolous or vexatious.

9. In this case there was no suggestion that the balance of convenience would not favour the applicants on the basis that if they do not succeed in their application they will be removed from Australia and not be in a position to pursue their application for review of the delegate's decision that their application was invalid or to make a further application.  In that respect I note the remarks of French J, as he then was, in WADX v Ministerfor Immigration & Multicultural & Indigenous Affairs [2003] FCA 552 about the balance between a prime facie case and the balance of convenience. As his Honour stated (at [9]):

   The question whether interlocutory relief should be granted depends upon consideration of two criteria, firstly whether there is a serious question to be tried and, secondly, where the balance of convenience lies. Those two questions are interdependent in the sense that the stronger the argument on the merits of the applicant's case the less the balance of convenience may need to swing in the applicant's favour. Where the balance of convenience is strongly in the applicant's favour, then the extent to which a serious question to be tried has to be shown will be varied accordingly.

10. The applicants rely primarily on the fact that, in what were said to be for all relevant purposes the same factual circumstances, an interim injunction was granted by Nicholls FM in SZGIZ v Minister for Immigration [2012] FMCA 969 restraining the Minister and his officers from removing the applicant from Australia pending further order of the Court. In that case, as in this case, the applicant had made a substantive application seeking review of a decision of a delegate of the Minister that an application for a protection visa was not valid. In that case, as in this case, the application for an injunction came before the Court on relatively short notice.

11. Mr Jones, for the applicants, contends that, consistent with principles of judicial comity (in particular as discussed by French J in Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75]-[76]), the Court should follow the decision of Nicholls FM unless of the view that his Honour was plainly wrong.

12. Counsel for the respondent did not argue that there was any factual distinction between the circumstances of this case and SZGIZ and accepted that the legal argument was relevantly the same.  However the respondent submitted that when considering whether or not to follow Nicholls FM in accordance with judicial comity, it was relevant to consider how the matter came before the Court and the specific findings that were made in that case. 

13. This argument seems to proceed on the basis that I should follow Nicholls FM unless I am persuaded that he was clearly wrong.  I intend in the present case to have regard to that principle, bearing in mind the discussion of the relevant factors by French J in Hicks. 

14. There is some force in the submission for the respondent that the formulation of the basis for the applicants’ contention in this case is not before the Court with the precision and detail that, in one sense, might have been expected.  The proceedings before Nicholls FM were over a month ago.  However, I bear in mind that it is not in dispute that there has not yet been a substantive hearing of any of the applications that raises this specific issue.  The Court has not had the assistance in these proceedings of detailed written submissions from either party in relation to the ground in the substantive application.  In circumstances where there has been no consideration of the issue in substantive proceedings I do not consider the time that has elapsed since the decision of Nicholls FM or the failure to provide a detailed elaboration of the basis for the substantive application raised is of the significance contended for by the respondents.  The ground that is raised remains the same. 

15. In relation to the specific findings of Nicholls FM, his Honour set out the grounds of the substantive application and the submission for the applicant that s.48A and s.36(2)(aa) of the Migration Act must be read in context and that, having regard to the High Court's approach in Plaintiff M47/2012 v Director General of Security [2012] HCA 46 and Plaintiff M61/2010E v The Commonwealth of Australia and Others; Plaintiff M69/2010 v The Commonwealthof Australia and Others (2010) 85 ALJR 133; [2010] HCA 41, that context includes Australia's obligations under international conventions on the basis that the Migration Act is part of a scheme that puts those obligations into effect. In this case the argument was put in similar terms, although at a level of generality.

16. In this case, as in SZGIZ, the respondent provided the Court with a copy of the Explanatory Memorandum in relation to the amendments to the Migration Act which introduced the complementary protection provisions. In both SZGIZ and this case, the Explanatory Memorandum was relied on, to some extent, as one of the arguments in support of the proposition that there were a number of reasons why there was not a serious question to be tried of the nature contended for in the substantive application.  In SZGIZ Nicholls FM addressed such arguments (at [10]-[14]) including the contention that s.36(2)(aa) of the Migration Act refers to a criterion in the singular so that if an application for a protection visa had been made with regard to one of the matters in one of the paragraphs in s.36(2), that would satisfy the definition of an application for a protection visa such that the bar on further application in s.48A of the Act would be imposed. In support of that proposition, reference was made by counsel for the respondent to authority in relation to circumstances where there had been applications either for a protection visa in one's own right and then as a member of the family unit or vice versa (see Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 in the Federal Court prior to amendment to the Migration Act and subsequent consideration by Raphael FM in SZQCH v Minister for Immigration [2011] FMCA 641 in relation to the validity of a protection visa application where an applicant had previously applied as part of her husband's family unit). Such cases are not precisely on all fours with this case, albeit they may provide some support for the respondent's contentions. The legislation has been amended and the present claim relies on a different aspect of s.48A and the nature of complementary protection.

17. The respondent also relied on a number of other arguments in support of the proposition that there was no serious question to be tried, including a contention that the language of s.48A(2) of the Migration Act was clear and that the use of the word "or" suggested a disjunctive, not a conjunctive sense, as well as a reference to the Explanatory Memorandum (in particular paragraph [105]) as indicating that the intention of Parliament was that the bar in s.48A would apply in circumstances such as the present. Such argument was also raised before Nicholls FM.

18. While there was no evidence before the Court in this case of documents such as the “Removal of Interest Brief” and the Ministerial Guidelines in relation to the contention before Nicholls FM that Australia's obligations under international conventions of relevance to the applicant had been considered in the context of the applicants’ application under s.417 of the Migration Act, a similar argument was put in this case on the basis that, as is apparent from the affidavit of Louise Buchanan affirmed on 17 November 2012, the applicants have previously made a s.417 application.

19. In SZGIZ Nicholls FM expressed a preliminary view on a plain reading of the legislation that he was not satisfied that the applicant's interpretation was the “accepted reading” in light of the reasons advanced by Mr Knowles for the respondent.  However his Honour had regard to the references to recent High Court authority and the High Court’s approach of reading and considering relevant legislation in light of, and as involving in its expression Australia’s international obligations and was of the view that, while it was unclear whether the applicant’s argument could ultimately succeed, a serious question to be tried had been established.

20. In considering whether I am satisfied that Nicholls FM was clearly wrong in this respect, I bear in mind that this is not a situation in which his Honour has made a concluded finding in relation to any matter.  Rather this was a determination in relation to whether there was a serious question to be tried in the substantive application.  The issue before the Court in relation to a serious question to be tried is a question of statutory construction.  I have considerable concern about whether it is appropriate, except in the clearest of cases, to determine competing substantive arguments in relation to the construction of legislation on a summary basis.  In one sense, this would be the practical effect of a decision to decline to grant an interlocutory injunction on the basis that Nicholls FM was clearly wrong, having regard to the effect on the applicants of such a decision.

21. I agree that, as Nicholls FM acknowledged, there are some considerable arguments contrary to the applicants’ argument.  Nonetheless, on all the material before the Court, there is an issue of construction that ought to be determined.  It is not, in my view, one that ought to be determined in a summary way in an application such as the present.  There are arguable issues of some complexity.  They ought to be properly argued at a final hearing, rather than in the context of proceedings such as the present. 

22. In these circumstances, as the issues have not yet been fully argued (and I make no criticism of the parties in this respect) and having regard to the nature of the proceedings that are presently before the Court, I am of the view that it is preferable that I do not express any concluded view on the merits of the competing arguments other than to state that I am not persuaded that the approach of Nicholls FM in SZGIZ is clearly wrong.  I have borne in mind the balance between the serious question to be tried and the balance of convenience in the sense considered by French J in WADX (at [9]). In this case the balance of convenience is strongly in favour of the applicants.

23. In all the circumstances, in my view it is appropriate to follow the approach of Nicholls FM in SZGIZ in the interests of judicial comity and to grant the injunction that the applicants seek.  The substantive matter is already in the docket of another federal magistrate and is listed for directions.  It is not appropriate that it be removed from the docket of that federal magistrate.  I will hear the parties in relation to the form of the orders.

24. In my view, for the reasons given by counsel for the respondent it is not appropriate that the respondent pay the costs of the interlocutory proceedings.  The costs of today should be costs in the cause.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  7 December 2012