SZTTH v Minister for Immigration
[2016] FCCA 1221
•19 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTTH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1221 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – application in a case to reinstate – application in a case for injunctive relief – whether the applicant received notification of the prior hearing – whether the applicant was afforded procedural fairness – whether the applicant had a genuine hearing – real chance test – no jurisdictional error identified – no sound basis for the grant of an injunction – application in a case dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 476 Federal Circuit Court Rules 2001, r.13.03C(1)(c) |
| Cases cited: SZRFP v Minister for Immigration & Border Protection & Anor [2016] FCA 522 |
| Applicant: | SZTTH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3349 of 2014 |
| Judgment of: | Judge Street |
| Hearing date: | 19 May 2016 |
| Date of Last Submission: | 19 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2016 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the First Respondent: | Mr A Markus Australia Government Solicitors |
ORDERS
The application in a case dated 4 May 2016 is dismissed.
The application in a case dated 18 May 2016 is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $2500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3349 of 2014
| SZTTH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Court has before it two applications in a case within its jurisdiction under s.476 of the Migration Act 1958 (Cth). The first application in a case is for the reinstatement of the proceedings and the setting aside of the order made by Judge Nicholls on 22 February 2016 dismissing the proceedings for want of appearance by the applicant under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001. The second application in a case by the applicant is for an injunction to stop the applicant’s deportation.
At the commencement of the hearing, the Court explained to the applicant that it was considering hearing both applications in a case at the same time. The applicant indicated that she was agreeable to that course, as did the first respondent. The Court explained to the applicant that the issues that arise in relation to the reinstatement application require a satisfactory explanation for the applicant’s failure to appear and a sufficiently arguable case to warrant setting aside the orders made dismissing the proceedings. The Court explained to the applicant that a sufficiently arguable case required a sufficiently arguable legal error by the Tribunal. The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant.
The Court explained that to grant an injunction, the applicant had to establish a prima facie case and that this required legal error by the Tribunal or some other basis for the injunction. The applicant confirmed that she understood the nature of the case as explained by the Court.
The Court proceeded to identify that it would identify the evidence and then hear submissions from the applicant and then submissions from the first respondent and then submissions from the applicant in reply. The Court then proceeded to identify the evidence, including the court book and affidavit evidence that had been filed by the applicant. The solicitor for the first respondent, Mr Markus, sought to cross-examine the applicant in respect of the explanation for the failure to appear. The applicant confirmed the identification of her email address that was both on the substantive application and on the notice of address for service filed on 8 May 2015.
This is a case where the applicant, in response to an email from the solicitor for the first respondent notifying the applicant of the hearing date on 22 February 2016, sent back in Chinese what might be described as abuse to the solicitor acting for the first respondent. In the course of that abuse, the applicant identified that she was not lacking any mental capacity and referred to the content of the email notifying her of the address and the possibility of the appointment of a litigation guardian. It is clear that the applicant received notification of the hearing. The response of the applicant in Chinese went further and stated that the applicant refused to attend.
In the course of the applicant’s evidence, the applicant endeavoured to embellish that response and suggested it related to a refusal to attend an earlier hearing. I reject that evidence as untruthful. The applicant suggested that she had not received a further email notifying her of the hearing and foreshadowing that if the applicant failed to appear, the application would be dismissed with costs. That letter, dated 12 February 2016, was sent by email as well as by post to the applicant. That communication was sent to the applicant’s correct email address. I find that the applicant did receive that email. I find, on the applicant’s evidence that she deliberately refused to attend the hearing on 22 February.
The Court raised with the applicant in submissions that the Court may find that the applicant deliberately refused to attend. In response to the reason why the applicant said that that was not so, the applicant again repeated the statement that she would have refused to attend. The applicant suggested that the correspondence sent by the first respondent by email to her address had been fabricated. The only evidence that was fabricated was that of the applicant. I regard the applicant as not being a witness of truth. I find the applicant was notified of the hearing date and deliberately failed to attend.
Mr Markus, the solicitor for the first respondent, submitted that on that ground alone the application for reinstatement should be dismissed. I accept that submission. For the applicant to deliberately decide not to attend a hearing does not give rise to any discretionary basis upon which a Court should exercise a power in favour of the applicant to reinstate the proceedings. Nonetheless, the Court has also considered the merits of the application.
The grounds identified by the applicant in the application filed on 2 December 2014 are as follows:
On 8th October, 2014, I attend the hearing of RRT without a lawyer and own translator just by myself. Although I don't understand the law of Australia and my English is not good.But I know this hearing is illegal and very unfair to me. (I have been finding a lawyer, But nobody dare help me.)
Firstly, In the entire of hearing, the member of RRT (hereinafter referred to as member)had been guiding me to admit that myself is a mentally ill, He misled me to believe the worse incident is right that the individual immigration officials used the polices and someone of Catherine househ kidnapped me into the mental hospital, used the nurses who didn't know the truth to forced me to take the medicine against the doctor's diagnosis and my will. threatened to give me an injection. caused the serious harm at my body, psychological and real life.
Secondly, I pointed out many times in the hearing of RRT that the interpreter couldn't translate what I mean, also when an adjournment of hearing ,I went to the front desk of RRT and asked a young lady to change the interpreter or countermand the hearing for the interpreter couldn't truthfull translate what I say, But they ignored me.
Thirdly, in the decision and recording dishes,some words was removed, some words was altered.The two recording dishes are the evidences.
Fourthly, this member is not used the identity as a member of RRT to reviewed my case and did not stand different the point of the Tanya of DIAC to view my case and made a decision.
Fifth, The member always do not allowed me to speak in the most critical time and this interpreter always start translating my words when I did not finish my speaking then interrupted me to say the following important words. The“Hearing” is not he listen to my testimony, is that I listen to his words which he misled me.
Sixth, before the hearing began, this member has been stressed to me to speak loudly, otherwise the recording will be invalid, and the sound of he and interpreter are very low and very fast, no one can understand their saying, so the whole recording process is only my voice is clear. I could not hear what is the member said, what is the interpret translated.
Seventh, I cannot understand it that in the end of the hearing, the member thought that I meet the criterion of protection visa and promised me will give me a decision two or three weeks later.also the case has the fact that The Federal circuit court sent it back RRT and ordered the RRT review my case again for the decision of RRT was not made in accordance with law. However, why the member refused my case after more four weeks ?
The Specific of facts are as follows:
1,At the hearing, The member said that he was according the information provided by DIBP,which said that is right for they kidnapped and Illegal detention me into a mental hospital for 12 days and forced me to take medicine, threatening to give me an injection. He had been strongly led me to a misunderstanding -- admit that myself is mentally ill.
I said: It shows that the DIBP in the name of the Minister apologized to me for their wicked behaviors in the hearing of Federal Circuit Court on 14 August 2014,There is no sincerity.they are have no point in good faith. I am a normal person, They kidnapped me into the mental hospital and made the inhuman harm at me,It is the crime, They should take the responsibility for their behaviours.
I always believe that the government of Australia is very good and the Minister of DIBP never hurt me, Only a few officials damaged the image of the government and the Minister, I don't understand why the Minister need apologized to me. When the member knew the fact about the DIBP apologized to me, appeared very surprised, He then appeared to argue. somewhat confusingly, for he had nothing to saying, then he ordered an adjournment.
After fifteen minutes, The hearing was continuing, The member changed his words and said to me: according to hospital records, you are a mental illness.
I said to him: If you really have the “hospital records”, I can tell you that is fake records.Just think it, when every doctor diagnosed me and come to a conclusion, that I was normal, also told me that I can go home. But I still couldn't leave the hospital, and I was kept illegal detention in the hospital, someone could done such thing and the else things about me could be done by someone too. It's like when I was locked in the hospital 12 days, changed six interpreters, one tall, thin male interpreter scolded me in the independent small room of Adelaide Royal hospital for I doing things against Chinese government official, and told me :“nowadays Australia government officials have to do things to please this Chinese official. killing you is a very easy thing to do". When I was turn locked to the Glenside Mantel Hospital, one another stocky male interpreter in the hallway of Glenside Manta! Hospital said with his evil to me: “Why are you still peaceful and did not crazy after they did all these to you? you better stay here!” This shows that someone can do whatever they want.
I asked the member present the “hospital records”, he couldn't take anything out.It is proved that he used his fabrications in such serious hearing, just for mislead me.
I believe the diagnosis of doctors in Australia, in the 12 days that I was locked in the hospital, seven doctors and forty-three nurses were changed. In addition to two of them are fake doctors,in fact the two persons are the officials of government. the rest of the five doctors diagnosed me is normal and healthy, they all said that I should go back to my home. One young lady doctor specifically said to me: “You are normal, but I do not know why the government refused to let you go?” I have the hospital records, and I presented it in the hearing, It shows that I am normal.
Also, on 13 February 2012, I applied for a protection visa, within one week ,in the Immigration of Adelaide specified medical hospital, I had a full day of examination, physical examination to blood tests, as well as the doctor's chat, It showed I was health in every aspect, an older male doctors also praised my good health. For I usually exercised for two hours every day. And I never drinking and smoking. Why on the 8 November 2012,After I was interviewed with Tanya 7 days. I was became a mental illness? Also after the interview, Tanya was very friendly and wrote on the notification of interview her name and her home phone number and her availability, and told me only to use this way to contact her (TANYA: 0892488113, working Mon , Wed + Thurs), so if she thought that I am mentally ill, Will she give me her home number? Then she might be sicker than I am? Is it legitimate to have a questionable immigration officer judging my case?
The Member again with the one by one facts that I was bullied in Australia, to misled me to admit that myself is mentally ill, he thought I was too hurt in Australia. The fact that I hurt in Australia, he not only did not pay attention, but also used that to mislead me. I don't think he has the humanitarian spirit and kindness.
I said to him: Australia is a human and law country, it is a safe country, I fled here also have been so hurt, It explained that the claws of persecution stretched to here. And so on, you can imagine that how I was persecuted in China.
In China, some evil officials usually persecuted a kind person, Just kidnapped the good person into the mental hospital, injections and medicines by forced, destroyed the brain and dignity of good person, then this person really like a mentally ill. I was almost kidnapped to Chinese mental hospital, but fortunately I rushed fled out of china, Because in China, for avoid persecution, the first time I hid my mother's side, happened the intimidation that my mother's pet dog was poisoned to dead.(when in the different independent small room of Adelaide Royal hospital,One called doctor like a official of government questioned me: “why you didn't call the police?”I still want tell to him:In china,No police would care for a dead dog, If someone call the police for this reason, it will be seen as a joke or someone mentally handicapped);
when I got a tourist vias,I still didn't want to escape abroad, I escaped back to my hometown together with my mother again,Then more frightening thing had happened: the claw of Zhong bought my mother's favorite grandson, which he set a trap to kidnapped his father into a chinese mental hospital, The claw promised to give him five hundred thousand RMB and more one good job, he due to the influence of his bad character mother, he is ignorant of unemployed youth, then he went to the front of my mother, sisters and brothers and slander me and faced them answer to kidnapped me into the mental hospital. but all my family know that I am very normal and wisdom and did many good things to others, so he was scolded by my brothers and sisters, My sisters called him as a beast no conscience, hurt family for a little interests, for wanted something for nothing can always sold his soul to the devil, he will going to be punished soon, "what goes around comes around, it is not no karma, not the time." At that time,I was still very afraid him will be further utilized, especially called my former husband zhaori Yan (he is a professor of engineering and teaching in Chinese university, I divorced him for protect him) and told him: If the unbearable thing happened which I was kidnapped to mental hospital, Please come and save me in time. So that time, this persecution did not succeed , but I know the psychopathic, indecent official is never going to stop. I rushed fled to Australia. But the result that I still couldn't escape his carefully planned in South Australia.
When the member asked me if I fear the Zhong Shijian, I said to him: I have always despised him such a person, dirty soul and ruthless, for persecute a kindness woman, such plotting and scheming. I only refused to become his mistress, and refused to join and collude his one group of mistress to theft the state property, to milked the common people dry, how can persecuted me like such? He is always paranoid that I maybe go to the Central Commission for Discipline Inspection to denounce him, so he want killed me, but afraid himself to dead for he is the homicide,so he has been looking for a more subtle way of killing. Fortunately, I had inherited my mother's super strong and sane nervous system, otherwise if changed another woman may really be persecuted as a mental illness; But I dread the persecution of Zhong , My fear and dread are from my experiences of persecution.
The member also said:“Do you know what other acts of corruption of Zhong? What evidences do you have?” I said:. “These questions seem do not pertain to that I applied the protection of Australia?”
The member continues said: “Did you afraid that put you in the mental hospital again?” I was surprised and speechless
At the hearing, I also pointed out the member is misleading me. He defended that he had been misled me then started asking me some other questions.
Therefore this member to do all these, It is illegal and the hearing is illegal and unfair to me.
2, Before the hearing didn't start, I found the interpreter of RRT translated for me a few times before ,she not only did not truthfully translated my words, also made the conflicts between the Red Cross,, refugee legal servers and I. But the court clerk of hearing responded to me that the interpreter never translated for me.(Why she know that?) But the interpreter did not
deny that, also low head, do not let me saw her eyes and face, didn't answer me hello to her.
In the hearing, sometimes the interpreter didn't complete translated my words, sometimes
reverse translated I mean. for example: I told to the member: The Chinese official who persecuted me, Himself is the very corrupt official, but now he became to one official which catch corrupt officials. He is not only act as a protective umbrella of the underworld ,also he is an underworld kingpin, did whatever he want, stop at no evil. Obey him will prosper and against him will die. So he persecuted a person don't need by himself. The interpreter did not translated the last four sentences and they were deleted in the recording dishes too; I said the American claimed he was used by Zhong and only take Y5000 RMB to china to swindle my marriage, for humiliated me and he is impotence. then disappeared, this is the one of persecutions of Zhong, she translated that I gave him Y5000RMB and didn't translate what I mean; During the adjournment, When the member let me leave the hearing room, I wanted bring my evidences, informations and bag with me leave. but she translated into all the things of mine have to stay in the hearing room, I thought maybe this is the law of Australia and really let them stay in the hearing room for long time. And so on ......, These English words are very easy to understand , as well as more esoteric English I couldn't understand, she could translated what she wanted .
I asked the member stop the can not honestly conduct hearing, but he ignored me. Also in the time of an adjournment ,I reported to the front of desk staff of RRT, and told a young lady that the interpreter is not a eligible translator for she couldn't translate my words, and asked her change the interpreter or countermand the hearing. But she no time to ask me the details of the hearing, I was called to continue the hearing. I don't understand the law in Australia, I don't know if I refused to continue to attend the hearing will be considered contempt of court, so only continue to do their arrangements.
Then also occurred more interesting thing that when in the process of the hearing , I was speaking, The interpreter suddenly making required for her time is up, the member at that and abrupt end of the hearing.
In addition to the above these thing some are deleted, some were tampered and some are translation problem, also some small things was tampered too. As: The member said that the Chinese customs stoped me outbound. in fact the Chinese customs never stop me leaving. for I never do any thing illegal and unethical, The Zhong couldn't persecute me by any justifiably reason, Only with many dirty tricks persecuted me and let me rather dead than alive; I had been travel to Matera before I was persecuted .all the formalities are others to help me to did, I really did not know how to apply a visa in china. And I never had been to Cambodia; The DIBP in short time gave me the basic living expenses for $438.14/two weeks, It is not $438.14/week; The chinese official is the District secretary of Jing Wan District of Zhuhai, he is not the deputy secretary, when he start persecute me; etc ...
So the hearing is not a hearing, if the hearing is the member listen to my testimony, he should let me speak, and in fact this is what I've been listening to his misleading, he had only two purposes: mislead me, forced me to admit that myself is mentally ill and prevent the Australian government to doing protection obligations.
So the hearing was conducting under the unfair and unjust environment, it is not legitimate.
So the member of RRT ignored the law, ignored the Federal Circuit Court's order, used my disadvantaged that I don't understand the legal of Australia and I can not speaking English.After the illegal decision last year ,and openly planed the illegal hearing again. Thus I appeal to the Federal Circuit Court again is insignificance, because if the Federal Circuit Court sent the case back to the RRT again, and the RRT still refused it in illegal again, and then I still have to appeal
to the Federal Circuit court ...... so back and forth, in the end there will not be any result. It not only waste the resources of the Government of Australian ,consume my life, also detrimental to the image of the Government of Australian.
I need the protection of the Government of Australia, I need people to respect the fact that I was persecuted and my honest character. I need appeal to the Federal Court. Thank you very much!
Kind Regards
jihong Jie
21/11/2014
The applicant was given leave to amend the application, but no amended application was ever filed. The Tribunal found the applicant was a citizen of China and her claims are assessed against that country. The applicant was granted a Tourist visa (subclass 676) on 10 October 2011. The applicant arrived in Australia on 7 December 2011. The applicant lodged a protection visa on 13 February 2012. On 18 February 2013, the delegate refused the applicant’s application. The delegate found that none of the applicant’s claims for protection came within any of the recognised grounds of the Refugees’ Convention and the delegate found the applicant had embellished her claims of harassment and the delegate concluded that the applicant did not satisfy the complementary protection criteria.
On 26 February 2013 the applicant sought to a review of the delegate’s decision in the Tribunal. On 5 December 2013 a differently constituted Tribunal affirmed the delegate’s decision. On 7 January 2014 the applicant applied for review to the Federal Circuit Court of Australia and on 14 August 2014 the matter was remitted by a Judge of this Court for fresh hearing by the Tribunal. The applicant provided further material in support of her application before the Tribunal and appeared before the Tribunal on 8 October 2014 to give evidence and present arguments. The applicant claimed to fear persecutory harm in China at the hands of a corrupt official of the Chinese Community Party, being a person [X].
The applicant claims that [X] became enraged when she refused to become his mistress and assist him embezzling state-owned assets. The Tribunal identified that the applicant’s harm might be seen as arising from a political opinion opposed to corruption and by extension opposed to the Chinese Communist Party. The Tribunal also noted the applicant feared she would suffer harm for her past practice of Falun Gong in Australia. The Tribunal also considered whether the applicant may face harm as a result of her medical condition or for the reason of her membership of a particular social group consisting of Chinese citizens with a mental disorder. The Tribunal found that the applicant’s claims in relation to abuse at the hands of [X] was implausible and the Tribunal found that it was unable to accept her account of persecution as a whole was credible.
The Tribunal made reference to the applicant’s delay in departure from China and made reference to the applicant’s medical state. The Tribunal found that it was not satisfied that the applicant ever suffered harm at the hands of [X], his followers or others acting on his behalf either in China or Australia. The Tribunal found it was not satisfied there was a real chance the applicant would suffer persecution from these sources if she were returned to China. Insofar as the applicant suggested she might be targeted or otherwise harmed by unidentified persons, the Tribunal found it was unsatisfied that any events of that kind had occurred or that the applicant would be at risk of harm from such persons in the reasonable foreseeable future in China.
The Tribunal found that there is no more than a remote chance that the applicant’s past contact with Falun Gong practitioners and a brief period of Falun Gong practice would come to the attention of the Chinese authorities. The Tribunal was not satisfied that that limited exposure would result in the applicant being viewed as a Falun Gong practitioner such that she would suffer harm of any kind on her return to China.
The Tribunal turned to the issue of harm connected with the applicant’s mental disorder and found that it was not satisfied there was a real chance that the applicant would suffer harm by reason of her mental disorder. It was in those circumstances that the Tribunal found that there is not a real chance that the applicant would suffer harm arising from her mental disorder or from discrimination in employment in China.
The Tribunal indicated that, having considered the applicant’s claims individually and cumulatively, it was not satisfied there is a real chance the applicant suffers serious harm in China because of her political opinion, real or imputed, adverse to corrupt officials in the Chinese Community party, because of an attachment to Falun Gong religion or because of her membership of a particular social group consisting of Chinese citizens with mental health disorder.
The Tribunal noted that the applicant did not fear harm in China for any other reason, and no other reason was apparent on the face of the material. It was in those circumstances the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason should she return to China now or in the reasonably foreseeable future. The Tribunal was not satisfied that the applicant was a refugee.
The Tribunal considered whether the applicant met the criteria of complementary protection and found that it was not satisfied there were substantial grounds to believe that as a reasonably foreseeable consequence of the applicant being removed from Australia to China there would be a real risk she would suffer harm within the meaning of s.36(2)(aa) of the Migration Act 1958. It was in those circumstances the Tribunal found that the applicant did not meet the criteria under s.36(2) of the Migration Act.
The Tribunal went on to refer to the applicant being clearly intelligent and sophisticated, and her ability to articulate and respond to the hearing that was conducted by the Tribunal. The Tribunal member identified that the applicant clearly understood the procedural nature of the hearing and had no difficulty understanding the questions.
The Tribunal member noted that the applicant understood the nature of the review process, its consequences of her, was able to participate effectively in the hearing and had no difficulty in responding to questions and articulating her claims to fear harm in China.
The grounds annexed to the applicant’s application failed to identify any arguable jurisdictional error. The grounds are, in substance, an impermissible challenge to the adverse findings made by the Tribunal that were open. I am satisfied that the applicant had a genuine hearing.
Insofar as the applicant’s grounds seek to suggest the Tribunal misled the applicant, there is nothing to support that proposition. Further, insofar as the applicant’s grounds seek to suggest the Tribunal by asking questions was somehow biased, bias is as an allegation that must be clearly alleged and properly proved. The asking of the applicant questions by the Tribunal is not conduct by reason of which a lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.
To the extent that the applicant suggested there was a problem with the interpreter, there is no evidence adduced to support any translation errors. There is nothing in the applicant’s application or submissions that identify any error by the interpreter.
To the extent that the applicant makes assertions that the record before the Tribunal was altered, that proposition is baseless.
To the extent that the applicant’s application was seeking to suggest the Tribunal did not understand her case, the Tribunal’s decision is thorough and orthodox, and there is no arguable jurisdictional error revealed on that basis.
To the extent that the applicant suggests that she wasn’t allowed to speak at critical times, there’s no evidence to support such a proposition. Further, the content of the Tribunal’s reasons summarising at length what occurred at the hearing is inconsistent with such a proposition.
To the extent that the applicant suggests that she had a problem due to the volume of her voice, it is clear from the Tribunal when it gave its reasons that the Tribunal member was satisfied that the applicant was able to engage meaningful in the hearing, and there is no arguable jurisdictional error revealed on that basis.
To the extent that the applicant cavils with the adverse findings by the Tribunal, those findings were open and cannot be said to lack in evident and intelligible justification. Nothing in the applicant’s grounds identifies any arguable jurisdictional error.
From the bar table, the applicant maintained that she could not go back to China, that she was a refugee and maintained that she had been telling the truth. Nothing said by the applicant from the bar table identified any arguable jurisdictional error. I am satisfied the applicant understood the nature of the hearing before this Court and had a genuine opportunity to present her case.
I accept the submission of the first respondent in relation to the reinstatement application that there are no arguable grounds that justify setting aside the order made by Judge Nicholls on 22 February 2016 on the merits of the application. I am satisfied that the application fails to disclose any arguable case that would warrant the Court, in the interests of the administration of justice, setting aside the order made on 22 February 2016.
I should note that after the conclusion of the evidence, and halfway through the submissions by the applicant, the applicant raised that she wanted a lawyer. That request was treated by the Court as an application for an adjournment. The adjournment was opposed by the first respondent. No earlier application had been made for an adjournment. Nothing was said by the applicant to identify any basis upon which an adjournment could be said to be likely to give rise to the applicant obtaining legal representation. Further, in the circumstance of the present case, an adjournment would only unnecessarily add to the unlikely recoverable cost to the parties and utilise limited Court time. Further, the Court was not satisfied that there was any proper basis identified by the applicant to grant an adjournment, and it was for those reasons an adjournment was refused.
In the above circumstances, the Court proposes to make an order that the application in a case seeking to set aside the orders made by Judge Nicholls should be dismissed.
The applicant has a second application in a case before this Court which is for an injunction to restrain the applicant from being deported. In SZRFP v Minister for Immigration & Border Protection & Anor [2016] FCA 522, the learned Perry J identified the principles relating to interlocutory injunctive relief, and, in particular, referred to the fact that injunctive relief may be appropriate where the Minister is proposing to act on a decision infected by jurisdiction error or without the non-citizen’s claims being determined in respect of which the Court can preserve by injunction the subject matter of its jurisdiction.
In the present case, for the reasons I have given, it is clear that the decision of the Tribunal cannot be said to be infected by any jurisdictional error. No prima facie case of any jurisdictional error by the Tribunal has been made out. For the reasons given, the non-citizen’s claims have been determined, and there is no basis for the grant of any injunction.
I accept the first respondent’s submission that no prima facie case has been made out for the granting of any injunctive relief and the application in a case is dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 20 May 2016
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