SZSLM v Minister for Immigration
[2017] FCCA 824
•20 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSLM v MINISTER FOR IMMIGRATION | [2017] FCCA 824 |
| Catchwords: MIGRATION – Application in a Case seeking an interlocutory injunction against the applicant’s removal from Australia – whether the grounds of the substantive application raise an arguable case for the relief sought – no arguable case is raised – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 Migration Act 1958 (Cth), ss.91R, 476 |
| Cases cited: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 333 ALR 653 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 229 ALR 457 United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) |
| Applicant: | SZSLM |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 1378 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 19 April 2017 |
| Date of Last Submission: | 19 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Michael Jones of Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Ms J Davidson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application in a Case filed on 11 April 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1378 of 2015
| SZSLM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me an Application in a Case (“AIC”) seeking the following order:
“1. An injunction preventing the Respondent, his agents and servants from taking any action to remove the Applicant from Australia on 20 April 2017 or at any other time until further order of the Court.”
That application is supported by the affidavit of Michael Terence Jones, Solicitor, made on 11 April 2017, which annexes a “Notice of Intention to Remove From Australia” given to the applicant by officers of the Minister’s department. Also in evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
The applicant’s complaint is that he has a substantive application before the Court, seeking review of an International Treaties Obligation Assessment (“ITOA”) which should be heard at a final hearing. His removal from Australia now could frustrate that process.
The applicant is a citizen of Nigeria who first came to Australia on 18 September 2000. His various attempts to apply for visas to remain in Australia, and related Court proceedings, are set out in an affidavit made by the applicant on 20 December 2014, and which appears in the Court Book at CB 149 to CB 151. I note also the relevant background set out in the ITOA record (CB 202 to CB 205).
In January 2014, the applicant was one of a number of persons held in immigration detention whose personal details were disclosed on the Minister’s department’s website (“the data breach”). The applicant was one of a number of persons to receive a letter dated 12 March 2014, from the Secretary of the Minister’s department regarding “[u]nauthorised access to personal information” (see CB 136). In particular, and relevant to today's matter, I note that part of the letter says (CB 136.8):
“The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during those processes.”
As a result, the applicant received notification from the Minister’s department of the commencement of an ITOA. The letter was dated 12 January 2015 (CB 172 to CB 174). Australia’s obligations towards the applicant, in line with the ITOA, were the subject of the decision made by a relevant assessor on 15 April 2015, which found that none of the elements of harm feared by the applicant met the definition of serious harm and systematic and discriminatory conduct, and that the fear of harm did not amount to persecution as that term is defined in s.91R of the Migration Act 1958 (Cth) (“the Act”) (CB 200 to CB 240).
The assessor found that the applicant was not a refugee within the meaning of that term under article 1A of the Convention Relating to the Status of Refugees (“the Refugees Convention”), and that therefore Australia did not have non-refoulement obligations to the applicant under the Refugees Convention. The assessor also found that he was not satisfied that the applicant had a real chance of being subjected to significant harm as that term is defined in the Act, in the context of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) and the International Covenant on Civil and Political Rights (“ICCPR”).
As a result of this, the applicant filed an application in this Court under s.476 of the Act on 20 May 2015, seeking review of the decision of the assessor and the setting aside of the assessor’s findings. He was represented by a solicitor who had assisted the applicant during the ITOA process.
On 4 June 2015, orders were made by a Registrar of the Court for the progress of the applicant’s matter before the Court. Before the Court now, the applicant pressed that one of those orders made, with the consent of both parties, was that a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) was dispensed with. The Registrar ordered that the matter be set down for mention at a callover on 4 February 2016. In the meantime, on 24 July 2015, the applicant, in compliance with one of the orders made by the Registrar, filed an amended application setting out five grounds of review.
On 3 February 2016, the Registrar made further orders by consent in the following terms:
“1. The matter be adjourned pending determination of the Minister for Immigration and Border Protection’s applications for special leave to appeal, and any subsequent appeals, from the judgment given by the Federal Court of Australia in SZSSJ v Minister for Immigration and Border Protection [2015] FCA 125”.
The High Court’s judgment in that matter was handed down on 27 July 2016 (Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 333 ALR 653 (“SZSSJ”)).
The High Court's judgment in that matter was concerned with, and arose from, what I have described as the “data breach” matter in relation to an applicant, whose relevant circumstances are similar to the applicant in the matter before the Court now.
As mentioned earlier, following the “Notice of Intention to Remove From Australia” given to the applicant, the applicant filed this AIC, in effect, seeking that the Minister be prevented from removing him from Australia pending, what he now says, is the final resolution of the amended application that he had filed in May 2015.
I did not understand there to be any dispute between the parties that the relevant test for the Court for current purposes is that which was set out by the High Court in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 229 ALR 457 (“ABC v O’Neill”) (at [65]):
“The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continues:
‘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 second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.’
By using the phrase ‘prima facie case’, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:
‘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 he seeks.’”
The Court has had the advantage now of hearing from both the applicant’s solicitor and the Minister’s counsel, on the question of whether the order now sought by the applicant, staying his removal from Australia, should be made.
While the applicant made some reference to the grounds of the amended application, the essence of his submission was directed to the following two points.
First, that the balance of convenience favoured the applicant. The consequences for him if he were to be removed from Australia and return to his home country of Nigeria would be “serious”. The applicant argued that the “whole point” of his substantive application is that he has arguments that he “should be able to stay in Australia”. The applicant stated that in practical terms, he would not be able to pursue his case if he were in Nigeria, and that if he were sent back to Nigeria now, that would effectively be “the end of his case”. That is, his substantive matter before the Court.
The Minister acknowledged this argument regarding the applicant’s removal. However, the Minister further pointed to the fact that in the context of the consideration of the balance of convenience, there is “a responsibility on the [Minister’s] department in respect of administering the statutory scheme”. That is, the statutory compulsion to remove from Australia, as soon as reasonably practicable, a person who has no authority to remain, and who would not be at risk of refoulement.
This Court considered this question in AWX16 v Minister for Immigration & Anor [2016] FCCA 928 (“AWX16”) per Judge Lucev (at [54] – [57]), with particular reference to that decision at [56] as follows:
“The assessment of the public interest in this case must have regard to the terms of the Migration Act itself. Section 198 of the Migration Act sets out the circumstances in which a person must be removed. Relevantly for present purposes, under s.198(6) of the Migration Act a person detained must be removed as soon as practicable once any applications for visas that can be granted while the person is within the migration zone have been finally determined in circumstances where the visa cannot be granted. No residual discretion resides in the Executive to decline to remove a person if the statutory circumstances exist.”
The Minister noted that in AWX16, unlike the current case, the application was out of time. However, the Minister submitted, notwithstanding this difference, what was said in AWX16 about the public interest and the statutory obligation, is relevant to the current circumstances. That is, if an injunction were granted restraining the applicant’s removal pending resolution of his application, in circumstances as here, where there is no serious question to be tried, then this would be in conflict with the statutory requirements particularly as “no residual discretion resides in the Executive to decline to remove a person if the statutory circumstances exist” (AWX16 at [56]).
The Minister made further reference to the decision of Justice Jessup in ALY15 v Minister for Immigration and Border Protection [2017] FCA 281 (“ALY15”) where His Honour stated (at [12]):
“On the other hand, while not asserting that her client would suffer prejudice in the sense in which the word is often used in conventional civil litigation, counsel for the Minister relied on the public interest involved in the due administration of the Act, particularly where s 198(6) imposed an obligation on departmental officers to remove the appellants from Australia. There being no suggestion that this subsection was not applicable in the circumstances of the appellants, the grant of an interlocutory injunction would have the effect of requiring the Minister to direct his officers to proceed in defiance of it. These were significant discretionary considerations of which I took account.”
In my respectful view it is appropriate for this Court to similarly take those “significant discretionary considerations” into account.
The Minister submitted that in this case, His Honour made reference to the public interest in the due administration of the Act, and particularly that “the grant of the injunction would have the effect of requiring the Minister to direct his officers to proceed in defiance of it”. Further, and in considering the balance of convenience, this was a “significant discretionary consideration” of which His Honour took account (ALY15 at [12]), and as mentioned earlier, I accept that that is a relevant consideration and similarly proceed in a like fashion in this case.
The applicant’s second submission was that, should the Minister’s position be accepted, he would be denied procedural fairness by this Court. This was explained as follows. The applicant would be denied the opportunity of fully explaining and arguing the grounds of the amended application in circumstances where he had some expectation that a final hearing would take place in these proceedings. That is, because of orders made by the Registrar, a show cause hearing had been dispensed with (see [9] above), leaving the situation as one where the matter would proceed to a final hearing. Further, and by way of example, the applicant stated, with regards to ground five, that at this stage, he was not “prepared” to direct the Court’s attention to particular “places” in the ITOA record to support the ground.
Before the matter was listed for final hearing, and by orders made by consent, the parties agreed that the matter be stayed in this Court pending resolution of the issues relevant to this matter by the High Court in SZSSJ. The applicant’s argument was that while the High Court handed down judgment in July 2016, the Minister took no steps to reinstate the matter before this Court and to seek a final hearing date. Further, that the Minister, instead of seeking to have the matter relisted, is using the “threat” of removal, to “circumvent the normal procedures and the proper procedures of the Court”.
That is, the Minister moved to serve his “Notice of Intention to Remove from Australia” to the applicant, thus depriving him of the opportunity of being fully heard on his amended application in relation to the ITOA.
It must be said however, that what remained unexplained was why the applicant himself did not move to have the matter set down for a final hearing in the intervening period. As I said, the High Court handed down judgment in July 2016. The “Notice of Intention to Remove From Australia” was issued in April 2017. While it is the case that the Minister apparently took no action, it cannot be forgotten that the application made to this Court, and as amended, was not the Minister’s application, but the applicant’s application. The applicant did not, in my view, satisfactorily explain before the Court, why it was only the Minister’s obligation to press the applicant’s application before the Court.
As set out above, Registrars of the Court made orders for the conduct of this case. Relevantly I note, first, order 11 made on 4 June 2015, and then order 2 on 3 February 2016, these were that liberty was granted to the parties, that is, to both parties, to apply to the Court for further directions, and in the latter instance on five clear days’ notice. That facility was not only available to the Minister, but to the applicant as well.
It must be said that there was some difficulty in understanding the applicant’s position as to the strength, or otherwise, of the grounds of the amended application. While the applicant plainly understood, through his solicitor, the relevant test to be applied as set out in ABC v O’Neill, the applicant also submitted that the order sought by the AIC should be granted so that he may be given an opportunity to fully explain his grounds before the Court.
The applicant argued that given that the Registrar had made orders in anticipation of the final hearing, indicating that the applicant was to file written submissions 14 days before any such final hearing, the applicant had the expectation that the matter would proceed to a final hearing and that that would be the time, that is, the time of the making of the final submissions, that he would fully explain his case. For that reason, it appeared, and as was stated, that the applicant had not come prepared to argue or explain the basis of the grounds that he had put before the Court.
There is, of course, a distinction to be made between a prima facie case, or whether the grounds of the amended application raise an arguable case, and a case ultimately made out, such that the applicant is entitled to the substantive relief that he seeks. The applicant appeared to “conflate” the two different tests. In essence, the applicant’s argument was to restate the grounds of the amended application and simply state that they were arguable, and that the applicant should be entitled, or should be permitted, to argue the grounds at a final hearing.
The grounds of the amended application were drafted by a solicitor. It must be said that it is difficult to accept that the same solicitor was not prepared to make submissions on why the grounds at least raised an arguable case. There was no requirement today to establish that the grounds were made out.
The five grounds of the amended application are in the following terms:
“1. The conduct referred to in the first decision would place Australia in breach of its international obligations.
Particulars
Australia has international obligations, other than
non-refoulment obligations, which are not affected by s 197C of the Act and which would be breached if the Applicant were removed from Australia. These obligations have not been considered and are likely not to be considered in the course of the conduct referred to in the first decision.
2. The assessment was made in a way which denied procedural fairness to the Applicant.
Particulars
The Minister failed to consider the Applicant’s circumstances individually or in a transparent manner, but dealt with all of the individuals who were affected by the data breach by applying a ‘normal process’ which was the same for all.
3. The making of the ITOA was in breach of the natural justice bias rule, or alternatively a reasonable person may have apprehended that the person making the ITOA did not have an open mind.
Particulars
The Minister and his Department had an interest in the outcome of the ITOA because the Minister would have been embarrassed politically if it had been found that the leaking of personal data by his Department had placed protection visa applicants at risk. The Applicant’s request that the ITOA be made by an independent body was refused.
4. The ITOA failed to consider Australia’s international treaty obligations under the Convention on the Rights of the Child.
Particulars
The Applicant has a child who is an Australian citizen and whose interests under the Convention were not considered by the ITOA. There was no reason why the ITOA should have been restricted to only certain treaty obligations but not others.
5. The ITOA did not give proper consideration to the Applicant’s claims to be owed protection obligations by Australia.
Particulars
The ITOA accepted the findings of the fact of the Refugee Review Tribunal as being correct. Those findings were not binding on the ITOA and in assessing Australia’s obligations towards the Applicant the ITOA should have reached its own conclusions about the facts of the case.
[Errors in original.]
Before the Court, the applicant appeared to concede that grounds two and three did not, in light of what the High Court relevantly said in SZSSJ, raise an arguable case. That is, that they did not show sufficient likelihood of success to justify the “preservation of the status quo” (ABC v O’Neill at [65]) pending the hearing.
In essence grounds two and three assert a failure of procedural fairness on the part of the ITOA assessor.
With regards to ground two, I agree with the Minister that there is no suggestion in either the Full Federal Court judgment (SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125; (2015) 234 FCR 1) or the subsequent appeal to the High Court in SZSSJ, that the ITOA process, of itself, was somehow “insufficiently individualised” or otherwise demonstrated any other breach of the hearing rule. Second, that in the applicant’s case, there was “individualised consideration of the applicant’s claims” albeit “that international obligations of other kinds [that the applicant contends] were not considered”.
Ground three asserts a breach of the natural justice bias rule on the basis that “[t]he Minister and his Department had an interest in the outcome of the ITOA”. I again agree with the Minister, that ground three raises no arguable case in light of what the High Court said in SZSSJ at [84] as follows:
“Extraordinary as they are, the circumstances of the Data Breach do not warrant a departure from those ordinary requirements. That the Department was responsible for its occurrence is regrettable. That the Department was responsible for its occurrence nevertheless provides no foundation for apprehending that an officer of the Department tasked with assessing the consequences of the Data Breach for an individual applicant would not bring an impartial and unprejudiced mind to the conduct of an assessment. Nor does that circumstance provide a principled foundation for converting the ordinary requirement of procedural fairness that an affected person be given notice into a duty that the Department reveal ‘all that it knows’ about the Data Breach.”
This is also in circumstances where it was submitted in SZSSJ, that because the Minister’s department was responsible for the data breach, this gave rise to heightened procedural fairness obligations. There is also nothing further relied upon by the applicant in the ground in respect of the particular assessor. What remains is a generalised claim that the Minister’s department was responsible for the data breach, and this fact alone is capable of giving rise to a reasonable apprehension of bias, a claim that clearly cannot raise an arguable case for the relief sought by the applicant in light of SZSSJ.
Ground one asserts that the ITOA failed to consider the full range of Australia’s obligations in relation to the question of non-refoulement. This also appeared to be a similar argument to that raised by ground four of the amended application, although ground four had greater particularity. In essence, ground four asserts that the ITOA failed to consider Australia’s international treaty obligations under the Convention on the Rights of the Child.
I agree with the Minister that the stated purpose of the ITOA was plainly explained as being undertaken for the purpose of assessing
non-refoulement obligations that Australia had to the applicant under the Refugees Convention, the CAT and the ICCPR. The letter of 12 March 2014 sent to the applicant, from the then Secretary of the Minister’s Department, advised that some of the applicant’s personal information may have been accessed through the unintentional release of certain personal information, on the Minister’s department’s website (see CB 136).
The applicant was told that the Minister’s department would assess any implications for him personally as “part of its normal processes” (CB 136). On 14 July 2014, an officer of the Minister’s department wrote to the applicant providing him with an invitation to provide information regarding the unauthorised access to his personal information (CB 137 to CB 138). The applicant’s solicitor, who also continues to represent the applicant before the Court now, responded by letter dated 28 July 2014 on the applicant’s behalf (CB 139 to CB 142).
By letter dated 12 January 2015, sent by an officer of the Minister’s department, the applicant was notified of the commencement of the ITOA process (CB 172 to CB 174). The stated purpose of the ITOA is, in my view, made clear in that letter. In particular, the letter makes clear that the ITOA was commenced because some of the applicant’s personal information was included in a report released on the Minister’s department’s website, and that this may have enabled access to his personal information.
The letter stated (CB 172.6):
“Any protection claims you may have in relation to this breach of your personal data will now be assessed through this ITOA”.
The letter also stated (CB 172.9):
“This ITOA will consider Australia’s non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights and its Second Optional Protocol.”
That is, the Refugees Convention, the CAT and the ICCPR. In that context, the letter also stated (CB 173.3):
“This process will also consider new information, changes in your circumstances, or your country of nationality or former habitual residence since your previous protection claims were assessed.”
Even further, the letter stated (CB 173.4):
“You will receive procedural fairness during the ITOA process. In particular, this means that the departmental officer who assesses your claims for protection will ask you to comment on any adverse information, which is credible, relevant and significant to the decision. You will be given a reasonable opportunity to respond to that information before the ITOA is finalised.”
As was also made clear in the first paragraph of the ITOA record, the applicant’s circumstances were considered against those stated international obligations. In my view, the applicant has not now satisfactorily explained why the assessor was in error in not considering any other possible obligations beyond the non-refoulement obligations relevant to those international treaties, such that it could be said that some prima facie or arguable case arises.
It must be said, it would not have required a full and complete explanation of the applicant’s grounds to at least identify the source of any such legal obligation on the ITOA assessor, as the ground now contends. I do not agree with the applicant that he would be denied procedural fairness if the Court were to refuse to make the order sought by his AIC given that the mere identification of the source of any such obligations would have gone some way to establishing some prima facie or arguable case in ground one.
In relation to ground four, I agree with the Minister’s submissions, that while historically, in one of his applications for a visa, there is some reference to the applicant having fathered a child in Australia, there is no reference in any of his submissions to the assessor in relation to the ITOA process, that he made any claim in relation to any such child. In any event, the ITOA process, as was made clear in correspondence with the applicant and in the assessor’s ITOA record, was focused on the issue of non-refoulement.
I agree with the Minister there is no indication of jurisdictional error in the assessment, nor is there any apparent arguable case in the assessor not considering matters outside the stated scope of the ITOA. In this context, I have had regard to the judgment of Mortimer J in ALZ15 v Minister for Immigration and Border Protection [2017] FCA 279 (“ALZ15”), where Her Honour stated (at [42] – [43]):
“[42] Thus, as the Minister’s counsel correctly accepted, there were two tasks for the ITOA. The first was to determine whether there were any changes in the appellant’s circumstances since the determination of his protection claims which might give rise to protection obligations under either the Refugees Convention or the ICCPR or CAT. This was a broad assessment, not limited to any risks arising from the publication of his personal information. Second, the ITOA had to determine whether the publication of his personal information gave rise to any risks of harm should he return to Thailand, whether those risks arose because of a Convention reason or were risks of harm that reached the thresholds set by the ICCPR and CAT.
[43] The second task was clearly the principal focus of the ITOA, as it was a possible consequence of the publication of personal information of all those detainees affected by the disclosure on the Department’s website in February 2014. The first task was nonetheless a real one, but in the absence of any material change in circumstances for a given individual, was not likely to result in a favourable ITOA. The fact that there were two tasks should be borne in mind when considering the first ground of appeal. It is also possible that the first task might inform the second task, in the sense of contributing to the way the decision-maker assesses any risks of harm said to flow from the publication.”
In relation to grounds one and four, the Minister submitted as follows. First, “there is no jurisdictional error in a failure to consider obligations that were not non-refoulement obligations in the context of a process in which it was clear from the beginning … that what the ITOA was doing was assessing non-refoulement obligations”. Second, the ITOA was only ever intended to be undertaken with reference to the Refugees Convention, CAT and ICCPR. Third, the applicant has not identified the source of any such obligation to go beyond that stated purpose.
For the sake of completeness, I also note that the Minister also submitted that the reference to “new information” in the letter of 12 January 2015 notifying the applicant of the ITOA process, cannot be fairly read, in context, such that it would support the applicant’s contention now. On a plain reading of the letter, I agree with the Minister.
Finally, while a reference was made in one of the Tribunal decisions involving the applicant to the birth of a child, this was not part of the applicant’s claim to fear harm in relation to Nigeria. In any event, the ITOA was not directed to non-refoulement obligations under the Convention on the Right of the Child.
In all, no arguable case regarding general non-refoulement obligations is raised by these grounds.
Ground five asserts that the assessor fell into error by accepting the findings of the fact made by the Refugee Review Tribunal (“RRT”), in relation to previous claims for protection made by the applicant. The ground was explained as being that those findings were not binding on the ITOA of Australia’s obligations towards the applicant, and that the assessor, in considering the ITOA, should have reached his own conclusions about the fact of the case.
The applicant’s ground, as stated, does not raise an arguable case or a prima facie case for the substantive relief that the applicant seeks. This is because any plain, let alone a fair reading of the assessment record, reveals that while the assessor made reference to past findings made by the RRT, it cannot be said that the assessor expressed that he was bound by those findings, and therefore failed to make his own assessment.
The relevant part of the assessment record commences at item 10 dealing with “Findings of Fact (Credibility)” regarding the applicant’s claims, and subheading “Previously assessed claims for protection”, which I should note is only one of a number of subheadings under the general heading of “Findings of Fact (Credibility)” (CB 213.3). There are also further subheadings of “Imputed sexuality”, “Threats from criminal elements”, “Fear of harm from foreign security and intelligence agencies”, “Fear of harm from paramilitaries, religious fundamentalists including Boko Haram”, and “Other matters”.
The assessor notes that the applicant’s prior claims to protection were assessed during a protection visa process, and that the findings of the RRT “were upheld at judicial review” (CB 213.5). The assessor then sets out some of the history relating to the applicant’s claims.
The assessor then dealt with the applicant’s claims in two categories. First, dealing with claims that the applicant feared harm because he was homosexual or bisexual, or would be perceived as such, if he were to return to Nigeria. The assessor rejected the applicant’s assertion as not being credible and gave reasons for this finding (CB 215.9).
As to the other claims of past harm in Nigeria, the assessor noted that the applicant provided “no new information or reasons to reconsider the findings of the tribunal” (CB 214.3). It is to be remembered that the applicant was invited by the assessor to provide any “new information” relevant to his claims to fear harm by letter dated 12 January 2015 (CB 172 to CB 174). The assessor stated that he did not do so. Further, the assessor went on to state that (at CB 214.4):
“I accept the past findings of the RRT as valid and effective. For the purpose of clarity, I find the claimant has not had a personal dispute with the Governor of Lagos, was not convicted of murder and sentenced to life imprisonment and did not escape from Kirikiri prison.”
It may be that at first glance, the words “accept” and “valid and effective” used by the assessor may give some pause for thought. However, and as the Minister submits, similar wording was considered in ALZ15 (at [48] – [51]) by Mortimer J, there also citing the decision of Markovic J in AKD15 v Minister for Immigration and Border Protection [2017] FCA 166.
I am satisfied that the assessor’s reference here should be seen as to respectfully draw from what the Court said in ALZ15 (at [49]), “a shorthand for saying there was no basis for her [the assessor] to revisit those findings on their merits since the underlying sub-stratum of fact was not asserted to have changed.” In that light, ground five also does not raise an arguable case for the relief that the applicant seeks.
The applicant’s solicitor also argued that this is not a Court of “pleadings”. Therefore, the applicant should not now be held strictly to what was set out in the grounds of the amended application. It is not necessary in my view to engage in any arguments about “strict pleadings”. In essence, the applicant has had the opportunity to amend his substantive application to the Court, and did so on 24 July 2015.
What was required for current purposes was for the applicant to give, through his solicitor, some explanation of those stated grounds such as to establish that some arguable, or prima facie case could be made out. The applicant was not required to make out those grounds. This is the distinction which appears not to have been grasped by the applicant in the current matter.
Preparation for a final hearing would plainly have required more from the applicant than what is expected for today’s purposes. That is, he would have been required to make out the grounds of the application. That was not required of him today. Some simple explanation of the basis of the grounds beyond the mere re-stating of the words of the grounds was not an unreasonable expectation on the applicant today.
I should also note for the sake of completeness, that before the Court, the applicant’s solicitor made references to pressure of work, and the consequent difficulty in preparing for hearings of applications. I accept that. There is no reason not to accept it. But, nonetheless, the applicant, in my view, has had sufficient time to seek to further amend his substantive application or to press for the final hearing of the amended application.
The issue now is whether there is an arguable case such that the relief the applicant seeks should be granted. I cannot see that the stated grounds raise any such arguable case. As I said earlier, on the balance of convenience, while there are plainly arguments of strength on both sides, ultimately, what I am persuaded by here today, is that the grounds of the amended application do not reveal the requisite arguable case such that the AIC should be granted. I will make the appropriate order.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 7 July 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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