SZTUO v Minister for Immigration

[2014] FCCA 104

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTUO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 104

Catchwords:
MIGRATION – Application for injunction to prevent deportation, whether substantive application raises an arguable case for judicial review, application dismissed.

Legislation:

Federal Circuit Court of Australia Act1999 (Cth), s.15
Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.41, 189, 417, 477

Australian Broadcasting Corporation v O'Neill (2005) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636
SZMFJ v Minister for Immigration & Anor [2009] FMCA 771

Applicant: SZTUO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 149 of 2014

Judgment of: Judge Manousaridis

Hearing date: 22 January 2014

Delivered at: Sydney

Delivered on: 23 January 2014

REPRESENTATION

The applicant in person.

Solicitors for the Respondents: Ms E Baggett
DLA Piper

ORDERS

1. The application for an order that the applicant not be removed from Australia is dismissed.

2. The applicant pay the first respondent’s costs of that application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 149 of 2014

SZTUO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. There is before the Court an urgent application for an order that the applicant not be removed from Australia. The urgency arises out of the applicant having received a notice from the Department of Immigration and Border Protection (Department) in the morning of 22 January 2014 that he will be removed from Australia on 24 January 2014.

2. The Court has power under s.15 of the Federal Circuit Court of Australia Act1999 (Cth) to grant, among other things, “interlocutory orders”. That includes the power courts of equity have traditionally exercised to grant injunctions to preserve the status quo pending the determination of a claim for a legal remedy.

3. The principles which guide the exercise of that power are well established: a court will grant an interlocutory injunction if it is satisfied that:[1]

   a)there “is a serious question to be tried or that the [applicant] 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 [applicant] will be held entitled to relief”;

   b)the applicant “will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted”; and

   c)the “balance of convenience favours the granting of an injunction”.

   [1] Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 (Mason ACJ).

4. The first of these three elements requires some comment. The strength of the case an applicant must demonstrate will vary with “the nature of the rights [the applicant] asserts and the practical consequences likely to flow from the order he seeks”.[2] One potential practical consequence that must be borne in mind is whether “the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application”.[3]

   [2] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622.

   [3] Australian Broadcasting Corporation v O'Neill (2005) 227 CLR 57 at 84 ([72]) (Gummow and Hayne JJ).

5. This consideration is particularly relevant in this case. If the applicant does not obtain the interlocutory injunction he seeks, his application for judicial review, as a practical matter, will be finally disposed of against him. He will be deported and probably will be unable to continue with his application for judicial review. In these circumstances, it is appropriate that I proceed on the basis that the standard which the applicant must meet in order to satisfy the Court he has a prima facie case is that which would withstand dismissal under r.44.12 of the Federal Circuit Court Rules 2001 (Cth). That is, the applicant will make out a prima facie case if he can show that he has raised an arguable case for the relief he claims. Accordingly, when, in these reasons, I use the expression “prima facie case” I intend to mean an “arguable case”.

6. Before I consider whether these principles are satisfied in this case, it will be necessary to set out the relevant background, and to deal with a preliminary matter that arose at the outset of the hearing yesterday.

Background

1. The applicant is a national of Iran. On 22 July 2011 the applicant, together with his wife, arrived in Australia holding a Subclass 573 Class TU Student Dependant Visa. On 17 February 2012 the applicant’s visa was cancelled.

2. On 27 November 2012 the applicant was sentenced to 12 months imprisonment for assault occasioning bodily harm and for breaching an apprehended violence order that his wife had taken out against the applicant. On 20 December 2012 the applicant was released on parole and was detained under s.189 of the Migration Act 1958 (Cth) (Act) at Villawood Immigration Detention Centre (VIDC).

3. On 21 December 2012 the applicant applied for a protection visa. The basis of his claim for protection was that he feared persecution because he had converted his religion from Islam to Christianity, because he was proselytising at VIDC, and because he had been involved in election-result protests in Iran in 2009. On 21 February 2013 a delegate of the first respondent (Minister) refused the application.

4. On 27 February 2013 the applicant applied to the second respondent (Tribunal) for a review of the delegate’s decision. On 26 August 2013 the Tribunal affirmed the delegate’s decision. The Tribunal was not satisfied the applicant genuinely converted to Christianity or intended to become Christian, and it was not so satisfied because of “the serious concerns the Tribunal [had] regarding the applicant’s evidence of his adoption, practice and knowledge of Christianity”.[4] The Tribunal was also not satisfied the applicant had discussions with Muslims in VIDC in which he advocated Christianity. It was not satisfied because of the Tribunal’s having found the applicant was not a genuine convert to Christianity, “his propensity to criticise others at the detention centre, and his propensity to provide false information”.[5] And the Tribunal rejected the applicant’s claim he had a well-founded fear because of his claimed political activities. The Tribunal found the applicant’s evidence on that score to be “internally contradictory, implausible and unreliable”.[6]

   [4] Tribunal’s reasons, [42]

   [5] Tribunal’s reasons, [45]

   [6] Tribunal’s reasons, [53]

5. On 5 November 2013 the applicant applied to the Minister under s.417 of the Migration Act 1958 (Cth) for the substitution by the Minister of the Tribunal’s decision with a decision that was more favourable to the applicant. In his application to the Minister, the applicant stated that, although he disagreed with a number of assertions the Tribunal made in its decision, he accepted “that under the current system these conclusions are now beyond challenge”. The applicant instead relied on what he claimed to be “new and relevant information to my claim”.

6. By letter dated 2 January 2014, the Department informed the applicant that on 18 December 2013 the Minister declined to consider exercising the power under s.417 of the Act.

7. On 22 January 2014 the applicant filed an application seeking judicial review of both the Tribunal’s decision affirming the delegate’s decision and the Minister’s decision not to exercise the power under s.417 of the Act.

Preliminary matter

1. At the commencement of the hearing, the Minister noted that the applicant filed his application after the 35 day period prescribed by s.477(1) of the Act for the making of an application to this Court for judicial review of the Tribunal’s decision; yet the applicant had made no application under s.477(2) of the Act to extend that period. Without the Court ordering an extension of the 35 day period, the Court would have no jurisdiction to hear the application in so far as it related to the Tribunal’s decision, and hence the applicant, for that reason alone, would be unable to show it had a prima facie claim for relief against the Tribunal.

2. At my invitation, and without objection from the Minister, the applicant completed in his handwriting and in the Farsi language an application for an extension of the 35 day period in which he set out the reasons why he considered it to be necessary in the interests of the administration of justice that the Court order an extension of time. The interpreter translated that document orally. The written application (which I marked as exhibit A) contained a number of assertions the Minister submitted were incorrect. I invited the applicant to verify in the witness box the truth of those assertions and permitted the solicitor for the Minister to cross-examine the applicant.

3. An unintended consequence of my permitting the matter to proceed in this way was to lay the foundation for the Minister to submit that it was open to the Court to deal on a final basis with the application for an extension of the 35 day period. I do not, however, propose to so proceed. Instead, I will proceed on the basis that, in order to obtain an interlocutory injunction in aid of his claim for relief against the Tribunal, the applicant must demonstrate that he has a prima facie case for an order under s.477(2) of the Act.

Prima facie case for relief against the Tribunal

1. To determine whether the applicant has a prima facie case for an order under s.477(2) of the Act, I must first identify the principles which govern the exercise of the power conferred by that subsection.

Principles governing exercise of power under s.477(2)

1. The power conferred by s.477(2) to extend the 35 day period prescribed by s.477(1) is discretionary; and the factors the Court should usually consider when exercising that discretion were identified by Nicholls FM (as his Honour then was) in SZMFJ v Minister for Immigration & Anor.[7] Although his Honour there identified five separate factors, these overlap; and the weight each carries relative to the others varies according to the circumstances of the case. In most cases, the determining factor in an application for an extension of time will be whether the applicant has a meritorious claim. I will therefore first consider whether the applicant has demonstrated he has a prima facie case that his application for review of the Tribunal’s decision has merit.

   [7] [2009] FMCA 771 at [44]

Merits of applicant’s claim against Tribunal

1. The application lists the following grounds on which he seeks to quash the Tribunal’s decision.

   3.I plead for an order to consider me for complementary protection since the threats against me back in Iran are never to be settled for the rest of my life.

   1.I have more evidence and enough information for a fair complementary protection review.

   2.Trying to send me back home will result in jeopardising my life, pushing me into life threatening situations being physically harmed, mentally tortured and emotionally unstabled [sic] for the rest of my life.

   3.The R.R.T. and the Honorable [sic] Minister deprived me of natural justice.

   4.The Honorable [sic] Minister made an error of law for not considering my submissions.

   5.In Iran, I have a continuing fear of arrest, torture or worse my death at the hands of the Iranian government and its security institutions.

   6.I have been identified as a friend of Christians and a convert to Christianity in Iran and my significant harm to my vulnerability are never to be settled for the rest of my life back in Iran.

   7.The situation had I had [sic] to go back home would be very critical and life threatening to myself; also I will be tortured for the rest of my life.

   8.The decisions made by the R.R.T. and the Honorable [sic] Minister, in my case, are wrong.

   9.There are escalating crimes including violence and intimidation throughout the country of Iran.

   10.The secondary [sic] respondent made an error of law by not considering evidences [sic] which were significant and critical to the decision under review.

   11.The secondary [sic] respondent and the Honorable [sic] Minister made an error of law by not considering me to live in safety and freedom here in Australia.

2. All but the second-mentioned ground 3, ground 4 (which is directed to the Minister alone) and ground 10 are contentions relating to the merits of the applicant’s claim for a protection visa. This Court does not have jurisdiction to deal with the merits of the Tribunal’s decision; the Court’s role is to determine whether the Tribunal made any jurisdictional error.

3. Ground 10 falls into a different category. A failure by the Tribunal to consider evidence may constitute jurisdictional error, at least in certain circumstances.[8] The difficulty with ground 10, however, is that it does not identify the evidence the applicant contends the Tribunal failed to consider.

   [8] See, for example, Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 (Robertson J)

4. At the hearing I asked the applicant what evidence he contended the Tribunal did not consider. Initially he said the Tribunal failed to consider documents about his conversion to Christianity. He then said the Tribunal failed to take into consideration all the documents from the certificate of conversion up to what will happen to the applicant if he were to return to his country. In response to my question whether the complaint in ground 10 was that the Tribunal did not accept evidence or that the Tribunal did not consider evidence, the applicant said that his complaint was that the Tribunal did not accept the evidence he provided and also it did not consider the documents he provided to the Tribunal. In answer to further questions, the applicant said that the only documents which he claims the Tribunal did not consider were documents which related to the political situation in Iran.

5. It is impossible from what the applicant said or from the material the applicant filed in support of his application, to identify what documents the Tribunal is said not to have considered. For that reason alone, I cannot conclude the applicant has raised a prima facie case that the Tribunal failed to consider evidence.

6. In any event, the reasons of the Tribunal suggest that information relating to the political situation in Iran that the applicant may have provided to the Tribunal could not have had a bearing on the grounds on which the Tribunal rejected the applicant’s claim for protection. The Tribunal accepted there was general agreement amongst sources that people who may be interrogated, placed under surveillance, or detained on their return to Iran “have a profile as a political activist or have been engaged in illegal activities, or been actively and publicly critical of the government while overseas”.[9] But the Tribunal found there “is nothing about the applicant’s profile that would bring him to the adverse attention of the Iranian authorities”.[10] And to the extent the material the applicant claimed he provided to the Tribunal related to the mistreatment in Iran of those who had abandoned the Muslim faith, that material, too, would have had no bearing on the Tribunal’s determination because the Tribunal did not accept that the applicant was a genuine convert to Christianity.

   [9] Tribunal’s reasons, [62]

   [10] Tribunal’s reasons, [63]

7. Stated another way, whatever the documents about the political situation in Iran may have shown, the Tribunal’s rejection of the applicant’s evidence of what he claimed he did meant there cannot have been any basis for linking the applicant to whatever difficulties the political information relating to Iran indicated was suffered by persons or classes of persons in Iran.

8. The second-mentioned ground 3 on its face potentially raises a claim of jurisdictional error. The ground, however, is not particularised and on its own raises no arguable claim that the Tribunal denied the applicant natural justice and hence committed jurisdictional error. I asked the applicant in what way the Tribunal deprived him of natural justice. The applicant said that he responded to questions asked of him by the Tribunal during fifteen hours over three hearings, he tried his best to prove and convince the Tribunal of the truth of the matter that related to his case, but the Tribunal did not believe him.

9. In my opinion, the second-mentioned ground 3 discloses no prima facie case that the Tribunal deprived the applicant of natural justice. In substance, it is a complaint that the Tribunal did not accept the evidence and arguments the applicant submitted to the Tribunal.

Other factors

1. The applicant, in his application for an extension of time, gave the following explanation for his delay in making the application:

   The reason I did not apply for the extension earlier is because I did not have any knowledge about this. I did not have any information about the deadline or the grace period. That is why I did not apply for the extension. The other reason is because I did not have access to a lawyer in order to represent me.

2. The Minister disputes this explanation and the applicant was cross-examined. It is inappropriate for me to make any findings about the truth of these assertions. I observe, however, that the applicant’s letter to the Minister dated 5 November 2013 seeking Ministerial Intervention makes it clear why the applicant did not make an application to this Court within the 35 day period. In that letter, the applicant stated:

   Subsequent to the decision of the RRT I sought further legal advice. As a result of the legal advice I have decided not to appeal to the Federal Circuit Court against the decision of the RRT.

3. In my opinion, this explanation weighs against ordering an extension of the 35 day period. The applicant has not claimed that the advice he received was erroneous or that he has now become aware of material facts or circumstances that did not exist or of whose existence he was unaware at the time he decided not to make an application to this Court which would require a revision of the advice the applicant received after the Tribunal made its decision. Although this weighs against ordering an extension of time, I do not regard it as determinative of the question of whether the applicant has shown a prima facie case for an extension of time.

4. Given my conclusion that the applicant has not demonstrated a prima facie case that he has a meritorious claim to have the Tribunal’s decision quashed, not granting an extension of the 35 day period will not prejudice the applicant because he is bound to fail in that application. On the other hand, to grant an extension will prejudice the Minister to the extent he will incur costs contesting an application that is bound to fail. Further, the interests of the public are likely to be served by not granting an extension because it is in the public interest that public resources are not devoted to contesting hopeless claims. 

Prima facie case for relief against the Minister

1. The applicant also seeks judicial review of the Minister’s declining to exercise his discretion under s.417 of the Act. The applicant relies on the same grounds as he relies in his claim in relation to the Tribunal’s decision.

2. The Minister submits the Court does not have jurisdiction to review a decision by the Minister not to exercise his discretion under s.417 of the Act. I do not consider it necessary to determine this application by accepting and applying this broad submission. Instead, I will consider whether the applicant has a prima facie case for relief against the Minister’s decision to not exercise his discretion.

1. As I note above, all but the second-mentioned ground 3, ground 4 and ground 10 of the grounds of review are contentions relating to the merits of the applicant’s claim for a protection visa and, therefore, disclose no arguable case for judicial review. The second-mentioned ground 3 does not disclose any prima facie case for relief against the Minister. The power conferred by s.417(1) of the Act is subject to s.417(7) of the Act which provides that the Minister is not under a duty to consider whether to exercise the power conferred by s.417(7) of the Act “whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances”. And the High Court has held that a request addressed to the Minister to exercise the discretion under s.417(1) of the Act does not give rise to a duty on the part of the Minister to afford procedural fairness to the person making the request.[11]

   [11] Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 654-655 ([50]) (French CJ and Kiefel JJ), 668 ([100]) (Gummow, Hayne, Crennan and Bell JJ), and 673 ([119]) (Heydon J).

2. Grounds 4 and 10 also do not disclose any prima facie case for relief. The asserted errors are a failure to consider the applicant’s claim and a failure to consider the evidence the applicant submitted in support of his claim. Subsection 417(7), however, expressly provides that the Minister is under no duty to consider a request that he exercise the power conferred by s.417(7) of the Act.

Conclusion and disposition

1. None of the grounds relied by the applicant raises an arguable case for the relief which he seeks. Having regard to this and the other factors which I have identified in these reasons, the applicant has not raised an arguable case for an order extending the 35 day period and hence a prima facie case for the remedies he seeks in his application against the Tribunal. Nor has the applicant demonstrated a prima facie case for relief in relation to the Minister’s decision to decline to consider exercising the power under s.417 of the Act. In these circumstances, questions of the balance of convenience do not arise[12] or, if they do arise, given the applicant has not demonstrated a prima facie case for any of the claims for relief he seeks, the balance of convenience favours the Court not granting an injunction.

   [12] “Unless the plaintiff shows that there is at least a serious question to be tried which if resolved in its favour would entitle it to final relief, then the requirements of justice as between the parties will dictate that an interlocutory injunction should be refused”, per McLelland J in Kolback Securities v Epoch Mining NL (1987) 8 NSWLR 533 at 535

2. Accordingly, I propose to dismiss the application for an order that the applicant not be removed from Australia, and to order that the applicant pay the Minister’s costs of that application.

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 23 January 2014